r e c l a i m i n g fa i r u s e
Reclaiming Fair Use h o w t o p u t b a l a n c e b a c k i n c o py r i g h t second edition
Patricia Aufderheide and Peter Jaszi t h e u n i v e r s i t y o f c h i c a g o p r e s s • Chicago and London
The University of Chicago Press, Chicago, 60637 The University of Chicago Press, Ltd., London © 2018 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. All rights reserved. Published in 2011 Second edition published 2018 by the University of Chicago Press Printed in the United States of America 24 23 22 21 20 19 18
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isbn: 978-0-226-37419-2 (paper) isbn: 978-0-226-37422-2 (e-book) doi: https://doi.org/10.7208/chicago/[ 9780226374222].001.0001 Library of Congress Cataloging-in-Publication Data Names: Aufderheide, Patricia, author. | Jaszi, Peter, author. Title: Reclaiming fair use : how to put balance back in copyright / Patricia Aufderheide and Peter Jaszi. Description: Second edition. | Chicago ; London : The University of Chicago Press, 2018. | Includes bibliographical references and index. Identifiers: lccn 2017044987 | isbn 9780226374192 (pbk. : alk. paper) | isbn 9780226374222 (e-book) Subjects: lcsh: Fair use (Copyright)—United States. | Copyright infringement—United States. Classification: lcc kf3020 .a984 2018 | ddc 346.7304/82—dc23 LC record available at https://lccn.loc.gov/2017044987 ♾ This paper meets the requirements of ansi/niso z39.48–1992 (Permanence of Paper).
contents
acknowledgments vii introduction ix 1
The Culture of Fear and Doubt, and How to Leave It 1
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Long and Strong Copyright: Why Fair Use Is So Important 16
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The Decline and Rise of Fair Use: The Back-Room Story 34
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The Decline and Rise of Fair Use: The Public Campaigns 48
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Fair Use Resurgent 72
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Fair Use in the Courtroom: How Judges Think Now 86
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Documentary Filmmakers: Pioneering Best Practices 102
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Codes of Best Practices Catch On 119
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Fair Use Expands Its Reach 138
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How to Fair Use 157
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The International Environment 178 Appendix A. Codes of Best Practices in Fair Use 187 Appendix B. Documentary Filmmakers’ Statement of Best Practices in Fair Use 188 Appendix C. Myths and Realities about Fair Use 199 Appendix D. Answers to Fair Use: You Be the Judge 204 references 215 index 221
acknowledgments
We are grateful to the many people in the communities of practice we have been privileged to work with, who shared with us their stories and concerns. We thank our program officers at the Ford Foundation, the Rockefeller Foundation, the Haas Family Trusts, the Hewlett Foundation, the Kress Foundation, the John D. and Catherine T. MacArthur Foundation, the Alfred P. Sloan Foundation, and the Andrew Wood Mellon Foundation for encouragement, critique, and funding to pursue the projects that led to this book. We are grateful for the conscientious and supportive work of our original editor, David Morrow; our editor for the second edition, Margaret Hivnor-Labarbera; and our manuscript editors, Carol Saller and Ruth Goring. We also thank anonymous readers and editors, as well as colleagues who graciously read this book in progress, including Barbara Abrash, Tarleton Gillespie, Henry Jenkins, Michael Madison, and Jessica Clark. American University has offered long-standing support; and we are particularly grateful to the School of Communication and the Washington College of Law. We owe a debt to our many students who followed us enthusiastically into this work, and to our staffs at the Center for Media and Social Impact and at the Program on Information Justice and Intellectual Property. We have benefited from a national informal network of legal scholars and lawyers who have selflessly helped us shape the tools for fair-use advocacy, including Prue Adler, Jonathan Band, Jamie Bischoff, Brandon Butler, Michael Carroll, Robert Clarida, Kyle Courtney, Jeffrey Cunard, Richard Dannay, Christina del Valle, Michael Donaldson, Niva Elkin-Koren, Sharon Farb, Anthony Falzone, Terry Fisher, Sean Flynn, Lauryn Guttenplan, Meredith Jacob, Rob Kasunic, Jack Lerner, Steven McDonald, Corynne McSherry, Michael Madison, William Patry, Gloria Phares, Carrie Russell, Matthew Sag, Pamela Samuelson, Brianna Schof-
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ield, Jason Schultz, Kevin Smith, Gary Strong, Rebecca Tushnet, Jennifer Urban, Fred von Lohmann, Gretchen Wagner, and Lindsay Weeramuni. The many staffers and board members at professional associations and organizations with whom we have worked to shape fair-use tools have been extraordinarily generous. We have been privileged to benefit from the dedication and advocacy of many scholars, creative community members, and advocates who have helped to expand access to fair use, among them but by no means limited to Steve Anderson, John Belton, Sheila Curran Bernard, Chris Boulton, Katy Chevigny, Kate Coles, Peter DeCherney, Jon Else, Anne Goodyear, Larry Gross, Marjorie Heins, Bill Herman, Renee Hobbs, Byron Hurt, Lewis Hyde, Mizuko Ito, Dean Jansen, Henry Jenkins, Barbara Kopple, Kembrew McLeod, Ben Moskowitz, Gordon Quinn, Aram Sinnreich, Libby Smigel, David van Taylor and Bruce Williams. We are grateful as well to many colleagues who help to expand access to exceptions to copyright monopoly such as fair use and fair dealing internationally— a network that grows stronger daily. And of course we are grateful to our loved ones, who share our pragmatic idealism.
introduction In every cry of every Man, In every Infants cry of fear, In every voice; in every ban, The mind-forg’d manacles I hear william blake, “London”
This book will help you understand how to think about and use copyright, and especially your right to use copyrighted material without permission or payment when you make a work— whether a blog entry, a song, a mashup, a poem, a documentary, a magazine article, a lesson plan, a scholarly archive, a slideshow, a technical manual, a scrapbook, a collage, or a brochure. That right to use unlicensed material is called fair use. This book also gives you strategies to deal with some copyright policy problems right here and now. Finally, it reframes the debate about copyright issues, revaluing copyright’s role in encouraging future creators. Copyright conversations have become a stalemate between two worldviews. One is that of the mass-media corporations fighting for control of what they understand to be their enclosed garden, generating fruit to be sold by the harvested bushel. They have pushed for and won long and strong copyright— copyright policies that heavily privilege the rights of copyright owners. The other is that of people who make new cultural works— often artists, remixers, appropriators, self-styled pirates— who understand the cultural landscape from which they draw to be a common field, ready for grazing and the creation of new, zesty products redolent of the past yet promising the future. These people’s perspective often is that copyright is bunk. Their conflict is an unwinnable and unnecessary battle— and it’s bad for the rest of us, who are neither big copyright holders nor bombthrowers. At this point, most of us make cultural products at some point in our days and weeks. People do it at work, in community groups, and at home. Whether it is a Sunday school presentation or higher-ed curriculum, a slideshow for your uncle’s birthday or for the board meeting, an adorable exchange between two cousins at the reunion, documentation
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of a rough moment in the town council meeting, a fashion assembly on the DIY designer site Polyvore, a blog post, or a teaser for an important report on YouTube— people are encountering copyright issues in their daily lives. They want more choices than seem to be available in the war of words that pits big business against copyright anarchists. They would like to know that when they create something— even when it is not for money— they have some rights over it. And they would also like to be able to make work that references the world around us without getting into trouble. We believe that on top of the problems people have with an ill-fitting copyright law today, they also often bind themselves with “mind-forg’d manacles” (as the poet William Blake once put it, surveying the human condition of early industrial-era London). This book was written in the hopes of loosening those manacles. It is designed to free you not only from unnecessary strictures of copyright but from the disempowering structure of a “copyright wars” way of thinking about how to use the culture at your fingertips. It gives you a way to see copyright as a set of policies that govern how we collectively manage our cultural heritage and how we nurture cultural production— a policy in the public interest. It provides you with the historical and legal background that can give you confidence in your decision making. It provides a proven, workable method for people to reclaim the legal and human rights they have as creators under copyright. It gives you tools to change both practice and policy. Over the last few years, we have worked with filmmakers, online video makers, dancers, creators of open-access university courseware, media literacy teachers, journalists, visual artists, professors, and librarians. They all had one common problem. They needed to quote copyrighted material in order to do their work well, and the licensing arrangements that work perfectly well for highly professional media operations such as Hollywood studios just didn’t fit their needs. In fact, they sometimes could not get anyone at a studio or music company or archives house to answer their emails or calls, because there was so little money in the licensing deals. We were able to work with them to create codes of best practices in fair use— the right to use copyrighted material without permission or payment, in some circumstances. By creating these codes and then widely disseminating them, these communities not only liberated themselves to do the best work they could do— without hurting their own rights as copyright holders or those of others. They also set in motion a trend of people reclaiming their rights under the law.
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As we worked with these communities, we understood ever more clearly the consequences of a deformed and shrunken understanding of copyright policy and its purpose. We saw that when people do not understand the law, when they are constantly afraid that they might get caught for referring to copyrighted culture— whether an image, or a phrase of a song, or a popular cartoon character— they can’t do their best work. Their imaginations shrink down to what they think might be possible. Deciding to just go ahead and “do it” is no solution for all the people who worry that taking a risk may put their assets or family’s stability at risk, and who in any case are just trying to do the right thing. We came to see how this misunderstanding cripples creativity at its base and deforms the growth and development of our own culture. We saw that it was happening in ways mostly invisible to people, who often were quietly convincing themselves that some things were simply too hard to imagine doing, under the circumstances. We also saw how much change people could bring about in their own lives and that of their creative communities when they applied a better understanding of copyright to their own practices. We introduce you to communities who are making fair use more usable, and invite you to do the same, whatever it is you want to create. Fair use is a tool of creative freedom for the purposes you choose. But fair use becomes real only when people actually use it; like a muscle, it can shrink with disuse. Too few people today understand how it meets the needs of copyright policy as well as their personal creative needs. We came to this work differently. Patricia Aufderheide, as a historical and communications scholar as well as film critic, had long worked on the problem of how grassroots and dissident cultural expression enters and circulates in the culture. She had spent decades working with the documentary film community. Peter Jaszi, as a lawyer and copyright scholar, had long studied the evolution of intellectual property law in the context of custom and culture. He had worked extensively with librarians, film scholars, and others on their specific copyright issues. We met at a conference Peter organized at American University’s law school, Washington College of Law, to create a copyright research agenda. A variety of legal scholars demonstrated with skill and logic how copyright constrained media makers. They showed that extended copyright, default copyright, and intimidation tactics by large media companies limited the choices of new creators of culture. They lacked, however, anything other than purely anecdotal evidence from any creative practices. Something bothered Pat and some creators in the room about this
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conversation: The creative voice was not present. “They need to convince musicians of this,” Jenny Toomey, then the director of the Future of Music Coalition, whispered to Pat. The filmmakers Pat knew also would not recognize the description of copyright’s problems; they never complained about this aspect of copyright. They complained about the welter of licenses they had to get. They complained that someone had ripped off a scene or an archival sequence or an image from their movie and put it into another. They were afraid of losing distribution money to downloaders. But they didn’t complain about why they couldn’t do their work because of copyright problems. The worldview of many legal scholars— that copyright is stifling creativity— didn’t match up with that of authors, musicians or filmmakers, who at the time were mostly asking, How can I protect my copyright more securely? This, it turned out, was a question that bothered the legal scholars too. The conference started a conversation between us: how could copyright research contribute to crossing the gap between the legal scholars and the creators? The answer to how these worldviews could coexist without connecting lay in the problem of shrunken imagination— the “mind-forg’d manacles.” If artists did not even see that they were avoiding certain creative opportunities and failing even to imagine that they might undertake others, then they would not feel the loss that the legal scholars kept pointing to but could not document. Together we decided to try an experiment. We would try to get inside the minds of documentarians to see if we could actually find those mental manacles. Why documentary filmmakers? Because they need to access copyrighted material in the course of their work, and finally because most documentary filmmakers work alone or in small teams, where they themselves are making the hard choices and can identify those choices. This project, which resulted in a study of documentary filmmakers’ creative choices in light of their understanding of copyright, began the process that launched this generation’s seizing of their fair-use rights in the United States. We never thought, when we began this simple academic research project— the result of a question nagging at both of us— that we would be part of a process that has changed business practices, helped to inspire new kinds of cultural creation, and contributed to a change in the way culture-makers look at copyright. We were thrilled to receive a grant from the John D. and Catherine T. MacArthur Foundation to hold a conference on documentarians’ rights problems and another from the Rockefeller Foundation to execute in-depth research on documentarians’ experience with copyright. We imagined ending the research within a few months. Instead, more than a decade later we have facilitated a clutch of codes of
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box 0. 1 >> Fair Use: You Be the Judge >> PTSA Flyer You’re making a flyer for the PTSA’s book fair. You’d like to reproduce some book covers to decorate it, and you expect to send this flyer around the email list and also post it on the school website. Is that copyrighted material? If it is, do you have the right to reproduce it? What kind of trouble can you get into? Is the copyright situation any different for the web than for the paper version? Answers at the back.
best practices in fair use, advised school districts, policymakers, and trade associations on positions and practices, and watched an international trend grow. We have watched people change from self-perceived victims to unafraid creators and even vigorous civic actors. For inspiration, we have drawn differently from our backgrounds, although with a common conviction in the capacity of people to make appropriate and reasonable decisions about their creative choices, if they have the understanding they need. Pat has anchored her analysis of culture and society in Raymond Williams’s and Pierre Bourdieu’s cultural production work, and her understanding of the connection between communication and public action in the work and lives of John Dewey, Stuart Hall, and her mentor James Weinstein, founder of the In These Times newspaper. Peter has drawn on the rich heritage left by copyright historians and theorists such as Benjamin Kaplan and L. Ray Patterson and on the work of the scholars who contributed to the “critique of authorship” in law and literature from Barthes and Foucault onward, especially Peter’s frequent collaborator Martha Woodmansee. We share a commitment to the notion that with the right information and education, people can and should make their own decisions about their creative and cultural choices. We both believe that copyright has for far too long been a lawyer’s preserve, and that copyright decisions, particularly about reuse of others’ copyrighted work, can and must be made by creators if we are to get the best culture we can. We also have a commitment to an open society, one where a wide range of viewpoints can flourish, power can be held to account, new ideas can be explored, and big problems addressed. We think understanding the need for a balance in copyright between owners and those who use their material to make and analyze culture will be a crucial part of building an open society for tomorrow. A note on notes: We drew on many resources to create this book, but
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decided against using footnotes, in the interest of readability. We have provided a reference list with some of the most important texts that we drew from, and that we think will help others who want to plunge deeper into this material. In addition to this book, we have created a website that provides more background and examples, as well as codes of best practices, discussion scenarios, information on litigation, and current fair-use news, at the Center for Media & Social Impact. We welcome your comments and stories there.
1 The Culture of Fear and Doubt, and How to Leave It
Gordon Quinn, for forty years a professional filmmaker, including as executive producer on the award-winning film Hoop Dreams, was working on a public television program in 2001. New Americans is about the lives of new immigrants to the United States. In one scene, Israel Nwidor, a Nigerian immigrant trained as a chemical engineer and now working as a cab driver, is listening to a George Strait song in his car when a white guy on a motorcycle pulls alongside and gives him the evil eye. It’s one of those little moments that reveal a lot. Twenty years before, Gordon wouldn’t have given the song playing on the speakers another thought. But over the last two decades, he had become all too conscious of the copyrighted material in documentaries. Broadcasters and insurers had become hypervigilant, demanding assurances that he had licensed every stray bit of copyrighted material. Did the guys at the high school reunion sing along with “Sweet Caroline”? License it. Were the middle-school girls on a sleepover listening to pop songs? License them. And what about those posters on the walls? The books on the shelf ? As a result, Gordon didn’t doubt that he would need to license the George Strait song that Israel was nodding along to. But he also knew from experience that he probably wouldn’t get an answer to an email sent to the music company. The amount of money involved would be so trivial that the music company’s licensing executives wouldn’t even respond. So Gordon cut out the scene. Nobody watching it even knew they were missing anything. It was one of a thousand little cuts that nobody knew they were missing, each one of them a silent erasure of a piece of reality. Cyndy Scheibe, a psychology professor at Ithaca College and director of Project Look Sharp, a media literacy initiative, uses comic strips from
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newspapers and other pieces of popular culture— clips from documentaries, popular films, and print advertisements— in her classes to teach about point of view and representation. Her team at Project Look Sharp has created online curriculum materials about the media’s representation of the Middle East, featuring among other things a clip from the Disney film Aladdin. Could Cyndy’s teaching materials safely be shared with other teachers? Did she dare to put it on an open website? The Ithaca College legal experts and administrators were divided, and finally demanded that both Cyndy and her colleague Chris Sperry personally pledge their willingness to go to court to defend themselves should their use of unlicensed copyrighted material be litigated. Cyndy and Chris gambled, and let the site go up. They erred on the side of caution where they could. For one exercise that involved comparisons of covers of the magazine Newsweek, they tried to license the covers from the news corporation. But the company would not license them for an appropriate fee, and furthermore, the company told them, Cyndy and Chris would also have had to negotiate with the subjects of the covers. The company spokesperson was actually talking about two kinds of rights: the company’s copyright, and the celebrities’ right of publicity. Cyndy and Chris believed, correctly, that they did not need to get permission from the likes of Osama bin Laden, since they had a First Amendment right that overrode any publicity claims he could make. As for the copyright claims, they decided to use the magazine covers under fair use; they and their university counsel believed there was no question that they had a right to do so. Even when they were sure they were within the law, though, Cyndy and Chris were given pause by what they’d heard in the rumor mill. That little clip from Aladdin— did that put them in jeopardy from the Disney Corporation? They’d heard that Disney was wildly litigious. They finally added that clip to the website, and held their breaths. They were relieved to see Project Look Sharp be widely used, and even more relieved as the threat of litigation failed to emerge. They had pledged if necessary to loot their 401(k)s for legal funds to defend their rights to reference their own culture, and— for now— they thought they didn’t have to. Stephanie Lenz, proud mother of thirteen-month-old Holden in State College, Pennsylvania, posted one of those hilarious- for-family videos of Holden jiggling up and down in the kitchen, dancing to the beat of a
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Prince song. Unlike media professionals, she never once thought about copyright as she did so. But no sooner had she let friends and family know about the video than it was gone. YouTube had obeyed a request from Universal to take down the video for copyright infringement. Stephanie did what most YouTube posters don’t. She went to the Electronic Frontier Foundation, which in 2007 sued Universal for abusing the Digital Millennium Copyright Act. (The DMCA requires internet service providers like Verizon and YouTube to take down works that copyright holders claim infringe on their copyright.) EFF seized on the chance to work with Stephanie; the lawyers there wanted a good case to establish that frivolous takedown notices could be costly. They sued Universal for bad faith in issuing the takedown notice. By 2015 Holden was in middle school and the rights and wrongs of the company’s conduct had not yet been resolved, but that year the court established an important principle: “Copyright holders cannot shirk their duty to consider— in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use.” (Just what this affirmative duty consists of also remains to be seen.) Walking Away from Fear and Doubt
Whatever their rights to use the copyrighted material they employed in these works, Gordon, Cyndy, Chris, and Stephanie all were trapped within a culture of fear and doubt. They didn’t necessarily participate in it, but they faced gatekeepers who were also enmeshed in the same culture, and who enforced it (sometimes willy-nilly). Ultimately, each of these people challenged that culture, in a way that gatekeepers could hear and, in some cases, even listen to. These are just a few of the people who are changing their own stories and showing the way for the rest of us. Gordon Quinn had been trained by the last two decades of producing for television to know that he needed to show insurers a license for every last smidgen of copyrighted material he built into a film. He knew that, in theory, he had the right to refer to that George Strait song, under what is known as the fair-use doctrine of copyright law. That doctrine says that, under some circumstances (broadly, when social benefit is larger than individual owners’ loss), people can quote copyrighted work without permission or payment. But insurers would probably have challenged his claim, because they avoided risk wherever they could. Without a grounded understanding of filmmakers’ interpretation of fair use, the insurers would not know how much risk they were taking. If they did challenge it,
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Gordon probably couldn’t get his work on television. He faced censorship via the insurers’ reluctance to employ fair use. In the next film he made, Gordon Quinn was in a far different position. By that time he had participated in the creation of a pioneering document, the Documentary Filmmakers’ Statement of Best Practices in Fair Use. This document, built on the experience and judgment of many veteran filmmakers, made it extremely easy for any maker— professional or not— to decide whether their use of copyrighted material met the standards of the law. The statement was soon part of the backpack of any documentarian, and even insurers began to use it, including with films from Gordon’s company, Kartemquin Films. Cyndy and her colleague Chris put up with months of agonizing scrutiny from university lawyers and administrators, even pledging their own savings to back their gamble that they had the fair- use right to quote news, public affairs, and popular culture in order to analyze it. After that experience, Cyndy and Chris also acted to change their fate. Seeing how effective education had been for filmmakers, they worked with other educators to create the Code of Best Practices in Fair Use for Media Literacy Education. This code turned out to be helpful not only to teachers but also to librarians and even administrators. Stephanie Lenz discovered that even when you make your own video and upload it for free to the internet, there are gatekeepers who participate in the culture of fear and doubt. She found out that under the DMCA, YouTube as an internet service provider is free of responsibility for YouTube users’ copyright choices under law— but only if it honors any copyright holder’s request to “take down” an offending video without question. A user has the right, after that, to demand that YouTube put it back up again, although the user will receive a message saying that the user could be sued individually by the complainer. You have to be sure you know you’re within the law to be the person who clicks that button. Most individual YouTube users who suffer from takedown notices, even when they are not valid, simply assume that perhaps they did infringe a copyright, and that even if they didn’t, they cannot challenge a big corporation. Stephanie instead chose to team up with the Electronic Frontier Foundation in order to put a spotlight on an ugly spot in today’s legislation. She found out that posters on YouTube do have rights under fair use, though both posters and challengers often overlook them. She decided, with EFF’s help, to get a court to affirmatively declare that her use was fair and that Universal was wrong to demand its removal. “This case mattered a lot to Stephanie,” said Jason Schultz, one of the lawyers who
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initiated the case, in order to show copyright holders that they cannot just issue blanket takedown notices. “When Universal told her she had done something wrong, she felt terrible. Now she’s stood up for her rights, and that feels good.” Meanwhile, other online video enthusiasts, including lawyers and cultural studies experts, had created the Code of Best Practices in Fair Use for Online Video, which made clear that Stephanie’s use of the video was entirely within the law. Thus Stephanie’s challenge to a fear-based status quo was bulwarked by a strong statement of community practice. None of these people wanted to overturn copyright law. Indeed, Gordon, Cyndy, and Chris are all people who hold copyrights themselves and value the limited monopoly rights they hold. Stephanie Lenz simply didn’t want to take down a cute family video. But they all saw opportunities to assert rights that already exist, and to challenge behaviors that intimidate new makers of culture. The key to challenging the culture of fear and doubt is knowledge. Knowledge unlocks the door to action, which lets you join the culture of creativity. Why We All Care about Copyright
You might ask, Do I really have to know that much about copyright law, especially if I’m someone who just wants to post a photo on social media, make a video, put together a slideshow, build a class lesson, teach a Sunday school class? You don’t, not really. You just need to know the right stuff— most importantly, that you have rights. And then you need to know the real risks you take when you exercise your rights. You then might ask, Shouldn’t we really leave legal questions in the hands of lawyers? You can, but that’s a big decision. It’s a decision that leaves you powerless to make creative decisions on your own, and it is unlike other decisions in life. You don’t expect to consult lawyers when you speak in public, even though incautious remarks might trigger actions for defamation. If you are attacked on a dark street, you don’t stop to call a lawyer to see if you have the right to self-defense. There’s nothing so difficult about the decisions people have to make about reusing copyrighted material that requires you to keep a lawyer at hand as you work. And then you might ask: How often, really, do these arcane questions of copyright come up for non–copyright experts anyway? More and more, both at home and at work. That is not only because people have more and more tools with which to make and distribute their own digital work. It is
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chapter one box 1. 1 >> Fair Use: You Be the Judge >> Health News You are an independent journalist with a particular interest in food safety. These issues regularly surface in the news—recalls, E coli outbreaks, panics over particular additives. Many people visit your website to get up-to-the-minute coverage of food safety. You would like to post TV news clips that cover the topic on your website. You’ll scrupulously credit all the sources. Do you need permission from the TV stations? Answers at the back.
