Legal Question in Intellectual Property in New York

''Fair use'' under copyright law

Would using actual commercial advertising copy(text) with actual product names for exercises in a for-profit acting tutorial video be considered ''fair use'' under copyright law or would I need to obtain permission from the advertising agency? Also, would using samples of actual radio and TV commercials be considered ''fair use'' as well?

Asked on 5/30/02, 11:13 pm

1 Answer from Attorneys

Bradley Rosen Bradley C. Rosen, Esq
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Re: ''Fair use'' under copyright law

Determining whether a usage falls under the "fair use" exception is both a quantitative as well as qualitative analysis. So the answer to your question, based upon the information that you have provided, is - it depends.

For example, suppose that the Mona Lisa is a copyrighted work. If I used a 3" x 3" portion of it in another work, would that be an infringement? If the patch I used was a corner, consisting of nothing more than black paint, then the answer would probably be no. But if I used a patch that was the smile, then the answer is yes, that would be an infringement.

Also, the 4 factors listed under the fair use statute are not a comprehensive list of all the factors. You do, however, present a scenario that has 2 of the listed criteria in conflict. On one hand, the use is for profit. On the other hand, the use is for an educational purpose. Without reviewing both the source material as well as the usage, it is impossible to tell where your use falls.

What the courts tend to look for is whether the usage usurps any economic benefit that should have flown to the original copyright holder - does the new use take away a market opportunity? My suggestion is to consult an attorney to see if you do need to license the source material. If you do, the attorney can handle the negotiations and will make sure that the appropriate documentation (including your copyright forms) is generated.

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5/31/02, 8:07 am

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