By Linh Nguyen
A video or a clip can go viral, and even become a new trend in the “fertile soil” of social media platforms like Facebook, YouTube, Instagram and TikTok, which continue to draw millions of visitors per day.
In recent years, these platforms have been inundated with movie-review videos that attract thousands, sometimes millions, of views, either in an incidental way or in an interactive way upon the user’s search.
Movie-review videos vs. movies
In general, a movie-review video is a video incorporating selected scenes from a movie to illustrate the reviewer’s perspectives, descriptions and opinions. It may disclose a tiny snippet or even the pivotal scenes from the movie.
We all know that in order to use copyright-protected materials, one must get permission from the owner, except in cases of “fair use” or “fair dealing”. This leads us to the question of whether making a movie review, which involves a copyrighted movie, is considered an exception or constitutes copyright infringement.
“Fair use” exceptions
“Fair use” is a legal principle that “promotes freedom of expression by permitting the unlicensed use of copyright-protected works”. That means protected works can be used without being seen as copyright infringement. To determine fair use of copyrighted material, four criteria are taken into consideration:
- Purpose of use: Is it for commercial purposes or for nonprofit educational purposes?
- Nature of the copyrighted work: Is it factual? Is it unpublished? Is it of a style distinct to a particular creator?
- Quantity and quality of the portion of copyrighted material used: Is it a large or small portion? Is the portion the heart of the work?
- Impact of the use on the value or potential market of the copyrighted works: Is the exposure/use negatively affecting the market for the original work?
To balance the interests of the copyright owner and community, the above-mentioned criteria are common principles used for evaluation in different jurisdictions, despite each having their own regulations on fair use exceptions.
Are movie-review videos exempt from copyright infringement?
Upon assessing factors of the “fair use” doctrine, the window for movie-review videos to be considered an exception seems narrow. Under analysis, movie-review videos will hardly be considered “fair use” due to the following reasons.
- The use is mainly commercial in nature as the common purpose of making such videos is to attract views and increase traffic to the accounts for advertisements. Social, cultural and educational benefits are rarely found therein;
- The length of a video often ranges from 5 to 10 minutes which captures several portions of a movie, some may include spoilers or important scenes crucial to the plot of the movie. Thus, taking into consideration the quantity and quality of the copyrighted material, fair use is less likely to be found;
- Such videos impact the viewers’ experience of the movie and competes directly with the filmmaker. Instead of going to the cinema or purchasing a subscription to Netflix, etc. to watch movies, people may watch these free videos as they are convenient, consume less time and still capture the essence of the movies.
In the context of Vietnam IP Law…
From the definition of derivative work under the Law as “a work translated from one language into another; or an adapted, modified, transformed, compiled, annotated or selected work”, movie-review videos can be considered a kind of derivative work.
Prior to the enactment and implementation of the Amended Law 2022, anyone intending to create a movie-review video must ask the author of the movie in advance, otherwise it would be considered an infringing act as stipulated under Article 28.7 of Vietnam IP Law.
“Article 28. Conduct constituting infringement of copyright
- Making a derivative work without permission from the author or copyright holder of the work used for making such derivative work, except in the case stipulated in sub-clause (i) of article 25.1 of this Law.”
It can be seen that under this provision, there is no allowance for movie-review videos. However, subsequent to the issuance of the Amended Law 2022, effective since 1 January 2023, Article 28.7 has been removed. As such, authors of derivative work have some room to maneuver for creation of works under “fair use”. The related legal statutes are copyright exceptions under Article 25.1 and copyright infringing acts under Article 28.3.
Nevertheless, those intending to make movie-review videos should be careful as having “room to maneuver” does not mean that all use of copyrighted material will be considered fair-use or non-infringing.
Need advice on your copyrights? Contact us via kass@kass.asia for expert consultation on the registration and enforcement of your IP rights.
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