Single Frame from a 1973 Movie I want to use a single frame from a movie made in 1973 in an email marketing piece. The thing being sold is software used in law schools and is not entertainment. It's use is to compare the 1973 way of doing things to the 2019 way of doing things. Fair use? The factors: the purpose and character of your use. It is commercial, but unrelated to entertainment It is transformative; it is being used to show the improvement in a process used in schools. the nature of the copyrighted work. The work is a movie made in 1973. the amount and substantiality of the portion taken, and. It is a single frame from a 1 hour 53 minute long movie. The portion taken is not the “heart” of the work. the effect of the use upon the potential market. It is unlikely that our use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. We are using it to sell some software in law schools. We are not creating an artistic work that Twenty Century Fox could make money from.
There will be single frames from let's say "The Exorcist" that are highly recognisable. You say it's not the heart of the work, but it may be representative for a substantial part. If I wrote a book about the movie, then say 25 frames out of the movie would illustrate the book very nicely, so this is substantial. And there is a market for selling pictures, t-shirts, posters etc. all using a single frame, or selling single frames to book authors wanting to use it for illustrative purposes. You deprive them of income for this activity. So what you said is something similar to what I would expect your lawyer to say in court, but I would expect the opposing lawyer to come up with some very different wording. All in all, I find the argument for "fair use" not convincing.
If you change a single character, that's clearly a partial copy. Copyright protection has a limited extent, however. The protected work must be original and not obvious. For example, there are only so many ways to write a function that computes the average of two numbers, so the copyright owner of one body of code cannot claim infringement by the author of a second body of code simply because they both have a function float Average(float a, float b) { return (a + b) / 2; } A surefire way to avoid infringing copyright is to specify the function of the code and then have someone who has never seen the code write it from scratch. This is sometimes called clean-room engineering. Otherwise, there is no way to answer your question definitively. If you create a modified copy of the code (a "derived work" in copyright terminology), there is no strict formula available to evaluate the extent of the infringement. It comes down to a case-specific analysis of the facts by a judge. Depending on the jurisdiction, which you have not specified, there may be specific laws or judicial precedent that guide the judge, but the determination will still require a specific analysis of the facts. For example, if the alleged infringer raises these arguments, the judge would have to determine how obvious the code is, or whether the copyright claimant even owns the copyright to the code.
At a minimum, what the theater did was not a crime. When you are in a movie theater you have what is called a "license" from the theater to be present, which is revocable at will without due process (possibly subject to breach of contract damages) and not a property right to be in the theater the way that a tenant who must be evicted does. As a practical matter, given that the amount in controversy is, at most, $25 or so, and this is not a situation where the prevailing party would get their attorneys' fees, this is not cost effective to litigate, regardless of who is correct, even in small claims court without an attorney. Whether or not the theater breached its contract isn't perfectly clear, because usually, the contract between a movie goer and a movie theater is not spelled out in any writing provided to the movie goer, incorporated by reference in something disclosed to the movie goer, or signed by either of the parties, or even with an oral offer and acceptance setting forth all of the terms of the agreement. (Of course, if a written terms of service is actually provided to the movie goer, or a reference to where it can be found is provided to the movie goer, those terms will control and the contract will almost certainly be written to allow the movie theater to do what it did in this case.) In the frequent case where this is not done, the contract between a movie goer an a movie theater is usually a contract implied in fact whose terms at the edges aren't terribly well defined and there is little case law to tell us what the terms of the contract is, because the cases aren't worth litigating up to an appellate court where binding precedents are made. Indeed, one reason that movie theaters may have declined to put their implied in fact contracts with movie goers in writing is to leave the situation ambiguous so as to discourage someone whose case would be clear even if for a small dollar amount, if the terms of the contact were clear, from suing them over issues like this one. When the stakes are small and the outcome is always uncertain, it almost never makes sense to sue. There is certainly a colorable argument that you breached the contract by being present without an adult at an R-rating movie when the public statements about an R rating made available to the movie goers says that rated R means only admitted with a person over the age of 17, contrary to the theater's policies on that issue, although it isn't perfectly clear if this is a suggestion or a binding term of the agreement. Another fair interpretation of the contract between a movie goer and the movie theater is that a movie goer can be removed from any movie whenever, if in the reasonable opinion of the movie theater management, good cause exists to do so, and that its discretion should be upheld so long as it acts in good faith and in a non-discriminatory manner. I don't agree, however, that the question of whether or not you breached a contract was unambiguously clear, because the terms of the agreement are not well defined. I would give you at least a 20% chance of prevailing if you took the issue to court although I would agree that it is more likely than not that you would not prevail if you took the issue to court.
