Code of Best Practices in Fair Use for Online Video

Code of Best Practices in Fair Use for Online Video

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A Future of Public Media Project, funded by the Ford Foundation

 

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Code of Best Practices Committee

Co-chairs

Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University

Patricia Aufderheide, Professor, Director of the Center for Social Media, School of Communication, American University

Members

Michael C. Donaldson, Esq., Los Angeles

Anthony Falzone, Lecturer, Executive Director, Fair Use Project, Stanford Law School

Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; Fellow, Berkman Center for Internet and Society, Harvard University

Mizuko Ito, Research Scientist, School of Cinematic Arts, University of Southern California

Henry Jenkins, Professor, Program Head, Comparative Media Studies, Massachusetts Institute of Technology

Michael Madison, Associate Dean for Research, Associate Professor of Law, University of Pittsburgh School of Law

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley

Rebecca Tushnet, Professor, Georgetown University Law Center, Georgetown University

Jennifer Urban, Clinical Associate Professor of Law, Director of the Intellectual Property and Technology Law Clinic, University of Southern California

INTRODUCTION

WHAT THIS IS

Thisdocument is a code of best practices that helps creators, onlineproviders, copyright holders, and others interested in the making ofonline video interpret the copyright doctrine of fair use. Fair use isthe right to use copyrighted material without permission or paymentunder some circumstances.

This is a guide to current acceptable practices, drawing on theactual activities of creators, as discussed among other places in thestudy Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Videoand backed by the judgment of a national panel of experts. It alsodraws, by way of analogy, upon the professional judgment and experienceof documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

WHAT THIS ISN?T

This code of best practices does not tell you the limits of fair use rights.

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.

It?s not a guide to material that is already free to use withoutconsidering copyright. For instance, all federal government works arein 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.

It?s not a guide to using material that someone wants to license butcannot trace back to an owner?the so-called?orphan works? problem. However, orphan works are also eligible forfair use consideration, according to the principles detailed below.

HOW THIS DOCUMENT WAS CREATED

A distinguished panel of experts, drawn from cultural scholarship,legal scholarship, and legal practice, developed this code of bestpractices, informed by research into current personal andnonprofessional video practices (?user-generated video?) and on fairuse. Full identification of panelists is on the back cover of thisdocument.

BACKGROUND

Video is increasingly becoming a central part of our everydaylandscape of communication, and it is becoming more visible as peopleshare it on digital platforms. People make and share videos to tellstories about their personal lives, remixing home videos with popularmusic and images. Video remix has become a core component of politicaldiscourse, as the video ?George Bush Don?t Like Black People? and the?Yes We Can? parodies demonstrated. Both amateur and professionaleditors are creating new forms of viral popular culture, as the?Dramatic Chipmunk? meme and the ?Brokeback to the Future? mashupillustrate. The circulation of these videos is an emerging part of thebusiness landscape, as the sale of YouTube to Google demonstrated.

More and more, video creation and sharing depend on the ability touse and circulate existing copyrighted work. Until now, that fact hasbeen almost irrelevant in business and law, because broad distributionof nonprofessional video was relatively rare. Often people circulatedtheir work within a small group of family and friends. But digitalplatforms make work far more public than it has ever been, and culturalhabits and business models are developing. As practices spread andfinancial stakes are raised, the legal status of inserting copyrightedwork into new work will become important for everyone.

It is important for video makers, online service providers, andcontent providers to understand the legal rights of makers of newculture, as policies and practices evolve. Only then will efforts tofight copyright ?piracy? in the online environment be able to makenecessary space for lawful, value-added uses.

Mashups, remixes, subs, and online parodies are new and refreshingonline phenomena, but they partake of an ancient tradition: therecycling of old culture to make new. In spite of our romantic clichesabout the anguished lone creator, the entire history of culturalproduction 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 thatit is written into the social bargain at the heart of copyright law.The bargain is this: we as a society give limited property rights tocreators, to reward them for producing culture; at the same time, wegive other creators the chance to use that same copyrighted materialwithout permission or payment, in some circumstances. Without thesecond half of the bargain, we could all lose important new culturalwork just because one person is arbitraryor greedy.

Copyright law has several features that permit quotations fromcopyrighted works without permission or payment, under certainconditions. Fair use is the most important of these features. It hasbeen an important part of copyright law for more than 150 years. Whereit applies, fair use is a right, not a mere privilege. In fact, as theSupreme Court has pointed out, fair use keeps copyright from violatingthe First Amendment. As copyright protects more works for longerperiods 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, andthat is to creators? advantage. Creative needs and practices differwith the field, with technology, and with time. Rather than following aspecific formula, lawyers and judges decide whether an unlicensed useof copyrighted material is ?fair? according to a ?rule of reason.? Thismeans taking all the facts and circumstances into account to decide ifan unlicensed use of copyright material generates social or culturalbenefits that are greater than the costs it imposes on the copyrightowner.

