Letterman Clip: Not Fair Use Parody...Or Is It?

I've been having a terrific online banter with Brian Newman regarding the use of a David Letterman clip in a recent film.  Brian's last observation was extremely astute, and got me thinking.  The essential issue is whether the use of that clip constitutes a Fair Use under Section 107 of the Copyright Act and relevant case law.

In making his most recent argument, Brian relies pretty heavily on

Mockumentaries And Fair Use: Do Jaoquin & Casey Owe Dave Money?

At the suggestion of my online friend and fellow film pro, Sheri Candler, I read this very interesting blog post from Brian Newman (NY media consultant and immediate past CEO of Tribeca).  Brian's comments are very well thought out but, in my opinion, incorrect.  Of course, there is nothing better than a well-reasoned disagreement, so here goes.

The basic topic centers on a comment from Dave

We Spend Half Our Lives Staring At Screens!

Briefly, take a look at this extremely important article which has emerged from the conference being presented this week by The Wrap.  The article makes many great points.

The main thrust is a summary of research showing a vast expansion in the amount of time people are spending interacting with electronic media.  No surprises here, but the numbers are very interesting to see.

Also, it goes

"The Resistance" - Starz Tries A New Release Strategy For The Digital Age

Starz Media is blazing a bit of a new trail with its pending release of the sci-fi thriller, The Resistance.  I think their strategy on this release is an excellent vision for combining digital and traditional media platforms.  (Another really good article on the program and strategy is here.)  However, I'm not sure their particular approach is the best for maximizing revenues.

The program is