All of these trailers were produced by us to specifically promote the film and we have released these trailers on YouTube to be viewed and shared in their entirety. Remember, "entirety" means a trailer that is only a few minutes long. The actual film runs one hour. It would certainly be illegal for someone to view and share the full one-hour film on YouTube or anywhere online, and we have sent "cease and desist" letters to JWs and non-JWs alike who attempted to post the entire film.
Promotional material that is specifically intended to be circulated freely on Youtube would of course be authorized, but he goes on to say that it is illegal for someone to "post the entire film" (which is impossible on Youtube which limits posters to a length of 10 minutes), which of course is true, but which also conflicts with his earlier statement that it is legally OK "if someone wants to place a KNOCKING video in its entirety on their own YouTube channel". I suppose he meant not just any "KNOCKING video" but those specifically intended to be used as promotional material.
we have sent "cease and desist" letters to JWs and non-JWs alike who attempted to post the entire film. We do the same for people who take pieces of our work and use it as footage in other videos.
And this is where they leave no room for the right to "fair use" that the law provides. They may want to discourage others from using "pieces" (even pieces as short as three seconds) in new creative ways in their own productions, they may feel it is unfair, and it is their right to challenge such uses in court, but such use is not necessarily infringment a priori.
"Fair Use" has a very high bar in court...the footage has to come from a universally well-known and established source and be used to illustrate a social commentary or analysis and not be used for entertainment value or simply a means to tell or move your story forward.
This I believe is an overly restrictive view of what "fair use" allows, in light of the legal sources cited earlier. There is no requirement that the footage "has to come from a universally well-known and established source", and transformative use is not limited to commentary and analysis -- it could certainly be used to "move your story forward" if it alters the meaning or message of the original footage and meets the other requirements. The Supreme Court has defined the meaning of "transformative" as "altering the original with new expression, meaning, or message". WT Comments took the original footage of someone commenting at a JW meeting and used it to illustrate the purpose and function of the WT Comments video as (ironically) analogous to a comment one would NOT hear at a meeting. This meaning is especially clear because the clip is sandwiched between title frames with the words "Comments" and "You Will Not Hear at the Watchtower Study" (and this is notion is expressed as well on the channel homepage itself). This is quite similar to the example that the Stanford Law School judges as a fair use:
EXAMPLE: Roger borrows several quotes from the speech given by the CEO of a logging company. Roger prints these quotes under photos of old-growth redwoods in his environmental newsletter. By juxtaposing the quotes with the photos of endangered trees, Roger has transformed the remarks from their original purpose and used them to create a new insight.
If you examine each of the criteria for fair use, WT Comments appears to fulfill each quite well: (1) Transformative use of the clip in the video to create a new expression, meaning, or message, (2) The nature of the copyrighted work as a documentary source, (3) Insubstantial use of the clip, as it was under three seconds and was not from the "heart" of the work, and (4) the lack of an effect of the use on the potential market of the copyrighted work. If it constitutes fair use, then it is the user's right to make such uses despite the copyright holder's wishes:
Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense....The frequent argument over whether fair use is a "right" or a "defense" is generated by confusion over the use of the term "affirmative defense." An affirmative defense is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense." The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right." Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … is not an infringement of copyright."
Here is a great video by the Center for Social Media on fair use in videomaking:
and here is the document referred to in the video:
And here is the section relevant to the transformative use made by WT Comments:
TWO: QUOTING COPYRIGHTED WORKS OF POPULAR CULTURE TO ILLUSTRATE AN ARGUMENT OR POINT
DESCRIPTION: Here the concern is with material (again of whatever kind) that is quoted not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing—as clips from fi ction fi lms might be used (for example) to demonstrate changing American attitudes toward race.
PRINCIPLE: Once again, this sort of quotation should generally be considered as fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media do not hesitate to use illustrative quotations (both words and images). In documentary filmmaking, such a privileged use will be both subordinate to the larger intellectual or artistic purpose of the documentary and important to its realization.
The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one. This is an attempt to add significant new value, not a form of “free riding” —the mere exploitation of existing value.
In the case of WT Comments, the very brief "quotation" of Knocking was clearly used to illustrate a new point by the filmmaker, i.e. the purpose of the video itself and how it contrasts with the kind of comments heard in the kingdom hall as seen in the video clip. It is making a point not only about the WT Comment video but also the nature of the commenting seen in the Knocking clip.