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

• 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 whetherthe use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are ?yes,? a court is likelyto find a use fair. Because that is true, such a use is unlikely to bechallenged in the first place.

Another consideration underlies and influences the way in whichthese questions are analyzed: whether the user acted reasonably and ingood faith, in light of general practice in his or her particularfield. Online video makers? ability to rely on fair use will beenhanced by the Code of Best Practices in Fair Use that follows. Thiscode of best practices serves as evidence of commonly heldunderstandings?some drawn from the experience of other creativecommunities (including documentary filmmakers) and supported by legalprecedents, and all grounded in current practice of online video. Thus,the code helps to demonstrate the reasonableness of uses that fallwithin its principles.

Video makers can take heart from other creator groups? reliance onfair use. For instance, historians regularly quote both otherhistorians? writings and textual sources; filmmakers and visual artistsreinterpret and critique existing work; scholars illustrate culturalcommentary with textual, visual, and musical examples. Equallyimportant is the example of commercial news media. Fair use is healthyand vigorous in daily broadcast television news, where references topopular films, classic TV programs, archival images, and popular songsare constant and routinely unlicensed.

Unlike many traditional creator groups, nonprofessional and personalvideo makers often create and circulate their videos outside themarketplace. Such works, especially if they are circulated within adelimited network, do enjoy certain copyright advantages. Not only arethey less likely to attract the attention of rights holders, but ifnoticed they are more likely to receive special consideration under thefair use doctrine. That said, our goal here is to define the widelyaccepted contours of fair use that apply with equal force across arange of commercial and noncommercial activities, without regard to howvideo maker communities? markets may evolve. Thus, the principlesarticulated below are rooted squarely in the concept of?transformativeness.?

In fact, a transformative purpose often underlies an individualcreator?s investment of substantial time and creative energy inproducing a mashup, a personal video, or other new work. Images andsounds can be building blocks for new meaning, just as quotations ofwritten texts can be. Emerging cultural expression deserves recognitionfor 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. Thesesituations do not, of course, exhaust the possible applications of fairuse to tomorrow?s media-making techniques.

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

ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

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

PRINCIPLE: Video makers have the right to use as much of theoriginal work as they need to in order to put it under some kind ofscrutiny. Comment and critique are at the very core of the fair usedoctrine as a safeguard for freedom of expression. So long as the makeranalyzes, comments on, or responds to the work itself, the means mayvary. Commentary may be explicit (as might be achieved, for example, bythe addition of narration) or implicit (accomplished by means ofrecasting or recontextualizing the original). In the case of negativecommentary, the fact that the critique itself may do economic damage tothe market for the quoted work (as a negative review or a scathingpiece of ridicule might) is irrelevant.

LIMITATION: The use should not be so extensive or pervasivethat it ceases to function as critique and becomes, instead, a way ofsatisfying 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 amarket substitute for the work (or other works like it).

TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE

DESCRIPTION: Sometimes video makers quote copyrightedmaterial (for instance, music, video, photographs, animation, text) notin order to comment upon it, but because it aptly illustrates anargument or a point. For example, clips from Hollywood films might beused to demonstrate changing American attitudes toward race; asuccession of photos of the same celebrity may represent the stages inthe star?s career; a news clip of a politician speaking may reinforcean assertion.

PRINCIPLE: This sort of quotation generally should beconsidered fair use and is widely recognized as such in other creativecommunities. For instance, writers in print media do not hesitate touse illustrative quotations of both words and images. The possibilitythat the quotes might entertain and engage an audience as well asillustrate a video maker?s argument takes nothing away from the fairuse claim. Works of popular culture typically have illustrative powerprecisely because they are popular. This kind of use is fair when it isimportant to the larger purpose of the work but also subordinate to it.It is fair when video makers are not presenting the quoted material forits original purpose but to harness it for a new one. This kind of useis, thus, creating new value.

LIMITATIONS: To the extent possible and appropriate,illustrative quotations should be drawn from a range of differentsources; and each quotation (however many may be employed to create anoverall pattern of illustrations) should be no longer than is necessaryto achieve the intended effect. Properly attributing material, whetherin the body of the text, in credits, or in associated material willoften reduce the likelihood of complaints or legal action and maybolster a maker?s fair use claim.

