Heating Up - Webinar 3

Copyright & Fair Use

Want to post a video on YouTube? Looking to use archival footage in your next mashup or doc? Chances are, at some point you’ve worried about “stealing” someone else’s work. How do you know what’s legal and what’s not?

As video production becomes easier and online venues continue to grow, more people are relying on the legal right, through fair use, to use and circulate copyrighted material. Understanding how copyright works is essential for digital artists like you, as a way of creating new works out of old culture.

Know your rights! As an online media maker, you’ll be glad to know that one of the roles of copyright is to promote your creativity.

U.S. copyright law is designed to balance the needs of both copyright owners and users. Its twin goals are:

1. to provide an economic incentive to create original works, and
2. to protect the public’s access to creative works.

Copyright protects creative works such as film, video, music, literature, photography, sculpture, painting, architecture, and software code. The work must be original, that is, independently created by the author. Copyright must also be “fixed in a tangible expression,” which means that it must exist in a physical form for a period of time, no matter how brief. Examples include a painting, or a recorded performance of a song.

Copyright applies to both published and unpublished works. Today, the use of a copyright notice is no longer required; copyright protection exists from the time the work is created in a fixed, tangible form.

Generally, if a work is protected in the U.S. it is protected in most countries because the U.S. adheres to the leading copyright convention, the Berne Convention, which is administered by the World Intellectual Property Organization (WIPO).

Works not protected by copyright fall under the category of public domain.

Public Domain

What’s not copyright?

An idea cannot be copyrighted, only the expression of an idea. For example, copyright protects a specific novel, play, or video game about a detective solving a mystery, but not the underlying idea of a mystery.

Permitting authors to monopolize their ideas would undercut the main purpose of copyright law, which is to encourage people to create new work. This is also why facts cannot be copyrighted. Any fact that an author uncovers through research is in the public domain.

How long does copyright last?

It depends on the date of publication. Generally, for works created after January 1, 1978, the term of copyright is the life of the author plus 70 years. Works published after 1922 but before 1978 are protected for 95 years after the date of publication.

All works published in the United States before 1923 are in the public domain, as are all works published by the Federal Government. This means they are free to use by all. Remember also that facts and ideas are not protected by copyright and are in the public domain. For a complete list see the Cornell Copyright Center.

If you exercise any of an owner’s exclusive rights without permission, you are committing copyright infringement. Examples include illegally downloading music or bootlegging a movie onto DVD.

Section 106 of the U.S. Copyright Act gives copyright owners the exclusive right to:

1. Reproduce the work
2. Prepare derivative works based closely on the original (e.g., a painting based on a photograph)
3. Distribute the work (e.g., selling, leasing, or renting the work)
4. Perform the work publicly
5. Display the work

Who exactly is the owner?

The author is always the owner of the work except in two cases:

1. work that’s specifically commissioned as a work-for-hire, and
2. work that’s done in the general course of employment by an employee. In these instances the work is owned by the entity that paid for the work to be created.

As mentioned earlier, copyright is all about balance. The law specifies certain limitations on the exclusive rights of owners. For you, as a creative artist who uses copyrighted works, the most important of these is the doctrine of fair use.

Fair use is the legal right, in certain situations, to use copyrighted material without asking permission or paying for it. It is the main limitation on owners’ rights and the most important right for users.

Fair use is primarily designed to allow the use of copyrighted work for commentary, parody, news reporting, research, and education. The work must be minimal enough so that it does not interfere with the copyright holder’s exclusive rights to reproduce and otherwise reuse the work.

Section 107 of the U.S. Copyright Act lists four factors in determining fair use: http://www.copyright.gov/fls/fl102.html

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If you or your organization will derive any financial gain from using the copyrighted material, then it is probably not fair use.
2. The nature of the copyrighted work. Using someone’s creative work is less likely to be considered fair use than using strictly factual work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Fair use is not determined by any specific amount or percentage. Instead, courts rely on common sense when deciding if what is being used is too much or to vital to the original work as to constitute fair use.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Does the nature of the use compete with or diminish the potential market for the copyright holder’s work? If so, then it is probably not fair use. Keep in mind that true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.

The distinction between fair use and copyright infringement is not always clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Fair use is flexible and relies on the reasonable application of guidelines, not rules. Understanding the scope of fair use will help you comply with copyright law while also allowing you to assert your rights as a user.

Be sure to follow the additional guidelines developed especially for your field in the Code of Best Practices in Fair Use for Online Video.

Fair Use Best Practices

Fair use is rooted in our First Amendment right to free expression. It’s the social bargain at the heart of copyright law, in which we as a society concede certain limited individual property rights to ensure the benefits of creativity to a living culture. Fair use protects our ability to create new works using old culture, while at the same time granting reasonable rights to owners.