also because over the last century, copyright became both long and strong. These days, it sometimes seems as if our whole culture is copyrighted. This was not always the case. But since 1978 in the United States, all expression that ends up in a fixed medium (and that means everything— your shopping list, the interoffice memo, your kid’s homework) is copyrighted by default. There is virtually no chance that you will make even a home video that is not littered with copyrighted material, including your kindergartner’s adorable picture of Mom (yes, that kid does own the copyright). Copyrights did not always last forever, either. And they don’t now, but for most ordinary purposes they might as well. Copyrights now last generations beyond the life of the author. That means that almost all of current culture—Avengers, Doctor Who, Saturday Night Live routines, Jay- Z and Adele’s music, Stephen King’s novels— is likely to be off limits until after not only all the participants but all the people who ever heard of them are dead. Big media companies and their trade associations, such as the Recording Industry Association of America (RIAA), the American Association of Publishers (AAP), and the Motion Picture Association of America (MPAA), were not always huffing and puffing about copyright infringement, other than commercial-scale bootlegging. But they are now, and they have been ever since digital technology made it easy to make copies. They have been watching their business models change without seeing workable new ones emerge. Their resort has been both to leverage intellectual property ownership into ever greater control over their “assets,” and to scare people into thinking that ownership rights are even more far-reaching than they actually are. Furthermore, scare tactics in one area of practice scare people in another. When the RIAA sues P2P downloaders, people who are repurposing
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bits of copyrighted culture to comment upon it get frightened. When Fox asserts a dubious claim in the slogan “fair and balanced,” people erroneously believe this is a copyright problem— rather than trademark overreaching. Problems that big media companies have with massive commercial piracy in China and elsewhere are confused with individual acts of copying. People are far more alarmed, in general, than they need to be, and they rarely understand exactly what is worth getting alarmed about or why. Large corporate producers know their own fair- use rights, of course. Late-night political comedy would grind to a halt if (for example) clips from Fox News were off limits. But the companies that produce these shows have been less than scrupulous about recognizing that everyday citizens enjoy the same rights. None of that would matter that much if we were not becoming a culture of makers and sharers, not just consumers of other people’s copyrighted material. We are rediscovering the participatory, collaborative cultural practices that many of us forgot during the peak era for mass media. We create birthday slideshows and scrapbooks, mix CDs and files, mashups and remixes, websites and self-published books. We expect programs such as GarageBand and Windows Movie Maker to come preinstalled on our new computers, and we turn to Pinterest, Instagram, and Facebook for other people’s memories to fill in when ours comes up short. For centuries no one much thought about copyright in daily life. Now we don’t have a choice. We are both consumers and creators every day, and we need to use our rights to draw on our own culture as well as claim rights to our own productions. We need to reclaim the conversation about copyright as something that belongs to all of us. But what if we are just producing work for love, not money? Do we still need to think about copyright then? Sadly, yes. It is true that strictly “educational” work benefits from some special exemptions. And in some situations, noncommercial work does get a break under fair use. But what qualifies is difficult to assess, in part because the term “noncommercial” has no clear legal definition, and so there is no guarantee that your idea of the noncommercial is the same as someone else’s— especially since even the most personal work often is made public over for- profit platforms. So you would not want to rest a case for fair use entirely on noncommerciality. Whatever you produce, you are likely to face gatekeepers who want to know that you have a solid justification for your fair use. Of course, if work never leaves the four walls of a bedroom, a classroom, or a board-
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room, there is no need to worry, for the simple reason that nobody will know. But rarely these days do we want to produce work that stays within four walls. And when we go beyond those walls, we use intermediary services that have copyright standards. For instance, if you take material to a duplicating service so that a slideshow can be a holiday present for the extended family, or because you want to share a work presentation with colleagues, the duplicator may balk at reproducing work with copyrighted material in it. Only if you have a fair-use justification may it be possible to override the concern. The duplicator is only one example of gatekeepers whose institutional need to control risk may impinge on our rights as users. As Stephanie Lenz’s story reminds us, the category also includes internet service providers, and may well include institutional lawyers and administrators, insurers, and sometimes even— however reluctantly— teachers and librarians. What We Won’t Do
Although this book will give you a solid framework to make your own fair-use decisions, it will not do some other things. If you are downloading copyrighted work for free because you want to enjoy it and do not feel like paying for it, this book will not help you out. We agree with smart lawyers like William Patry and savvy digerati like Cory Doctorow and Tim O’Reilly who censure big media companies for turning their customers into enemies. Like most of the rest of you, we are waiting for the day when business models in the entertainment industry catch up with the technologies that people prefer to use on a daily basis. But we are pretty sure that the basic notion that copyright holders deserve, if they choose, to be paid for work is not going to be challenged usefully anytime soon. Besides, we note that people who make new works of any kind are copyright owners. Some of them really do not care how their work gets used, or whether they get recognition or get paid. But many of these people— possibly including you— may want to benefit from the limited monopoly rights of copyright owners. Fair use is not a universal solvent. When you want to reuse material and recirculate it for its original purpose, especially in its entirety or in significant part, fair use may not cover your activity. For instance, suppose you would like to use a popular song as the soundtrack for a commercial slideshow. Or you are making a biographical portrait film of a political figure and want to use large chunks of an earlier film about that figure. Or you would like to repost the entire school play— your kid was a
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mushroom in one scene— on YouTube. Or you want to photocopy a manual for a new video camera, scan it, and put it on an open user’s forum to make it easy for all your students to access. You then have to seek out licensing options. This book will not help you license work, but help is available from others. You might turn to Susan Bielstein’s excellent, unpretentious guide Permissions: A Survival Guide for step- by-step advice on how to license graphic material. For audiovisual work, you might want to use Michael Donaldson’s Clearance and Copyright: Everything You Need to Know for Film and Television. And for a good solid overview of copyright in general you can turn to Bruce Keller and Jeffrey Cunard’s Copyright Law: A Practitioner’s Guide. Fair Use and the Copyright Critique
Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and many creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has resurfaced strongly and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here. It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed the doctrine’s history and examined contemporary copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair-use banner, publicly using their rights and encouraging their students to do the same. Established communities of creators, administrators, and users— filmmakers, teachers of English and visual art, librarians, makers of open courseware, poets, and dance archivists— have identified fair use as a necessary tool to achieve their missions. They have turned to the sturdy tool of consensus interpretation by making codes of best practices in fair use through their professional associations. Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work. As a result, the Librarian of Congress has granted
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both documentary filmmakers and college teachers exemptions that support their fair-use rights. Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anticorporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counternotices and explain why their uses are fair. Recently, remixers won exemptions from the Librarian of Congress to permit them to make their highly personal and often socially critical work. New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer & Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice such as lawyers and web developers have built their fair- use expertise to serve their clients better. Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain, and the Stanford Fair Use Project have all taken action on fair use. The Organization for Transformative Works was founded in part to help remixers use their fair-use rights more effectively. Between the scholars, creators, artists, and organizations, fair use has emerged out of a twilight existence in which for decades it had languished. During those decades, many professionals and especially professionals in the corporate media environment— whether broadcast journalism, cable documentary, or newspapers— routinely and extensively employed fair use. But if you were not a professional, you might not even have heard of it. That has changed. The various actors in this resurgence of fair use differ in their goals. Some simply want to assert their rights to improve their work, lower their costs, and start or grow new businesses. Some want to expand the sphere of freedom of expression so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair-use rights is imperative both to protect fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and longrange effect on markets and policy.
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A Bigger Conversation
The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the United States and worldwide, critiquing the most stifling, confining features of copyright practice today. That discourse is variously called copyright reform, copyfighting, the copyleft, and advocacy for a cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though it still lacks evidence of broad social mobilization of the kind that Patrick Burkart has noted for the fair use of music. The people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly toward ownership rights, in a way that prejudices the health and growth of culture. This broader discourse is evident in many ways besides the efforts to make fair use more usable: proposals for copyright law revision, efforts to create legally sanctioned copyright-lite or copyright-free zones or to expand the public domain, and civil disobedience. Some propose copyright reform to shrink the monopoly claims of owners. Among legal scholars, Jessica Litman, Pamela Samuelson, Rebecca Giblin, and Kimberee Weatherall have led in proposing a start- fromscratch reconceptualization of copyright law. They imagine a simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster” it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a range of tweaks to pull back the extent of copyright protection, such as limiting copyright length and dropping protection against the preparation of derivative work, so that less licensing is needed. Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners. Some legal scholars offer suggestions to improve the efficiency of licensing, which today is messy, clumsy, and frustrating. David Lange, for instance, proposed increased use of statutory (or compulsory) licensing schemes, such as those that allow today for the retransmission of TV signals by cable and satellite systems. Others have suggested new voluntary digital platforms through which users could make “micropayments” for each individual access to copyrighted material offered commercially. William Fisher has proposed a voluntary collective administration system, akin to those that today enable public performances and broadcasts of music, which would collect licensing payments through internet service providers and distribute them to copyright owners and artists whose material is used online. The ideas and projects all respond to the real problem that copyright
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chapter one box 1. 2 >> Fair Use? Creative Commons? Which Is Best? People often confuse fair use with efforts to celebrate the public domain and workarounds for strong copyright, such as open-access publishing and Creative Commons licenses. Sometimes they even think these efforts are in competition. In fact, they are complementary ways to address the same general problem of access to existing culture, as David Bollier has noted. Furthermore, enthusiasm for public domain work sometimes leads people to believe that fair use is not as useful as it is. This is because they have been drawn to public domain work by their frustration with copyright ownership restrictions, and have associated all of copyright with copyright ownership. They have not yet become aware of the flexibility and power of the fair-use doctrine, and they see one side of copyright as the only side. Sometimes they simply do not have faith that copyright imbalance can be righted. Creative Commons (CC) is possibly the best publicized of the efforts to compensate for the badly eroded zone of copyright-free work. It was launched by legal scholar Lawrence Lessig, who at the time indeed was dismissive, even contemptuous, of the potential of fair use to address copyright imbalance. However, CC was not an attempt to supplant or be better than fair use. Rather it was an attempt to solve a different problem: how to allow people to give away or condition their long and strong copyright. CC licenses use the strength of owners’ rights to allow owners the leeway to offer their works to the general public under the terms and conditions they decide. So CC creates a zone inside copyright ownership for owners who want to be generous and give their works away. All CC licenses impose some conditions, and some impose more than others. Some users of CC material ignore this; owners of CC licenses sometimes complain that people do not honor the conditions. The conditions people put on use of their work makes CC a copyright-light zone rather than copyright-free zone, and of course it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy. A CC license, intended to promote circulation of work, may limit it to the alternative CC world it was born into. This is precisely because it is designed to be an alternative to rather than a feature of the copyrighted environment. CC licenses forbid the use of digital rights management (DRM), which is standard to all commercial DVD contracts. Thus, a CC license may kill a commercial distribution deal. Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available
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free on the web—still sometimes need fair use. That is because most new work refers to existing culture. When that happens, people need to exercise their right of fair use, because most work is not in the copyrightlight, fenced-in zone.
law now fits ever more poorly the way people are actually making culture. They may well take some time to become useful, though. The big stumbling block both to fundamental copyright reform and to licensing reform is that large copyright holders— key stakeholders in any change in licensing schemes— are not able to agree on what they would like to do. They do not know what business models will be most relevant in a few years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to them than change that might have unanticipated downsides. As major stakeholders in any legislative reform, they will stall, derail, or rewrite legislation in the same unbalanced direction as today, until their interests shift with shifting business models. As major actors in licensing, they will collaborate on new methods of licensing when they understand how emerging business models favor their interests. Another part of this broad copyright critique is a range of efforts to expand copyright-free and copyright-light zones, efforts discussed in detail by David Bollier and by James Boyle. People in this arena often invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such as open-source software (collaboratively created and freely offered software), open-source (free and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely available curriculum materials) offer such alternative zones. The various Creative Commons licenses contribute to this alternative zone by offering a way for creators to give their work away more easily, although with conditions, by labeling it appropriately. These efforts have indeed created significant copyright-light zones, as well as creating enormous enthusiasm for a more flexible copyright policy. They work well for people who want to share their work without economic reward. They also work for follow-on creators who are looking for material of a particular kind (such as a photograph of a certain landmark or background music) rather than seeking to critique or build upon specific artifacts (such as a popular movie, TV show, or popular song). A pool of noncommercial works now exists, but it is tiny compared with the field
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chapter one box 1. 3 >> Fair Use: You Be the Judge >> Social Media Images You’re making a little explainer for a news outlet, about the changes in lunch habits locally because of food trucks. You’d like to use images by customers on social media as examples that show both the range of foods and the enthusiasm for them. It’s not breaking news but a more evergreen piece. Can you use those pictures without checking with the people who tweeted them? Why or why not?
of copyrighted and often commercial work. Viacom and News Corp will continue to claim copyright in their holdings and treat them as assets. The existence of copyright-light zones, however large, does not address the frequent need that people have to access mass commercial culture to make new cultural expression. Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of copyright law by “culture jammers,” pranksters, and appropriation artists. Burkart describes this work as part of the incipient and still inchoate cyber-liberties social movement, taking up “the politics of symbolic action,” typically “weapons of the weak.” These people and groups— Negativland, the Yes Men, Adbusters magazine, and others— position themselves on the margins of official culture and see themselves as reclaiming culture one image or gesture at a time. They also see themselves as challenging the terms of long and strong copyright. Ironically, many of the ways they incorporate or refer to copyrighted material are actually completely legal fair uses in the US. This broad and diverse discourse calling for changes in long and strong copyright thus has many faces and approaches, each with opportunities and limitations. They add up to a broad public awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair use more usable stand out because they can be done now, by people in many walks of life; they can be publicized and celebrated, thus spreading the word; and because using this right expands its range of uses. Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics. Some regard it as hopelessly compromised because of technologies such as encryption, which override a user’s will to excerpt. Some believe that exemptions are good but that fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too much of the status quo and that another copyright-free world is possible. One way that concern is expressed is to argue that it is
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too limited a doctrine, and that therefore we need to reach beyond it to accomplish our goals. In fact, under the current interpretation, fair use does apply in a wide variety of situations. These range from making viewing copies of TV programs on our DVRs to creating digitally annotated critical texts to making an archive of the worst music videos ever to making relevant curriculum digitally available to students. Fair use has evolved, having different functions at different moments in US history. Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore copyright to its constitutional purpose, and the transformativeness standard assists in creating that value. Fair use is like a muscle; unused, it atrophies, while exercise makes it grow. Its future is open; vigorous exercise will not break fair use. Fair use will continue to be important, no matter what the success of other kinds of long and strong copyright protests and proposals. Even if we could wave a magic wand and execute a reform of copyright policy that rolls back some of its longest, strongest terms, fair use would still be an important tool to free up recent culture for referencing in new work. Even if licensing were much easier than it is today, it would never address all the needs people have for use of copyrighted material. Even if copyrightlight zones vastly expanded, the need to access the copyrighted material existing outside those zones without permission or payment would still remain. Sometimes people need to use materials that the copyright owner simply will not license to them. Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be fun, although some culture jammers are actually just employing their fair- use rights without knowing it. But most creators, teachers, learners, and sharers of information do not see themselves as criminals or pirates, and they don’t want to. Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today’s copyright policy and today’s creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable, contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy— not merely protection for owners, but the nurturing of creativity, learning, expression. Asserting and defending fair-use rights are a crucial part of constructing saner copyright policy.
2 Long and Strong Copyright w h y fa i r u s e i s s o i m p o r t a n t Overprotecting intellectual property is just as harmful as underprotecting it. . . . Overprotection stifles the very creative processes it’s supposed to nurture. alex kozinski, judge of the US Court of Appeals, Ninth Circuit
Copyright policy and practice today are lopsided in favor of copyright owners. That destabilized copyright situation depends on two poisonous notions: that copyright exists only to protect owners, and that creators of new work deserve total protection because they have created it all by themselves (or perhaps with divine inspiration). The two concepts reinforce each other, and they are both wrong. Ask your friends what copyright is, and they will tell you with confidence that it is the right that creators have to their own work. But this is only a piece of the story. Copyright policy is the collection of ways that a government provides incentives to create culture. And we mean culture broadly— building, aggregating, and sharing knowledge. Progress is grounded, as policymakers know, in the growth of culture. Your friends are partly right; the best-known way to motivate the creation of culture is to reward creators (or the people they sell or give their copyright to) by giving them a limited monopoly over the use of their work. They can charge for the use of it, and they can use the law to punish people who don’t use it in the way that they authorize. But rewarding creators is just one tactic, and one that, as is universally recognized, must be limited to protect the larger goal of encouraging creation of culture. As Judge Alex Kozinski, a veteran judge of the Appeals Court of the Ninth Circuit (a court that hears many copyright cases) notes, overprotecting copyright holders has its own problems. If you do not limit the control that copyright owners have over their work, owners become chiefs of private fiefdoms of culture, and private censors of future culture. A collection of private fiefdoms provides local security, but not a peaceable kingdom, much less a thriving economy and culture. The chieftains’ guardianship of their work can become not a way to encourage expression,
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box 2. 1 >> Examples of Special Exemptions in US Law Aside from the broad and general exemption of fair use, a myriad of highly targeted exemptions dot copyright law. While they tend to be very clear about what is fair use and who can do it, they are also severely limited. Here are a few: Copying by libraries and archives Physical classroom use of entire videos in formal teaching Charitable performances where the money returns to the charity or no admission is charged, and copyright holders have not previously objected Retransmission of broadcast signals by small businesses such as bars Music performed and displays exhibited in the course of religious services Performances at annual nonprofit agricultural or horticultural fairs Performances and reproductions for the print-disabled
but a way to discourage it. They become culture misers, hoarding their own pile of it. Copyright policies provide ways to get unlicensed access to copyrighted material in part to encourage new creators, who inevitably need to access culture as they add to it. In US law, some people in special categories— teachers inside four walls of a classroom, for example— have ample rights to use copyrighted material without permission or payment. So, for that matter (but for very different reasons), do small businesses who want to supply their customers with background music. But these are often highly specialized and limited exemptions, usually created as small “carve-outs” to serve a narrowly defined public interest or pacify a stakeholder in the policymaking process. But some limitations on owners’ rights apply to everyone. For instance, everyone who has bought a copy of a book or a film or a music recording can resell or give away that copy to anyone he or she likes without paying an additional fee; this is called the “first sale doctrine.” (For computer program discs and recordings such as CDs, rental is prohibited; other media objects, such as DVDs and books, may be rented under the “first sale doctrine.”) Users also have wide latitude to use cultural products in their personal lives. We are all free to sing a Beatles or Beyoncé song in the
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shower or at a party or on a camping trip, because the only performances that are regulated by copyright are public ones. We are all free to take facts and ideas from other people’s work, since copyright does not protect facts or ideas, only expression— that is, the detailed manner in which those ideas are worked out. The biggest, most important exemption from a US copyright owner’s monopoly control today is fair use. Everyone in the United States, in any medium, has the right of fair use— although most people don’t know it. Fair use is an exemption that applies to all of a copyright owner’s monopoly rights, including the owner’s right to control adaptation, distribution, and performance. It is a bold demonstration of the need to share culture in order to get more of it. Part of US law for more than 150 years, in recent decades fair use has become a crucially important part of copyright policy. It is a core right, part of your basic package of freedom-of-speech rights. It is widely used. Millions of times a day in the United States people employ fair use, most often without realizing it. They may be quoting an expert in their schoolwork; they may be updating a hot journalistic story; they may be sharing an image on social media, searching a text they have downloaded, or just googling. (To generate search results, providers like Google first have to copy vast swathes of web content.) In copyright litigation, your first chance to formally invoke fair use comes only when someone accuses you of infringement; in terms of court procedure, therefore, it is classified as an “affirmative defense.” In everyday practice, however, fair use functions as a reliable, full-fledged right, of which we are all free to take advantage. In this respect it is a lot like the doctrine of self-defense, which we do not claim until after we have resisted an attack and been sued for assault as a result. Fair Use in Two Flavors
There are actually two kinds of fair use. One is your right to do with copyrighted material what you will for personal purposes. Some scholars think this should not even be considered as within the scope of copyright at all, but should be seen as merely unregulated private activity. Either way, you can take notes on and/or take excerpts from a book you read, for study purposes, whether you photocopy them, digitally copy, or scan them. You can watch a TV show you copied earlier on your digital video recorder. You can copy a chapter from a library book to study at home. That kind of fair use was taken for granted for many years, partly because no copyright holder could easily monitor or cash in on personal
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copying. It has become more controversial as digital culture has started zooming around the internet, as large copyright holders have gotten more worried about how copying cuts into their profits, and as digital surveillance has grown to permit more pervasive patrolling. Copyright law has not gotten more stringent about personal fair use, but content companies have worked hard to keep their products from circulating for free. Restrictive licensing deals with libraries, shrink-wrap consumer licenses, monitoring programs that keep track of consumer uses, digital rights management, such as the CSS (Content Scramble System) anticopying code on DVDs— these are some of the ways that private businesses have taken action to limit private fair-use rights. As we will discuss, they have even secured new legislation, such as the DMCA, to help them do that work. What this private or “passive” fair use will look like as we digitize all cultural expression is unclear right now, although the routine corporate surveillance of our every keystroke on the internet makes the very notion of private use difficult to maintain. Content industry companies argue furiously that private fair use disappears on the internet. In one 2009 case, Cartoon Network, Disney, Paramount, and other companies sued Cablevision over its plan to offer customers a remote version of a DVR. The Supreme Court’s Sony decision had established that suppliers can provide consumers with personal recording devices (such as VCRs) to exercise their fair-use rights to time-shift programming. Content companies claim that where the virtual equivalent of a VCR is concerned, this principle no longer applies. They lost that lawsuit, but will not be letting go of the campaign to restrict the exercise of fair use in the online environment anytime soon. Consumer behavior may influence what happens here, too. Consumers have mightily resisted digital rights management and shown desire for format-shifting; business practices have shifted to accommodate them. But consumers also love their tablets, which are designed primarily to be endpoints, not sharing points. Since so much of the pressure to limit personal fair use comes from business practice, consumers’ continued resistance to limiting their personal fair use will continue to be important. The other kind of fair use is when you reuse copyrighted material in the process of making something else. Publisher and copyright scholar Leon Seltzer called this “productive” fair use. Legal scholar Pamela Samuelson has suggested creating three categories of fair use: transformative (by which she means something like parody and satire); productive (for instance, quoting for illustrative purposes); and orthogonal (using the mate-
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rial in ways different in purpose from the original). Legal scholar Michael Madison has noted that these kinds of fair use are all being discussed today as under the umbrella of “transformative” use (simply, doing something different with the material). This kind of fair use is very common, if you know where to look. Fair use is exercised every day in every television news program. Broadcasters are very comfortable with their fair-use rights; they often think they get them because they are journalists, but they actually are just vigorously using the rights everyone else has. They know they cannot report on, say, the death of Chuck Berry without running an image of the celebrity and playing a bit of his music. They wouldn’t do an obituary of Carrie Fisher without a Star Wars clip, or of Muhammad Ali without some boxing images. They don’t stop to license that material, either, and legally they don’t have to. You also see fair use in academic texts, where scholars feel free to quote other scholars; they are scrupulous, of course, about giving them credit. You see it online when commentators quote relevant sections (not the whole thing) of a newspaper article, and when shopping websites give you a picture of what you might purchase. You see it every day in remixes and mashups on YouTube. Some of those remixers think they are violating the law, but most of them are probably just exercising their fair-use rights without knowing it. Fair use is in play whenever you have the right to take copyrighted material without getting (or even asking for) permission from copyright holders or their agents. In practice, fair use is simple to apply. There is no fair-use approval board, and no one needs to authorize your decision. You simply take material and reuse it. You only need to exercise your fair-use right affirmatively in the unlikely event that someone challenges you. Fair use makes quoting existing culture easy in other ways too. One attractive feature of fair use is that it can cover all copyright claims involved in a work. For instance, musical recordings may have several different copyrights, one for the song and another for the recording itself. Video recordings may involve different sound and image copyrights and copyright in materials such as a painting or sculpture shown in a scene. Where it applies, fair use also has another advantage over licensing. A video may well be encumbered by contractual arrangements with talent, from famous actors or on-air news presenters to studio musicians. These obligations will be passed along with a copyright license. But when material is fairly used, the contracts that the copyright holder has made with others do not carry over. Celebrities’ so-called “publicity” rights (designed to prevent simple commercial free-riding on others’ fame) are rarely triggered by a
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transformative (or productive) fair use: state laws exempt uses for documentation or discussion or critique from publicity rights. If they did not, there would be a collision with the US Constitution’s First Amendment. Copyright in Collaborative Culture
Copyright today heavily emphasizes individual authors, individual works, and the notion that creativity is an individual act— a notion that emerged only recently. That is a truly unfortunate distortion of reality, and one that increasingly conflicts with experiences we all have every day. Participatory digital culture has generated a huge body of work done by people who just love to do it and share it. Online video platforms, meme apps, Snapchat, Instagram, and Facebook are full of impromptu and elaborate cultural expression, done not for profit but for the love of it. Legal scholar Rebecca Tushnet studies people who make all kinds of fan fiction, mixing up and reclaiming popular culture narratives such as Star Trek. She reminds us that creators of all kinds say that they create because they want, even need to, no matter what the economic reward. Tushnet quotes the writer Anne Lamott, who says that writing a felt truth “is a little like milking a cow: the milk is so rich and delicious, and the cow is so glad you did it.” Much of this work, especially remixes and mashups, is done within a collaborative network, and draws widely on existing culture. Often this work is celebrated as embodying the liberation of personal creativity by technology. We believe that this way of thinking about the phenomenon participates too much in the Romantic notion of the geniuscreator that has given such a boost to the notion of cultural production as property, pure and simple. Remixers demonstrate every day the basic notion that creativity is a social phenomenon more than the individual expression of any individual or individuals. That used to be taken for granted. Indeed, the notion of authorship as an act of individual genius is a fairly new concept, and its primacy in copyright law has always had an awkward connection with the realities of creativity. Everyone makes work on the basis of, and in reference and relationship to, existing work. We see far, as Isaac Newton and many people before him said, because we stand on the shoulders of giants. (This phrase, in turn, harks back to an ancient Greek myth.) Scientists have meticulously mapped the “emergent” quality of creativity as a product of social interaction; the most fundamental processes of brain development depend on collaboration and sociability. Folk culture from time immemorial was a frankly collaborative process. Epic poetry survived by a process of trans-
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mission through repetition and subtle variation. At the beginnings of the novel form in the eighteenth century, as Elizabeth Judge has shown, readers felt entitled to reimagine and project the lives of fictional characters in unauthorized sequels, the fan fiction of their day. Romancing the Author
As Peter Jaszi and Martha Woodmansee, Mark Rose, and others have noted, the now-entrenched notion that creative expression is a unique individual act grew up with the evolution of the Enlightenment concept of individual rights and identity. Enlightenment values linked social agency to ownership. The political scientist C. B. MacPherson well described the political and economic significance of “possessive individualism,” which is the notion of self-realization through ownership of the self, extending to ownership as a core feature of economy and culture. Individualizing creativity permitted the assigning of rights to creative work as property— a distortion of experience and practice. Among other consequences, copyright was assigned to original works of authorship. In the Romantic era, in the late eighteenth and early nineteenth century, poets and philosophers celebrated the role of the individual, conquering or refusing the restraints of convention. This put clothes on the concept of the genius-creator, and fed today’s stereotype of the artist. Old systems of meaning, especially those dictated by church and Crown, had eroded; a faith in the capacity of people to discover truths was burgeoning; and the social actor charged with making sense of it all was the genius-creator. Increasingly, as Thomas Streeter describes in the context of tracking the evolution of internet culture, the creator was given an almost mystical role in society, as a meaning-creator and meaning-giver. The individualistic or Romantic notion of creation, which ignores social relationships and historical frameworks, has been broadly critiqued by legal scholars, including James Boyle, who notes its distorting effect on copyright policy. Rebecca Tushnet has argued that all creativity should be understood as “hybrid,” or a mix of individual, historic, and social activity. Legal scholar Jessica Litman goes so far as to call the very notion of originality “a legal fiction.” She notes: “If we took this vision seriously, we could not grant authors copyrights without first dissecting their creative processes to pare elements adapted from the works of others from the later authors’ recasting of them. This dissection would be both impossible and unwelcome. If we eschewed this vision but nonetheless adhered unswervingly to the concept of originality, we would have to allow the author of almost any work to be enjoined by the owner of the copyright in another.”
