Fair use is how review websites use copyrighted material without first securing permission from the copyright holders. With the exception of de minimis, which I will touch upon later, pretty much every review website that uses a video clip or screen captures from a film is operating under fair use. However, I think that many reviewers and webmasters are foggy about fair use. I am not a lawyer, so I cannot provide legal advice (and my expertise is only based upon law within the United States). I have been reading up on fair use, and court cases involving it, for nearly a decade.

First, let us talk about copyright and why it exists. Society benefits the most when something that is created is in the public domain, meaning that nobody holds a copyright. Society, as a whole, owns the work. Shakespeare's plays, most of the writings of Mark Twain, and music composed by Johann Sebastian Bach are in the public domain. Everyone is free to create alternate versions, perform them, or even make a movie with them without getting permission or paying royalties.

However, society also recognizes that people might not have any reason to write books, make movies, or sing songs if everyone else can immediately copy their work. Copyright is a carrot offered by society to help promote the creation of new works. When you get down to it, society is saying, "We understand that there must be some reason for you to create. If you create something, then cannot benefit from it, you will not have a reason to create more works. So, to encourage you, here is a limited period of protection so that you might benefit."

I will not start a rant about the fact that, at present, copyright has been extended beyond what it ever should. That is another article for another time.

Now, just because society has given someone protection through copyright does not mean that society surrendered all of its rights. Fair use is critical to enhancing and protecting society from copyright, a creature of its own making. Saying, in short, "Yes, this person's work is protected. However, if you use pieces of it for review, criticism, or educational purposes, that is in the best interest of society. This trumps the creator's copyright protection."

Fair Use is deliberately vague, because it is intended to cover multiple formats and situations. Let's look at the relevant section of Title 17, United States Code. Section 107 says:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

That is a lot of guidance, and a whole lot of meaning open to interpretation. Nothing is cut and dried in a case of fair use. Every time fair use is considered in a court of law, it will be judged on a case by case basis. In general, if a website is using material that is copyrighted without getting the owner's permission, then they are either infringing upon the owner's copyright or they are operating under fair use.

The main exception to this is de minimis, which means that the use of the copyrighted work was so insignificant as to be negligible. Just like fair use, de minimis is very subjective, and decided on a case by case basis. Based on that, using a single screen capture from a film (and not of HDTV resolution, mind you) would probably fall under de minimis and not qualify as copyright infringement. Forum avatars, especially due to their small size, would appear to fall under de minimis. Note: creating 100 avatars from the same film and claiming de minimis is certainly a bad idea.

Okay, back to fair use. We will go over the sections one by one.

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:"

"Criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Reviewing a film is a possible fair use case. When I write a review about a movie, I am benefiting society. My goal is to explain to someone the movie through my eyes. What worked, what didn't, what was funny and why, parts of the plot that were poorly thought out, etc. The copyrighted material I use is there so the website visitor has a reference point, giving them a way to "understand where the reviewer is coming from." I write that the science fiction movie was filled with poorly-done model spaceships, even talk about them resembling trash cans, and the reader looks at the accompanying image of the "flying trash can." Maybe they have even seen the movie before, thought that the spaceships were junk, but did not make the trash can connection. Now they laugh and have to agree: those really do look like flying trash cans. The reader's experience of watching the movie was enhanced by reading the review.

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

Educational and nonprofit uses usually receive more lenient scrutiny when it comes to determining fair use. So, a site that does not run paid advertising or generate income by reviewing films will normally have a bit more protection. Reviewing films for profit is still protected under fair use; it just weighs on the decision if you are using someone else's copyrighted work as a part of yours and profiting.

"The nature of the copyrighted work."

Movies are protected by copyright, so applying this to reviewing movies is a given. Remember that the quality of a film does not matter. No matter how bad the movie, no matter how amateur the recording, treat it like you would a polished Hollywood blockbuster.

