Using Copyrighted and Public Domain Video Clips

There are many reasons why a broadcaster might want to use film clips from other people’s productions as part of a video stream. It can be a broadcaster critiquing relevant clips from another film or maybe newsreel footage that clearly adds much to a historical video. There can be an extensive number of reasons for this. Video clips can be merged into a live stream or incorporated as part of an on-demand video. In all cases, though, a broadcaster needs to consider video copyright issues and potential infringement of intellectual property rights.

Video copyright falls into three general categories. The first is public domain footage, which belong to no one. A broadcaster can use clips from free public-domain videos without copyright concerns. The second category is videos published under a Creative Commons license, meaning that they are copyrighted but offered for limited use (with specifications dependent on the particular Creative Commons license offered) to other broadcasters. The third category is a fully copyrighted film with all rights reserved. Broadcasters have very limited “fair use” of such material without permission from the copyright owner.

Carefully consider your video clip usage rights before putting copyrighted and public-domain video clips from other producers up on streaming platforms. Find out how you can acquire the permissions you need, if any.

Table of Contents

• Public Domain Footage
• Creative Commons
• Fair Use
• Use of Copyrighted Material
• Conclusion

There are many reasons why a broadcaster might want to use film clips from other people’s production as part of a video stream. A broadcaster might be doing a critique of another film — obviously clips from that film would be appropriate. Newsreel footage clearly adds much to a historical video. There are many other possible reasons as well. Video clips can be merged into a live stream, or incorporated as part of an on-demand video. In all cases, though, a broadcaster needs to consider video copyright issues and potential infringement of intellectual property rights.

Videos fall into three general categories with respect to copyright. Public domain video clips belong to no one, or to the public. A broadcaster can use clips from public domain films at will, without concern for copyright. Some video is published under a Creative Commons license, which means that it is copyrighted but offered for limited use (with specifications dependent on the particular creative commons license offered) to other broadcasters. The third category is a fully copyrighted film with all rights reserved. Only very limited “fair use” can be made of such material without permission from the copyright owner.

Before putting video clips from other producers up on your streaming platforms, consider carefully what rights you have to do that, and how you can acquire the permissions you need if any.

Public Domain Video

A film is considered to be public domain footage if proper copyright notice was not included in the film at release or if the copyright has expired. Under U.S. law, a copyright notice must include the word “copyright,” or the copyright symbol, the name of the copyright holder, and the year, and be included in the first section of the video with the opening credits. Note that only films released prior to 1989 must have a copyright notice to be protected. Videos released after that don’t lose copyright protection for lack of copyright notice, although including one is still a good idea to avoid confusion.

The copyright expiration for videos in the United States persists until 70 years after the death of the film’s creator (the original copyright holder). Other countries have different laws regarding the expiration of copyright, but the U.S. generally has the longest copyright protection. Therefore, if a film is in the public domain in the United States, chances are it will be in other countries as well. Also, under U.S. law, no video released by the U.S. government receives copyright protection, so all such films are in the public domain.

Only very old films and government works are in the public domain, so you can search the government copyright-free video archives in the National Archives and Records Administration files. The Public Domain Project is a good source for non-government films in the public domain, and it includes thousands of historical films and media files.

Creative Commons

A Creative Commons licensing for video content does not mean using a video clip for any purpose if it were in the public domain. Instead, a license for Creative Commons video clips allows others to make limited use of the material, with the restrictions specified in the type of license. Always check what type of license is offered and what restrictions apply before choosing a video clip. 

Many Creative Commons licenses don’t allow royalty-free video usage for commercial purposes. This means you could not incorporate the clip into a pay per view video, and sometimes not into a video intended to promote a product or service offered for sale.

The Creative Commons website contains general information about licensing for video content and also includes a searchable archive of CC works. In all cases, there will be video attribution requirements and you should provide legal video clip sources for any film clips used under a Creative Commons license. As a final note, Creative Commons video licenses always prohibit the use of digital rights management (DRM).

Fair Use

Films that are neither in the public domain nor published under a Creative Commons license are fully protected by copyright laws for video clips. Under the Fair Use doctrine, there is a way of using copyrighted video legally, but be sure you understand how that works before trying it.

Four factors are considered when determining whether a given use of a copyrighted work is fair use:

1. The purpose and character of the use (commercial nature or nonprofit educational purposes)
2. The nature of the copyrighted work itself
3. The amount of the copyrighted work used compared to the work as a whole
4. The effect of the use on the potential market for the work 

As a general rule, fair use of video clips is more likely to pass a court test if the use is one of the following, but it’s worth mentioning that none of these is absolute: 

• For noncommercial or educational use
• If only a small clip is taken rather than a more substantial segment of the video
• If the use is unlikely to reduce the market for the video

Unfortunately, the fair use guidelines for videos are complicated, and it’s often difficult to tell ahead of time whether a particular use is or is not fair use. Unambiguous fair use of video clips includes criticism, parody, and use of the material for illustration or example. It’s less likely that commercial use of video clips and copyrighted material will fall under fair use than noncommercial use, but that’s not a certainty either way.

Use of Copyrighted Material

Let’s learn a bit more about how the fair use doctrine applies to video clips. Using a clip from a copyrighted film not under Creative Commons video licenses and not falling under fair use law will require permission from the copyright holder. That means you will need to contact the copyright holder and request that permission. You may be required to pay for the use of the video or merely to give appropriate credit. Otherwise, the permission may be denied altogether. The permission to use a video is entirely at the discretion of the copyright holder.

Conclusion

When dealing with copyrighted and public domain video clips, it’s better to be safe than sorry. A lawsuit for video clip copyright infringement could result in a costly judgment as well as require you to pull the infringing video from publication. Even if you think your intended use is fair use, it’s usually best to ask permission. 

Key Takeaways:

• You can use clips from free public domain videos without concern for copyright protection or infringement.
• You can use video published under a Creative Commons license in ways that are limited by the type of licensing for video content, without DRM, and with appropriate credit given to the producer.
• You can use copyrighted material in very limited ways that legally constitute fair use, without permission.
• Any other use of copyrighted material requires that you get the permission of the copyright holder before publishing.

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