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Is commentary over movie audio transformative enough to be considered fair use?

1 Answers. Asked on May 25th, 2017 on Intellectual Property - California
More details to this question:
I am starting a podcast which would include a commentary track so that listeners could "watch the movie with us" and I was wondering if we could use the movie's audio under our commentary so that commuters could listen without having to watch the movie. I have been reading about fair use, but I don't know if this would fall under that protection.
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Answered on May 30th, 2017 at 4:21 PM

Interesting question. There is a four-part test for fair use. The first two parts deal with the question of the purpose of the (1) original work (the movie),  and (2) the use -- your audio commentary. While a podcast can be strictly educational, most seek revenue through the sale of ads, and the like, so your use would probably be considered commercial -- as is the movie. Those two tend to cancel each other out, so now we go to the remaining two parts, which are usually the most important.

(3) How much of the original is being used? If you just using snippets to illustrate a point (e.g., from The Empire Strikes Back, "Luke, I am your father!" "Nooooo . . . ."), that is a great example of fair use. However, if you are using the entire soundtrack, then that is likely to be found to be an infringing use.

(4) What is the effect on the commercial value of the original work? Commentaries are now an important Blue-Ray feature, and the studios would argue that copying the entire soundtrack for commentary would likely diminish the value of their product -- and I believe that a court would likely agree with them.

Thus, if you are using a few (2, 3, 5, etc.) minutes of soundtrack, that would have the best chance of being found to be fair use. Using the entire soundtrack, however, will most likely result in a lawsuit for copyright infringement, and a finding of liability.

This answer does not mean I am your lawyer. No attorney-client relationship exists. This response is for general information only.

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Intellectual Property
The legal system recognizes the rights of people and companies that invent and create unique works, granting them ownership of those tangible and intangible assets through a number of intellectual property laws. Intellection property, or IP, includes patents, trademarks, copyright, trade dress and trade secrets. Intellectual property attorneys work with businesses and individuals (including inventors, writers, composers, artists and designers) to help protect these intellectual assets. IP lawyers and law firms can assist with taking initial steps to protect assets, while also working with clients to license items and to protect assets that are plagiarized, infringed and/or misappropriated.
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