Code of Best Practices in Fair Use for Online Video -- Public...

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

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This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

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This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use

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This is a guide to current acceptable practices, drawing on the actual activities of creators,

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It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

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t’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu.

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This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

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It’s not a guide to using material that someone wants to license but cannot trace back to an owner—the so-called “orphan works” problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

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. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

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A distinguished panel of experts, drawn from cultural scholarship, legal scholarship, and legal practice, developed this code of best practices, informed by research into current personal and nonprofessional video practices (“user-generated video”) and on fair use. Full identification of panelists is on the back cover of this document

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Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before.

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In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:

Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

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If the answers to these two questions are “yes,” a court is likely to find a use fair.

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Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:

Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.

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Video makers can take heart from other creator groups’ reliance on fair use. For instance, historians regularly quote both other historians’ writings and textual sources; filmmakers and visual artists reinterpret and critique existing work; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.

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on 2009-04-08 by sspaeth

Does this apply to our students who want to critique film? If they follow the guidelines for purpose, citation and quantity and non-competition I think that it should.

But first, one general comment: Inevitably, considerations of good faith come into play in fair use analysis. One way to show good faith is to provide credit or attribution, where possible, to the owners of the material being used.

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ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

DESCRIPTION: Video makers often take as their raw material an example of popular culture, which they comment on in some way. They may add unlikely subtitles. They may create a fan tribute (positive commentary) or ridicule a cultural object (negative commentary). They may comment or criticize indirectly (by way of parody, for example), as well as directly. They may solicit critique by others, who provide the commentary or add to it.

PRINCIPLE: Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary.

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on 2009-04-08 by sspaeth

A teacher posed the question whether a class could use clips from copyrighted work in critiques of the work. The request passed to Lisa then to me. I liked Lisa's suggestion that the project would benefit from an up-front discussion of these issues by the class.

Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.

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LIMITATION: The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience’s taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).

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This sort of quotation generally should be considered fair use and is widely recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video maker’s argument takes nothing away from the fair use claim.

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Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video.

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Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video.

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When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, its use has been transformed. When protected works are selectively repurposed in this way, a fundamental goal of the copyright system—to promote the republican ideal of robust social discourse—is served.

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SIX: QUOTING IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS

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for example, as in “Bush Blair Endless Love,” changes the meaning of all three pieces of copyrighted material

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This kind of activity is covered by fair use to the extent that the reuse of copyrighted works creates new meaning by juxtaposition. Combining the speeches by two politicians and a love song, for example, as in “Bush Blair Endless Love,” changes the meaning of all three pieces of copyrighted material. Combining the image of an innocent prairie dog and three ominous chords from a movie soundtrack, as in “Dramatic Chipmunk,” creates an ironic third meaning out of the original materials. The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended.

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For example, fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood rather than to change its meaning;

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IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE

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IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE.

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on 2009-04-08 by sspaeth

ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

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