The author of that work owns its copyright. Barring a licence that gives you the right to use it, you are infringing copyright. (I'm assuming no fair use in this case; i.e. the YouTube clip isn't actually about the audio track.) If you pay for licences, make sure the licence allows for the purpose you intend to use it for.
This question has been addressed directly, with very similar facts, by the federal courts, and the answer, based on those decisions, is: Maybe. The most famous case in this area is Mirage Editions v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988). In that case, the defendant had bought a copy of plaintiff's art book, cut out the pages, and affixed them to ceramic tiles, which it sold. The defendant relied on the first sale doctrine, codified in 17 U.S.C. 109. The first sale doctrine says that if you own a copy of a copyrighted work, you can resell it without the copyright holder's permission. The plaintiff argued that, by altering the original artwork, the defendant had created a new derivative work. The first sale doctrine gives you the right to sell the book to someone else, but not the right to create derivative works, whether by writing and publishing an unauthorized sequel or, they argued, cutting and pasting and tiling and kilning the physical pages. The Mirage Editions court agreed with the plaintiff that the tiles were a derivative work outside the scope of the first sale doctrine, and therefore the defendants had infringed the plaintiffs' copyrights. However, other courts faced with similar facts have disagreed, and to date I'm not aware of any Supreme Court decision resolving the issue. The bottom line is: you are allowed to sell what you bought; you aren't allowed to transform it into something new and sell that. Where the line gets drawn is muddy and likely to remain so at least until the Supreme Court addresses the issue.
You may find the ShareAlike interpretation on the creativecommons.org wiki helpful here. The Examples section says: ShareAlike photo being used unmodified in a larger work. Unless the larger work would be considered an adaptation of it, using a ShareAlike photo as a separate element within it does not require original materials in the larger work to be ShareAlike or compatible. The larger work may be licensed under any terms. This would suggest that simply displaying the image in your film would probably not require you to apply an SA licence to your film. I imagine you would still be expected to cite the source according to standard CC requirements. However note the disclaimer at the head and foot of the page that this is not legal advice.
The basic principle is that copyright never protects an idea, it only protects the expression of an idea. In the US, that rule is embodied in 17 USC 102(b) which provides that: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. When significant, detailed, and specific plot elements are copied from a prior work, then that may make the new work a derivative work. Creation or distribution of a derivative work requires permission from the owner of the copyright (if any) on the prior work (source work). But the elements used must be significant and must be detailed. If all that is taken could be expressed in a summery contained in a single sentence or paragraph, this will not make the new work derivative. For example, such ideas as: Napoleon meets the Emperor of China and they form an alliance. [My idea] Sherlock Holmes helps to repel the Martian invasion described in The War of the Worlds. Conan Doyle's Professor Challenger is also involved. [Wellman's Sherlock Holmes's War of the Worlds] Aliens crash land on Earth in 1905, creating an alternate timeline. They seek to start WWI early, to stimulate technical development. [Benson's ...And Having Writ] would on their own not be enough to constitute a derivative work and thus infringement. But the more specific detail from the source work is used, the more likely it is that an infringement suit would win. By the way, the rule is the same whether the source work is a book, or a TV show, or an opera, or any other work subject to copyright protection. If the work is old enough, any copyright will have expired, but the format of the original does not matter, as long as it is &quot;fixed in a tangible form&quot; which includes video tape, DVD, computer file, or a script written on paper. About the only things that do not count as fixed would be an impromptu dance, song, speech, or story whch the creator performed or spoke without its ever having been written down or recorded in any way.
In general this kind of brief literary reference is not unlawful, and such things occur in both novels and commercial games with some frequency. Making such a reference a major part of the plot, such as by using a name from a previous work as a major character, particularly if other aspects of that character are also used, is far more likely to cause a problem. In the united-states this would be a matter of fair use. In general, when only a very small part of the source work is used, such a a single name; where the use is &quot;transformative&quot;, that is used for a rather different purpose than in the source work; where the use does not harm the market for the original work; and where the use does not serve as a replacement for the original, it is likely to be held to be fair use. But fair use decisions are always fact-dependent, and are made case-by-case, so it is hard to be absolutely sure of one in advance. But the kind of literary reference described in the question is very unlikely to be held to be copyright infringement.