>Fair use very clearly dictates this is not covered
Fair use, to me, is anything but clear on that topic. It specifically talks about "Amount and substantiality of the portion used in relation to the copyrighted work"[1]
It then generally says "If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely."
But then gives counter-examples that don't match that theme at all.
All of the factors are important. This is what really trips up movie clips:
> Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
They also score really low here:
> Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Using the exact same clip can be fair use or copyright infringement based on what’s surrounding it. A long discussion of camera angles in movies using the clip is one thing, the clip by itself is very different.