THREE: CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY

DESCRIPTION: Video makers often record copyrighted sounds andimages when they are recording sequences in everyday settings. Forinstance, they may be filming a wedding dance where copyrighted musicis playing, capturing the sight of a child learning to walk with afavorite tune playing in the background, or recording their ownthoughts in a bedroom with copyrighted posters on the walls. Suchcopyrighted material is an audio-visual found object. In order toeliminate this incidentally or accidentally captured material, makerswould have to avoid, alter, or falsify reality.

PRINCIPLE: Fair use protects the creative choices of videomakers who seek their material in real life. Where a sound or image hasbeen captured incidentally and without pre-arrangement, as part of anunstaged scene, it is permissible to use it, to a reasonable extent, aspart of the final version of the video. Otherwise, one of thefundamental purposes of copyright?to encourage new creativity?would bebetrayed.

LIMITATION: In order to take advantage of fair use in thiscontext, the video maker should be sure that the particular mediacontent played or displayed was not requested or directed; that thematerial is integral to the scene or its action; that the use isnot so extensive that it calls attention to itself as the primary focusof interest; and that where possible, the material used is properlyattributed.

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 tothis kind of video. For instance, someone may record theirfavorite performance or document their own presence at a rock concert.Someone may post a controversial or notorious moment from broadcasttelevision or a public event (a Stephen Colbert speech, a presidentialaddress, a celebrity blooper). Someonemay reproduce portions of a work that has been taken out ofcirculation, unjustly in their opinion. Gamers may recordtheir performances.

PRINCIPLE: Video makers are using new technology toaccomplish culturally positive functions that are widely accepted?oreven celebrated?in the analog information environment. In other mediaand platforms, creators regularly recollect, describe, catalog, andpreserve cultural expression for public memory. Written memoirs forinstance are valued for the specificity and accuracy of theirrecollections; collectors of ephemeral material are valued for creatingarchives for future users. Such memorializing transforms the originalin various ways?perhaps by putting the original work in a differentcontext, perhaps by putting it in juxtaposition with other such works,perhaps by preserving it. This use also does not impair the legitimatemarket for the original work.

LIMITATION: Fair use reaches its limits when theentertainment content is reproduced in amounts that aredisproportionate to purposes of documentation, or in the case ofarchiving, when the material is readily available from authorizedsources.

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 awork or part of it because they love or hate it, or find it exemplaryof something they love or hate, or see it as the center of an existingdebate. They want to share that work or portionof a work because they have a connection to it and want to spur adiscussion about it based on that connection. These works canbe, among other things, cultural (Worst Music Video Ever!, acontroversial comedian?s performance), political (a campaign appearanceor ad), social or educational (a public service announcement, apresentation on a school?s drug policy).

PRINCIPLE: Such uses are at the heart of freedom ofexpression and demonstrate the importance of fair use to maintain thisfreedom. When content that originally was offered to entertain orinform or instruct is offered up with the distinct purpose of launchingan online conversation, its use has been transformed. When protectedworks are selectively repurposed in this way, a fundamental goal of thecopyright system?to promote the republican ideal of robust socialdiscourse?is served.

LIMITATIONS: The purpose of the copying and posting needs tobe clear; the viewer needs to know that the intent of the poster is tospur discussion. The mere fact that a site permits comments is notenough to indicate intent. The poster might title a work appropriatelyso that it encourages comment, or provide context or a spur todiscussion with an initial comment on a site, or seek out a site thatencourages commentary.

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

DESCRIPTION: Video makers often create new works entirely outof existing ones, just as in the past artists have made collages andpastiches. Sometimes there is a critical purpose, sometimes acelebratory one, sometimes a humorous or other motive, in which newmakers may easily see their uses as fair under category one. Sometimes,however, juxtaposition creates new meaning in other ways. Mashups (thecombining of different materials to compose a new work), remixes (there-editing of an existing work), and music videos all use thistechnique of recombining existing material. Other makers achievesimilar 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 tothe extent that the reuse of copyrighted works creates new meaning byjuxtaposition. Combining the speeches by two politicians and a lovesong, for example, as in ?Bush Blair Endless Love,? changes the meaningof all three pieces of copyrighted material. Combining the image of aninnocent prairie dog and three ominous chords from a movie soundtrack,as in ?Dramatic Chipmunk,? creates an ironic third meaning out of theoriginal materials. The recombinant new work has a cultural identity ofits own and addresses an audience different from those for which itscomponents were intended.