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box 2. 2 >> Fair Use: You Be the Judge >> TV Program You are planning to make a TV series on the evolution of Greek myths and epics. To show how different the originals were from today’s ideas of the same stories, you plan to quote from Hollywood films. For instance, in an episode devoted to the hero Jason, you would open with a scene from the 1963 version of Jason and the Argonauts, in which Jason confronts one of Harry Harryhausen’s terrifying monsters. For a discussion of The Iliad, you would like to start with a battle scene from Troy, including a close-up of Brad Pitt as Achilles. In each of these cases, you would be choosing a clip that contrasts sharply with what you’ve found out about the “real” Greek tales. In addition, you would like to make entertaining montages showing the importance of Greek myths in modern movies. Woody Allen’s Mighty Aphrodite, Pier Paolo Pasolini’s Medea, and the Disney animated film Hercules might feature in such a montage, using evocative short clips to make the point of the continuing importance of Greek culture in general. Do you have a fair-use right to use the introductory clips contrasting with your research results? Can you claim fair use for montages of clips from popular films to make a general point about the pervasiveness of these references in films today? Would it be better to stay away from the scenes that feature celebrities? Answers at the back.
She concludes, “Nurturing authorship is not necessarily the same thing as nurturing authors.” Today’s copyright law requires that somebody (or several somebodies) be the author(s) of a copyrighted work. There is no place for truly collective authorship based on notions of group work. This insistence on authorship by individuals (Franklin Smithers) rather than collectives (The Davenport Community Foundation) has had some peculiar consequences. Paradoxically, it supports a weird legal fiction, the “work for hire” doctrine, which gives employers rights to the work of employees. It also puts the cultural work of genuine collectives, such as the arts of indigenous and other traditional communities, at a legal disadvantage. It fits poorly, for instance, with the group creation of quilts by the African American women of Gee’s Bend, as legal scholar Victoria Phillips has documented. Many invocations of the genius-creator today are mere masks for big business interests. Music, publishing, and movie executives constantly invoke the genius-creator with piety, even when their own artists demonstrate the need and will to collaborate widely and even though their own
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businesses return relatively little to most creators. They put celebrities out in front to celebrate the Romantic notion of the creator, while they depend on crude economic calculation to lay claim to works for hire, done on their time and with their supplies. Hypocrisy aside, however, the basic notion that individual creative authorship deserves all the protection the law can afford remains widespread. It cripples thinking about copyright, because it encourages policies that favor whoever owns the works of the past, rather than the makers of tomorrow’s culture. On the other hand, the existence of fair use is bold legal recognition of the social nature of the creative process. It is a part of copyright law that reminds us that the purpose of the law is to promote creation, not to protect owners. People who use fair use need not feel guilty because they have taken another’s work. That person also, implicitly or explicitly, built on his or her own culture. This is how culture endures, by being used and ultimately transformed. Interpreting Fair Use
The basic fair-use calculation— whether social benefit is greater than private loss— is framed in law with deliberate generality. Fair use is always a case-by-case decision, like decisions about the appropriate and necessary in speech generally, keeping in mind certain basic principles and calculations. The Copyright Act builds in several examples of ways to reason about fair use. The statute requires, at a minimum, considering the character of the use (what are you doing with the material?), the nature of the original work (for instance, is it mainly factual reportage, or an imaginative production?), the amount taken (and whether it’s the central part of the work), and the effect of taking on the market value of the work. These are often called the “four factors.” Sadly, since they became part of the law in 1978, the four factors have been as much hindrance as help to making fair use usable, partly because they mean very little without an understanding of the customary practices and habits around the kind of use in question, and partly because people nevertheless endow them with a false autonomy. Each of these concerns— and the law explicitly says they don’t have to be the only concerns— may have a different weight in different situations, and certainly has had at different times in legal history. Fortunately, as a result of litigation in which judges have, implicitly or explicitly, considered custom and practice, there is an easier way. A typical fair-use calculation today can be distilled into two questions:
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Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose and for the same audience? (If so, it probably adds something new to the cultural pool.) Was the amount of material taken appropriate to the purpose of the use? (Can the purpose be clearly articulated? Was the amount taken proportional? Or was it too much?)
If the answer to these basic questions is yes, then a court these days— if ever asked— would likely find a use fair. And because so many uses are self-evidently fair, such use is unlikely to be challenged in the first place. The answers are informed, in turn, by another question: was the use reasonable within the field or discipline it was made in? Standards and practices documents, such as the kind TV networks created for their news divisions, and codes of best practices in fair use from various creator and user communities, do a good job of making clear what normally acceptable practice is, in a clearly defined field. In fields that lack such norm-setting documents, creators— and potentially judges and juries— have a harder time assessing what could be considered normal. Sometimes courts also consider whether the user acted in “good faith.” While the concept is vague, it can be partly addressed by demonstrations of having thought through the first two questions (for instance, by leaving a written record of one’s reasons for selecting the material). In addition, providing attribution or credit is a wise choice, indicating awareness that the work selected belongs to others. The vast majority of fair uses are never challenged. But when they are, judges and juries have overwhelmingly rejected claims of infringement and supported fair users when they carefully employed this reasoning to make their decisions. This is hardly surprising, given the long history of the fair-use doctrine and its strong constitutional roots. How Fair Use Evolved
Fair use has evolved as a solution to particular problems in copyright, and it— like the rest of copyright policy— is always capable of more change. Tinkering never stops with any policy that matters to people, because all policies are valuable assets to some, chafing irritations to others, and irrelevant— at least at the moment— to still others. Stakeholders gather around governments to shape the policies that will be good for them, and of course everyone always claims that their preferred approach also will
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be good for everybody else, especially for the one stakeholder who rarely makes a personal appearance in the discussion—“the public.” In legal and policy decision making, the interests of society are represented in the phrase “the public interest.” This is not only, as one Reaganera FCC commissioner put it, merely “what the public is interested in,” but what is needed for a society to exist and grow within the values that people in the society share. In the United States, democratic participation, cultural pluralism, freedom of expression, and equality of opportunity are all examples of values that inform the society. Fair use is an example of a policy in the public interest. Fair use does not protect the interests of any one individual or group so much as it protects freedom of expression and the capacity of the culture to develop. Fair use was not an explicit part of the earliest copyright law, because it was not needed. That is because copyright law until recently was very limited. There was no copyright law, as we know it, in ancient times or in the European Middle Ages. In the premodern era, patronage from the church, the state, or wealthy individuals was the main driver of high-end cultural production— although a faint hint of the future was heard in sixteenthcentury Venice, when the doges and council began occasionally to grant favored writers and artists “privileges” in their works. The copyright policies we depend upon today began, as legal scholar Benjamin Kaplan explained, when London- based publishers lost their royal monopoly on printing in the late seventeenth century, and began to cast around for other ways to secure their commercial advantage against upstart competitors. They proposed that Parliament create a legal monopoly on publishing texts, which could be enforced in English courts of general jurisdiction. This meant they could sue competitors who weren’t members of their guild. Parliament pushed back. For one thing, its members chose to vest many of the rights it recognized in authors, rather than publishers. (In practice, those rights remained the property of publishers, who published authors only if they agreed to hand over their copyrights; it would take generations for this feature of the law to assume much real importance.) More significantly, as legal historian Ronan Deazley has shown, Parliament’s approach to copyright policy had elements of balance, even then, recognizing the benefit of limiting owners’ rights in order to promote public ends, including the circulation of print culture in a society where literacy was rapidly growing. That is why, among other things, the first copyright law, the Statute of Anne of 1710, imposed strict limits on the duration of protection (fourteen years for some works, with a possible renewal for an
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additional fourteen, and a straight twenty-one years for others) and included rules against predatory book pricing. The limitations built into the Statute of Anne were part of a deeper understanding of cultural expression as belonging to the people as a whole, and benefiting all. The clash of private power and public purpose informed the Statute of Anne and continued to fuel debate. As literary scholar Lewis Hyde has noted, in eighteenth- century England, skeptics— of which there were many— saw copyright as a private privilege granted to a favored few. They saw monopolies as opposed to the commonwealth, or public good. Ideas that would benefit society by circulating were trapped by monopoly privileges. As a result, books cost more than they should, and opportunities for cultural participation were foreclosed. The antimonopolistic imperatives at work back in 1710 surfaced again later in the century. In a 1774 conflict, the House of Lords (acting as the highest court of appeal) rejected perpetual copyright. An Edinburgh printer challenged the British publishing monopoly and offered cheap reprints of modern classics throughout the kingdom, even in London. British publishers claimed they had traditional perpetual claims on the work they published— claims they asserted had survived the enactment of the Statute of Anne— but the House of Lords definitively rejected their claim. This reinforced the antimonopolist principles that had been embedded in the statute. The theme of public interest became even more prominent when British copyright made the transatlantic crossing. The commitment that drove our government’s copyright policy, from the start, was not to protect owners— big or small— but to generate new culture. Thomas Jefferson fiercely resisted the notion of including any recognition of copyright in the US Constitution. Jefferson was opposed to monopolies of all kinds. Specifically, he believed that binding cultural expression by law would violate its essence, as he wrote in 1813: He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation.
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James Madison agreed that monopolies were “justly classed as among the greatest nuisances in Government,” but he also thought that in the case of cultural expression some highly limited monopoly rights would provide a healthy incentive to make and circulate creative works. George Washington thought a limited monopoly would encourage learning. Jefferson finally assented under Madison’s pressure to a highly limited monopoly of a few years (for both patent and copyright). What they all agreed about, as Lewis Hyde has shown, is that monopolies were an expensive choice for a government to make, the sacrifice of the many for the few, and that such monopolies needed limitations to achieve the policy’s objective. In the end, the Constitution granted Congress power to legislate intellectual property law for one purpose and goal: to “Promote the progress of Science and useful Arts.” In the early years of the new republic, in cases such as the 1834 Wheaton v. Peters— a case involving the competing claims of two Supreme Court reporters— the Justices came down strongly on the side of a copyright law that was aimed at promoting the public good rather than private interest. In the first half of the nineteenth century, the reach of copyright was still so limited that the need for fair use (or something like it) simply did not arise. The public domain was a wide- open space in early American copyright policy. Most reuses of cultural material were free for the making; copyright was short, and applied to only a few kinds of works (domestic American literary texts, fine art, prints and maps, and a bit later, music). Much of the culture simply was not copyrighted. Moreover, even protected works were protected only against literal or near-literal copying of large chunks. Even so, by the mid-nineteenth century American businesses came to have ever deeper investments in cultural expression, and competition in the publishing industry led to conflicts. This was the origin of the fairuse doctrine. The case that started it all was decided in 1841. The issue in Folsom v. Marsh was whether a new biography of George Washington could use letters that had been collected by an earlier biographer. Justice Joseph Story, building on British precedents, ruled that the new biography had infringed on the copyright of the earlier one, and in the process asserted the standard that ultimately would become the modern four-factor test. As it turned out, the plaintiff triumphed, in large part because the follow-on biographer had taken so much material for such a similar purpose. In its own time, the decision could have been seen as restrictive in effect. At a time when most things were permitted, the court actually placed limits on permissible unlicensed quotation. By the modern era, as we shall see,
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box 2. 3 >> Fair Use: You Be the Judge >> Fan Site You were an avid fan of a sci-fi series and built a fan website, where you have created graphics using screen captures of many copyrighted images from the TV program, game, and comic. You also uploaded some of your favorite videos that celebrate its characters and themes. You are now part of a network of people creating alternative narratives, building backstories for central characters, and introducing new and hybrid characters. For one of your projects, you would like to take an episode from the series, annotate it, and propose different ways to take the story, with an invitation to comment and vote. Your fan site is completely noncommercial as well as wildly popular. Is your use of copyrighted images to celebrate the show fair use or copyright infringement? In that context, would uploading your favorite episode be fair use? Answers at the back.
the tables were turned; fair use had become a key safety valve from a vastly expanded regime of copyright control. But it would be some time before fair use became particularly important— thanks to the limitations built into copyright doctrine itself. Consider a lawsuit that concerned Uncle Tom’s Cabin. Harriet Beecher Stowe’s book was extraordinarily popular; indeed, it was a pop cultural phenomenon. It generated twenty-seven unauthorized copycat novels (many taking a proslavery perspective), as well as unlicensed minstrel shows, plays, songs, candies, Uncle Tom statues, jugs, and board games. Stowe may not have earned much in the way of licensing income, but she did earn record-breaking royalties. Hundreds of thousands of copies were sold in the United States and even more in Europe (almost all unauthorized), as Terrence Maxwell has noted. Then someone published an unauthorized German translation of the book in the United States. At the time, Germans were overwhelmingly the largest immigrant group, and German speakers composed between a third and a half of the population of northern American cities. The translation, like the English original, was immensely popular. Harriet Beecher Stowe sued for infringement of her copyright. In the 1853 Stowe v. Thomas, the court ruled— amazingly, from our perspective today— that the translator had not infringed, because the translation was not a “copy” of the original. In the court’s view, Mrs. Stowe’s actual words were entitled to protection, but only those words:
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By the publication of Mrs. Stowe’s book, the creations of the genius and imagination of the author have become as much public property as those of Homer and Cervantes. . . . All her conceptions and inventions may be used and abused by imitators, playwrights and poetasters. . . . All that now remains is the copyright in her book: the exclusive right to print, reprint, and vend it, and those only can be called infringers of her rights, or pirates of her property, who are guilty of printing, publishing, importing or vending without her license, “copies of her book.” A translation may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book.
No one needed to invoke a right of fair use or any other copyright exception, because there had been no arguable infringement. A translation was outside Stowe’s claim to copyright. All Harriet Beecher Stowe owned was her actual words in sequence. The next half century brought profound changes, including extensions of the term of copyright and expansions of its coverage. Perhaps the first harbinger of the changes to come was the language of another mid-nineteenth-century dispute about a seller of polka sheet music who produced work suspiciously similar to another work, “The Serious Family Polka.” The language of the decision, Jollie v. Jacques, pointed to the future (though the complaint was dismissed for other reasons). The judge said that the question was whether the defendant was “engaged in selling any polka which is similar in plan or matter to, or is a substantial copy of that published by the plaintiff.” Ultimately (in a trend that took decades to materialize) this approach to thinking about infringement would give a lot more leeway to copyright holders than the judge had given to Stowe, who got to protect only her own words in her own language. That way of thinking about the issue led to modern conceptions of copyright authority over adaptations or, to use the legal jargon, “derivative works.” A run-of-the-mill circus poster began the expansion of copyright to more and more different kinds of materials. At the turn of the twentieth century, it was commonly accepted that copyright was for “serious” culture. By contrast, this case was about ephemeral and generic advertisements. At the time, one of the popular entertainments was the circus. There were many companies, and regional competition could be fierce. When a printer saw that another firm had cribbed its designs for a circus poster, it sued— even though neither poster was much to look at. The case eventually went to the Supreme Court. In 1903 the Supreme Court, in Bleistein v. Donaldson Lithographing Co., decided that the poster
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did deserve protection. Justice Oliver Wendell Holmes’s answer was clear. Quality, he wrote, has nothing to do with copyrightability, and the meanest commercial productions are entitled to the same protection as the most refined examples of the fine arts: “If [pictures] command the interest of any public, they have a commercial value— it would be bold to say that they have not an aesthetic and educational value— and the taste of the public is not to be treated with contempt.” You might congratulate Justice Holmes on his respect for popular culture and his wish not to have lawyers pass aesthetic judgment. But with this decision the doors of copyright swung wide open to almost every kind of work— and have stayed that way since. Cultural Death Grip
One could not have guessed from the polka decision or the circus poster case how profoundly the copyright landscape would change. Today, copyright material is ubiquitous and unavoidable, permeating the fabric of daily life, as many current authors on copyright have noted. The story of how it happened is in chapter 4. Here we sketch the magnitude of the difference in the scope of copyright law between the mid-nineteenth century and today. In the aftermath of Bleistein, almost every imaginable form of fine and commercial art can qualify for copyright, as well as other work such as computer programs and even ephemera such as shopping lists. Over time, copyright holders have come to be protected against more and more different unauthorized uses of their state-created “property.” The growth in use of the “adaptation” right (also called the right to prepare “derivative works”), which took off shortly after the Uncle Tom’s Cabin case, has been dramatic. Today, everything from translations of fictional narratives to video games based on hit movies is controlled by the copyright holder. Those plays, minstrel shows, and copycat novels that Uncle Tom’s Cabin spurred could not happen today without Stowe’s permission. The “reproduction right” now applies to copying parts— even fairly small ones— of a work. Any “public performance” or “public display” of a protected work (even one made without a profit motive— like a school group’s dramatization of a popular children’s book) is regulated as well. This protection also lasts ever longer. The first US copyright statute, in 1790, granted an initial term of fourteen years for qualifying works, with the potential for an additional fourteen- year renewal— if the work proved to have a long shelf life. In 1831, the initial term was extended to twenty-
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eight years, though the renewal stayed at fourteen. In 1909, Congress extended the renewal term to match the initial one— for a total potential of twenty-eight years of protection. In 1976, copyright terms were extended as of 1978 to the life of the author plus fifty years after his or her death. In 1990, renewal (which you formerly had to request) became automatic. And in 1998, the Sonny Bono Copyright Term Extension Act (CTEA) handed almost everyone with a copyright another twenty years of protection. Now, a book created in 2018 by a thirty-year-old man with a normal life expectancy will still be protected in the year 2137, 119 years later. If we had the same copyright terms and rules as we had in 1977, that thirty-year-old’s 2018 copyright would be up in 2046, when he was fifty-eight, and then he would have to renew it or allow it to lapse. Making the imbalance much more severe in practice is the growth in the risks that we run when we go up against copyright— intentionally or otherwise. Copyright holders who have formally registered their copyrights before an arguable infringement occurred can choose to receive so-called “statutory damages” instead of damages related to their losses or infringers’ profits. This is true even where those actual damages are small or nonexistent, and whether or not the infringer had any commercial objective. Statutory damages always have been part of the US copyright system; for most of copyright history these have been pegged at modest levels. But in recent decades, with pressure from content industries, the ordinary minimum is $750 for each work infringed, up to a potential maximum of $150,000. Even though the higher figures are extremely unlikely, the potential maximum— a figure widely publicized by large copyright holders— has a chilling effect. Statutory damages scare people away from assuming even small risks in using copyrighted material. And the number of people facing that potential risk is also expanding. Courts have expanded what is known as “secondary liability,” a sharing of responsibility for infringement. For example, a landlord who hosts a flea market where infringing works are sold could end up holding the bag for his fly-by-night tenants’ activities. A teacher whose assignment leads her students to produce work that incorporates protected content without permission could also be liable for copyright infringement. They face the threat (though very unlikely ever to be a reality) of $150,000 in fines or “statutory damages,” potentially multiplied many times over, if multiple works and their copyrights were involved. So the overwhelming majority of content we run into— and certainly almost all of the commercially produced stuff— is protected by copyright,
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unless we can identify it positively as a work in the public domain. If it is not a work published before 1923 (a date that advances to 1924 in 2018, 1925 in 2019, and so on); if it was not made by a US government employee at the job; or if at least seventy years have not passed since the death of all the authors, there is a good chance it is still copyrighted. Of course in the pre-1992 days when renewal was required, the copyright holder might have forgotten or decided not to renew it. That is especially true if the material did not have commercial value to someone at the time. Most high-profile commercial mass-culture work is zealously renewed, though more obscure books and movies are another matter. To find out whether a copyright had been renewed, you would have to check with the Copyright Office. (Google Book Search has aggregated the Copyright Office’s renewal records for books published between 1923 and 1977. All renewal records after 1978 are available online from the Copyright Office.) Copyright has become long and strong. With each of those changes, current owners have gained more power over future creators and the culture, and fair use has become more important in freeing future creators from the death grip of the past.
