The Economics of Seinfeld

Ahh, that makes sense. This project was a really interesting case study in how people move through the web. We had quite a bit of publicity for this early on, including some write-ups in print publications, major blogs, television, and radio shows (offline media generated virtually no apparent traffic). I also posted a link to r/economics when we first launched the site. Despite all that, one of the most enduring sources of traffic (other than university web sites, where professors post the link on Blackboard, etc.) has been Marginal Revolution, which is a relatively niche blog. I'm not really sure why.

We definitely could have added a bit more prose about each clip. However, the site was primarily designed to be a resource for educators, so the blurbs were written mostly for that audience.

That would make it more desirable to play non-zero sum games, which in my book is a good thing :)

It might come under fair use, but can this site afford to make that case?

It does seem like an awful lot of one show to be using. They'd probably be better off if they pulled this mix of concepts from multiple sources. There's really no educational reason this site needs to be Seinfeld only. It seems like they're trading off the original content perhaps a little more than is fair.

I think it's worth highlighting that educational non-profit use - as any textbook production company will surely tell you - is not sufficient in itself to make something fair use. Educational use and/or non-profit use is part of the consideration.

To preface this: I think the site is neat, and you're not going to be sued, and you're on good ethical footing. But: Your specific fair use claim doesn't seem particularly compelling.

First, there's no plausible risk of trademark confusion, so we're only looking at copyright infringement. The list of Seinfeld episodes, and the facts about the plot of each one, are non-copyrightable, so AFAICT all we're talking about is a single 2-5 minute video clip per episode.

The clips are a very small part of the overall episode, and they're narrowly edited to provide only enough context to demonstrate the point, which speaks to fair use. The fact that there's an educational, noncommercial purpose also helps. On the other hand, it's a swath of material cut from across the entirety of the show, with zero other sources, which is pretty far-ranging and speaks against fair use.

If you imagine cutting the clips together into a YouTube video, and distributing that, you would have an extremely tenuous case. You'd be looking for some reason the use was necessary, not just convenient. So there's actually a lot riding on that educational purpose, and unfortunately that seems like the weakest part of the argument.

Here's the rub: The site isn't educating people about Seinfeld. It's about economics. While the clips make for compelling examples, no one could reasonably claim they're the only or best ways to make those points. In other words, it doesn't seem like there's any reason you need to use material from Seinfeld instead of almost any other piece of popular culture. That runs a big ol' hole through the educational purpose argument; fair use isn't structured to let you copy whatever you want to, and simply being a teacher doesn't give us license to infringe at will, alas. (Educational institutions have a substantially more circumspect understanding of fair use[0] than Reddit does, and for good reason.)

Keep in mind the educational exemption applies much more strongly to private performances than reproduction and distribution. I'd guess a university-level, semester-long course titled "The Economics of Seinfeld" where students watch a clip every class day would have a rock solid fair use case. But if the professor starts handing out DVDs, that starts to look like a place where the rights holder would want to draw a line in the sand.

Anyway, again, for my part I see no moral issue, and I didn't really intend to belabor the point this much, just reasoning through the logic of fair use. I assume you haven't been sued for more blasé reasons than your use being legally defensible, to wit the Web double whammy:

1) Your infinitesimal damages are far below the cost of even sending a C&D letter, and

2) Suing any fan site, let alone one for a cult classic that's still showing reruns after fifteen years off the air, is clinically insane.

[0] eg. http://copyright.columbia.edu/copyright/fair-use/

That's cost-benefit analysis... Wait!