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I'm writing a screenplay where a character is obsessed with a movie, and I want to show him watching this movie three times, each scene includes a segment of about a 60 seconds. What would be the general guidelines in terms of copyright? Can someone show a certain portion of an existing movie in another movie without having to negotiate copyright? The jurisdiction would be USA.

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There are three basic possibilities under which the movie may be used:

  1. The movie to be excerpted is out of copyright, either because it was published before 1924, or published without a copyright notice before 1978, or published before 1964 and the copyright was not properly renewed (or some other even less common situation, see this very well known chart for details). If this is the case, any amount of the move may be used for any purpose at all, without an permission. But few significant modern films will fall under this case.

  2. Permission is obtained from the current owner of the copyright on the film. This will be the simplest and clearest way to use the secondary film with no legal risk. It will probably involve the payment of a license fee, but depending on how famous the film is, and what scene is to be shown, the fee might be large or might be quite small. It might be negotiable. However, the copyright owner need not grant permission on any terms, and non-response must be taken as a "no".

  3. The inclusion of an excerpt is considered Fair Use. Fair use is a distinctively US legal concept. It always depends on the exact facts of the situation, and it is never absolutely safe to predict if a given use will be considered "fair". In this case the use seems to be "transformative" which tends to weigh for fair use. It also does not seem likely to be a replacement for the original, nor to impair any current market for the original, which also weighs for fair use. But if there is or plausibly might be a separate market for extracts, which this might impair, that could weigh against fair use. If the scenes shown are particularly famous and might be consider as the "heart" of the original, that would weigh against a finding of fair use. There is no fixed amount of a work that can be used which will always be "fair use". In one case as few as three hundred words of a 100,000 word biography was held to be too much to constitute fair use.

If none of these three cases apply, the new movie is an act of copyright infringement, and the copyright owner could sue and possibly obtain sizable damages.

If you want to depend on fair use you will be very wise to consult a lawyer skilled in copyright issues. If your movie was to be produced by a commercial studio, they would almost certainly submit the script to an in-house or regularly hired lawyer of their own for an opinion on such a point.

It might well be cheaper to pay a license fee for permission than to get a formal legal opinion on the fair use issue, depending on the film involved. Again, if a commercial studio makes the film, they would obtain any needed permissions, and pay any such fee, and the probable size of such a fee might be a factor in whether they accept the script, or insist that it be altered.

Such things have been done -- consider the use of the song "Misty" in the film Play "Misty" for Me, or of the song "As Time Goes By" in Casablanca. The older and less famous the film to be quoted is, the easier it will be to obtain permission, and probably also to establish fair use.

Note that Fair Use is a strictly US legal concept, and will not apply in other countries. Thus reliance on fair use may preclude international distribution of the new film.

See this related Law.SE q&A on movie clips. See also this related law.se Q& on when fair use applies.

  • thanks for the complete and articulate answer. I figured the producers would seek legal counsel about it. My concern, being this a spec low-budget script, is geared toward how much including these scenes would raise the overall cost of the movie. – black-clover Sep 28 at 6:05
  • @black-clover If you include the scenes without a license, and if it is actually fair use, or if you don't ever get sued, it probably wouldn't raise the overall cost. But those are big if's. – Brandin Sep 28 at 6:16
  • @black-clover, it costs nothing to ask a copyright holder what s/he would charge for use of such a scene. That might give you a batter idea of what the probable costs are. Relying on fair use would be foolish without getting legal advice, because it opens one up to unpredictable risk, and such advice will not be free, and would be an upfront cost (unless a studio employs a full-time lawyer for such options). Depending on not being sued is like running red lights on the assumption no cop is around -- risky. – David Siegel Sep 28 at 15:19
  • @black-clover One could always show that a character is obsessed with an old movie by showing him watching it from an angle where the screen is not visible. A sound-only license might well be much less expensive, and sound-only use might be more likley defendable as fair use. – David Siegel Sep 28 at 15:21
  • @David Siegel thanks again for your thoughts. I have considered the sound-only option but it would not be the same effect. I totally agree it would be unwise to include the scenes in the actual movie without having agreed a consent from the copyright holder. Being this just a screenplay, it's just forethinking on my part, like killing a guy in a helicopter crash as opposite to having him stabbed in a parking lot. the movie in question is 40 years old, but very famous, so I assume it would entertain some cost. – black-clover Sep 28 at 19:16

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