3 The Decline and Rise of Fair Use the back-room story This isn’t just about a bunch of kids stealing music. It’s about an assault on everything that constitutes the cultural expression of our society. If we fail to protect and preserve our intellectual property system, the culture will atrophy. richard parsons, CEO of Time Warner
Until the 1960s, everyone interested in copyright law (not a large community) more or less agreed about the goals of the system: copyright was all about promoting cultural production through providing, as Benjamin Kaplan put it, an “incentive or ‘headstart’” for “releasing the energies of creative workers.” This concept depended on having a range of limitations on the already limited monopoly of owners, such as special exemptions and broad policies like first sale and fair use. It also depended on limits to copyright’s scope, which left much material in the owner-free zone of the public domain. From the 1960s to the 1990s, though, this consensus came under increasing pressure from a number of different sources. One of the consequences was that in the general population, confidence in the importance of fair use was shaken (though not among media companies, which continued to employ it). Copyright became even longer and stronger, as well as generally meaner, during the last four decades, and public awareness of fair use suffered as a result. It did not begin to revive until the turn of the millennium. How that happened is key to understanding how important that revival is. Fair Use in Retreat
In 1955 a Los Angeles federal district court judge articulated a boldly different philosophy of copyright and fair use than the one expressed by Kaplan and the copyright community in general. The case, Benny v. Loew’s, involved a young medium, television, and a perennially young comedian, Jack Benny. The controversy was around the planned broadcast of “Autolight,” a takeoff on a popular movie, Gaslight, about a nefarious husband
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who schemes to drive his wife insane. Benny had performed an earlier version on radio, which had led to an inconclusive skirmish over copyright with the movie studio. When the TV version was announced, the copyright holder, Loew’s, sued to stop it. Judge James M. Carter, a Truman appointee who formerly had run the Los Angeles motor vehicles bureau, had no copyright expertise. He just treated all quoting as stealing: “[P]arodized or burlesque taking is to be treated no differently from any other appropriation; . . . If it is determined that there was a substantial taking, infringement exists.” He also wrote, “The mere absence of competition or injurious effect upon the copyrighted work will not make a use fair. The right of a copyright proprietor to exclude others is absolute and if it has been violated the fact that the infringement will not affect the sale or exploitation of the work or pecuniarily damage him is immaterial.” In other words, copyright owners should control not only the actual markets for their works, but all potential markets as well. This was a startling setback for fair use as a defense against attacks on cultural repurposing. Judge Carter concluded— in striking contrast to longstanding legal tradition— that the copyright owner has more or less complete sovereignty over uses that are more than trivial in quantity or quality. Worse, his decision was affirmed by an appeals court notorious for its friendliness to copyright owners, the Ninth Circuit. That court, in a narrowly divided opinion, relegated fair use to “compilations, listings, digests, and the like.” The divided Supreme Court also affirmed, without opinion, and thus avoided making Judge Carter’s ruling the law of the land. But the fact that this crabbed economic interpretation of fair use, issued by a nonexpert in copyright law, had been able to march unimpeded that far was an early demonstration of a shift in thinking, indeed a shift in the framework around the concept of fair use. It was also pioneering. Increasingly it became acceptable to slight the public-interest importance of fair use— its value in protecting future cultural expression— in favor of the economic protection of current owners. The 1976 Copyright Act
Fair use became part of the Copyright Act in 1976 as part of a big rewrite, mostly in the service of large copyright holders. These mass-media businesses had become, with the growth of film, broadcasting, and popular publishing, major economic actors both nationally and internationally. They depended on copyright ownership, especially for their ever-
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expanding archives. In the early 1960s, these businesses began pressuring Congress to make copyright law match with modern technology and practice. Congress began revamping the copyright statute— not just patching gaps, but rebuilding the copyright law from the bottom up. By the time the bill passed in 1976, Congress was also responding to calls for the United States to assert an international presence on copyright policy in order to provide a counterpressure to the influence of developing nations in the United Nations forums for policy debate. The effects were profound and far-ranging. The law, which took effect in 1978, reflected the interests of the major media corporations in longer, stronger protection. The final bill looked like a gift to them, including these provisions, among others: the protection of all works from the moment of creation; a single copyright term for all new works, instead of the old two-term system with optional copyright renewal; confirmation of the 1972 extension of copyright to sound recordings; relaxation of copyright formalities such as the need to use a copyright notice; clarification of copyright’s application to derivative works and new media; and harsher penalties for infringement. These changes added up to a tectonic shift in copyright thinking. What had begun 250 years before as a limited set of rules governing only books (not even magazines or newspapers) had become a source of generalized protection for a class of newly valuable market commodities: “works.” Legal scholar L. Ray Patterson perceptively recognized that the 1976 act marked a shift away from a “regulatory” approach to copyright, in favor of one based on property rights, pure and simple. If “works” were property above all, then their economic value always came first. The legislation had given a big stamp of approval to a shift in business thinking that had been underway for some time. It also provided a way to revalue assets. Increasingly, copyrights were showing up on account books as long-term assets, and company backlists were becoming archives. Legislators did not lose sight altogether of the cultural mission of copyright. Indeed, they singled out fair use for protection. A compelling 1960 historical study by legal scholar Alan Latman, commissioned by the Senate Judiciary Committee, showed the importance of fair use as a safety
Decline and Rise of Fair Use: The Back-Room Story box 3. 1 >> True Stories of Fair Use: Sut Jhally Media studies professor Sut Jhally runs the Media Education Foundation, and through it distributes videos that critique popular culture and current politics. His films all make extensive and confident use of fair use. He explained to us how it started: In the late 1980s I developed some materials for a large lecture course I taught at the University of Massachusetts. At first it was just excerpts from music videos, showing stereotyping and misogynistic views of women. Over the course of several years, I gradually developed it into a stand-alone piece and by 1990, I thought it would be nice to share it with other educators. So I sent out a small mailing for the video Dreamworlds, and promptly got a cease-and-desist letter from MTV, both to me and the university. I was quite convinced that I was covered by fair use, and said that to MTV; they never even got back to me. The university, though, thought I should just shut up. I said, Are you crazy? This was a great opportunity to make a statement about fair use and academic freedom. So that’s when they told me that if I did speak up, I wouldn’t be covered by university lawyers. I decided to go ahead with a press release, and launched the Media Education Foundation to distance myself from the university. We got great coverage for the event, as a free speech issue. MTV didn’t want to be near the story— it ran against their branding. By now we’ve done 50 or 60 films; we use fair use the way it’s supposed to be used. It’s what the law allows. We also license stuff which we don’t think is fair use. When we saw the codes of best practices come out, we felt reinforced in our judgments. In only one case has MEF received a challenge to its fair uses. When MEF distributed Price of Pleasure: Pornography, Sexuality & Relationships, two pornographic film distributors contacted MEF to complain that their work had been used without permission. In both cases, Jhally wrote back to inform them that their work had been used under the doctrine of fair use but that he would welcome a lawsuit. He believed, he wrote, that a lawsuit on freedom of expression issues, in which the pornography industry took an anti–free speech role, would be interesting indeed. Both backed off immediately. “I used to believe that we would be the best test case for fair-use litigation, but we may be unsueable,” Jhally said wryly. He has discovered the reality that companies with competent lawyers don’t undertake futile lawsuits. “I guess the best thing we can do is to continue doing what we’re doing, using fair use fully and publicly.”
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valve in the US copyright system over the past century. In Patterson’s view, the legislators “realized that, without a statement regarding fair use, the combined weight of the other changes constituted a very real threat to the constitutional purpose of copyright— the promotion of learning.” Educators and librarians, not always so powerful in the stakeholder scrum, in this case had pushed successfully for a clear acknowledgment of fair use. They were acutely aware of its value. Photocopying technology was a boon to their missions, while publishers regarded it as a threat to their bottom line. A 1974 Supreme Court case, Williams & Wilkins, in which libraries at the National Institutes of Health claimed a fair-use right to photocopy copyrighted materials for research use, resulted in a split decision that amounted to a victory for the libraries and a defeat for publishers. If unlicensed library and educational photocopying were to continue, it would have to be on the basis of fair use. The challenge was introducing fair use into the statute in a way that would not rouse the ire of zealous content industry stakeholders. Legislators sympathetic to the claims of librarians and educators knew that new language might rile the content industries. (Especially important was Democratic Rep. Robert Kastenmeier, who led the reform process as chair of the House intellectual property subcommittee.) So they used a variant of language that had 125 years of history in the courts: the factors Justice Story had written about back in 1841. With this tactic, they safely slid fair use into the 1976 act, without too much controversy. The little clause was to have a big effect. It enabled large institutions— not just nonprofits such as libraries and museums, but major mass-media companies— to exploit fair use consistently and quietly over the ensuing years, getting their work done more efficiently and lowering costs. These businesses were able to do so without controversy, partly because they successfully internalized the newly codified legal standard— often through standards-and-practices guides written by experts committed to making the law work for them and drawing heavily on past industry practice. But the codification of fair use had a sting in its tail, seemingly emphasizing protection of the current market over the promotion of future culture in one key phrase. Back in 1841, Justice Story had directed courts to look at how a use “may prejudice the sale, or diminish the profits, or supersede the objects” of the copyrighted work. The reform legislation refers instead to “the effect of the use upon the potential market for or value of the copyrighted work.” But if, for example, forgone licensing fees constitute a legally relevant kind of economic loss, then fair use would always be off limits. Would the courts treat this language as an excuse to deny fair use
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wherever there was money at stake? Or would they find a way to limit its potentially sweeping effect? The Economic Turn in Scholarship and Law
The priority of potential markets in the law raised new issues about how to interpret fair use and threatened to weaken it drastically. For instance, if owners could figure out a way to license traditionally fair uses, would that in itself turn fair use into infringement? The proposition seemed absurd given longstanding practice. For instance, critics traditionally quote sections of a work in reviewing it. If publishers made it easier to license such quotes, would that eliminate the fair-use claim for them? An emerging way of thinking, however, challenged longstanding practice. By the late 1970s, microeconomic analysis was coming to have an enormous influence in legal thinking, especially after the publication of seminal articles by economist Ronald Coase and legal scholar Guido Calabresi in 1961. The law-and-economics school of thought argues that efficient outcomes (that is, with low transaction costs) are preferable and that free markets promote efficiency by allocating goods— or rights— to those who value them the most. This law-and-economics approach simply does not work when noneconomic values are important; it never really touched human rights law, for instance. But it did affect copyright and fair use. In 1982, for example, legal scholar Wendy Gordon wrote an influential article, “Fair Use as Market Failure.” The complexities of her subtle argument were often reduced, in legal debate, to the argument that where there is a smoothly functioning market in rights clearances, fair use might not be applicable. The economic focus of fair- use analysis prevailed as well, in the famous 1984 Sony Betamax lawsuit. That case, about whether VCRs, with their built-in copying capacity, unlawfully contributed to infringement, demonstrated how copyright had become a field of battle for big economic interests. Media companies forecast the end of entertainment as they knew it if the VCR went viral. They wrapped themselves in the American flag and called for protection because of their importance to the US economy. The MPAA lobbyist Jack Valenti shamelessly invoked a jingoistic fear of Japanese overtaking US industry, an episode chronicled in colorful detail by James Lardner and analyzed by Tarleton Gillespie. The Supreme Court’s decision turned on the question of whether copying for “time-shifting” purposes could be considered fair use; if so, the machines had important lawful function, and electronics companies
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couldn’t be tagged with secondary liability for selling them. In their analysis, the Justices took the fourth factor seriously, placing considerable weight on the fact that the movie companies hadn’t demonstrated any present economic harm (or risk of future harm) to them from consumers’ use of the new technology. For once, at least, the economic turn in fair- use analysis actually helped to bolster a fair-use claim. Unexpectedly, another kind of market-based analysis also came to the aid of the VCR and its users— and thus, indirectly, the consumer electronics industry. In addition to parsing the fourth factor, the majority of the Justices also interpreted the first factor— the purpose of the use— with an economic gloss. Time-shifting, they noted, was noncommercial, and therefore likely to be fair. The Betamax decision was a boon to technology companies selling all kinds of electronic gear with playback functions. The court’s decision to privilege noncommercial uses obviously benefited consumers. It also might work in favor of noncommercial institutions such as educational institutions and libraries. But there was a downside. In his majority opinion, Justice Stevens specifically asserted that commercial uses had “a much weaker claim” to fair use. This threatened some of the most important applications of the fair-use doctrine. Much culture-making is, actually or potentially, commercial. In many areas of overtly commercial production, including publishing, filmmaking, and music, fair use had long been critically important to creative work, as it would quietly continue to be. Indeed, most of the cases in which fair use had prevailed in court over the years before and after 1984 involved commercial uses— by trade publishers, newspapers, movie companies, and others. (Lawsuits usually are lodged against entities with assets.) Far from protecting business, the Justices’ apparently diminished respect for “commercial” fair use probably had its greatest dampening effect on professional creators and on new businesses. The approach that saved the VCR, its manufacturers, and its users threatened to hobble other kinds of fair use. Meanwhile, the law-and-economics framework came to be widely reflected in other copyright opinions. Two cases illustrate the prevalence of that framework in judicial reasoning about fair use. In 1985 the Supreme Court decided a case, Harper & Row, in which The Nation published small but crucial excerpts from ex-president Gerald Ford’s memoirs. Time magazine then backed out of a contract to publish excerpts. The book’s publisher then sued The Nation, which argued unsuccessfully that it had a right to fair use for those excerpts. It didn’t help their cause that the manuscript apparently had been stolen in the first place. But the bigger
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problem for The Nation was that the court’s ruling strongly reflected the then-current emphasis on economic rights and economic harms. Significantly, on its way to a conclusion favoring the copyright owners, the court opined that the effect on the market “is undoubtedly the single most important element of fair use.” The creative consequences were evident from an appeals court decision in 1992 favoring a photographer whose potential market might have been invaded by a sculptor whose work the court found distastefully commercial. The defendant was Jeff Koons, a flamboyant artist whose work typically comments on the banality of commercial and popular culture. He had designed a bizarre, larger-than-life sculpture based on the plaintiff photographer Art Rogers’s intimate shot of a human couple holding a large litter of puppies. Koons’s fair-use defense failed, in large part, because Judge Richard Cardamone was fixated on the twin facts that he had made a good deal of money, and that the photographer might conceivably have lost some: It is obviously not implausible that another artist, who would be willing to purchase the rights from Rogers, would want to produce a sculpture like Rogers’ photo and, with Koons’ work extant, such market is reduced. Similarly, defendants could take and sell photos of “String of Puppies,” which would prejudice Rogers’ potential market for the sale of the “Puppies” notecards, in addition to any other derivative use he might plan.
What made Judge Cardamone speculate so wildly? The judge had decided that the fourth (potential market) factor was the “most important, and indeed, central fair use factor,” according to the Supreme Court’s Nation decision, and he cited Betamax for the proposition that (in the judge’s own words) “where the use is intended for commercial gain some meaningful likelihood of future harm is presumed.” The economic turn in fair- use analysis was turning into a serious liability for emerging culture. Fair Use and Free Trade
Turning cultural expression into simple property matched up nicely with the government’s mandate at the time to improve international trade conditions. In the 1980s, with strong federal mandates for deregulation and expanded international trade, any policy that helped US firms gain a trade advantage won out. Large copyright holders immediately argued that they needed even more copyright protection for commercially produced culture— an important part of US international trade, with all those movies,
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TV shows, and music CDs being sold around the world. New and emerging cultural expression often starts out noncommercially, and noncommercial expression did not have well-heeled stakeholder representation. The economic mandate obscured the cultural mandate. Fair use was not so much specifically attacked in the new discourse of copyright and international trade as it was simply ignored and sometimes overridden. In 1984, content industry organizations formed the International Intellectual Property Alliance, including publisher groups and associations of the music and movie industries, to “improve international protection and enforcement of copyrighted materials and open up foreign markets closed by piracy and other market access barriers.” They were not the first to raise this banner. The MPAA had established “film security offices” in major cities around the globe by the early 1980s. But the IIPA took a lead role in changing copyright from a cultural to an economic policy. Software businesses soon joined in, through a new umbrella organization, the Business Software Alliance, organized in 1988. These groups benefited from the creation of the Joint Anti-Piracy Intelligence Group, founded in 1984 as a counterpart to Interpol. The marriage of convenience between large corporate copyright holders and government diplomats was immediately visible in the 1984 Caribbean Basin Initiative, a Reagan-era plan to create a new economic Monroe Doctrine. The goal was to tie weaker countries of the region to the United States through trade preferences. At the time, Jamaican entrepreneurs were pirating TV signals without any penalties from their government. Arguing that lax copyright enforcement was, in effect, a kind of covert government subsidy to local businesses, the IIPA prevailed on US negotiators to offer trade agreements that would favor Caribbean nations if they would crack down on the stealing of US commercial media. In addition, in the early 1980s drug companies worked with the administration to get extended protection for their products during international trade negotiations. This set the stage for a much larger role for intellectual property forces in international treaty- making. A decade later, in 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (usually known as TRIPS) bound signatories to a long list of promises to provide strong protection to foreign IP— including, of course, US copyrights encountered in other countries. Agreeing to honor those terms is now a requirement for much- coveted participation in the World Trade Organization. However, TRIPS, like intellectual property provisions in other regional and bilateral trade agreements that followed, contains no language mandating fair use or anything like it.
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Domestic policy also pushed fair use and other culturally grounded copyright doctrines to the margin. This was driven by mass-media companies’ terror of emerging digital distribution. With the expansion of digital technology and the growth of internet use, digital copying also became digital distribution. People had always been able to take notes on what they read (a fair use), to play the music in their collections at a party (a built-in limit on copyright), to share sheet music with their choir mate (a consequence of the first-sale doctrine under copyright). Large copyright holders had been able to live with that level of sharing. But digital transmission made it way too easy to share; digital sharing fundamentally jeopardized their business model. Copyright was their best weapon, and they set out to hone it. Time Warner CEO Richard Parsons thundered, “Artists will have no incentive to create. Worst-case scenario: The country will end up in a sort of cultural Dark Ages.” In 1995, the content industry stakeholders’ all-commerce-all-the-time approach to copyright was put neatly between covers when a new Clinton administration report emerged. Bill Clinton had been elected with strong support from Hollywood and the recording industry. His czar for those issues was veteran copyright lawyer Bruce Lehman, undersecretary of Commerce for intellectual property. Lehman’s Working Group on Intellectual Property Rights produced a policy paper on intellectual property— especially about copyright: Intellectual Property and the National Information Infrastructure. The working group recommended extending the regime of copyright to make the internet a safe place for copyright holders to distribute their work. That report included the first draft of the legislation that three years later emerged as the DMCA. The report called for anticircumvention rules to make it illegal to override digital encryption. That those rules would then override users’ fair-use rights didn’t faze the report’s drafters, who, in a twist of economic rhetoric, referred to fair use as a “tax” on copyright owners. The report called for the liability of internet service providers for their subscribers’ copyright infringements, hoping to make ISPs design and police their services to discourage infringement (and, in the process, chill the rights of fair users). It also urged public education to make sure that young people understood that all copying without permission was stealing, even though some copying was clearly legal. The report was written as if all unauthorized use of copyrighted material were a threat to the body economic and politic. The language of the report was purely and exclusively that of information commerce. Exemptions were not balancing features in the service of
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chapter three box 3. 2 >> Fair Use: You Be the Judge >> Public Radio News You are a reporter for public radio. You are doing a story on a fifteensecond political campaign commercial that uses material from your station and in the process critiques public radio as dangerously liberal. You think running the whole commercial would be the only way to let listeners see what the issue is, and you’re sure the campaign won’t give you permission. But your editor says she’s heard that if it’s unlicensed, you can use up to 10 percent of copyrighted material. What can you do? Answers at the back.
new culture, but simply impositions on rights holders. Thus, a university using fair-use rights is just seeking “subsidization” from rights holders. The report demonstrates how a rigorously economic emphasis downplays the importance of fair use and obscures the real objectives of the copyright system. There was a prompt and loud reaction from familiar advocates of the public interest in copyright, such as libraries, and from scholars, including Pamela Samuelson and Peter Jaszi. They joined with other institutions and businesses that depend on fair use in the Digital Future Coalition (DFC). The Computer and Communications Industry Association (CCIA), under the leadership of Edward J. Black, was an important early member, as were groups as various as the Electronic Frontier Foundation (EFF) and the American Committee for Interoperable Systems (ACIS). The coalition and its allies— including consumer electronics manufacturers, telecommunications companies, and other internet service providers— managed to block the administration’s first push to create legislation based on the White Paper. When the administration took the same issues into the international arena in 1996, a wide range of civil society organizations, including the DFC, successfully lobbied the World Intellectual Property Organization to soften the treaty terms that content industry stakeholders sought on issues like “circumvention.” Furthermore, these public interest advocates helped to assure that the new WIPO Copyright Treaty (and its companion, the WIPO Treaty on Performances and Phonograms) included unprecedented language asserting the importance of balance in copyright and access to culture. Internationally, corporate copyright holders won only a watered-down form of the White Paper’s proposals to protect digital content. But the administration eagerly followed up on the chance to interpret those pro-
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posals. It again proposed legislation to create new civil and criminal penalties for breaking industry-designed “digital rights management.” This bill, which eventually became the DMCA in 1998, made it illegal among other things to break such code and also to distribute code-breaking tools, under most circumstances. Significantly, circumvention for fair use was not among the short list of proposed exceptions to this new technological regime. The political fight was furious, and the copyright-as-property ideological frame was a powerful one. Content industries strongly argued that such legislation was essential to international trade, and indeed to the security of the nation. The MPAA’s Jack Valenti freely associated downloading, hard-copy piracy, and terrorism. Civil society organizations, including libraries, educators, and the DFC, argued for the vision of copyright that Benjamin Kaplan and other scholars had so elegantly espoused, one that nurtured the future of culture as well as protecting current owners. They worked with key commercial allies, including internet service providers, who wanted to avoid responsibility for their users’ choices, and equipment manufacturers, who wanted their users to be able to use hardware freely. During the brutal stakeholder battles, inevitably alliances changed. Internet service providers dropped their opposition once they secured protection from shared responsibility for their users’ acts. In return, they had to remove promptly any material a copyright holder objected to, while also giving the poster a chance to contest the takedown. Equipment manufacturers won a clause saying that they did not need to redesign equipment to recognize digital copy controls. The open-access software community won important exemptions for reverse engineering. And the public-interest advocates ended up with small but significant victories. Their concerns were partially acknowledged in a provision allowing fair users to seek exceptions to the anticircumvention provisions where their ability to make “noninfringing” uses, including their fair- use rights, were “adversely affected.” Overall, the passage of the DMCA in 1998 was a dark moment for fair use. But it also was a turning point. In the stakeholder slugfests, the civil society stakeholders loudly and often made clear that fair use was an essential feature of copyright law, and that marginalizing it would have serious cultural and economic costs. This work did not reclaim the potential of fair use at the time. But it made the concept something to fight over, and gave it new visibility. Meanwhile, economic tunnel vision continued to dominate policy-
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chapter three box 3. 3 >> Fair Use: You Be the Judge >> Poetry You’re writing a novel about a tumultuous time in the life of a teen girl, and you would like to begin each chapter with lines from the songs and poems that are referred to throughout the novel as weaving through her daily life. Do you need permissions for these quotations? Answers at the back.
making. It culminated in term- extension legislation, which finally passed (after a decade of pressure by corporate copyright holders) as the Sonny Bono Copyright Term Extension Act of 1998. Both Hollywood and the music publishing industry were its champions. The music publishing industry, a particularly vocal stakeholder, was protecting rights in musical perennials, such as the catalogue controlled by Irving Berlin’s estate. Now the corporate copyright holders and the international trade supporters had what they wanted. Copyright policies were longer and stronger on behalf of owners than ever before. They were now internet-ready— they thought. They believed they had the audience back in the box. They were wrong, of course. Their business-model problems were only beginning. But in the process, legislation had redrawn the copyright landscape. It had created unprecedented breadth and depth of rights for copyright owners, and slighted all others. Now that enormous damage had been done to their rights, consumers and users began to wake up. They were beginning to use their newfound digital freedoms; they were buying laptops; they were experimenting with unprecedented services such as Napster, designed in 1999; and they were bumping up against unforeseen problems. Digerati and professors, some of them mere spectators during civil society stakeholders’ desperate legislative skirmishes with corporate stakeholders, also decided to take action. Lawrence Lessig decided to challenge the all- economics-all-the-time environment with a lawsuit. He teamed up with an electronic publisher, Eric Eldred, whose publishing of public-domain books was hurt by copyright extension, and Eldred was joined by other publishers. In 2003 Lessig took Eldred v. Ashcroft to the Supreme Court, arguing that copyright extension was unconstitutional because the Constitution mandated “limited terms.” Current terms— though technically limited— were so long that they might as well be forever for the uses people make of the public domain. The Supreme Court eventually ruled against that argument, saying that the terms, though long, were in fact limited. Moreover, they protected
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US copyright holders who wanted to distribute work internationally, since European law denied extended copyright protection to nationals of any country that did not honor Europe’s long copyright terms. The Supreme Court acted in line with the economic-protection thinking that had metastasized over the previous fifty years. The one ray of light in the decision was the court’s note that extended terms did not violate constitutional First Amendment rights because of doctrines that limited the scope of owners’ authorship— including fair use. By 2003, owners’ copyrights applied to nearly everything a person could create. They applied to many of the works people could make out of those original works; they were automatic, created along with the work. And they lasted forever, or so close as to make no difference for most practical purposes. There was still one escape hatch: fair use. Lawyers and judges knew it, and so did people who worked in mass-media organizations and in libraries. From the early 1990s there was a dramatic shift toward judicial enthusiasm for fair use, which was in part a reaction to the tightening copyright net. Fair use was being rediscovered by everyone from remixers to elementary school teachers. But it now faced another serious challenge: a bad image. Both copyright holders and copyright critics contributed to that.
