Fair use guidance on including a YouTube video clip in a noncommercial, web-published presentation

One of our presenters for K-12 Online has raised some good questions regarding fair use in an email to me. Their question is whether or not including a 30 second video clip from a past episode of a syndicated television program (now off the air but still covered by U.S. copyright law) would qualify as fair use and be OK to include in their presentation for the conference. Here are my thoughts on this question.

I can’t give you a definitive legal opinion, but here are some ideas. This is from:
http://www.wtvi.com/teks/02_03_articles/copyright.html

There are 4 different factors to consider in determining fair use under US copyright law:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work

The degree to which you offer a critique of the work and the degree to which your use of the work is “transformative” and results in a substantively different work as a result of your inclusion of the clip are big parts of this fair use determination. The facts that you are creating a noncommercial, educational presentation and just using a short clip support an opinion that your use would qualify as “fair use.”

If you are going to (as you say) just use a 30 second clip from this, and tie together the clip into your presentation by evaluating it in some way and creating a final work that is transformatively different than the original work, it is likely your inclusion of this clip would qualify as fair use. Just playing the clip and not saying anything about it before or after– and integrating it into your presentation may not qualify as fair use. Utilizing a short portion and using it thoughtfully to make a point and create a substantively different media product than the video is/was is more likely to qualify as fair use.

I have not seen your presentation (I’m guessing it is not complete) but based on what you’ve said, if you’re creating a presentation that meets the requirements above I think it should qualify as fair use. If you are still not completely comfortable with your use of the clip, you might consider the following suggestion:

Submit your presentation with the included clip, being sure to include analysis and some critique/discussion of it before and/or after playing it. If K12Online (or you personally) receive a request from the copyright owner of the [SHOW TITLE] program after your presentation is published to take the video down because of an asserted copyright violation, then you could encode a different version that does not include the clip and we could replace your presentation on the website. If that would happen, however, I would recommend we contact the EFF for a free legal opinion and see what we want to do based on that opinion BEFORE it is taken down and changed.

I hope these ideas are helpful. I am CCing both Dr. Renee Hobbs and Dr. Joyce Valenza to see if they have other suggestions to share. Good luck with your presentation, I’m looking forward to seeing the final version. These questions you raise are good ones and I am sure others are wondering about similar issues. On Nov 11 (after K12Online08 is over so it won’t be out to help with this situation, unfortunately) the Media Education Lab at Temple University is announcing a new publication regarding fair use that specifically focuses on the “transformative” nature of works qualifying as “fair use.” You might take a look at the “Documentary Filmmakers’ Statement of Best Practices in Fair Use” for additional guidance. From what I understand that document has informed the work Dr Hobbs and others at Temple have done on fair use as it applies to educators and students in projects like yours:
http://www.centerforsocialmedia.org/resources/fair_use/

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