Not necessarily, says a new study on copyright and creativity from
the American University’s Center for Social Media and Washington
College of Law.
Fair use is the right to use copyrighted material without permission
or payment under some circumstances, it says in explanation of a
concept which seems to have all-but escaped Hollywood and the major
record labels.
The code was created as a guide to current acceptable practices by
experts drawn from cultural scholarship, legal scholarship, and legal
practice, it says, going on it doesn’t tell you the limits of fair use
rights, and:
It’s not a guide to using material, “people give permission to use,
such as works using Creative Commons licenses,” it says. “Anyone can
use those works the way the owners say that you can.
It’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.”
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.”
Video is, “increasingly becoming a central part of our everyday
landscape of communication, and it is becoming more visible as people
share it on digital platforms,” states the code of best practices,
continuing >>>
People
make and share videos to tell stories about their personal lives,
remixing home videos with popular music and images. Video remix has
become a core component of political discourse, as the video “George
Bush Don’t Like Black People” and the “Yes We Can” parodies
demonstrated. Both amateur and professional editors are creating new
forms of viral popular culture, as the “Dramatic Chipmunk” meme and the
“Brokeback to the Future” mashup illustrate. The circulation of these
videos is an emerging part of the business landscape, as the sale of
YouTube to Google demonstrated.
More
and more, video creation and sharing depend on the ability to use and
circulate existing copyrighted work. Until now, that fact has been
almost irrelevant in business and law, because broad distribution of
nonprofessional video was relatively rare. Often people circulated
their work within a small group of family and friends. But digital
platforms make work far more public than it has ever been, and cultural
habits and business models are developing. As practices spread and
financial stakes are raised, the legal status of inserting copyrighted
work into new work will become important for everyone.
It
is important for video makers, online service providers, and content
providers to understand the legal rights of makers of new culture, as
policies and practices evolve. Only then will efforts to fight
copyright “piracy” in the online environment be able to make necessary
space for lawful, value-added uses.
Mashups,
remixes, subs, and online parodies are new and refreshing online
phenomena, but they partake of an ancient tradition: the recycling of
old culture to make new. In spite of our romantic cliches about the
anguished lone creator, the entire history of cultural production from
Aeschylus through Shakespeare to Clueless has shown that all creators
stand, as Isaac Newton (and so many others) put it, “on the shoulders
of giants.”
In
fact, the cultural value of copying is so well established that it is
written into the social bargain at the heart of copyright law. The
bargain is this: we as a society give limited property rights to
creators, to reward them for producing culture; at the same time, we
give other creators the chance to use that same copyrighted material
without permission or payment, in some circumstances. Without the
second half of the bargain, we could all lose important new cultural
work just because one person is arbitrary or greedy.
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.
Copyright
law does not exactly specify how to apply fair use, and that is to
creators’ advantage. Creative needs and practices differ with the
field, with technology, and with time. Rather than following a specific
formula, lawyers and judges decide whether an unlicensed use of
copyrighted material is “fair” according to a “rule of reason.” This
means taking all the facts and circumstances into account to decide if
an unlicensed use of copyright material generates social or cultural
benefits that are greater than the costs it imposes on the copyright
owner.
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.
If
the answers to these two questions are “yes,” a court is likely to find
a use fair. Because that is true, such a use is unlikely to be
challenged in the first place.
Another
consideration underlies and influences the way in which these questions
are analyzed: whether the user acted reasonably and in good faith, in
light of general practice in his or her particular field. Online video
makers’ ability to rely on fair use will be enhanced by the Code of
Best Practices in Fair Use that follows. This code of best practices
serves as evidence of commonly held understandings - some drawn from
the experience of other creative communities (including documentary
filmmakers) and supported by legal precedents, and all grounded in
current practice of online video. Thus, the code helps to demonstrate
the reasonableness of uses that fall within its principles.
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.
Unlike
many traditional creator groups, nonprofessional and personal video
makers often create and circulate their videos outside the marketplace.
Such works, especially if they are circulated within a delimited
network, do enjoy certain copyright advantages. Not only are they less
likely to attract the attention of rights holders, but if noticed they
are more likely to receive special consideration under the fair use
doctrine. That said, our goal here is to define the widely accepted
contours of fair use that apply with equal force across a range of
commercial and noncommercial activities, without regard to how video
maker communities’ markets may evolve. Thus, the principles articulated
below are rooted squarely in the concept of “transformativeness.”
In
fact, a transformative purpose often underlies an individual creator’s
investment of substantial time and creative energy in producing a
mashup, a personal video, or other new work. Images and sounds can be
building blocks for new meaning, just as quotations of written texts
can be. Emerging cultural expression deserves recognition for
transformative value as much as more established expression.
BEST PRACTICES
This
code of practices is organized, for ease of understanding, around
common situations that come up for online video makers. These
situations do not, of course, exhaust the possible applications of fair
use to tomorrow’s media-making techniques.
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.
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. 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.
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).
TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE
DESCRIPTION:
Sometimes video makers quote copyrighted material (for instance, music,
video, photographs, animation, text) not in order to comment upon it,
but because it aptly illustrates an argument or a point. For example,
clips from Hollywood films might be used to demonstrate changing
American attitudes toward race; a succession of photos of the same
celebrity may represent the stages in the star’s career; a news clip of
a politician speaking may reinforce an assertion.