4 The Decline and Rise of Fair Use the public campaigns Our world is different. john perry barlow
As copyright became an ever more relevant issue in digital culture, both content industry groups and activists for a less restrictive approach to copyright— often designating themselves as copyleftists or free- culture activists— began to reach out to the general public. In this battle for the hearts and minds of digital-culture users, fair use ended up a casualty. This was more accidental than by design. Content industry groups were largely concerned with asserting maximum control in the new, uncertain digital environment. Free- culture activists, including many legal and cultural studies scholars, trumpeted the dream of a vastly expanded public domain, as part of a romantic rhetoric of free or open-source culture. The clash of these two extreme agendas effectively sidelined the concept of balance in copyright law. Content industry rhetoricians called unlicensed use theft, criminality, and piracy. Free-culture activists called copyright holders greedy corporate thugs, and called for a culture of free sharing. As several scholars (especially Tarleton Gillespie, John Logie, and William Patry) have noted, this was not a helpful way to frame a public policy discussion. Patry has characterized the polarized discourse as an example of a moral panic. Copyright was treated not as a multifunctional tool to promote culture, but as a shield by some and a cage by others. The content industry circulated a few simple concepts: Copyright is just another kind of property. Unauthorized copying is stealing. Stealing hurts artists. Asking permission is always the right thing. They represented copyright as all about property ownership, and raised the specter of lost jobs and ballooning trade imbalances when owners’ rights were violated. In their role as public intellectuals (as contrasted with their profes-
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sional and academic positions), legal and cultural studies scholars popularized the vision of an “information commons” (by analogy to physical public spaces open to all). These scholars accepted unbalanced copyright as a brutal but unmoving fact. Since copyright’s version of the commons, “the public domain,” had been effectively plundered, the best hope was to act around the law to expand uncopyrighted zones where owners would not rule. Enlightened creators, they argued, could use their copyright authority to opt out of the system. Meanwhile free-culture activists, mostly tech-nerds, students, and artists, portrayed copyright as the villain of their story, in the process representing the law as irretrievably all about the owners. Together, whether intentionally or not, they ceded the crucial ground of the public interest within copyright; they effectively capitulated to a property vision of copyright, hoping to find a world elsewhere. As Niva Elkin-Koren has noted, the Romantic- era notion of the geniusauthor pervaded the discussion. Meanwhile, the sturdy, utilitarian doctrine of fair use— the main element of copyright law that could be used to restore balance— went ignored. While content industry lawyers talked about fair use as shadowy, dangerous business, self-styled copyleftists treated it with a mixture of contempt and pity. Content Industries and Criminal Copying
This wasn’t the first time that content industry executives had lectured their customers about the dangers of copying. Indeed, when the movie industry faced the prospect of the copy-friendly VCR— a machine that eventually saved Hollywood— its lead lobbyist Jack Valenti thundered that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” He vividly criminalized the act of copying and portrayed the American public as a helpless victim. Valenti was the pope of moralistic rhetoric, referring to the “sanctity” of copyright owners’ rights, and associating all copying with fear-laden words such as “outlaw,” “terrorist” and “pirate.” The perceived threat of peer- to- peer file sharing precipitated new levels of cross-industry coordination around publicity and education campaigns. The efforts reached down into every level of the school system, and reached any young person who went to popular gaming and entertainment websites. It fostered a language of transgression, and even criminality, around copying. Starting in 2000 in the wake of enthusiastic reception to Napster, the
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first widespread online music file- sharing service, trade associations began campaigning for the hearts and minds of young people. As Tarleton Gillespie has shown, they worked through public service advertising campaigns, in schools and school-based media, and directly with consumers. The Business Software Alliance (BSA), the Recording Industry Association of America (RIAA) and the Canadian Recording Industry Association, the American Society of Composers, Authors and Publishers (ASCAP), the Copyright Alliance, and the Motion Picture Association of America all launched campaigns. TV ads, posters, comic books, game-based websites, Boy Scout merit badges, themes in sitcoms, teachers’ guides, and free school curricula were all part of the effort. Trade associations sometimes got government organizations such as the US Copyright Office and the UN’s World Intellectual Property Organization to echo their campaigns. The trade associations focused, in these early twenty- first- century campaigns, on discouraging downloading, but they carried lots of other messages too. Most importantly for fair use, they represented all of copyright policy as being about protection of copyright holders’ monopolies. All unlicensed taking was stealing, or “piracy.” Paying copyright holders was a moral act— the only right thing to do. The only way to “respect” copyright, in these lessons, was to pay for all access to copyrighted material. Copying was represented not only as wrong but as immoral. A teacher’s guide for instance suggested kicking off discussion with this: “Has anyone ever copied your homework or stolen your ideas? How did this make you feel?” An RIAA poster said, “never copy someone else’s creative work without permission from the copyright holder.” When these “educational” materials actually addressed fair use, they often exaggerated and sometimes were outright wrong: “Students are allowed to copy short passages of copyrighted text, individual copyrighted images, and excerpts from other copyrighted material in their school work, as long as they credit their sources. This is called ‘fair use.’ But no one is allowed to copy copyrighted material outside the classroom for any reason without getting permission” (emphasis added) When mentioned at all, fair use was typically described as dangerous: “Unless you are absolutely sure, relying on the doctrine of ‘Fair Use’ to avoid seeking Permission to copy a work is risky. The best course of action is simply to seek permission for all copied material you intend to use.” The idea of “copyright education” has caught on. In some places the efforts that began with the trade associations’ voluntary campaigns have been made mandatory. In 2006 the State of California required school districts to develop a curriculum on “Internet safety, the manner in which to
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avoid committing plagiarism, the concept, purpose, and significance of copyright” so that students could understand “the implications of illegal peer-to-peer file sharing.” In 2009 the federal government began demanding evidence that universities were educating their students about legal and illegal downloading. Inevitably, students who receive this instruction carry their fears and confusions with them, ready to pass them on either as prescription or as resistance attitude. Their teachers and librarians internalize and transmit the sacred-property version of copyright. In case they happened to stumble across the glancing references to fair use, the content industries’ campaigns have taught them that it is a marginal, occasional, and undependable doctrine. Scholars and the Public Domain
Some legal and cultural studies scholars who acted as public intellectuals, communicating far beyond the academy, also played a powerful role in shaping a larger public understanding about copyright. In the late 1990s and early 2000s they worked together, meeting to coordinate rhetoric and to plan conferences. Unfortunately, they too settled upon a message that implied that copyright was all about owners. This was because their core message— that drastic new measures were needed to expand the “commons”— implied that the current copyrighted environment was entirely locked up by those owners. For some time, liberal scholars, especially legal scholars but also literary scholars and anthropologists, had been concerned by the radical changes in copyright policy. An international group who met in Bellagio, Italy, in 1993, convened by Peter Jaszi and Martha Woodmansee, concluded with a manifesto declaring that intellectual property policies that overly privilege individual authors prejudice the public interest. The Bellagio scholars noted that collaborative work of all kinds, from folklore to agricultural innovation, was routinely denied protection while individuals— often in more affluent Northern countries— could poach the results. Each intellectual property right, they wrote, “fences off some portion of the public domain,” the shared resource from which future culture could draw. Calling for broader public participation in intellectual property policymaking, they stated, “In general, we favor an increased recognition and protection of the public domain by means of expansive fair-use protections, compulsory licensing, and narrower initial coverage of property rights”— in other words, a balanced, non-absolutist approach to implementing the public interest within the general framework of intellectual
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property law. Their vision of the public domain embraced not only material that was free of all ownership claims, but also copyright rules that promoted public access to protected material. A different understanding was soon to emerge among the community of copyleft activists. The Bellagio Declaration alerted many in the legal scholarly community to the problem of unbalanced copyright. The concerns voiced in it grew, after the 1994 TRIPS agreement, the 1998 copyright extension legislation, and the DMCA. Unfortunately, with the passage of time many critics of intellectual property overreach came to ignore the question of how balance within copyright can be implemented by using the tools, such as fair use, that the system itself provides. Writing on the issue, two legal scholars quickly rose to prominence in the United States: James Boyle and Lawrence Lessig. James Boyle, in 1996, wrote Shamans, Software and Spleens, about the encroachment of copyright policy on cultural expression in the service of content companies. It summarized the core insights of the Bellagio conference, which Boyle attended, and decried the absence of wide public debate and outcry on the social and cultural implications of these policies. He argued that the copyright-free zone had shrunk dramatically and needed to be both increased and protected by government regulation from depredations by economic actors. He pointed to an entitlement rhetoric around copyright ownership as a fundamentally flawed conceptualization, and urged different ways of thinking about the social role of information itself. Boyle went on to cofound the Center for the Study of the Public Domain at Duke University, with the help of funds from the Red Hat Foundation, then the nonprofit arm of the same company that facilitates use of open- source Linux software products. Lawrence Lessig burst into public attention, complete with catchy slideshow presentations, with his first book, Code: And Other Laws of Cyberspace (1999). The book noted that as digital commerce increased, particularly with digital monitoring and control of user action, traditionally free cultural uses of copyrighted material were curtailed. Instead of resisting corporate aggrandizement of cultural space in the digital era, he noted, copyright law had facilitated it. The technical designers of digital commercial culture were setting the rules, with no pushback from policy. Cultural expression was endangered. Among other things, technologies were preempting fair use by making copying difficult through encryption. Laws reinforced that obstacle by punishing people who broke the encryption. Other legal scholars also contributed to the discussion. Disillusioned in
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the wake of the DMCA debacle, Jessica Litman addressed a more general public with her book Digital Copyright (2001). In it, she charted the gap between copyright policy and actual digital practice. It was a despairing cry for attention to the issue. She wrote that she had been made cynical by the marginalization of public interest advocates in DMCA policy formation, and put her faith for change in the general public’s failure to comply with the terms of copyright law. Legal scholars held private convenings, backed by major foundations including the Ford Foundation and the John D. and Catherine T. MacArthur Foundation, discussing how to publicize the problems posed by long and strong copyright. They discussed how to develop rhetoric that could move people outside the scholarly circle to an awareness of claustrophobic copyright policy. At the start of the new century, the Red Hat Foundation’s short-term Center for the Public Domain, led by nonprofit entrepreneur Laurie Racine, also held urgent meetings. Looking for language echoing the terminology of environmentalism to describe the aims of their movement, they turned to the phrase “the commons,” referring to a public domain zone. The information commons at the moment, they noted, was sparse and shrinking. And yet it was the source of tomorrow’s creative work. Fair use was not even considered in these discussions, although it has the potential to function as a situational public domain, providing creators with much of the access to copyright culture that it requires. Working with concepts about the layers of activity and control in digital production put forward by Yochai Benkler, Lessig extended this argument with an even more reader-friendly format in his 2001 Future of Ideas. He painted a dire picture of a future Dark Ages controlled by digital moguls whose monitoring and control of all user action— sanctioned by law— would stifle creativity. He called for a wide range of legal changes, including the rewriting of copyright law to drastically roll back the length of copyright. He began to link the words “free culture” with “commons.” He spoke widely, and passionately, on the problem. His Center for Internet and Society at Stanford Law School took on challenges such as a lawsuit against the grandson of James Joyce for keeping Joyce family letters from the critical scholars— and thus from the public. The estate eventually settled for everything the lawyers (Anthony Falzone and David Olson) sought. They won on the basis of fair use. As Lessig refined his message, though, he became ever more impatient with the limitations of fair use, as he understood them. He wanted, he told popularizer David Bollier, to “rename the social practice” and ultimately
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build a new “legal and technical infrastructure of freedom.” He called for the reimagining of the entire legal and cultural framework. Bollier synthesized the commons arguments in two reports published by the New America Foundation (the latter cosponsored by the think tank Public Knowledge), launched at a well- attended conference. Bollier summarized the theme in four words: “Public domain under siege.” He leaned heavily on environmental language: “Just as companies today cannot pollute the air and water as if it were a free and unlimited resource, so the public domain should not continue to be ‘used up’ without serious consequences.” “Copyleft” Licensing
Creative Commons emerged from this way of thinking. At a Center for the Public Domain conference, Lessig highlighted the General Public License, created by software programmer Richard Stallman in 1983. Stallman had pioneered the code that eventually was built into Linux and in 1989 developed the GPL. Stallman, who grew up in hacker culture in a pioneering moment for networked computing, believed that openness, anonymity, and freedom were crucial moral values to keep that open culture alive. He found copyright far more irksome than helpful, and the GPL was a way, he thought, to subvert it. The GPL uses the strong rights that now belong to owners to assert that the owner’s material is and must remain free and open for anyone to use. His solution— which basically took strong copyright’s strength and used it to sabotage the idea of ownership— became the first blow in the struggle to create a “free software” movement. People began applying the term “copyleft” to this kind of licensing. Lessig also had other conversations, including one with MIT’s Hal Abelson, about the idea of a “land trust” for public domain material. (Abelson had pioneered MIT’s OpenCourseWare, free curriculum material on the web.) Soon a virtual network of scholars was shaping the idea that became Creative Commons, with Red Hat Foundation money infusing its creation. Creative Commons licenses use the power copyright gives authors to allow creators simply to give their work away under a range of conditions. Eventually Stallman harshly critiqued the Creative Commons licenses for creating such a variety of conditions, since this weakened the capacity of work with a CC license to fully participate in the pool of public domain culture. Others, including Niva Elkin- Koren, suggested that such licenses, in the absence of a common public standard for freedom of information, can create more uncertainty around the terms of private contracts, and
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ironically more barriers to access. But Creative Commons licenses quickly became a badge of participation for culture-makers of all kinds in the global copyright counterculture— and increasingly in the nonprofit cultural establishment as well. Today CC has made real inroads in areas like education (including open educational resources) and is now common in the web-based dissemination of information by nongovernmental organizations and their grantees. More and more CC license users are expressing a preference for the minimally restrictive “CC By” (or attribution only) variant. Creative Commons now actively acknowledges that its approach is complementary with fair use— license restrictions don’t apply to downstream users who rely appropriately on the authorization contained in the copyright law itself to make use of licensed material. Nevertheless, reliance on CC is not yet prevalent enough in any particular field of creative expression to carve out a new, distinctive, and vital cultural realm— in other words, a true functioning “commons,” in the root sense of that term. Creative Commons licenses are not conducive to fostering business models; some licenses prohibit any moneymaking from use of the licensed work. When introduced, commons rhetoric was a vivid way of portraying the problem of long and strong copyright. It also worked to highlight the problems with other policies, such as some patent, trademark, and telecommunications regulation, that constrain expression. It celebrated a vision of the public domain as a space entirely free of intellectual property constraint, while either ignoring or slighting exemptions and balancing features that limit copyright owners’ monopoly control. In general, the commons advocates shared an alarmist vision of cultural strangulation by copyright. They often placed their hopes on radical (and probably unlikely) changes in legislation, hoping that their work would mobilize enough public opinion to create a stakeholder position for “free culture,” or the commons. Finally, they shared a David versus Goliath view of cultural expression, with individual, isolated users pitted against corporate behemoths. They celebrated the insouciant renegades who challenged and critiqued popular culture and flouted copyright. This approach did not depend upon the notion of balance within copyright. Rather, it backhandedly accepted the copyright owner maximalist interpretation of the law and aspired to expand the arenas of culture that exist beyond copyright, no matter how difficult that project might be to accomplish. Actually expanding the public domain would require either persuading large numbers of individuals to voluntarily donate material into it by renouncing copyright altogether or, however unlikely, making a change
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in the copyright law itself. Even then, that would only solve the problem going forward and would do nothing to get access to past culture. By design, the commons rhetoric does not address many of the practical problems of negotiating the ins and outs of copyright law today in order to accomplish creative projects. These passionate efforts by public intellectuals succeeded in creating a broad anti-copyright sentiment, especially among college students, geeks, some digital artists, and other techno-activists. They also had the sometimes unintended effect, however, of diminishing public awareness of and confidence in the other tools already available to balance copyright— especially fair use. Scholars and Resistance
Cultural studies scholars, acting as public intellectuals, also shaped anticopyright sentiment that incidentally and accidentally slighted the power of fair use. Soon upon the release of the first pro-culture volleys by legal scholars, cultural studies scholars joined them in sounding the alarm about shrinking cultural opportunities, often with flair and even flamboyance. Cultural studies scholars often focus on popular culture, and especially how people shape, use, and respond to it. They typically ask, in the tradition of John Fiske and others, how people reuse, rework, and resist the messages of popular culture (especially advertising and implicit consumerist messages). The question of how people did and could resist the strictures of long and strong copyright was like candy to them. The cultural studies scholars took the arguments beyond policy wonkism. They used a language of resistance drawn from their own disciplinary study of responses to popular culture. Scholar Siva Vaidhyanathan wrote a widely read academic book, Copyrights and Copywrongs (2003), which pitted corporate-led government policy against the public interest to imagine expansion of copyright-light and copyright-free zones. In his 2004 The Anarchist in the Library Vaidhyanathan painted an even more polarized picture. On one side were siloed, hoarding entities (content companies, software companies, governments) and on the other were forces of decentralization and connection (an unlikely grouping of international business pirates, downloading students, and fair users). He argued that policymakers needed to learn from the “anarchists” to foment grassroots cultural expression. As a sought-after public speaker, he emerged as an important critic of fair use, arguing that the doctrine was not clear enough to be usable by nonlawyers. Vaidhyanathan also made the important ob-
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servation that fair use exists only in the US and a few other countries. (See chapter 10 for how these issues are handled elsewhere in the world). Early in his career Kembrew McLeod, a cultural studies professor and prankster who went on to cowrite an important study about copyright and digital sampling, both wrote and performed self-described provocations to strong copyright and trademark, sometimes without distinguishing the two. McLeod’s work was witty, arresting, and funny, brilliantly employing humor, ridicule, and satire to dramatize the overreaching of intellectual property policies. He embraced the language of crime, for instance, describing the Robert Greenwald film Outfoxed as “media piracy,” an act of defying copyright control freaks. Actually Greenwald had worked with pro bono lawyers and Lawrence Lessig to ensure that every use of Fox material in the film was legal under fair use. McLeod celebrated culture jammers such as the Yes Men, pranksters who have pretended to be representatives from Dow Chemical apologizing for Bhopal, developed fake editions of the New York Times and Post, and designed a fake website for the World Trade Organization. The Yes Men regularly copied trademarks but barely touched copyright issues. But McLeod was interested in challenging the legitimacy of all intellectual property regulation, more than addressing specific problems. McLeod treated the entire range of intellectual property issues as symptomatic of the same general problem, and treated all kinds of protest, dissent, and rejection as part of the same general reaction. His portrayal synthesized a range of rejectionist attitudes and made it easier for people to generate outrage— but potentially harder for people to address more immediate and pragmatic solutions. This was partly because the pranksterism and the broad-brush attacks were more visible than his recurrent and reasonable call for creators to employ fair use more aggressively. Cultural studies work importantly drew attention to the heretofore marginal, even subterranean, cultures critiquing and playing upon commercial culture, including fan culture. Scholars often participated in the spirit of critique and play, using scorn and contempt as tools. In the process they often conflated— much as corporate education programs did— copyright, trademark, and other regulatory systems, creating a broadly oppositional rhetoric of resistance. Extremist language flourished, and fair use was treated as a weak, poorly defined, hard-to-use part of the law. Laws bad enough to discredit were not the place one looked for an instrument of change. This copyright alarmism was at some distance from the approach of Henry Jenkins, a leading scholar of US cultural studies. He had docu-
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mented the cutting edge of creative popular culture. Fan fiction, machinima, participation in reality TV— do- it- yourself culture had been his material for decades. His careful and detailed documentation of fanculture practices became a resource for many. His work stressed not the suppression but the burgeoning of do- it-yourself culture-making. He stressed the continuity between this new DIY world and creative practices in the old; he critiqued the notion that digital practices demanded new rules. Rather, he argued, the society needed to encourage DIY culture and permit online what was permissible in a pen-and-paper world. While noting the conflicts that this participatory culture had with copyright, he advocated more flexible interpretations of fair use. For instance, he was frustrated by the way professional communities more easily employed fair use than amateurs, who were often intimidated. Geeks, Artists, and Students
Although scholars and policy wonks found the general public clueless about intellectual property issues, they entered a field already quite alive with activity loosely identified with the terms “free culture” and “open source.” These were people who had no patience for copyright restrictions of any kind: software developers. This was, as scholar Adrian Johns notes, a group that had long roots in an antiregulatory attitude, going back to ham radio. Most geeks worked in formal or informal teams, solving problems iteratively as many individuals worked on the same problem and shared results. Usually employed by a business, they often worked across corporate lines to solve each other’s problems. They had all seen how important it was to build from a base of existing knowledge, how helpful it was when many folks independently tried to solve the same problem, and how knowledgeable the community was. They were comfortable using networks to find out who knew the answers to a shared problem. The answer was always somewhere, if you could connect with enough people. Many had seen a move from open software to proprietary software in their communities after the 1976 Copyright Act. Richard Stallman’s creation of the GPL gave them not only a tool but a banner. Free software, or open- source software— available for any purposes for anyone, so long as people labeled at which point their own proprietary work had diverged from the community project— was a highly successful mode of production. It enabled a variety of commercial and semicommercial ventures, including Red Hat and Mozilla, and was the center of a growing romantic vision of cultural creation with software designers at its
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center, as Streeter chronicles. It was captured in Michael and Ronda Hauben’s 1997 book Netizens, which described collaborative and freely shared models as morally virtuous. Free software’s voice was amplified in the later 1990s by the Electronic Frontier Foundation, started with money derived from founder Mitch Kapor’s widely used Lotus software programs. EFF was the project of three men who knew each other from the early internet bulletin board the Well: Grateful Dead songwriter and cattleman John Perry Barlow, software developer and activist John Gilmore, and Kapor. They counted as friends countercultural allies including Stewart Brand (founder of The Whole Earth Catalog), who is credited with first saying “information wants to be free.” Free software’s voice was also amplified by Wired magazine, which on its debut in 1993 miraculously made geek culture look cool. Wired reached a far broader audience than geeks, becoming a consumer magazine that created an identity for people not just adopting digital machinery and toys but creating digital expression. It was in Wired that John Perry Barlow wrote his 1994 “The Economy of Ideas,” in which he imagined that “those who are part of the problem will simply quarantine themselves in court, while those who are part of the solution will create a new society based, at first, on piracy and freebooting. It may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place.” He even put a timetable on it: “these towers of outmoded boilerplate will be a smoking heap sometime in the next decade.” It was widely circulated among copyright critics. Then came his manifesto, “A Declaration of the Independence of Cyberspace,” in response to the 1996 Telecommunications Act, which largely concerned itself with telephony and cable regulation in ways that slighted the internet. His manifesto had many of the traits of later copyright activism. He boldly announced contempt for the existing order, and announced effectively that he and his cyberfriends were seceding: I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here. . . . We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.
Barlow described this culture as one that was sharing and giving, unlike the grasping, hoarding world of the copyrightists: “The only law that all
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chapter four box 4. 1 >> Fair Use: You Be the Judge >> Orphaned Material You’re making a video podcast designed to be a meditation on the history of a neighborhood, which is part documentary and part fiction, using the photos and letters of a now deceased man found in a photo album discovered in a second-hand store. You have been unable to locate the copyright owner through a cursory Internet search. Can you use this material under fair use? Is the unpublished photo album even copyrighted? Answers at the back.