For fair use to apply, the social and cultural benefits to society must be greater than any economic harm to the copyright holder. In making your determination, ask yourself two key questions as stated in the Center for Social Media’s Code of Best Practices in Fair Use for Online Video :

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, and not simply repeat the work for the same intent and value as the original?
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answer to both questions is yes, then you can reasonably invoke fair use. Fair use for online video generally falls under six categories, as seen in these examples.

The Code of Best Practices in Fair Use for Online Video outlines six situations, or categories, in which fair use may be used:

1. Commenting on or critiquing of copyrighted material
2. Using copyrighted material for illustration or example
3. Capturing copyrighted material incidentally or accidentally
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

These examples represent the most common situations of fair use today. Whatever the situation, always consider the core values of fair use to guide you: fairness, proportionality, reasonableness, and, especially for video makers, transformativeness.

1. Commenting on or critiquing of copyrighted material

   
   Comment, critique, and parody are part of our freedom of expression and are central to the doctrine of fair use. Video makers have the right to use as much of the original work as they need for analytical or comparative purposes, not to serve as a bridge in a story line. The copyrighted work being commented on may be as extensive as necessary to make the point, but not so extensive that it ceases to function as critique and becomes a substitute for the work itself.
   

   “Citizen King” (1:30)

   This Frontline documentary takes an inside look at the national press corps and examines how reporters are becoming part of the landscape they’re covering. Several short clips from weekend political talk shows (Meet the Press, the McLaughlin Group et al.) are shown to illustrate a particular style of media. Fair use applies because the purpose of the clips is to critique the role these talk shows play in informing the public.

2. Using copyrighted material for illustration or example

   
   Video makers may quote copyrighted material to illustrate a point or argument, e.g., clips from Hollywood films to demonstrate changing American attitudes towards race, or photos of a celebrity to show stages in the star’s career. Fair use applies as long as the quoted material is used not for its original purpose, but for a new one. It must add significant value. Use only as much as you need to achieve the desired affect, and properly credit the source material when appropriate.
   

   “Merchants of Cool” (0:56)

   This Frontline documentary samples a teen horror movie, I Still Know What You Did Last Summer, to illustrate the marketing of popular culture to teens. Fair use applies because the horror film is used as a point of reference for a discussion on the effect of media, sex, and violence on teens.

3. Capturing copyrighted material incidentally or accidentally

   
   Incorporating incidental sounds and images in documentary footage is permissible when filming a sequence in a real-life event, such as recording the music playing at a wedding, or filming a poster on a bedroom wall. Such copyrighted material is an audio-visual found object. To eliminate the copyrighted material, the makers would have to alter or falsify reality. The copyrighted material should be unstaged and incidental. It should be integral to the scene but not the primary focus of the scene.
   

   “The Persuaders” (1:06)

   In this Frontline documentary an advertising team presents a demo of a commercial featuring the song “Downtown” by Petula Clark. Fair use applies because the song was integral to the scene being captured and was not specifically chosen as a soundtrack element.

4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon

   
   Repurposing copyrighted material is generally permitted to record a historical or cultural event, such as documenting one’s presence at a concert, or posting a celebrity blooper on the Internet. The repurposed material must transform the original in some way, most typically by putting it in a different context. Use only as much material as necessary to document the event.
   

   “Citizen King” (1:30)

   This American Experience documentary uses a central portion of Martin Luther King, Jr.’s “I Have a Dream” speech, for which the King estate claims copyright. Fair use applies because the section was historically crucial and the King estate had refused to license the material to public broadcaster WGBH, the show’s producer.

5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion

   
   Reposting copyrighted work in order to start a discussion is an essential freedom of expression. Video contributors often post videos (music, comedy, political ads et al.) to launch an online discussion. People are allowed to share work or portions of work because they have a connection to it, and because they want to start a discussion about it based on that connection. The intent to spur discussion must be clear.

6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

   
   As artists in the past have created collages and pastiches, so have video makers created new works out of old ones. Mashups (combining different materials to compose a new work) and remixes (editing an existing work) are covered under fair use when the reuse of existing works creates new meaning by juxtaposition. The new work must have a cultural identity and audience of its own, different from those of the original work. Simply reusing the material without making significant changes does not constitute fair use. Use only the amount of material needed to make the point.
   

   “Bush-Blair Endless Love” (1:45) - This mashup combines video footage of George Bush and Tony Blair with the song “Endless Love.” All three pieces of copyrighted material are transformed to create a new work with new meaning.