PRINCIPLE:
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. Works of popular
culture typically have illustrative power precisely because they are
popular. This kind of use is fair when it is important to the larger
purpose of the work but also subordinate to it. It is fair when video
makers are not presenting the quoted material for its original purpose
but to harness it for a new one. This kind of use is, thus, creating
new value.
LIMITATIONS:
To the extent possible and appropriate, illustrative quotations should
be drawn from a range of different sources; and each quotation (however
many may be employed to create an overall pattern of illustrations)
should be no longer than is necessary to achieve the intended effect.
Properly attributing material, whether in the body of the text, in
credits, or in associated material will often reduce the likelihood of
complaints or legal action and may bolster a maker’s fair use claim.
THREE: CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY
DESCRIPTION:
Video makers often record copyrighted sounds and images when they are
recording sequences in everyday settings. For instance, they may be
filming a wedding dance where copyrighted music is playing, capturing
the sight of a child learning to walk with a favorite tune playing in
the background, or recording their own thoughts in a bedroom with
copyrighted posters on the walls. Such copyrighted material is an
audio-visual found object. In order to eliminate this incidentally or
accidentally captured material, makers would have to avoid, alter, or
falsify reality.
PRINCIPLE:
Fair use protects the creative choices of video makers who seek their
material in real life. 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. Otherwise, one of the fundamental purposes
of copyright - to encourage new creativity - would be betrayed.
LIMITATION:
In order to take advantage of fair use in this context, the video maker
should be sure that the particular media content played or displayed
was not requested or directed; that the material is integral to the
scene or its action; that the use is not so extensive that it calls
attention to itself as the primary focus of interest; and that where
possible, the material used is properly attributed.
FOUR:
REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE, PRESERVE,
OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON
DESCRIPTION:
Repurposed copyrighted material is central to this kind of video. For
instance, someone may record their favorite performance or document
their own presence at a rock concert. Someone may post a controversial
or notorious moment from broadcast television or a public event (a
Stephen Colbert speech, a presidential address, a celebrity blooper).
Someone may reproduce portions of a work that has been taken out of
circulation, unjustly in their opinion. Gamers may record their
performances.
PRINCIPLE:
Video makers are using new technology to accomplish culturally positive
functions that are widely accepted - or even celebrated - in the analog
information environment. In other media and platforms, creators
regularly recollect, describe, catalog, and preserve cultural
expression for public memory. Written memoirs for instance are valued
for the specificity and accuracy of their recollections; collectors of
ephemeral material are valued for creating archives for future users.
Such memorializing transforms the original in various ways - perhaps by
putting the original work in a different context, perhaps by putting it
in juxtaposition with other such works, perhaps by preserving it. This
use also does not impair the legitimate market for the original work.
LIMITATION:
Fair use reaches its limits when the entertainment content is
reproduced in amounts that are disproportionate to purposes of
documentation, or in the case of archiving, when the material is
readily available from authorized sources.
FIVE: COPYING, REPOSTING, AND RECIRCULATING A WORK OR PART OF A WORK FOR PURPOSES OF LAUNCHING A DISCUSSION
DESCRIPTION:
Online video contributors often copy and post a work or part of it
because they love or hate it, or find it exemplary of something they
love or hate, or see it as the center of an existing debate. They want
to share that work or portion of a work because they have a connection
to it and want to spur a discussion about it based on that connection.
These works can be, among other things, cultural (Worst Music Video
Ever!, a controversial comedian’s performance), political (a campaign
appearance or ad), social or educational (a public service
announcement, a presentation on a school’s drug policy).
PRINCIPLE:
Such uses are at the heart of freedom of expression and demonstrate the
importance of fair use to maintain this freedom. 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.
LIMITATIONS:
The purpose of the copying and posting needs to be clear; the viewer
needs to know that the intent of the poster is to spur discussion. The
mere fact that a site permits comments is not enough to indicate
intent. The poster might title a work appropriately so that it
encourages comment, or provide context or a spur to discussion with an
initial comment on a site, or seek out a site that encourages
commentary.
SIX:
QUOTING IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS
FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS
DESCRIPTION:
Video makers often create new works entirely out of existing ones, just
as in the past artists have made collages and pastiches. Sometimes
there is a critical purpose, sometimes a celebratory one, sometimes a
humorous or other motive, in which new makers may easily see their uses
as fair under category one. Sometimes, however, juxtaposition creates
new meaning in other ways. Mashups (the combining of different
materials to compose a new work), remixes (the re-editing of an
existing work), and music videos all use this technique of recombining
existing material. Other makers achieve similar effects by adding their
own new expression (subtitles, images, dialog, sound effects or
animation, for example) to existing works.
PRINCIPLE:
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.
LIMITATIONS:
If a work is merely reused without significant change of context or
meaning, then its reuse goes beyond the limits of fair use. Similarly,
where the juxtaposition is a pretext to exploit the popularity or
appeal of the copyrighted work employed, or where the amount of
material used is excessive, fair use should not apply. 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; when someone
sings or dances to recorded popular music without comment, thus using
it for its original purpose; or when newlyweds decorate or embellish a
wedding video with favorite songs simply because they like those songs
or think they express the emotion of the moment.
These principles, “don’t exhaust the possibilities of fair use for online video,” the code emphasises, adding:
“They merely address the most common situations today. Inevitably,
online video makers will find themselves in situations that are hybrids
of those described above or will develop new practices. Then, they can
be guided by the same basic values of fairness, proportionality, and
reasonableness that inform this code of practices. As community
practices develop and become more public, the norms that emerge from
these practices will themselves provide additional information on what
is fair use.”
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