Movie Clips Replacing Studio’s Own Trailers Are Not Fair Use

Several lawsuits involving the unlicensed, commercial use of film clips are working their way through the courts. A common theme of these disputes is the defendant’s reliance on the "fair use" defense to justify the unauthorized exploitation of a copyright owner’s protected material. In Video Pipeline Inc. v. Buena Vista Home Enter. Inc., the 3^rd U.S. Circuit Court of Appeals firmly rejected the defendant’s reliance on this defense, providing a thorough road map for evaluating the claimed fair use of motion picture excerpts.

The court applied the fair use factors enumerated in the U.S. Copyright Act and found that all but one of them weighed against a finding of fair use in this case. But the application of this defense to a given use of another’s copyright work is inherently fact specific. What one judge considers obvious piracy, another may see as a legitimate use that promoted the underlying purposes of copyright law.

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