our constituent cultures would generally recognize is the Golden Rule.” It would all happen on the new frontier: cyberspace. This vision had great advantages, especially for geeks tucked away in salaried and unpatrolled cubicles throughout the new digital economy, for idealistic students, for utopian artists, for nonprofit organization staffers, and for other people who lived and worked outside the traditional economy— as well as some within in. Indeed, even the Yale gathering of scholars that James Boyle organized to brainstorm the commons concept took its title from Barlow’s manifesto. The vision was captivating. It was insouciant; Barlow was shrugging off the old world without even a revolutionary challenge. It was generous; it imagined an anarchic informational Garden of Eden, with self-generated abundance. It imagined information for good, not for profit. It appropriated the language of the Evil Empire— piracy, freebooting— and made piracy the act of good guys. It participated in the Romantic ethos of the heroic creator breaking free of convention. It was a mirror image of the moralistic rants of content industry spokespeople about feckless and immoral pirates. Of course, as Lessig noted, this idealistic portrayal of an open internet was already a fiction in 1996. Even more fundamentally, Barlow’s agenda had the disadvantages of any secessionist program. It had no way to engage the current reality— not a problem for those not confronting it, but a great one for anyone in the traditional economy. It rejected political engagement. If you’re going to create the new world elsewhere, who needs to deal with the messy politics of the old? The vision presented copyright itself, not strong copyright or unbalanced copyright, as the problem. It valorized transgression and, effectively, demanded that anyone who wanted to join pull up stakes and light out for the Territory. Although progressive legal scholars sometimes criticized the radical
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utopianism of this vision, they nevertheless intersected with it. Their own vision of the commons also described a commerce-free zone of sharing, and their own prescriptions for policy actions promoted that vision. Together, they imagined a fabulous alternative that actually mirrored the maximalist vision of imperial copyright— one in which owners were disempowered and sharers ruled, one in which nonprofit moralism took the place of cold economic calculation, a place where the Evil Empire of copyright was replaced by the Garden of Information. Some of the most hopeful elements of this vision were eventually caught in Benkler’s The Penguin and the Leviathan. Copyleft Creators
Meanwhile, the copyleft (a favorite term of Stallman’s) was being fueled by artists, musicians, and bloggers. Copyleftism became fashionable in the plastic arts as part of a language of critique and resistance to commercial and popular culture— ironically, therefore, also as a way of reinforcing the special status of artists. It functioned within a well-established tradition of appropriation in the arts. Copying, of course, was one of the oldest traditions in the plastic arts; for centuries apprentices had learned by copying in artists’ workshops. But copying as cultural commentary and critique came into vogue as a reaction to modernism’s sleekly smug side. Artists, from cubists like Picasso and Braque to Dadaists like Tristan Tzara and André Breton, stuck messy elements of the world around them, including media clippings and art reproductions, onto their disjointed canvases. Duchamp affronted aesthetes with his “readymades”— utilitarian objects such as carpenters’ tools and urinals lodged in galleries, challenging the very notion of art while (somewhat paradoxically) insisting on its connections to the preexisting created environment. Surrealists created shocking juxtapositions such as that found in the still unsettling Chien Andalou. In the 1960s, artists such as Andy Warhol, working within a more pervasive commercial culture, challenged assumptions about art and culture with work seized from front pages and popular magazines. The most successful ran into copyright problems. Warhol in fact fought infringement charges— from fellow artists, however, not from manufacturers such as Campbell’s Soup. (He at least once negotiated an agreement to pay royalties to a photographer.) The term “appropriation art” grew to prominence in the 1980s in the New York art world, applied to artists such as Sherrie Levine, Barbara Kruger, Richard Prince, and Jeff Koons. Koons, whose work sold and traded at high prices, also became a litigation target, as
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we have seen. But until digital copying and internet transmission gave artists expanded tools and created new possibilities, the art world’s claims to transgressive appropriation had, more often than not, been taken as a prerogative of a self-defined and largely self-referential cultural enclave. Only when the works themselves became high-priced commodities did artists need to tangle with copyright holders directly. Emerging artists working in mass- media formats developed an ever broader interface with a wider society, often resonating with surprisingly broad audiences. Young people seized upon new video equipment and editing tools, making nationally recognized art that, for all its connections with earlier collage and remix efforts (John Heartfield, Joseph Cornell, Bruce Conner and Rafael Ortíz), was often received as strikingly original. San Francisco video collage artist Phil Patiris produced a wildly popular mashup video criticizing the 1991 Gulf War, Iraq Campaign. Craig Baldwin, a student of legendary experimental video artist Bruce Conner and a devotee of Situationist International theorizing, began in the later 1980s to produce collage-style film works that appropriated the terminology of theft to describe his quotation of commercial culture as stealing (for instance, in Stolen Movie, produced by sneaking into theaters and filming snatches of popular films off the screen). Baldwin became a major figure on the highly politicized San Francisco art scene— not only a popular festival hit maker, but also a champion of another transgressive sensation, the group Negativland, which he featured in his 1995 film Sonic Outlaws. Music sampling rose in popularity, and participation in the scene became a countercultural badge. Hip-hop music— the wildly popular form of street music that flourished among urban Latinos and African Americans in the 1970s and 1980s— captured and remade sounds from others sometimes well-known and sometimes not. Sampling entered the pop- cultural mainstream with, among other phenomena, the Dust Brothers’ contributions to Beastie Boys’ 1989 Paul’s Boutique. The sampling practices of hip- hop artists eventually were challenged by rights holders. Many took shelter in complex mutual licensing arrangements— arguably to the cost of the music itself. Others chose resistance. Negativland, a collage band with prankster tendencies founded in the late 1970s, had come to national attention in 1991, when it released a parody of a U2 album, prompting U2 to sue for trademark infringement. Negativland steadfastly maintained that their uses fell under fair use, a claim that was, unfortunately for them, irrelevant to a trademark lawsuit, although they also faced threats of a copyright lawsuit. The Canadian musician John Oswald called his style of sampling popular music “plunder-
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phonic.” He quickly fell foul of the music industry, however. In 1989 the Canadian Recording Industry Association persuaded him— interestingly, with a mere cease-and-desist letter— to destroy copies of a CD production that featured extensive musical quotation. His work was widely admired in the United States, and his positioning of himself as outlaw creator became a trope. Unreconstructed, unlicensed sampling practice (though rarer and rarer in reality) could be held up as an example of romantic resistance to the status quo. Another highly publicized act of resistance came in 2004, when new enabling technology like P2P file-sharing was firmly established. Mixing a capella Jay-Z lyrics with Beatles music, Danger Mouse’s Grey Album was released (to only a few spots on the internet). EMI, which coheld Beatles copyrights, ordered Danger Mouse to stop. That did not work; the album moved around cyberspace even more rapidly and attracted enough attention to be listed as the best album of 2004 by Entertainment Weekly. Girl Talk, a solo performer whose work is composed entirely of sampled popular lyrics, rose to national prominence with his third album, Night Ripper, in 2006. He openly claimed to be relying on fair use, and so far there have been no copyright challenges to his richly allusive, layering sound art. Nevertheless he was celebrated as a copyright rebel. Girl Talk is a good example of how strong the trope of the endangered, resistant artist defying intellectual property laws (rather than taking advantage of their flexibilities) has become. In 2003 copyleft activist Carrie McLaren, who published Stay Free! magazine, organized the Illegal Art Exhibit, featuring quilts, photographs, videos, and more examples of remixed work incorporating copyrighted material as well as famous trademarks. The exhibit, which traveled to several cities throughout the United States, portrayed the intellectual property situation of the artists as dire: “Borrowing from another artwork— as jazz musicians did in the 1930s and Looney Tunes illustrators did in 1940s— will now land you in court. If the current copyright laws had been in effect back in the day, whole genres such as collage, hip hop, and Pop Art might have never have existed.” The Illegal Art Exhibit, its website proclaimed, “will celebrate what is rapidly becoming the ‘degenerate art’ of a corporate age: art and ideas on the legal fringes of intellectual property.” Ironically, the material showcased was— for the most part— anything but illegal. To the contrary, the exhibit represented a range of work demonstrating energetic and creative use of the balancing features of copyright permitting free expression. But for the organizers, the frisson of the word “illegal” was worth the errone-
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chapter four box 4. 2 >> False-Alarm Horror Story: Tom Forsythe The cultural copyleft fed off horror stories, sometimes drawing dubious or even wrong conclusions. For instance, a Utah artist, Tom Forsythe, produced a work of art, Food Chain Barbie, featuring a photograph of a Barbie doll in a blender. This was no accidental or incidental use, but a deliberate provocation. It was part of the copyleft moment of protest against corporate culture. Mattel sued him for copyright infringement, and he and his pro bono lawyers argued that he had employed fair use. Judges agreed with Forsythe, and Mattel had to pay him $1.8 million in lawyers’ fees. That was not only a victory for fair use but also a strong signal to any content industry actors about what could happen to them if they sued for infringement. It was a powerful test case that discouraged further lawsuits. However, the Forsythe saga was often retold within the copyleft as a cause for alarm.
ous impression. Kembrew McLeod cheerfully acknowledged that the term “illegal art” was a misnomer but described it as a “provocation.” During the exhibit, as a prank, he applied for and actually got a (very limited) federal trademark for the term “freedom of expression,” and sent a cease- anddesist letter to AT&T for using the term in an advertisement. Although his thin trademark clearly gave him no right to sue (and he did not intend to), the New York Times ran a story. As he recounted in Freedom of Expression, he was thrilled because “my media prank did succeed in broadcasting to millions a critique of intellectual-property law that wouldn’t normally get national or international attention.” Such antics did indeed provide a broad-brush critique, but at the same time they often obscured, for the vast majority of people positioned between the extremes of piracy and hyperprotectionism, the possibilities for practice and change of practice within the law. Creators Wrangle
An incident that attracted comment and controversy in 2004 illustrated the clash of worldviews. Digital artist Joy Garnett, who creates her own paintings using visual work she samples on the web, used a photograph by political photographer Susan Meiselas of a Nicaraguan revolutionary about to heave a grenade in a collage of images called “Riot.” As a matter of principle, Garnett treats all imagery she encounters on the internet as
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equally available for her repurposing. She and others also regarded this behavior as deliciously transgressive, rather than (within limits) an exercise of fair use. In this case, without being aware of its significance, she had chosen a richly resonant and even (for some) iconic photograph. It had become one of the most popular images of the revolution in Nicaragua, appearing in murals and leaflets, and was even taken up by the winning revolutionaries, the Sandinistas. Meiselas had never attempted to control its use, and as a Sandinista supporter she was proud of its diffusion in revolutionary circles. But she was furious at seeing it de- and recontextualized by an artist who appeared to have no political or moral commitment to the values that drove Meiselas to risk her life in documenting the revolution. Incensed, Meiselas sent a cease-and-desist letter to Garnett for “pirating” her image. Garnett took the image off her site, but Garnett’s friends in protest had already begun mirroring it on many other websites. These acts of rescue were widely seen as a copyleft victory, and Garnett’s friends saw themselves as champions of digital freedom valiantly bucking analog-era censorship. Meiselas’s supporters were just as adamant in their defense of the principle of artistic integrity and saw Garnett’s action as willful disrespect toward a fellow artist and callous disregard for the moral values that infuse socially informed art. The controversy was often discussed in the art world as a copyleft versus copyright conflict. In fact, both groups took absolutist positions that in different ways reflected a Romantic- genius view of authorship. They saw themselves as defending the right of artists to control their work— the only difference being which artist they had in mind. For Garnett copyright was the enemy, and for Meiselas it was her weapon in defense of basic values. Copyright law is not well designed to resolve moral dilemmas, though. In the end Meiselas and Garnett realized this when they, at the invitation of Lawrence Weschler at the New York Institute for the Humanities, sat down and talked to each other. Meiselas dropped her objections. The copyleft, meanwhile, flourished in the blogosphere. Blogging picked up speed after 1998 with the creation of the first social networking software, Open Diary. It burgeoned with the creation of templates, and bloggers both promoted copyleft agendas and aggressively used their blogs to copy and paste copyrighted material. Blogosphere celebrity Cory Doctorow both exemplified and advocated “free culture.” Doctorow, a science-fiction writer and co-curator of the immensely popular site Boing Boing, became a major voice of the copyleft, wittily crafting rhetoric that pointed and sharpened the alternative-reality vision of copyright critique.
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He became a spokesman for free culture, advocating free circulation of digital culture, and enthusiastically embraced the epithet “pirate.” He wrote his own books under a Creative Commons license (discovering in the process that providing free downloads to readers made for great publicity). He loudly protested use of digital rights management to protect content. He argued, as John Perry Barlow had, that business needed to follow customers and opportunities, not stop them, and that law would inevitably follow. He used scorn, ridicule, and contempt to portray content companies as hindrances to progress. Doctorow actually used fair use effectively and knowledgeably in his work, even while celebrating free-culture rhetoric. Other bloggers were not nearly so clear about the access fair use gives to the generation of new culture. A snarling conversation began between mainstream media journalists, who often became convinced that “fair use” was stealing their business model, and makers of born-digital work who awaited the arrival of free culture. Fair Use, Free Use, and Free Culture
“Free culture” discourse developed rapidly in the twenty- first century, following on speeches by Lawrence Lessig and propelled by his book Free Culture. Lessig became an increasingly passionate advocate after 2000 of what he termed “free use,” by which he meant the consumer practice of reusing and relocating copyrighted material at will. He argued that this timehonored analog practice deserved to be maintained in a digital environment. His goal was to liberate whole sections of the culture— especially amateur, noncommercial expression— from copyright altogether. In the process, Lessig’s denigration of fair use became ever more virulent. At the Comedies of Fair Use conference in New York in 2006, Lessig said in his keynote, “I hate fair use. I hate it because it distracts us from free use.” In his 2004 book Free Culture, Lessig had explained his hostility more calmly. “The law has the right aim; practice has defeated the aim,” he wrote. That is, balancing features are a good idea, but this balancing feature didn’t work because of its ambiguity: But fair use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad— in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. . . .
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Judges and lawyers can tell themselves that fair use provides adequate ‘breathing room’ between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists— these are the real laws governing creativity. And these rules have little relationship to the ‘law’ with which judges comfort themselves. . . . It takes a studied blindness for people to continue to believe in a culture that is free.
Lessig described well the hurdles that ordinary people, undefended by institutions used to making such calculations, faced in the dark days of an economic interpretation of fair use, and before the assertion of their rights under fair use. He also correctly identified a very real problem: Much creative expression depends on gatekeeper approval, which requires better shared understanding of the practice of fair use than existed at the time. The problem was not so much with the diagnosis as the prescription. Lessig appeared to abandon hope in fair use, and pinned his hopes on a reformed legal system with wider room for “free culture,” providing for a larger “commons” of truly copyright- free material. (Several years later, when he grasped the nature of stakeholder politics, noting that large copyright holders distorted legislative outcomes for copyright reform irrespective of the insights of scholars, he decided to refocus his considerable energies on the project of reforming congressional decision making.) After documentarians and others began applying fair use successfully to their practices— sometimes, as in the case of Robert Greenwald, with his legal assistance— Lessig moderated his public stance on fair use and even created a Fair Use Project at Stanford Law School to contribute to normalizing fair use. In a 2010 address to the Open Video Alliance, he praised efforts such as American University’s initiative on best practices in fair use for widening the space for creativity and began to refer to “free/fair use.” But he continued to believe and to say that fair use was too chancy for most people to use reliably. In 2003 Students for Free Culture seized upon both the term and the concept of free culture. The organization spread through liberal arts campuses. Downhill Battle, created by college students in 2003, amplified the copyleft voice with “electronic civil disobedience” acts. For instance, it organized a variety of websites to post copies of The Grey Album (to protest the music industry’s antidownloading stance) and loaded digital copies of the public TV series Eyes on the Prize on BitTorrent (to call attention to the
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chapter four box 4. 3 >> Fair Use: You Be the Judge >> Video Games You are writing a book about massively multiplayer online role-playing games and are creating a related website to showcase what you are talking about. You have both shot footage off the screen and created machinima—action sequences that use video game characters to tell a story that is not within the video game. You will use this material to inform website visitors what the worlds look like, and also to create new sequences that make the argument of your book. For instance, two of the video game’s characters may exemplify a standard trope, and then stop to explain what they doing. You expect to use some screenshots as illustrations in the book. You’ve had no luck getting any video game company to respond to your requests to license this material. Should you proceed under fair use? Answers at the back.
fact that it was out of circulation because rights clearances for musical and other material it employed had expired). The free-culture movement was overwhelmingly identified with dissidence, protest, and secession. Its actions and antics were designed to call attention to a problem, but did not and perhaps could not offer a solution. (However, young people attracted to this movement often later adopted more sophisticated approaches, sometimes becoming fair- use advocates.) The common themes were that culture was endangered because of copyright itself; that mass-media corporations were the dead hand of history; that a participatory, noncommercial circulation of digitally produced and reproduced work was not only the future of culture but also the morally correct position. Its discourse thus developed, ironically, in a precisely complementary way to the imperial position of the mass-media corporations. Both argued that morality was on their side; both accepted the terms of piracy and theft; both employed fear to push their agendas; both conflated business model problems and copyright issues. One used these positions to argue for copyright as enforcement of economic values. The other denounced copyright for its enforcement of economic values. The 2008 Canadian film RiP: A Remix Manifesto was an over-the-top expression of the unreconstructed free- culture position. Director Brett Gaylor, who has gone on to do impressive work on privacy and other important issues in a digital environment, was at the time a Lessig devotee. He created an essay designed to alarm audiences about the crippling
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effects of copyright on culture. Gaylor informed the audience in voiceover that he must mute the sound in a section of his work, because he had not cleared the rights. (Gaylor did not bother to explain the different balancing features offered by Canadian and US copyright law.) In the US, where the film’s largest market was, this was a powerful piece of miseducation. A star exhibit in the film was the Pittsburgh-based remix artist Girl Talk (Gregg Gillis), portrayed as someone indulging in highly risky cultural acts— the very same artist who has relied so heavily and without incident on fair use. As several commentators noted, RiP: A Remix Manifesto is not anchored in the reality of copyright law or practice. Nonetheless, RiP was the darling of film festivals, shown on campuses across the US and bought by many US university libraries. The copyleft rhetoric became well entrenched in many professional, artistic, and intellectual circles. It has become a pervasive part of liberal cultural baggage to cultivate a cynicism around copyright. Unfortunately, this cynicism is profoundly disempowering. Politics of the Victim
Pranksterism, protest, and resistance all have powerful precedents in social movements that have used them to great effect. They can, however, also participate in a politics of the victim— typified by public acts designed solely to call attention to one’s plight and strategies designed to get recognition for a class of victims. The danger of victim politics is in essentializing of victimhood, developing a moralist language of politics in which the victims are good and the perps are bad. This gambit does not work in situations where morality does not line up nicely with the contours of the problem. It has the effect of validating powerlessness; as soon as victims gain any agency, they start to look more like the enemy. This way of thinking works particularly poorly in copyright, where a range of rights and interests are in play. Exaggerating or misrepresenting the acts of fair users, and their consequences, can unnecessarily deprive people of the agency to accomplish routine acts of cultural expression. Commenting on internet pioneer and EFF board member Brad Templeton’s alarmist discussion of fan fiction as copyright infringement in 1998, Henry Jenkins wrote, “With friends like these, who needs enemies?” Indeed. This disparaging of fair use from the copyleft was in the nature of friendly fire. Fair use has predictable enemies in large content companies. In 2009, the Associated Press announced that it would attempt to stanch the flow of profits from its member journalistic organizations by
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limiting the fair-use quotations bloggers were making of its members’ work. Soon after, News Corp chairman Rupert Murdoch, in discussion of how his company would limit reuse of its material online, famously and erroneously suggested that fair use was a dubious part of US law that could be categorically challenged in court. There has been no sign of such a lawsuit yet, but these public announcements, in which the content industry’s various business model crises are blamed on copyright exemptions, are in sharp contrast to the routine way in which media corporations themselves take advantage of fair use. Indeed, shortly after Murdoch’s indiscreet and inaccurate pronouncement, Fox News had to publicly rely on fair use to fend off a lawsuit claiming that it should have licensed material in news coverage of Michael Jackson’s death. But it is a shame, and largely an inadvertent consequence of wellintentioned efforts to alert the public to the implications of long and strong copyright, that passionately devoted copyleftists have contributed to sidelining fair use or even labeling it part of the problem. Supporters of fundamental revision of copyright law— policy wonks of all kinds— have no good reason to disparage a part of the law that actually addresses the problems they so eloquently describe. It is also a shame that some copyleftists have represented themselves as fringe cultural actors. The problems that vidders, samplers, bloggers, and remix artists face are problems that affect us all, at every level of cultural production. The outrage of long and strong copyright is not that it excludes the offbeat and the marginal. It is that it threatens to censor the future for everyone. It is a sad irony that so many of the tropes found in copyright industry “educational” materials can also be found among free- culture enthusiasts. Both industry and copyleftists use the language of piracy. In this way, copyleftists capitulate to content industry assumptions about the hegemony of copyright ownership in the current system, rather than emphasizing the importance of balanced rights. Both sides portray their positions as morally superior (“Thou shalt not steal” versus “It is more blessed to give than to receive”). This unhelpfully sets up a black hat– white hat paradigm, rather than allowing people to see that balance within copyright is key, that copyright is about promoting culture and not about property rights as an end in themselves, and that context is critical. It falls into the trap that Patry describes as moral panic around copyright. The profound polarization of the early oughts has abated somewhat, along with some of its boldest aspirations. Open licensing has found a functional niche in academe and other largely nonprofit pursuits. Copyright industries have developed some business models to serve consumer
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desire in a digital era. But it is still far too easy to demonize legitimate fair users— and indeed any users of any exception and limitation anywhere— as pirates and anarchists rather than responsible creators using their legal rights. The Search for Balance
There is a way out of the demonizing and victimizing, by embracing the power of people to assert their rights and the role of copyright to promote knowledge. Copyright law in the US makes this easy, by featuring the most flexible and adaptable exception in copyright law worldwide. As we shall see in the next chapters, fair use has been embraced by judges, public interest organizations, creator organizations and individuals alike. Fair use can be a banner to gain equality of status for possibility, creativity, innovation, and the liberation of imagination within copyright. The value of such framing has already been tested. The Digital Future Coalition, as we saw in the last chapter, early on won real policy victories limiting the scope of the DMCA. To achieve those wins, the DFC emphasized copyright as a tool to enable culture, and it charted potential losses to art, culture, and science with new restrictions. The DFC’s rhetoric and success brought other organizations, such as the Electronic Frontier Foundation and Public Knowledge, into defense of future culture and present creativity. Throughout it all, libraries have been consistent defenders and advocates of future culture and their patrons’ need to learn, know, and create. Since 2013, college and university libraries have sponsored an annual Fair Use Week on campuses around the country, and local activities have in turn been publicized online by the Association of Research Libraries. This patient work, often conducted by advocates whose constituencies only dimly, if at all, know what is at stake, has often been exasperating and frustrating. Advocates can find themselves not only attacked by content industry lobbyists but misunderstood by too-cynical copyleftists. As the lawyer Jonathan Band, who works regularly with library interests, said at a DFC reunion, “Probably our most important work is what we have stopped, and much of that will never be said.” But it was and is an important part of maintaining the right of the public— all of whom are potential creators— to access their culture as they imagine their future. The insiders who know what’s at stake in seemingly small legislative or legal battles and fight for the public need a broader movement in the public to demand their rights.
5 Fair Use Resurgent #WTFU, YouTube! tweeted in May 2016
By 2018 fair use was no longer an arcane lawyer’s term or the football for copylefters to kick around. Indeed, it had become not just common parlance but part of a Twitter hashtag. Digital creation through social media was the agent of popularization. Remixers, mashup makers, vidders, meme makers, cosplay music video makers, gameplay posters— some taking advantage of apps and widgets that simplified the process— had burgeoned, and with the growth in popularity of this way of communicating had come widespread awareness of fair use as a crucial part of the toolkit for creation. A Twitter hashtag, #WTFU, trended in mid-2016, as the Twitterverse was aroused by frustrations with YouTube’s and other internet service providers’ takedown policies. “Where’s the fair use?” Tweeters asked, recounting case after case of takedowns and strikes— a record that could with enough repeats get them banned from YouTube. They were outraged, vocal, and clear: they had fair use, and YouTube should recognize it. Makers wanted their fair-use rights, and YouTube wanted them to have them too. After years of providing services to content owners such as placing advertisements next to work that included their content (whether fair use or not), a preemptive infringement alert system called Content ID, creating the ten- strike system, and forcing users whose content was flagged to go through a “copyright school” that represented fair use as impossibly difficult to understand and unreliable, YouTube was making friendly gestures toward the doctrine. In 2015 it announced that for select videos that employed fair use, YouTube would not only leave them up but back them for any legal costs. (This appears to be a very safe promise, since content owners had never sued anyone at all on YouTube and would assuredly not do so for a clear fair use.) In 2016 it announced that for any videos in dispute it would hold funds from advertising revenues in es-
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box 5. 1 >> Fair Use: You Be the Judge >> YouTube Takedown You created a hilarious (at least to you) commentary on common clichés of standup comics, and it received a lot of traffic when you posted it on YouTube. But suddenly your video disappeared. You are confident your unlicensed uses were entirely fair. Now what? Answers at the back.
