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So you want to make a book trailer …?

by Jacqui Lipton

I know that title probably makes you think I’m going to tell you all the techie secrets for how to actually MAKE a book trailer … PSYCH! Sorry about that.

No, I’m going to talk about some of the legal pitfalls you might encounter (but hopefully not) in relation to clearing intellectual property rights you might need in terms of music, images, and video clips you might want to use.

And, as always, I note that nothing written in this column is intended as formal legal advice, and folks who need help with particular issues should consult an agent or attorney.

You probably all realize that when you use things you find on the Internet or elsewhere for your book trailer, there’s a good chance that at least some of it is copyright-protected and that technically you may have to seek permission to use that material.

A lot of people think that using snippets of someone else’s music or art video in your book trailer is a fair use because you’re using so little of it. That may be the case in certain circumstances, but it’s always going to be a case specific question. The American fair use defense relies on balancing four factors in any given case: (1) the purpose and nature of your use (in particular, whether it’s a commercial or nonprofit educational purpose); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion you used; and, (4) the effect of your use on the actual or potential market for, or value of, the work in question.

Sounds complicated? Yeah, because it kinda is.

It’s always about balancing those fair use factors and there’s no perfect equation that tells you whether a particular use is or is not a fair use. However, there are a handful of points you might usefully keep in mind.

  • With popular music in particular, some book trailers use more than a small portion of a song or instrumental piece, which means that the second fair use factor is often of little help to you. Additionally, the use of a lot of popular music on the Internet is heavily monitored by copyright holders or organizations who represent them, so using other’s music without permission can be risky.
  • Even though book trailers are usually short and often homemade, it’s not ever likely to be particularly easy to argue that the trailer isn’t for a commercial purpose in relation to the first fair use factor. The whole point of the trailer is to advertise and sell your book, right? That’s definitely a commercial purpose under copyright law.
  • The third fair use factor can be tricky especially in relation to video clips. For example, you’d think if you only copied a snippet of a movie or other video content for your book trailer, that would be a small enough amount not to bother a copyright holder. Well, that may or may not be the case. The third factor contemplates the “substantiality” of the portion used as well as the objective “amount” of the work you used. So even using a very small snippet from someone else’s work could amount to using a “substantial” portion if that snippet is key to the work in question. I’d love to be able to give you a clear guideline as to what “substantial” means in this context, but it’s incredibly fact specific and usually decided on a case by case basis.

Of course, copyright and fair use will only be problematic if the copyright holder minds what you do with their work. Some copyright holders encourage free use of their work because it’s good publicity for them or for any number of other reasons. Some copyright holders are happy for you to use their work free of charge if you give them attribution or thanks. That’s why it’s often worth asking for permission, especially if the copyright holder is easy to locate.

A bit about the columnist:

Jacqui Lipton is a law professor and the director of Authography LLC, a company dedicated to helping authors and artists with legal and business issues. She writes fiction and law books, and holds an MFA in fiction writing from Vermont College of Fine Arts as well as a Ph.D. in law from Cambridge University. She loves reading and writing speculative fiction and is the mother of three children and (apparently) three cats. Visit author page