Using Clips of Celebrities – Entertainment Law Asked & Answered

Using clips from prior films and appearances when interviewing a celebrity.

Hi, I’m attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

Rich wrote in with this question:

I have an independently-produced TV show that features celebrity interviews. I’m the creator and producer of the show that is seen on some small broadcast, regional cable networks, college TV station and community TV channels. We have been growing.

When we do the show, I have approved clips (EPK) from the studios for the film or TV show that the celebrity is promoting. There, of course, is limited use on the material. This part is not an issue.
But, I was also wondering about using clips from the celebrity’s other projects. Can I use a small portion on the program? Like 10-15 seconds.

Possibly with no sound, just the video. Or with both video and sound. I usually put an on-screen graphic announcing the distributor or studio.

Before I would put a still photo in the coverage, but nowadays that looks like it could be an issue, too.

I believe news programs are exempted and are allow to use on news program, which is a one-time only airing. Most of my episodes have a limited shelf life, but we do air more than once with repeats of the episode.

I noticed some professional YouTube channels are doing stories, and they are using various clips with or without sound. Some throughout the entire piece.

So, what’s your take in using past clips of movie/TV show (and photos) when interviewing a celebrity?

Well, Rich,

Thank you for your question. It’s really impossible to give you a hard-and-fast rule.

The determination of whether a particular use is “fair use” is determined on a case-by-case basis, and involves a multi factor analysis.

See my video: http://firemark.com/fairuseinbrief for a short explanation.

There’s no special exemption for news… Newsworthiness addresses only one of the factors (“purpose and character”), and isn’t, by itself, determinative. Also, what’s “news” today is “nostalgia” in a few years, and “history” in a few more after that… Things are very subjective.

Now, other YouTubers may be doing what they’re doing legally, under license/permission, or as “fair use” or they may be simply “getting away with it” AND, some may even be getting caught, sued, or whatever, and you’re not aware.

Whether you’re doing your thing with or without sound is not an important consideration, except as it might relate to the “amount and substantiality” factor.

If the material comes from an EPK, it’s generally OK to use under an “implied” license related to promoting the particular film or project for which it was made. But whether the license goes further is very questionable. Your question even specifies that the EPK includes limitations. It’s a safe bet that the other films’ EPKs did the same.

So, my advice, then, is to simply ask for permission for everything you use, unless a blanket grant of rights has been given with the EPK, or whatever. You might find that the celebrity’s publicist, manager or agent, has other clips you can use pretty freely. It might pay to ask.

…And that does it for this session of Asked and Answered. If you have a question you’d like to see here, just visit http://firemark.com/questions and let me know.

See you next time!

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