crow until the dispute was resolved, creating a (small) interim penalty for copyright holders that overclaimed. By then copyright holders were also beginning to recognize that takedown notices were not entirely risk-free in other ways either. Lawrence Lessig had won a 2014 settlement with a music company that had claimed use of copyrighted music in a slideshow presentation infringed. As part of the settlement the company, Liberation Music, agreed both to disclose and to change its infringement-detection practices. And an interim judgment in the Lenz “dancing baby” case had made clear that automatic detection software alone was not enough to justify a takedown request. YouTube’s newfound graciousness toward fair users also went along with its fast-growing investment in native content production for the site, often content that depended on fair use of popular-culture material, such as AwesomenessTV’s parody videos. That was also one indication of a shift toward online production of audiovisual material grounded in the availability of the fair-use doctrine. For instance, Twitch.tv, the gameplay site, had gone viral and then been sold to Amazon, which was also investing in a range of video production, and then launched a YouTube rival of its own. In January 2016, gameplay video accounted for a third of YouTube activity. The growth in popular awareness of fair use, fueled by corporate responses to opportunities created by digital makers, had a backstory as well. It developed on top of a growing awareness of the utility and value of fair use— in public interest groups, among academics, in communities of practice that created codes of best practices in fair use, in corporations, and in policy circles— which had been building for the better part of a decade. Legal Scholars
A shift in legal scholarship on fair use had prepared the ground intellectually with writing that focuses on the history, context, and consequences of legal doctrine. Copyright scholars had begun to investigate the social
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cost of long and strong copyright and to explore the implications of the legal trend toward a transformativeness-based interpretation of fair use. These scholars looked closely at culture as well as law, opening up new possibilities. In the emerging participatory digital culture, Yochai Benkler’s sophisticated and integrated argument for policies to support and nurture that culture, The Wealth of Networks, distilled long-standing arguments. Rebecca Tushnet, a veteran and supporter of fan subcultures, asserted that “remix is the human condition” and harshly criticized author-heavy copyright policy. Jack Balkin vigorously reinforced the case for the importance of sharing and quoting in the emerging networked society and culture. In the first decade of the 2000s more scholars focused upon fair use as a key mechanism for facilitating expression and found reassurances about its utility. Michael Madison reanalyzed all the fair- use cases since 1841. He saw that while judges typically invoked the four factors, something else was going on as well. They were, implicitly or explicitly, asking about habit, custom, and social context of the use. Madison termed this a “pattern-oriented” approach to fair-use reasoning. If the use was normal in a community and you could understand how it was different from the original market use, then judges typically decided for the user. James Gibson noted the obverse: where users and creators did not employ their fair-use rights, a vicious circle of fair-use denial could ensue, in what he called “doctrinal feedback.” Barton Beebe surveyed dozens of fair-use cases statistically to see how they were decided. Although he had to grapple with the problem that many cases almost frivolously invoked fair use as a fillip to other defenses, he also found that transformativeness— whether or not designated as such— was the factor that most explained a pro-fair-use outcome, even when other factors were not found favorable. Neal Netanel’s survey of recent case law concluded that most decisions turned on whether the user had a transformative purpose and had taken an appropriate amount. Pamela Samuelson qualitatively mapped the same material that Beebe had looked at quantitatively and also found clear patterns— including the increasing importance of the concept of transformativeness. Samuelson’s work clearly refutes the notion that the decisional law about fair use is too chaotic or unpredictable to be relied upon. Robert Kasunic analyzed how courts look at the nature of the copyrighted work (the “second factor” of fair use) and found that closer analysis of the reasons for creation of the original work reduces a bias toward incumbents and supports balance in copyright. J. Anthony Reese analyzed how courts assess how much can be
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used (the “third factor” of fair use). He found a common pattern of approving uses of an entire work if such use was appropriate to transformative purposes. Matthew Sag quantitatively assessed the features of fair- use cases over decades against their outcomes and found that fair use was far more reliable, dependable, and predictable than thought. He also argued that fair use was a vital part of the economic process, not (as has been argued by some) a mere redistributive subsidy favoring the underdog. This research contrasted with the bleak expectation in John Tehranian’s Infringement Nation that transformativeness— the ingredient that turns fair use into a powerful enabler of new creation— would not rise to centrality in fair-use reasoning. Wendy Gordon, who in the 1980s had written memorably about fair use and market failure, in her later work countered the misinterpretation of her earlier position as a crude economic argument. She stressed the importance of cultural considerations in fair-use decisionmaking. Jennifer Urban made influential suggestions about how fair use could help solve the “orphan works” problem. Other scholars recognized the critical importance of fair use and proposed ways to strengthen it. Jason Mazzone argued that copyright law is not problematic; the abusive way that copyright holders exploit ignorance and loopholes is. Mazzone singled out fair use as a valuable element in a copyright regime that he believed needed better regulation to reduce ambiguity and confusion. He proposed several ways government agencies might help clarify fair use, and he endorsed the idea of creating codes of best practices in fair use for communities of practice as well. Others, including legal scholars Michael Carroll and David Nimmer, imagined a kind of fair-use arbitration board. Cultural Scholars
Meanwhile, cultural and media studies scholars were both writing about the dangers of long and strong copyright and developing projects that vigorously and publicly employed fair use. Lewis Hyde’s work The Gift: Imagination and the Erotic Life of Property, which thought of and treated artistic endeavor as a spiritual gift to be shared rather than property, was rediscovered, and in 2010 he published a book specifically focused on copyright and its cultural consequences: Common as Air: Revolution, Art, and Ownership. Hyde, in his capacity as a fellow at Harvard’s Berkman Center for Internet and Society, began researching how to employ fair use in the academic environment. Henry Jenkins launched the New
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Media Literacies (NML) project, first at MIT and then at the University of Southern California. The NML explores how to teach in a participatory culture; for Jenkins, fair use is a critical enabling tool for all his projects. The University of Southern California cultivated cross-unit research interest in do-it-yourself culture, showcased at the 2008 event 24/7: A DIY Video Summit, organized among others by Mizuko (Mimi) Ito and Steve Anderson. Anderson then launched the Critical Commons website, which began by showcasing scholarly and analytical work that employs fair use to quote and comment upon popular culture and has since become a backend product for publishing that makes it easy to import a variety of fairly used materials. Jenkins and Ito became part of the team that created a code of best practices in fair use for online video. The Media Education Foundation, established by cultural studies professor Sut Jhally, became a poster child for fair use. Siva Vaidhyanathan began teaching his students fair use, using codes of best practices in fair use. Aram Sinnreich, describing the “rise of configurable [remix] culture” in music, identified fair use as critical to it and attacked corporate and technological tactics to impede use of it. His later work The Piracy Crusade documented how the music industry’s criminalizing language around digital markets also threatened fair-use rights. A changing academic view on copyright was signaled in Creative License, a 2011 book by Kembrew McLeod and Peter DiCola, following on McLeod and Benjamin Franzen’s 2009 film Copyright Criminals. In discussing the tribulations of music sampling, among other things, they strongly described copyright policy as grounded in cultural, not economic, logic; praised the concept of balance in copyright; and called for change in behavior in the field— rather than legislation— as a top priority. They singled out the creation of a code of best practices in fair use as a rich potential strategy for musical artists. In Courts and Commerce
In a number of real-life cases close to the heart of academia, fair use proved effective. In 2003 the Electronic Frontier Foundation and the Stanford Cyberlaw Clinic helped some Swarthmore students to sue Diebold after their publication of hacked company emails revealed weaknesses in votingmachine technology and triggered a copyright cease-and-desist letter. The judge found that their reposting of the emails was a clear fair use. At the Stanford Fair Use Project (FUP), Anthony Falzone began in 2006 defending those who face challenges to their fair uses, looking for ways
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to establish case law by challenging copyright bullies with litigation. FUP successfully vindicated scholar Carol Schloss’s right to make fair use of a trove of (James) Joyce family letters. Later, Falzone litigated the 2008 Expelled case, in which Yoko Ono unsuccessfully tried to stop the use of John Lennon’s “Imagine” in a documentary. FUP has continued after Falzone’s departure, with several legal scholars working on the issue. In the later 1990s, businesses that relied on fair use had been part of the Digital Future Coalition, defending the doctrine against legislative threats in the proposed DMCA. In the years that followed, companies that have flourished employing fair use invested in policy issues. A harbinger was the 2007 Consumer Electronics Association’s brief Digital Freedom Campaign, creating public awareness of the link between fair use and their ability to use their devices as they liked. Then Google and Facebook both established Washington, DC, offices. This concern with policy reflects the centrality of fair use to much of digital business. Not only do web platforms from YouTube to Pinterest depend on fair use for their basic functioning, but for any business depending upon search, fair use guarantees the ability to canvas the Web and copy large volumes of information to feed algorithmic engines, as well as to feature small thumbnails (tiny pictures) and snippets (small excerpts) of the material referenced in displays of search results. The evolution of artificial intelligence depends upon broad, unlicensed access to information. Equipment manufacturers and vendors also love fair use; the companies that help us download our music, our TV programs, and our podcasts want us to be able to do as much as possible with our gear. An industry think tank, the Computer & Communications Industry Association (CCIA), also in 2006 began researching its regularly updated report on the economic value of fair use to the US economy. CCIA’s first report showed that industries based on the fair-use doctrine (such as search engines, electronic shopping, audio and video equipment manufacture, market research, and internet publishing and broadcasting) grew far more rapidly than the gross domestic product overall. Furthermore, these businesses contributed 17 percent of the total United States GDP. This number came close to that touted by the International Intellectual Property Alliance, a lobbying group for copyright owners, which estimates that their members’ businesses contributed about 23 percent of the GDP. The 2010 update showed that in 2007 alone fair-use-dependent industries increased revenues by 5 percent, employed 100,000 more workers, and expanded their exports by 12 percent. The 2011 update showed that sectors dependent on fair use fared better than other sectors and did not contract as the
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US economy did overall in the Great Recession. “What copyright leaves unregulated— the Fair Use Economy— is at least as economically significant as what it regulates,” CCIA CEO Ed Black concluded. CCIA also produced studies that used economic data on employment and productivity to refute the charge of content industries that open digital environments are destructive. At the American University’s Program on Information Justice and Intellectual Property, scholar Walter Park and researcher Mike Palmedo have developed a project to collect and analyze economic data on the significance of fair use and similar exceptions worldwide. Public Interest Groups
Think tanks, legal advocates, library associations, and law clinics took positions on and developed tools and services for fair-use work. In 2010 the Washington, DC, think tank Public Knowledge, beloved of internet nerds, held the first of its annual World’s Fair Use Days, organized by some of the organization’s youngest staffers. In 2013, libraries began hosting Fair Use weeks every year, hosting contests and showcasing learning tools about the doctrine. The Electronic Frontier Foundation, long a fair-use stalwart, created standards for responsible copyright holders to use with online media content. It advised, for instance, that copyright holders use people, not machines, to make takedown decisions on YouTube and other such sites and also that they set up “dolphin hotlines” for the accidentally caught fair-use “dolphins” in their piratical “tuna” trawling. Intellectual property clinics at law schools around the country help clients with fairuse questions. The Organization for Transformative Works was founded in 2007 to help fan fiction creators and vidders understand how to use copyright, and it has grown to be a major source of information for this community. Public interest organizations, including EFF and FUP, began offering pro bono legal services to fair users. American Civil Liberties Union lawyers also targeted fair-use protection as a free-speech issue, worth litigating on a pro bono basis, and law school–based clinics around the country are interested in the issue as well. Anyone who wanted to mount a fair- use challenge was then in a very good position to find a pro bono lawyer. Many lawyers in private practice became interested in finding fair-use work. Accessible materials made it easier for nonlawyers to understand the implications of copyright law. The Center for Media & Social Impact’s resources on fair-use education grew with each new code of best practices in fair use. James Boyle and Jennifer Jenkins at Duke University’s Center for the Study of the Public Domain put a spotlight on fair use with the witty
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comic Bound by Law, memorably drawn by the late Keith Aoki, making documentary filmmakers’ code of best practices in fair use (of which there is more in chapter 7) a success story in the comic. (They later issued a sequel, Theft: A History of Music.) Communities of Practice
Meanwhile, creators and users were quietly putting fair use to work without any legal drama. Documentary filmmakers, pioneers of the model of building codes of best practices in fair use, paved the way, followed by media literacy teachers— English teachers, communications teachers, after-school workshop teachers, social studies and even health teachers— who needed fair use to be able to teach about popular culture in their middle-school and high-school classrooms. They empowered their students to understand their fair- use rights too, as the students completed assignments that would get uploaded to YouTube. Film and communications professors, fed up with ambiguity about whether they could use film clips in class and online, and whether they could incorporate copyrighted material into multimedia research projects, created codes of best practices. Poets, befuddled about how much of a poem can be quoted and when existing work can be made part of a new one, developed a code. Archivists and librarians worked to develop codes of best practices to help them help their users and make the best use of their materials. People who designed open curricula— web-based course materials— in higher education created their own code to help them decide when they could include copyrighted material into the teaching modules they made available to the world. Journalists and visual arts professionals created codes. These codes went immediately to work in their communities, and they changed how people could get their work done. These codes of best practices bore out the scholarly insight that practice matters in making fair use usable. They also showed, in their success, that fair use is not unreliable within communities of practice, when the capacities of the law are matched with cultural missions that range from making new work to education to facilitating research. Organizations that responded to these communities of practice also began to be nodes of information about the utility of fair use. Dozens of organizations associated themselves with the various codes of best practices in fair use, each of them further boosting the reputation of fair use. For instance, the University Film and Video Association— many of whose members are documentary filmmakers and who teach video and filmmaking— now encourages all its members to insert a fair-use clause
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chapter five box 5. 2 >> Fair Use: You Be the Judge >> Music in Curricula You are a teacher preparing online study materials for a middle-school unit on musical careers. You want to insert into it some video material from a rehearsal of an orchestra playing classical music. You have permission from the performers to record them for this purpose, but what about the music itself? Will you run into licensing problems, or could this be fair use? Answers at the back.
into their syllabi. The National Association for Media Literacy Education features the Code of Best Practices in Fair Use for Media Literacy Education prominently on its website, and the International Communication Association flags the importance of its Code of Best Practices in Fair Use for Communication Research regularly for its members. Lawyers now offer and take continuing education courses in how to make fair use available to their clients. One enterprising lawyer advertised his services on YouTube, demonstrating his expertise by marking up and circling key passages in the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Michael Donaldson, a leading entertainment lawyer in Los Angeles, began specializing in fair use in film and TV. Eventually he wrote a law journal article synthesizing his approach, which closely followed current judicial decisionmaking (discussed in the next chapter). His senior role in the field lent credibility to a long-discredited doctrine among makers and other lawyers. The Copyright Society of the USA, a national organization for legal specialists, highlighted fair use at its 2006 annual conference because of the attention brought by the Documentary Filmmakers’ Statement of Best Practices in Fair Use, and it hosted regional events to showcase how the field was changing. It devoted an issue of its journal to the fair-use best-practices movement, and the society follows the issue regularly. DIY makers and “free culture” enthusiasts, once so strongly marked by oppositionality, acts of civil disobedience, and resentment against copyright, began to embrace and aggressively use fair use once codes of best practices demonstrated its utility. Cory Doctorow was an early supporter of the codes of best practices in fair use, celebrating each one on Boing Boing. Carrie McLaren, erstwhile copyleftist, became an enthusiastic supporter of fair use. The 2010 conference of Students for Free Culture featured a dedicated session on fair use as a “floating public domain,” and students and faculty at the conference began brainstorming how to bring fair-use issues to campus. Remixers spread the word among each
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other that “fair use” was the name for their practice of quoting copyrighted materials in their work. Influential remixers such as Jonathan McIntosh and Elisa Kreisinger boldly linked to the fair-use doctrine and to the Code of Best Practices in Fair Use for Online Video in their videos, labeling their excerpts as employing fair use and challenging takedowns. Other remixers followed their example. Kirby Ferguson, an avid fair user in his online video essays, decided to create a work explaining fair use to fellow remixers. This turn toward fair use also happened as the vaunted claim for a copyleft movement began to dissipate. In Music and Cyberliberties Patrick Burkart found much discontent and frustration with long, strong copyright, encryption, and automatic takedown policies online, but could not find evidence of a movement in any sociological sense. Jessica Reyman looked at the rhetorical positioning in copyright discussions and concluded, as others did as well, that the “commons” metaphor had failed to take root and did not play a meaningful role in real-world copyright policy debates. As well, scholars including Adrian Johns, Ramon Lobato, and Aram Sinnreich recontextualized the notion of intellectual-property piracy to show how many different practices— some conducive to economic growth— fell under that overbroad term. Some of this work also discussed the bad faith of large media interests in their rhetorical positions. Government Policy Shifts
US federal government analysis and actions have shown increasing respect for fair use. Where the infamous 1995 White Paper called fair use “murky” and a mere “affirmative defense,” in 2016 the Department of Commerce’s Internet Policy Task Force called it a “fundamental linchpin of the US copyright system.” The report, issued after a several-year research and hearing process, was triggered by governmental concern over whether unbalanced, monopoly-heavy copyright policies could inhibit an internetbased economic future. In the comments, not only nonprofits and librarians celebrated the utility of fair use for their own work, but so did large content-creation companies. The report called for, among other things, more education about fair use; it also considered codes of best practices but ended up siding with the idea of negotiated guidelines. Greater respect for the balancing features of copyright has also made several appearances in several post-TRIPS international agreements— a trend that began as far back as the 1998 WIPO treaties. The draft Trans-Pacific Partnership (TPP) treaty, for instance, admonished members to include flexible exceptions to protect new culture making. Such clauses will probably appear in future
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trade-based agreements. The 2016 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled sets international standards for copyright exceptions that protect the rights of the visually impaired to access copyrighted material by means including fair use. Treaties that mandate minimum standards for library and education exceptions are under discussion at WIPO. Internationally, as news of reinvigorated fair use has spread, fair use and similar exemptions have been the focus of copyright critique and reform, both in practice and in law, as is discussed more extensively in chapter 10. Content Industry Countermoves
These gestures do not, however, suggest that large content companies have backed off the search for ways to ward off digital copying. Notoriously, they shaped the Stop Online Piracy Act (SOPA, aka PIPA in the Senate), which in 2011 set off the largest virtual public demonstrations of the internet era. The legislation, intended to make it easier for the US government to shut down storage sites for illegally obtained content, would have had devastating effects on the basic functioning of internet addressing, prejudicing security, and would have given broad permission for government confiscation of sites that held much legal material. Public protest eventually stopped it, but content companies continue to search for ways to use policy to block copyright. Music industry leaders are among those calling for internet service providers to be directly accountable for copyright infringement. They are, as scholar Annemarie Bridy has shown, working to build digital controls ever more deeply into the internet. They support revised standards that would permit content holders to block video streaming of any material that has their content in it, whether fairly used or not. They also are establishing private deals with ISPs to do surveillance and site takedowns that effectively privatize some of the more noxious of the SOPA bill’s provisions. Interestingly, however, even the most aggressive corporate advocates for strong copyright have stopped short of suggested revisions to the fair- use doctrine— perhaps because it is too valuable to their industries, or perhaps because they know to do so would stir up a fierce negative public response. Instead they have confined their more visible activities to arguing for more restrictive interpretation of the doctrine in the courts— though, as the next chapter will show, without conspicuous success. At the same time, though, many of the same companies have adopted an automated system for notice of potentially infringing material online,
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which under the DMCA triggers a takedown. This use of robots to issue orders to internet service providers has sometimes imperiled fair use online, particularly when fair users do not understand their rights clearly. A robot finds a match between copyrighted material and online work and alerts the ISP, which under the DMCA must take down the offending work and notify the maker. Then the maker has an opportunity to make a fairuse claim, but now at risk of a direct legal challenge from the copyright holder. Unless you know your rights, and possibly also know that copyright holders have not sued anyone yet in that circumstance, you may simply give up. A large study by the University of California, Berkeley law school and Columbia University’s American Assembly found that typically 30 percent of takedown requests are “of questionable validity.” Another 15 percent do not even adequately identify what is claimed to be infringing. It also found that human-sent infringement claims were also often questionable. Indeed 70 percent of the samples used in relation to Google Image Search were dubious. Google itself submitted evidence to the Copyright Office suggesting that “a significant portion of the recent increases in DMCA submission volumes for Google Search stem from notices that appear to be duplicative, unnecessary, or mistaken”— that is to say, entirely bogus. Meanwhile, current notice-and-takedown practices and related private systems of control such as Google’s Content ID system often punish creators doing remixes, mashups, and other practices of the burgeoning creative front of digital culture. Many content companies would like such restrictions to be stronger still. Scholar Matthew Sag maintains that the private corporate arrangements made between internet service providers and content companies to patrol copyright infringement on their sites weakens the power of fair use. Whatever the law says, he argues, on an online platform user rights are only as real as the private businesses’ algorithms let them be. That is, unless users demand their rights. The voice of people making this new work, people who understand their rights, will be important in establishing policy for the emerging creative era. The resurgence of fair use so far has been grounded in individual and collective choices to define its interpretation, to employ it publicly, and to speak out about its value in policy discussions. Pushing Back
There is powerful precedent, from fair users who have organized themselves as communities to shape codes of best practices and then became
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vocal in their demand to assert their rights. With organized and representative groups invested in their ability to employ fair use, it became possible to address, in small but significant ways, the damage done to fair use by the DMCA, another of whose provisions prohibits circumventing the coding of encrypted copyrighted material (say, the book on your Kindle, or the DVD in your video player, or the song on your music player). If you want to get at that material in order to employ fair use, the law explicitly says that that is not a good enough reason. Thanks to civil society stakeholders’ efforts in the run-up to the DMCA, anyone who finds the prohibition against encryption to be a real problem in creating work using fair use can come before the Copyright Office every three years and ask for an exemption. The first few exemptions were extremely narrow or specialized— for instance, one for breaking encryption to access digital files in obsolete formats. The first person to win a broader fair-use-based exemption, in 2006, was Professor Peter Decherney of the University of Pennsylvania, assisted by the Glushko-Samuelson Intellectual Law Clinic at the American University law school. On behalf of film scholars nationally, he asked the Copyright Office for an exemption so that instructors could access DVDs of films, which are usually encrypted, and create clips of particular scenes to teach more effectively. He argued persuasively that other options were far inferior. Cueing up the section on the DVD itself took too long; using a VHS version to make the clips meant vastly inferior image quality; shooting a home-video version off a screen running the DVD version typically produced a distinctly homemadelooking product subject to light distortion. The Copyright Office granted instructors this exemption; they could now use decrypted sections from films from their own institutions’ libraries in classrooms. It was a remarkable precedent, and one that subsequent rulemaking would build upon, thanks to the continued efforts of Decherney and his colleagues. Libraries, represented by lawyer Jonathan Band, advocated extending exemptions to college and university teachers in all disciplines. Documentary filmmakers repeatedly won waivers. They were represented by the International Documentary Association, supported pro bono by law professor Jack Lerner and his students at the University of Southern California Intellectual Property Law Clinic, and fair- use expert Michael Donaldson. Veteran filmmaker Gordon Quinn and engineer Jim Morrissette, both of Kartemquin Films, represented the filmmaker voice. Meanwhile law professor Rebecca Tushnet and her colleagues from the Organization for Transformative Works argued that they needed to step out of the internet shadows and claim their right to edit and reimagine popular
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culture. They pointed out that they could never, even if they could afford it, license their raw material; the owners of Star Trek might decide that they do not want to see an episode in which Captain Kirk and Spock have a love affair. Exemptions recognized in 2015 included an omnibus provision educational and other transformative use of videos in a full range of formats— not just DVDs but Blu-ray media and streaming video as well. This exemption was available to teachers, scholars, documentary filmmakers, remixers, and others, and without regard to whether the use might be considered commercial. The rule is solidly within current judicial logic on fair use. It requires that the excerpts be used in the service of new work, as transformative fair uses typically are. It also stipulates that the excerpt must be “relatively short” but leaves the user to decide how much use is appropriate. The exemption also provides that uses must be limited to criticism and commentary, but much fair use can be interpreted as falling within those two categories. The rule applies only to “motion pictures,” but legally this term is wide open, covering all popular audiovisual media other than computer games. More and more user groups are asking to make their exemptions permanent or for a streamlined renewal process. Civil society participation in DMCA exemption hearings is testimony to the power of communities of practice acting as political constituencies. The communities that first appeared, and continue to appear every three years, got an education in fair use through creating codes of best practices. The effort put into designing, making, and using codes of best practices was an educational process and a means of gaining political agency. The trend toward recognizing the value of fair use validates the argument that fair use, like copyright in general, is rooted in cultural and economic as well as legal practice. It reminds us, incidentally, that fair use is an excellent platform for economic growth, which supports new enterprises without materially harming the owners of existing copyrights. This trend also follows, with a significant lag time, the move that judges themselves have made toward a friendlier interpretation of fair use.
6 Fair Use in the Courtroom how judges think now The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright. judge pierre leval
Long before copyleft advocates rediscovered the advantages of fair use, and even before the creation of codes of best practices in fair use, federal judges embraced fair use with both arms. They have done so fully aware that, in this long and strong copyright era, fair use is a crucial safety valve in the copyright system— or, if you prefer, an escape hatch from copyright holders’ private censorship. Judges also have had good reason to know that in many well-siloed environments, not least those of the mass-media companies themselves, fair use never really went away. These days, the judicial assessment of fair use typically relies on an inquiry into whether material has been “transformed” (or in nonlegal parlance, repurposed) rather than simply reproduced for the same audience. It also takes into consideration the community of practice’s customs and habits. How judges approach the interpretation of fair use is important to understand, because the law is deliberately written to require decision making on a case- by-case basis. Users make those decisions before the fact, and judges (very occasionally) do so afterward— but the criteria are the same. Judicial interpretation is a critically important piece of understanding where “normal” is in using fair use. Individual judicial decisions, of course, are made within the accepted climate of legal opinion. That climate of opinion changes, whether judges are interpreting common law or statutes like the Copyright Act. Understanding today’s climate of judicial opinion allows creators of all kinds to understand what will be possible and, within that, the safest approach. Today’s Fair Use
The 2006 Bill Graham Archives v. Dorling Kindersley Ltd. decision indicates the current trend, which has been dominant now for almost two decades.
