In 2011 I participated in The 48 Hour Film Project

In 2011 I participated in The 48 Hour Film Project

To this day it remains the most challenging and one of the most rewarding filmmaking experiences of my life. One of the rules of the festival was making sure you had clearances for any copyrighted material in your film. Including paintings and photographs.

“But Ron, didn’t you allude to the fact that incidental appearances of copyrights or trademarks might be okay?” That is true. But 1) these weren’t documentaries we’re making, they were narrative pieces of fiction. And 2) the 48HFP distributes the winning films online and internationally. So they’re covering themselves. And in case you’re wondering, no, my film didn’t win. We missed the deadline by 30 minutes because needed to re-export the project.

Stock photos and footage

But it’s just not the use of photographs or paintings as incidental appearances you need to be mindful of. If you’re using them in the video (i.e. you’re dropping the image on your NLE timeline), you need to make sure you have clearances. There are many resources for legally licensing stock photos and footage (e.g. Pond5, Getty Images, Video Blocks, and Shutterstock, to name a few).

There are also plenty of resources to obtain free stock imagery. Sites like Unsplash and StockSnap have utilized Creative Commons Zero licenses. This is the most permissive of the creative commons licenses (see below for the full description of Creative Commons). It’s essentially just one “notch” below the public domain. A CC0 license allows you to use the copyrighted work any way you want. Without the need to even credit the copyright holder. I’ve frequently used Pixabay to find free stock video footage. (Keep in mind, you get what you pay for.)

Photo by Benjamin Combs on Unsplash (even though we are not required to credit photographers when using images from sites like Unsplash, we like to give props when possible).

Movie and television clips

As I mentioned above, I used clips from various movies and TV shows for my short film documentary. Perhaps the most common area where you might see this example of fair use is in video essays. Essayists like Tony Zhou (“Every Frame a Painting”) and Evan Puschak (“Nerdwriter”) garner millions of views from their respective video essays. And they all include movie clips, photographs, television clips, and in some cases, even music.

Yet, YouTube has not invoked DMCA rules to take their videos down. And, on top of that, these guys are making thousands of dollars per video (as of this writing, Tony’s Patreon campaign for “Every Frame a Painting” yields over $7,700 per video).

One of the tests for fair use adherence is whether the copyrighted material is used for commercial gain. It’s clear here that these guys have a commercial benefit from their use. Evan not only makes a few thousand dollars per video from his Patreon, but he also gets corporate sponsorship from companies like Squarespace.

In essence

But video essays are the quintessential example of fair use in terms of both education and critical commentary. That is the essence of a video essay. Based on the transformative use, the amount of the copyrighted material used, and the fact that this use is not hurting the commercial viability of the copyright holders, they’re protected.

Now, I cannot say for 100% certain those guys don’t actually have licenses with all parties whose copyrighted works are being used. But, I’m going to go out on a limb and say that a guy from Philly making videos in his living room and earning $3,000 per video has not paid licensing fees to a dozen or so different conglomerates.