Re-Editing Movies

[quincy]

I'm thinking of starting up a Youtube channel and posting re-edited scenes of popular movies. This isn't a new idea, it's been done by lots of people and as a generic term it's called "fanedit". The difference is I would be making these edits of popular and older movies on a weekly basis and to my knowledge, there is no structured Youtube channel that does this. I'm wondering how ok I am on fair-use for this content. I've included two examples below of the type of video I would be making.

The first is from Fight Club (1999) which uses content from Fight Club, The Italian Job (2003), and Taken (2008), as well as audio from freesound.org which I am able to use freely. ...

The second is from The Notebook (2004) and it only features content from that film both in audio and video. ...


My questions are as follows:

1. Am I legally on solid ground to use these edits as original work? Kind of like how a musician or DJ might remix a song and then call it their own.

2. Would I have a copyright on these videos?

3. Would I be able to monetize these videos?

If you get the permission of the copyright holders, you would be on solid legal ground. That is (generally) what musicians/DJs who remix songs will do.

There are fair uses of copyrighted material, but it is important to remember that fair use is a DEFENSE to copyright infringement and not permission to use copyrighted material. In other words, if you are sued by the copyright holder, in court you can claim "fair use" as a way to defend yourself and your unauthorized use of another's copyrighted work. A court will then decide if you have infringed on the author's rights.

Fair use factors that a court considers: the purpose and character of the use (e.g., whether it was a commercial use or educational use), the nature of the copyrighted work (e.g., research material, entertainment), the amount or substantiality of the work used to the work as a whole
(e.g., two lines of a poem can be infringing, the last two lines of a novel can be infringing), and the effect of the use on the value of or market for the copyrighted work.

Some material created by fan editors CAN be a fair use of the copyrighted material that has been edited. Fan edits can potentially be seen as "transformative" or a parody of the original works.

Some material created by fan editors can also NOT be a fair use of the edited copyright-protected material. And it can not only infringe on the copyrights in the works, but also on trademark rights. The fan edits could be viewed as derivatives - and creating derivatives is the exclusive right of the copyright holder - and trademark use cannot confuse consumers as to the origin of the work or dilute the value of the original.

It is essentially up to the copyright and/or trademark holder to decide whether a use infringes on their rights or not. Copyright/trademark holders HAVE taken exception to the uses of their rights-protected material and sued the creators of fan-edits in the past.

Before you risk a lawsuit by publishing your videos online, I recommend you have your proposed uses of copyrighted material and your use of trademarks personally reviewed by an attorney in your area.

 

[tedmihu]

Well that's disappointing...

 

[quincy]

Well that's disappointing...

I am sure it is.

 

[tedmihu]

I just think that there is a way to do this. Screenjunkies and Smosh Games both do this with Honest Movie Trailers and Honest Game Trailers and both of those are using footage from the IP and potentially affecting sales of the material since they rarely have something good to say about what they are making a trailer for.

 

[quincy]

I just think that there is a way to do this. Screenjunkies and Smosh Games both do this with Honest Movie Trailers and Honest Game Trailers and both of those are using footage from the IP and potentially affecting sales of the material since they rarely have something good to say about what they are making a trailer for.

Well, there IS a way to do it. Unfortunately the way many of the fan-editors are doing it is illegal.

In order to use the films, or the trailers for the films, there would have to be a circumvention of the copyright protection. Reproducing or making a copy of a copyrighted work is an exclusive right of the copyright holder. Distributing a film is one of the exclusive rights of the copyright holder. Altering or modifying of the film content can be found to be a derivative work, and making derivatives is an exclusive right of the copyright holder. To do any of this without permission of the copyright holder is infringing on their rights.

Using a filmmaker's trademark without permission and in a way that confuses consumers as to the origin of the work or that dilutes the value of the work or that trades off the reputation of the mark is infringement.

That said, some filmmakers are not going to take the time or go to the expense of suing an infringer. Instead, they tend to file DMCA takedown notices, advising the site that is carrying the work that the work is infringing on their rights. The site will remove the infringing material upon notification (or risk being named as a co-infringer in a lawsuit).

In addition, and as I said, there ARE ways to use copyrighted material without infringing on rights. Commenting or criticizing a work and taking small clips to illustrate the critique can be a fair use (but how small is small enough is a question for the courts to answer if the user of the copyrighted work is sued). Using copyrighted works and adding to them in a way that transforms the work and adds new meaning to it could be seen as a fair use (this is what appropriation artists do - although it is important to note that appropriation artists are frequently sued).

The best way to use any rights-protected material, however, is to get the permission from the copyright holder in advance of your use. With the copyright holder's authorization, you can make your fan-edit and not worry about a lawsuit bankrupting you.

 

[tedmihu]

Thank you, that was very helpful Quincy!

Obviously it's impossible for me to get permission from big studios for every edit I do. Even if by some miracle I got a yes, it would likely take weeks if not months, so that's just not an option right now.

As far as the appropriation approach, that might be a valid point. Right now I'm just trying to build a solid case so that I'm able to at least dispute copyright infringement claims on Youtube. I'm never going to let it get to court because ultimately these points added together amount to very little legally, and I could never take on a studio's legal team.

So far from my research, talking with a few people and based on what you've said, these are some points in my defence:

- I'm only using a small portion of the entire work
- The work is edited and thus receives transformative value
- My edit is a parody/satire/criticism of the original work

I understand that these are only weak defence points, and not permission to go ahead, and I am still talking to a few people with experience in the field. For now, the above is what I've gathered.

 

[quincy]

Thank you, that was very helpful Quincy!

Obviously it's impossible for me to get permission from big studios for every edit I do. Even if by some miracle I got a yes, it would likely take weeks if not months, so that's just not an option right now.

As far as the appropriation approach, that might be a valid point. Right now I'm just trying to build a solid case so that I'm able to at least dispute copyright infringement claims on Youtube. I'm never going to let it get to court because ultimately these points added together amount to very little legally, and I could never take on a studio's legal team.

So far from my research, talking with a few people and based on what you've said, these are some points in my defence:

- I'm only using a small portion of the entire work
- The work is edited and thus receives transformative value
- My edit is a parody/satire/criticism of the original work

I understand that these are only weak defence points, and not permission to go ahead, and I am still talking to a few people with experience in the field. For now, the above is what I've gathered.

YouTube can remove whatever they want, with or without a DMCA takedown notice, so even if you have a "solid case" (and there is really no such thing ), that does not mean YouTube has to return your video to its place online.

It is good that you understand trying to fight a studio's legal team is financially impossible for most people. If you challenge a DMCA takedown notice, however, a studio's next moves are either to allow the infringement or file suit. You could, in other words, find yourself having to expend money to defend against a lawsuit whether you want to or not.

Creating appropriation art, a transformative work or a parody/satire will be difficult for most individuals to do successfully. That is why even skilled appropriation artists, those who attempt to add new value to an old work, and those who try to parody copyrighted works often fail in their attempts and lose in court. These can be costly failures.

I recommend you have your fan-edits reviewed personally by an IP attorney in your area prior to publication. While a DMCA takedown notice can be relatively painless, a lawsuit is not. The attorney can help you avoid having a legal action filed against you (as much as anyone can avoid having a legal action filed against them).

Here is a link that gives you access to an excellent video on fair use, published by Stanford: http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale

Good luck, tedmihu.