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I want to use a single frame from a movie made in 1973 in an email marketing piece. The thing being sold is software used in law schools and is not entertainment. It's use is to compare the 1973 way of doing things to the 2019 way of doing things. Fair use?

The factors:
the purpose and character of your use. It is commercial, but unrelated to entertainment It is transformative; it is being used to show the improvement in a process used in schools.

the nature of the copyrighted work. The work is a movie made in 1973.

the amount and substantiality of the portion taken, and. It is a single frame from a 1 hour 53 minute long movie. The portion taken is not the “heart” of the work.

the effect of the use upon the potential market. It is unlikely that our use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. We are using it to sell some software in law schools. We are not creating an artistic work that Twenty Century Fox could make money from.

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    What exactly is your question? If you will be sued? No one here can answer that. If it is Fair Use? No one here can answer that; a court decides. if you should use the frame in your marketing email? That's asking for legal advice, which is off topic here. – BlueDogRanch Feb 15 at 21:48
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There will be single frames from let's say "The Exorcist" that are highly recognisable. You say it's not the heart of the work, but it may be representative for a substantial part. If I wrote a book about the movie, then say 25 frames out of the movie would illustrate the book very nicely, so this is substantial.

And there is a market for selling pictures, t-shirts, posters etc. all using a single frame, or selling single frames to book authors wanting to use it for illustrative purposes. You deprive them of income for this activity.

So what you said is something similar to what I would expect your lawyer to say in court, but I would expect the opposing lawyer to come up with some very different wording.

All in all, I find the argument for "fair use" not convincing.

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