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Could I take about, say, 15 minutes of clips from a movie to use as a visual (and perhaps using some audio) along with my originally written and voiced movie summary? Would the resulting work be considered transformative enough to be original?

EDIT

Here's a YouTube channel that does something similar to what I described: https://www.youtube.com/channel/UCyXD1jAZBdZ4u0K-GLYC77Q. Does this change anyone's opinion?

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  • 5
    The Oxford dictionaries define a summary as a brief statement or account of the main points of something. Without attempting to answer on a legal basis, it strikes me that the definition of "summary" seems incompatible with a duration of 15-minutes. Thus the title on this question is misleading. Sep 25 at 16:20
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    I think it could go either way. If it's a pair of 7:30 clips from the biggest action sequences, I think that would probably be right. If it's 90 10-second clips, I think it's probably a lot safer.
    – bdb484
    Sep 25 at 22:17
  • Just a reminder that even if something is clearly fair use that doesn't mean you can't be sued over it, and it absolutely doesn't mean you won't get copyright claims against a youtube movie summary. If you intend to create videos for a larger audience, even more relevant than the law is researching how aggressively the rights holder typically defends their copyright.
    – Peter
    Sep 25 at 22:45
  • @bdb484 I assume by "that would probably be right" you meant Burt_Harris's comment (that it is not a summary), not OP's question (that it is a summary). It would be clearer if you @'d Burt_Harris.
    – nanoman
    Sep 26 at 1:56
  • You are correct on all counts.
    – bdb484
    Sep 26 at 2:25
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That depends very much on the specific details. But such a thing is more likely to be held to be fair use if it includes commentary on or criticism of the movie as well as a mere summary of it. Also, 15 minutes of clips seems like a lot, although there is no clear rule on how much can be reused under a claim of fair use. But if the point of the comment and summery could be well made with a shorter set of clips that might improve the claim of fair use. In general, a fair use will use no more of the source than is reasonable needed for the purpose, and will not serve as a substitute for the original work.

Being "transformative" is very often cited in case law as strongly favoring fair use. It has nothing to do with making a derivative work original. Any derivative work gets a separate copyright if it has enough original content to satisfy the low requirements of copyright protection, which most such works do. Even an abridgement which adds nothing will generally get a separate copyright.

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  • Yes, I think this is the best answer. The inclusion of commentary/criticism is going to make a big difference.
    – bdb484
    Sep 25 at 22:19
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    Not serving as a substitute is IMHO the key stumbling block here. The whole point of a summary is to serve as a substitute. Even a very small portion of the work, in absolute terms, can nevertheless be "substantial" in terms of fair use (Harper & Row v. Nation Enterprises).
    – Kevin
    Sep 26 at 2:39
  • @Kevin Harper & Row v. Nation Enterprises did indeed hold that a very small except can be an unfair use, but although important, that is also an unusual case. In particular, in that case a major publication deal fell through specifically because of the use, so there was a proven actual major harm to the market for the original. An ordinary summery would not usually be in the same position. Sep 26 at 3:07
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The factors of fair use are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

15 minutes summary seems to contradict most of those four factors. At least:

  • 15 minutes is a lot compared to a 1-2 hours long movie.
  • Since viewing a 15 minutes summary could be a substitute for viewing the movie, distributing it has a large effect upon the potential market value of the movie.
  • You don't seem to be making an educative work, just a shorter version of the same film for its entertainment value.

IANAL, but it seems unlikely that you could claim fair use for such a summary.

Additionally, at the end of the question body you ask a different question, about whether the summary would be considered transformative enough to be original. The answer is that no amount of transformation alone makes a derivative work original (that is, non derivativa), and even less when the original work is essential for the derivative work, like in your summary.

That is quite unrelated to whether your usage of the movie parts fall under fair use, although transformation may help comply with fair use factors: the less from the original works that remain after transformation, the less portion you are actually using from it, and the less the market value of the underlying work is reduced.

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  • -1 Being "transformative" is very often cited in case law as strongly favoring fair use. It has nothing to do with making a derivative work original. However, most derivative works are also original works, which is why they get separate copyrights, subject to the permission of the holder o the copyright on the source work. This answer seems to misunderstand several aspects of copyright law. Sep 25 at 19:27
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    The edit improves thias a bit, but "original" and "derivative" are simply not opposites in terms of copyright law. Sep 25 at 20:20
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    I agree with the technicality but they are in the sense that are used by the OP.
    – Pere
    Sep 25 at 21:32
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    Hughes v. Benjamin - In this case Mr. Benjamin, aka Sargon of Akkad, did use a mix up of a most of a video by Ms Hughes and retitled it. From "We thought she would win" he made "SJW levels of awareness" and it contained only material from that one video. However, the court found it fair use because of the way he recut and retitled it made it commentary. Hosseinzadeh v Klein - Better known as the Matt Hoss v h3h3 case, had Mr. Klein used substantial parts of the video, but commented and critiqued on it very hard and the court found it quintessential Fair Use
    – Trish
    Sep 26 at 7:48
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    In other words: you can have commentary and critique even if you use the whole movie or most of it.
    – Trish
    Sep 26 at 7:49

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