LIMITATIONS: If a work is merely reused without significantchange of context or meaning, then its reuse goes beyond the limits offair use. Similarly, where the juxtaposition is a pretext to exploitthe popularity or appeal of the copyrighted work employed, or where theamount of material used is excessive, fair use should not apply. Forexample, fair use will not apply when a copyrighted song is used in itsentirety as a sound track for a newly created video simply because themusic evokes a desired mood rather than to change its meaning; whensomeone sings or dances to recorded popular music without comment, thususing it for its original purpose; or when newlyweds decorate orembellish a wedding video with favorite songs simply because they likethose songs or think they express the emotion of the moment.

CONCLUSION

These principles don?t exhaust the possibilities of fair use foronline video. They merely address the most common situations today.Inevitably, online video makers will find themselves in situations thatare 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 thatemerge from these practices will themselves provide additionalinformation on what is fair use

COMMON FAIR USE MYTHS

IF I?M NOT MAKING ANY MONEY OFF IT, IT?S FAIR USE. Noncommercialuse is indeed one of the considerations for fair use, but it is hard todefine. If people want to share their work only with a definedclosed-circle group, they are in a favorable legal position. But beyondthat, in the digital online environment, wholesale copying can beunfair even if no money changes hands. So if work is going public, itis good to be able to rely on the rationale of transformativeness,which applies fully even in ?commercial? settings.

IF I?M MAKING ANY MONEY OFF IT (OR TRYING TO), IT?S NOT FAIR USE.Although nonprofit, personal, or academic uses often have good claimsto be considered ?fair,? they are not the only ones. A new work can becommercial?even highly commercial?in intent and effect and still invokefair use. Most of the cases in which courts have found unlicensed usesof copyrighted works to be fair have involved projects designed to makemoney, including some that actually have.

FAIR USE CAN?T BE ENTERTAINING. A use is no less likely to qualifyas a fair one because the film in which it occurs is effective inattracting and holding an audience. If a use otherwise satisfies theprinciples and limitations described in this code, the fact that it isentertaining or emotionally engaging should be irrelevant.

IF I TRY TO LICENSE MATERIAL, I?VE GIVEN UP MY CHANCE TO USE FAIRUSE. Everyone likes to avoid conflict and reduce uncertainty, and amaker may choose to seek permissions even in situations where they maynot be required. Later,a maker still may decide to employ fair use. The fact that a licensewas requested?or even denied?doesn?t undercutan otherwise valid fair use claim. If a rights holder denies a licenseunreasonably, this actually may strengthen the case for fair use.

I REALLY NEED A LAWYER TO MAKE THE CALL ON FAIR USE. Fair use is apart of the law that belongs to everyone.A lawyer usually works for a client by reducing risk; in copyright law,that often means counseling purchase of rights for all usesof copyrighted material. If clients tell lawyers that they want toassert their rights (something that has a very low risk, if theyunderstand what their rights are) then lawyers can recommendappropriate policies; but lawyers need to be told what theirclients want.

And finally, a special note from the lawyers among us: Be careful not to draw too much from specific past court cases.

A good example of one decision that easily can be over-interpreted is the California District Court decision in L.A. Times v. Free Republic,56 U.S.P.Q.2D (BNA) 1862 (C.D. Cal. 2000), which ruled that aright-wing electronic bulletin board that invited reader comments onmainstream media content was not fair use. This anomalous case predatesa Supreme Court decision (Eldred v. Ashcroft, 537 U.S. 186, 2003) thatclearly asserted the link between fair use and free speech.Furthermore, decisions like Bridgeport Music, Inc. v. Dimension Films,410 F.3d 792 (6th Cir. 2005), dealing with infringement standards inmusic sampling, are widely cited for fair use principles when in factthey do not concern fair use at all. While case law is of essentialimportance in establishing legal norms, it is the trend in caselaw that determines such norms. The trend in case law about fair usehas strongly been in the direction of supporting transformativeness asa core measure of fair use. This puts the judgment about fair use backsquarely in the hands of the new creators and platform providers, whomust look carefully at how videos repurpose copyrighted works

The Program on Information Justice and Intellectual Property, led by Professor Peter Jaszi, promotes social justice in law governing information dissemination and intellectual property through research, scholarship, public events, advocacy, and provision of legal and consulting services. The program is a project of the Washington College of Law at American University in Washington, D.C., led by Dean Claudio Grossman.

The Center for Social Media, led by Professor Patricia Aufderheide, showcases and analyzes media for social justice, civil society, and democracy, and the public environment that nurtures them. The center is a project of the School of Communication, led by Dean Larry Kirkman, at American University in Washington, D.C.

Funded by the Ford Foundation, as part of the Center for Social Media?s Future of Public Media Project.

Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair use.

centerforsocialmedia.org/fairuse

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