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

Here is where we are getting to the meat for movie reviewers. How much of a film can you use in a review? The answer is...there is no standard. Unlike the 250 word guideline, that could be all or 10%, for printed works used for educational purposes (which could still be examined on a case by case basis in court), there is no "this is how much." A sampling of different movie reviews, from reputable sources both online and on cable networks, reveals that most use between 1 to 3 minutes of video footage in a review that is usually 3 to 8 minutes in length. Radio reviews and podcasts are usually in the same range, with the same amount of (all audio) content.

On Badmovies.org, this is a reason that the excerpts from the movies are provided in the format and quality that they are. They are not intended to be pristine copies. If I was creating video reviews, then matching the quality of the video clip to the quality of the rest of the review (most likely me speaking to the camera) would be defendable. In the case of my written reviews, I do not believe it is right. They are intended to provide a way for readers to understand my review of the film and whether they want to watch the movie. To do that, a reader does not need a DVD quality video clip, nor a CD quality sound clip.

Another concern here is using the "heart" of a work, which also starts to spill over into the next part of Fair Use. If a movie has one big scene - the final shootout, the big race, the teary reunion of two lost lovers, the alien monster being blasted out of the airlock, then posting a video clip of that is also a no go. The reason for this should be pretty obvious.

"The effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

To put it simply, what you create cannot compete with the original work. Do not use so much of a film, or such important parts of a film (the "heart") that the review becomes a substitute for watching the actual movie. Giving a movie a bad review might affect its potential market or value, but not because you are competing against the movie itself.

Reviewing an unreleased movie, or even one whose release the copyright owner tried to suppress, is usually not considered a copyright issue. We get into a different can of worms there. If you have a legally obtained copy of a film, that should not be an issue anyway.

When you get down to it, you cannot use too much of a copyrighted work when you review it. You have to avoid the "heart" of a work, such as showing "the scene" in a movie. If you look at video format (televised and online streaming), using between 1-4 minutes of footage is common for reviews that run from 2 minutes up to 10. Potentially half of the review is copyrighted material. However, understand that those often include interview footage and promotional material released by the studio - meaning that material is not fair use, but the studio gave it to the website.

Importantly, I do not know of any court cases involving a movie review website and fair use. Cases that come close often involve documentaries and news reports. The closest court case appears to be the 2003 Video Pipeline vs. Buena Vista Entertainment, because it is dealing with an online service. The ruling specifically speaks about reviewing a film - which was not what Video Pipeline was doing. The company was offering two minute clips from movies as a part of its service to retailers (to help them sell legitimate copies of the films). This is the important excerpt from the Third Circuit Court of Appeals ruling:

"It is useful to compare the clip previews with a movie review, which might also display two-minute segments copied from a film. The movie reviewer does not simply display a scene from the movie under review but as well provides his or her own commentary and criticism. In so doing, the critic may add to the copy sufficient 'new expression, message, or meaning' to render the use fair."

This is the best court reference to fair use, with regards to movie reviews, that I have ever found. I should point out that a reviewer cannot fixate on "two-minute segments" as being gospel, because all situations involving fair use are determined on a case-by-case basis.

I think that fair use is very well thought out, and it has been for a long time - though its present form comes from the 1976 revision of copyright law. It is good that it is not cut and dried, because it must be able to be applied to multiple formats.

When reviewing a film and using material under fair use, remember that the copyright holder invested in it somehow, whether that was time, effort, or money. Society promised them a limited period of protection, because without that protection fewer films would be made. Who wants to make a movie if everyone can immediately copy it? With today's technology, that is a real problem, because it is easy to create and distribute digital copies of movies. Doing that is not fair use. Fair use is the public's privilege to use small pieces of that work, to the benefit of all (review, education, criticism), during the limited period of protection.

Stanford University's Fair Use Page has a listing of cases and determinations.

Wikipedia's Fair Use Entry discusses Fair Use, and it provides a number of worthwhile reference links.

Video Pipeline vs. Buena Vista Home Entertainment as provided by the Sandra Day O'Conner College of Law (user webpage).

Chilling Effects has a good page about Fair Use.