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Grateful Dead: The Illustrated Trip, a project done in coordination with Grateful Dead Productions, was a huge coffee table book— four authors, 480 splashy and graphic- heavy pages, two thousand images, and more information than anyone but a Deadhead would want to know about the Dead, all organized scrupulously by date. Bill Graham Archives, which owned the copyrights to posters and other graphic materials associated with the musical group’s historic appearances at the Fillmore Auditorium and other Bay area venues, had rejected two offers to license this material. The publisher, Dorling Kindersley (DK), went ahead and used seven of them anyway, and the archives sued. The judge ruled for fair use and against the archives, and so did the appeals court. The appeals court’s analysis was extensive and authoritative. Looking at fair use’s first “factor,” that of the nature of the use, judges agreed with the trial court that the “use of images placed in chronological order on a timeline is transformatively different from the mere expressive use of images on concert posters or tickets.” This was because “the works are displayed to commemorate historic events, arranged in a creative fashion, and displayed in significantly reduced form.” In other words, the work was transformative because the material had been recontextualized and re-presented for a new purpose and to a new audience. The court also reemphasized another important point: If the user’s purpose was transformative, the mere fact that it was also commercial does not rule out fair use, or even weigh strongly against it. In fact, the court noted, most fair uses are conducted for profit. The unfortunate dictum of the Betamax decision, which seemed to disfavor commercial fair use, no longer held sway. The court, like others before it, recognized that there needs to be a space— in fact, a big space— for commercial fair use. The second factor, nature of the work used— here, judges often favor copyright plaintiffs— was judged here to be inconclusive because of the importance of transformativeness: “The purpose of DK’s use was to emphasize the images’ historical rather than creative value.” Thus, while the posters were creative works, this use focused on their value as historical artifacts. The third factor, the amount and “substantiality” used, also was deemed a toss-up, since to accomplish its transformative purpose, “DK displayed reduced versions of the original images and intermingled these visuals with text and original graphic art. As a consequence, even though the copyrighted images are copied in their entirety, the visual impact of their artistic expression is significantly limited because of their reduced size.” Finally, the fourth factor, the effect on the market, tilted conclusively for the defendant. That was, the judges argued, because original copy-
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right holders cannot control new markets opened up for transformative (as opposed to derivative) uses of their material: “DK’s use of BGA’s [Bill Graham Archive’s] images is transformatively different from their original expressive purpose [and] [i]n a case such as this, a copyright holder cannot prevent others from entering fair-use markets merely by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work.” They concluded, “[C]opyright owners may not preempt exploitation of transformative markets.” The economics-and-law perspective that had so dominated fair-use thinking in the 1980s and early 1990s no longer ruled. It was a long way from the time Jeff Koons was found to be an infringer, rather than a fair user, because photographer-plaintiff might hypothetically have been able to license his work to other sculptors. Furthermore, in Bill Graham Archives it did not matter that the publisher actually had first tried to license the work. The court continued by noting that “a publisher’s willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images.” The Bill Graham case was a dramatic, synthetic statement of how courts today interpret fair use. The Rise of Transformativeness
We have seen that from the 1960s to the 1990s fair use had fallen into a decline, too often treated in the courts and by legal scholars as an exemption you could use only if your activities did not invade the copyright holder’s market in any way. Since fair use inevitably involves not paying a license fee, there was an obvious problem of circularity. This dilemma made it very hard to use without some guidance. Some users, of course, could hire expert lawyers to provide advice. Others were lucky enough to get support and guidance from their organizations or industries; broadcast and newspaper journalists, print publishers, some producers for network and cable TV, and librarians at some large institutions quietly employed fair use. The rest of us had been told by content companies— not to mention alarmist academics— that fair use was way too risky. The judicial response began, unusually, in the pages of a law review. By the early 1990s, a distinguished federal trial judge in New York, Pierre N. Leval (who was promoted to the court of appeals in 1993), had grown dissatisfied with the state of fair-use law. Married to a distinguished curator and historian of contemporary art, Judge Leval may have had some per-
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box 6. 1 >> Fair Use: You Be the Judge >> Checklists Your university has asked you to create some guidelines for faculty on using copyrighted material on their Blackboard sites for their classes. You’ve seen a number of “four factors” checklists and think this might be a solution, especially since faculty want clear, bright-line advice. You can even design a simple step-through process to take them through the four factors online. Will that be a helpful approach? Answers at the back.
sonal insights into the straitjacket that strong copyright and weak fair use had placed on creators. He set out to correct matters by creating a standard to make the doctrine more usable. He chose to forgo the typical (and glacial) method of influencing the law by deciding individual cases and hoping those decisions would become precedents. In 1990, Judge Leval chose to try leveraging his authority through scholarly publishing. He wrote a long, heavily footnoted article, “Toward a Fair Use Standard,” in the highly influential Harvard Law Review, where he had once been a student editor. Leval asserted that the purpose of copyright law was “to stimulate creativity for public illumination,” and that fair use was critical to that goal. He thus returned to the cultural understanding of copyright’s function that visionaries like Benjamin Kaplan and L. Ray Patterson had espoused— one that had been largely overwhelmed by more economically oriented theories of the field. Specifically, Leval argued that the “transformativeness” of a work is the most critical element of the fair-use analysis. This explanation also helped explain why it was sometimes fair to use copyrighted material, even if there was a potential for the copyright owner “losing” potential licensing revenue as a result. It was a good way to account for the actual way that people create, and to make copyright law fit practice a little better. As is sometimes the case with strongly reasoned articles in prestigious law journals, this one had a profound and relatively rapid effect on the field. One of the very first decisions to rely on the article’s reformulation of the doctrine was a 1992 fair-use lawsuit that Judge Leval decided himself, usually referred to as the Texaco case. In that case, executives at Texaco had made photocopies of articles from scientific journals available to its employees. The scientific journals wanted Texaco to buy the copies. Leval found against Texaco, precisely because he judged that this was not a transformative use, and because it was within a purely commercial
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context. The company appealed, but the appeals court strongly endorsed Judge Leval’s analysis, which greatly reinforced the stature of his law review article. The decision validated the approach that later would produce a series of fair-use victories. The most important of these was the Supreme Court’s decision in the 2 Live Crew case, which showcased transformativeness as a key value for fair use. The case involved parody, one of many ways in which transformativeness can be achieved, and a longtime locus of fair-use jurisprudence. In 1989 the rap music group 2 Live Crew composed a song called “Pretty Woman,” a darkly comic, misogynist reinterpretation of Roy Orbison’s rock ballad “Oh, Pretty Woman.” Acuff-Rose Music, the song’s publisher, refused a request to license the song. 2 Live Crew went ahead to produce and market the new version. Almost a year later, after nearly a quarter of a million copies of the album including the song had been sold, Acuff- Rose sued for copyright infringement. The trial judge found that the 2 Live Crew song was a fair use because it was parody, but the court of appeals reversed that decision. The court of appeals chose the pre-Leval interpretation of fair use, and ruled against 2 Live Crew because of the highly commercial nature of the use. The appeals court took the fourth factor— effect on the market (here, for licensing the original song)— as the most important one. 2 Live Crew took their case to the Supreme Court. In Campbell v. AcuffRose Music, Inc. 510 US 569 (1994), the Supreme Court sent the case back to the lower court, directing that it reconsider its opinion, and incidentally giving the parties the chance to work it out. The lawsuit did not continue; instead, 2 Live Crew and Acuff-Rose Music made a licensing deal. But the language the Supreme Court justices used to explain fair use, before sending the case back, described a clearer, more usable standard and convincingly explained why even a highly commercial use like the one in 2 Live Crew’s song could be considered fair. Justice David Souter’s majority opinion quietly dismissed the notion that the fourth factor— the effect on the market for the quoted work— should be given greatest weight. He wrote, “All [the factors] are to be explored, and the results weighed together, in light of the purposes of copyright.” The majority opinion criticized the court of appeals for having applied “a presumption about the effect of commercial use” on the analysis. Instead, it came down squarely in favor of the approach that Judge Leval had advocated in his 1990 article: The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original crea-
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tion . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright. Transformativeness Moves to the Center
After 1994, with the Supreme Court’s blessing of Judge Leval’s arguments, “transformativeness” reasoning gradually rose to become the most important principle in interpreting fair use among judges. It therefore became a central principle by which ordinary people could interpret fair use. You can see the change by comparing one of the last fair-use decisions to ignore transformativeness, Monster Communications v. Turner Broadcasting System, with later decisions that also involved movies and TV shows. The decisions are similar, but the process by which they are reached shows the big shift in judicial thinking around fair use. In Monster Communications, the judge found that fair use was acceptable mostly because it had not caused economic damage (financial loss to the owner). In 1995, the Turner cable programming service TNT produced a low-budget documentary, Muhammad Ali: The Whole Story, about the famous boxer. In it, some two minutes of clips from an Academy Award–winning film, When We Were Kings, were used without permission or payment. The earlier film had the only footage available of a boxing match between Mohammad Ali and George Foreman in Zaire (Congo). The producers of When We Were Kings sued the Turner Broadcasting System. Judge Lewis Kaplan marched through the four factors, finding that the Turner documentary’s status as a biography of a public figure favored fair use; that the material taken was a recording of historical fact, making the fair use easier to accept than if the user had taken a “fanciful work or a work presented in a medium that offers a greater variety of forms of expression”; that the amount taken was small, both quantitatively and (in light of the different topical emphases of the two films) qualitatively; and that neither the commercial reception of When We Were Kings itself, nor the prospects for spinoffs (such as music videos) from the film, were likely to be affected by the existence of the TV program. That was the end of the era in the courts for the by-the-numbers approach to analyzing fair use in audiovisual works.
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Just five years later, in 2001, in Hofheinz v. A&E Television Networks, Inc., the fair- use judgment was squarely made on transformative arguments— a trend that would continue. The cable programming company A&E produced a Biography program about the career of actor Peter Graves, who had a long career working in most of the movie genres— westerns, science fiction, comedy, action pictures. Among the film clips that were used under fair use to illustrate his career was one from the 1956 Roger Corman B movie, It Conquered the World. The widow of one of the principals of American International Pictures, Susan Hofheinz, sued A&E for copyright infringement. She lost. Judge Robert Sweet ruled that the producers of the segment were entitled to fair use, because the clips in question were “not shown to recreate the creative expression reposing in plaintiff ’s [copyrighted] film, [but] for the transformative purpose of enabling the viewer to understand the actor’s modest beginnings in the film business.” Once this was established, the other factors weighed, overall, in the defendants’ favor. Where the fourth factor (economic harm) was concerned, the court held that “[t]he proper question is whether the Graves biography was, in effect, a substitute for Hofheinz’s film clips”— not whether the widow stood to lose licensing revenue if the fair-use defense was upheld. The fact that the filmmakers might have licensed the clip rather than appropriating it was not, in itself, enough. Since then, transformativeness has been a core value in judicial decisions on fair use— except perhaps in a clutch of music sampling cases, which we discuss later. Therefore, transformativeness also should be a touchstone for anyone making an individual decision on whether a use they are considering is or is not fair. Consider the 2003 Elvis case (Elvis Presley Enterprises., Inc. v. Passport Video), in which the fair-use defendant lost. Passport Video— a company that specializes in DVD sets like The Jungle Girls Gone Wild Collection and the Bob Hope Comedy Pack— had produced a massive documentary about the life of Elvis Presley, The Definitive Elvis. The makers had interviewed more than 200 people, including old girlfriends and ex-managers. The documentary segmented the life of Elvis into sixteen hour-long segments. It absolutely depended on use of licensed material copyrighted by Elvis’s estate, including Elvis’s TV appearances, film performances, photographs of him and others, and interviews with him. It featured the entire performance of “Hound Dog” on The Steve Allen Show. Elvis’s songs play in the background while people talk about him, and TV shows featuring him play while the narrator talks. In fact, the cover of the boxed set boasted
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that this biography would give you the best parts of the Elvis films you might otherwise have to wade through. “The King is dead,” Judge Richard Tallman noted. “His legacy, and those who wish to profit from it, remain very much alive.” He then applied transformativeness analysis to the video biography. He found the filmmakers’ uses mostly nontransformative, both because they used the material for the same purpose as the original and because so much of it was taken. “In the aggregate,” the judge wrote, “the excerpts comprise a substantial portion of Elvis’ total appearances on many of these shows. . . . Thirty-five percent of his appearances on The Ed Sullivan Show is replayed, as well as three minutes from The 1968 Comeback Special.” Often, “clips are played without much interruption, if any.” He found that “[t]he purpose of showing these clips likely goes beyond merely making a reference for a biography, but instead serves the same intrinsic entertainment value that is protected by Plaintiffs’ copyrights.” Judge Tallman was not objecting to the fact that the video reused entertaining material. His objection was that the original purpose of this copyrighted material was the same kind of entertainment, so the material wasn’t “transformed,” or repurposed. In fact, the packaging— promising that you could enjoy the good parts of Elvis movies (the Elvis performances) without watching each whole movie— pretty much made the judge’s case for him. Without transformativeness, the statutory fair- use factors began to pile up against the defendants. Many of the works quoted were creative in nature (rather than merely factual), and too many of the defendant’s uses involved unnecessarily long quotations, repetitions of shorter ones, or quotations that represented the “heart” of Passport’s use of television clips of Elvis, “in many cases singing the most familiar passages of his most popular songs.” Finally and fatally for the defendant, the appeals court majority argued that the television appearances excerpted in the film (unlike the music and still photographs) were “in some instances, not transformative, and therefore these uses are likely to affect the market because they serve the same purpose as Plaintiffs’ original works.” Once the defendant had lost the battle over “transformativeness,” the rest of the factors lined up neatly in the plaintiffs’ favor. The same copyright lawyer who lost the 2001 Hofheinz cases, having apparently not noticed the shift in judicial thinking, brought another lawsuit featuring monsters. In a Good Morning America segment on Americans’ fascination with space aliens, the movie critic Joel Siegel argued that “big or small, cute or icky, alien life as portrayed in pop culture inevitably
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shares some human-like traits.” He used clips from Robot Monster, The Brain from Planet Arous, and Plan 9 from Outer Space to make his point. In the 2005 Wade Williams Distributors, Inc. v. ABC, the court found that because the use was transformative, it should be considered fair. Indeed, the court specifically rejected the argument that uses cannot be both transformative and entertaining. Along with other weighty authorities, it quoted the judge in the final Hofheinz case, saying that fair use “does not explicitly distinguish between entertaining and serious, plausible and implausible, or weighty or frivolous commentaries, and I do not propose to engage in such subjective line-drawing.” It was becoming safe to employ fair use for vulgar parodies, in commercial work, and to entertain— so long as your use was genuinely transformative. Transformativeness has also been key to judicial decisions in other media. In 2003 the Ninth Circuit applied the concept in a case, Kelly v. Arriba Soft Corp., which involved internet search engines. The defendant had created a visual search engine that retrieved information about photographs available online and displayed its results in the form of lowresolution “thumbnails”: by clicking on one of these images a user could follow a link back to the web page where the photo originally appeared. This wasn’t good enough for photographer Les Kelly, who wanted to be sure that visitors to his website entered by the front door, where he offered various items for sale to the public. He lost because the appellate court agreed with the defendant that the reference use of copyrighted images was “transformative”: “The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information gathering techniques on the internet.” Transformativeness was important as well in a 2009 ruling about art in a movie magazine. The story began back in the late 1950s, when James Warren began publishing magazines with names like Famous Monsters of Filmland, Creepy, and Erie, celebrating movie monsters. One of his favorite cover artists was Basil Gogos. Decades later, in 2004, J. David Spurlock decided to do a book on the art of Basil Gogos— called, unsurprisingly, Famous Movie Monster Art of Basil Gogos. He included in the book 24 images (out of 160) of movie magazine cover art. Some were smaller than the original, some almost the same size. Warren sued him. District Judge Michael Baylson in Pennsylvania decided that it was clearly a case of fair use. After all, whatever you think of movie monster comic- book covers, Spurlock was focusing on a person’s art and had
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created a work that allowed aficionados and scholars alike to study it. Baylson considered each of the four factors, but devoted extra time to the notion of “transformativeness.” He cited Judge Leval’s by- then famous article: The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely “supersede the objects” of the original. If, on the other hand, the secondary use adds value to the original— if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformativeness was also the touchstone of an important visual arts case. In the 2006 case of Blanch v. Koons, the Second Circuit Court of Appeals considered a mural by conceptual artist Jeff Koons. The mural had incorporated elements of a fashion photograph by Andrea Blanch into a large (and expensive) painting. Unlike in Koons’s earlier fair-use lawsuit, the court decided that it was not a copyright infringement, partly because Koons had had a different objective in mind from the photographer. The judge wrote, “The sharply different objectives that Koons had in using, and Blanch had in creating, ‘Silk Sandals’ confirms the transformative nature of the use.” The fact that Koons made a lot of money as an artist was no longer important to the court, given his transformative purpose. The centrality of transformativeness in deciding fair use was evident in other cases of appropriation in the visual arts. As is typical of such litigation, the cases involve not the comfortable center of fair use (the territory that best-practices codes help to define) but the edgier practices. The 2013 decision Cariou v. Prince involved new works created by Richard Prince’s enlarging, collaging, and overpainting of photographs taken from a book by Patrick Cariou. The court decided the bulk of those works were fair uses, and eventually the remainder of the case was settled out of court. Controversy about the decision goes not to whether the court should have applied the well- established transformativeness standard but to how— including the question of whether Richard Prince had done enough to explain how his artistic purposes differed from those of the original photographer. This is just the sort of argument one would expect and welcome where a mature legal doctrine, uncontroversial in itself, is involved. The maturity of the doctrine was evident again when Thierry
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chapter six box 6. 2 >> True Stories of Fair Use: Drew Morton Goldsmith Drew Morton Goldsmith was a twelve-year-old disability activist and award-winning filmmaker when he created a short video. It told the sordid history of disability charities using pity-based fundraising pitches, a practice that declined with the rise of the disability rights movement— except for autism groups. He called the film No Pity. He used more than 150 clips, mostly from copyrighted material, to make the compilation video. His college-professor parents immediately worried about copyright problems. One of the charities Drew focused on had sent a ceaseand-desist letter to another teenage self-advocate when she posted a parody website. “Of course, she was in the right, but she was buffaloed by their legal intimidation, which was their goal,” recalled his mother. Drew assured his parents that he had abided by the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Extra-cautious, they asked the Stanford Fair Use Project to analyze it. Stanford sent the work to pro bono lawyers at Wilson, Sonsini, Goodrich, & Rosati, who gave it a thumbs-up (and a rave review). Drew’s film headed out to a busy life at film festivals, with a clip-loaded trailer on the online video platform Vimeo.
“Mr. Brainwash” Guetta (the subject of the documentary Exit through the Giftshop), by contrast with Prince, lost his 2013 legal argument that some tweaks to a studio photo of punk star Sid Vicious added up to something new and different from the original. He lost on the grounds of not having had a transformative purpose. Transformativeness has also surfaced in cases involving print, with Harry Potter. In the 2008 Warner Bros. Entertainment Inc. v. RDR Books, the district court judge, Robert Patterson, found that, for the most part, the quotations and paraphrases from J. K. Rowling’s novels that had been incorporated into a new reference book, The Harry Potter Lexicon, were transformative uses: Presumably, Rowling created the Harry Potter series for the expressive purpose of telling an entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. To fulfill this function, the Lexicon identifies more than 2,400 elements from the Harry Potter world, extracts and synthesizes fictional facts related to each element from all seven novels, and presents that information in a format that allows readers to access it
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quickly as they make their way through the series. Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon’s use is transformative and does not supplant the objects of the Harry Potter works.
The defense failed only because Judge Patterson thought that in some instances the creators of the lexicon had lost sight of their transformative purpose or taken more material than was appropriate to that purpose. After all, the lexicon took not merely names and facts from the novels, but swatches of as much as 211 words at a time. Though the defense failed, the principle of transformative use was— once again— vindicated, as expert copyright lawyer Jonathan Band was quick to point out. The Mature Fair-Use Doctrine
The logic of transformativeness is now in the ascendant, whatever the subject matter— with one possible exception, discussed below. Until 2015, some fair- use skeptics argued that the technology- driven cases from West Coast courts (like the rulings on internet search) had pushed the doctrine too far by embracing “nonexpressive” uses— ones, that is, that don’t contribute to making new content. This was the theory behind two lawsuits brought in New York by the Authors Guild, an organization representing about nine thousand writers of commercial fiction and nonfiction and a collection of similar groups representing foreign authors. Both lawsuits arose out of the Google book project, in which the search company collaborated with leading US academic libraries to digitize their book collections— something these institutions had long wished for but could not afford to do. Google wanted to use these scans as part of its search database, while the libraries pooled the digital files they received to create the HathiTrust, a shared digital resource available for limited purposes to scholars, students, and others at a wide range of college and universities. With the exception of the visually disabled, for whom the digital files could be used to provide accessible copies, Google Book’s full digital records would never be “read” by anyone. Google undertook never to provide more than a sentence-length snippet with any search result, although it eventually made some texts fully available under license agreements with publishers. The universities wanted to be able to use their full digitized collection for “nonconsumptive” (or big data) research. For instance, a scholar might want to analyze thousands of texts to see how terms for armed conflict changed between 1940 and 1990. Did such nonexpressive uses fall under fair use, and did the transfor-
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mativeness standard apply to them? The appeals court’s answers, in the 2014 HathiTrust and 2015 Google decisions, left no room for doubt. Two unanimous panels of judges concluded that the standard can be applied generally to value-added uses of all kinds, including these. To make the point even more clearly, the New York federal judges relied heavily on case precedents from the California courts. Text- mining and search were examples of uses undertaken for transformative purposes, and there was no risk that snippets of text would function as substitutes for the books from which they were derived. Judge Leval— whose opinion in Google represented his first fair-use decision in twenty years— put it in summing up: “The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work. No further review was sought in HathiTrust, and the Supreme Court declined to consider the Authors Guild’s appeal in Google. So fair use now stands on an elevated plateau, prominently visible as a point of reference from all parts of the surrounding copyright landscape. The Big Exception
A major exception in practice to the transformative logic of fair use, however, is in music sampling, which is tainted by the unhealthy interaction of three legal decisions. Even worse, most musicians— many of them at the fringes of the large music businesses where quiet deals are often struck and fair use quietly invoked when necessary— decided from the start not to assert their fair-use rights. As James Boyle has detailed in The Public Domain, following analyses by Siva Vaidhyanathan as well as Kembrew McLeod and Peter DiCola, this combination of bad law and bad practice has been toxic for musicians, and it has made it difficult for them even to imagine applying fair use to their practices. Sampling is an ancient practice in music, possibly a core and even inevitable feature. Bach did it, Beethoven did it, every blues musician has done it, modern classical music uses it, and jazz depends upon it. Musicians actively or accidentally incorporate bits and pieces of previous music into their own. There is precedent in case law, in fact, allowing for a small sample to be taken. That is not an exercise of fair use but an interpretation of how much is de minimis, or so small as to be insignificant for the purposes of the law.
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Today, however, sampling takes new forms. With electronic music, musicians, led by hip-hop artists, have begun to appropriate not only tropes but the actual recordings, and to build them into their works. As hip-hop became commercially successful, the artists fell afoul not only of copyrights in musical compositions, but also of a new category of copyright, created in 1972 under pressure from the recording industry, specific to those sound recordings themselves. In this environment, samplers had only three choices: to ignore the law, to license, or to employ fair use. For the first decade of its existence, modern music sampling operated, in effect, on the assumption that its quotation practices were fair— in part because so many musicians were participating actively in the new trend. But the legal case for modern music sampling got off to a bad start in 1991, when hip-hop artist Biz Markie was sued by the publisher of pop crooner Gilbert O’Sullivan for using the three-word phrase “Alone again (naturally)” with its accompanying musical phrase in Markie’s song “Alone Again.” The sample was a bold feature of the work, and it was repeated throughout large parts of it. O’Sullivan’s publisher asked for and received a preliminary injunction to stop distribution until a trial could take place. In rendering the decision in the case, known as Grand Upright, Judge Kevin Duffy argued simply that Markie’s behavior “violates not only the Seventh Commandment [thou shalt not steal] but also the copyright laws”— without ever addressing the issue of fair use. Nevertheless, this emphatic phrasing not only discouraged the defendants from pursuing their case— it never did go to trial— but cast a pall over the legal status of sampling in general. The samples were certainly too extensive to be considered de minimis (trivial in extent). Whether fair use might have applied, had it been raised, remains an unanswered question. The effect of the decision within the music industry was to drive risk- averse artists and record labels toward licensing of samples— a booming new rights market. Music publishers, recording companies, and agents for hip- hop artists seized upon the decision, not only to protect themselves or their clients by adapting practice to this latest decision but also in order to collect revenues from downstream creators, as Benjamin Franzen and Kembrew McLeod described in their film Copyright Criminals. But licensing was always expensive and sometimes time- consuming. Gradually, rich, layered sound collages were replaced by simpler, thinner varieties of samplebased hip-hop. The Bridgeport Music (Bridgeport I) decision seemed to make things worse for musical innovators. In this case, the rapper group NWA used less than two seconds— three notes— of a George Clinton song, looped
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and distorted it, and did not clear it. Bridgeport Music sued, and the court (which refused to draw upon Grand Upright) decided that there was no de minimis defense for sound recording sampling, as there was for musical composition sampling. Astonishingly, the defendants seem never to have claimed fair use as a defense for their quotation— and eventually the decision was rewritten to make clear that fair use had never been part of the case. By then, however, self-designated experts in music copyright had put out the (erroneous) word that fair use simply did not apply to sampling practice. That misunderstanding gave further impetus to the cross-licensing between record labels to clear samples. The court sent the case back to the lower courts, with the message that they could consider fair use. As so often happens, the case then settled. In 2009 another Bridgeport lawsuit came up for appeal. In this case, in its “D.O.G. in Me” the rap group UMG had quoted elements from George Clinton’s iconic “Atomic Dog.” One of the issues in the appeal was whether the jury behaved reasonably. Although Judge Martha Craig Daughtrey found that the use was clearly transformative, she found it hard to ignore the commercial facts. She found that the jury could reasonably have been swayed by the evidence that there was a substantial market in licensing rights and that “Bridgeport could lose substantial licensing revenues if it were deprived of its right to license [such] content.” She also noted that the defendants had failed to introduce any evidence to explain their artistic choice of these elements— that is, to further bolster their claim of “transformativeness”— and had failed to acknowledge Clinton in their credits (never a good practice). Ordinarily, the existence of a licensing market should not trump a finding of transformative use, but this case was different because artists and producers had widely accepted the samplelicensing system in the wake of Grand Upright. It was exactly the twist in the tale of consensus-based fair-use norm formation that legal scholar James Gibson had predicted. These outlier cases make up a disturbing vicious circle. Judges made economically based judgments; musicians and their agents and distributors embraced a licensing model; then fair use was undermined by the pervasiveness of that model. Practice Matters
The cases point as well to the tangled relationship between law and practice. As legal scholar Michael Madison has elegantly noted, while transformativeness has become the key to open the fair-use door, transfor-
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mativeness in itself can also be broadly interpreted. Looking carefully at a wide range of cases in which transformativeness was key, some of which conflict with each other, Madison found that when judges use the transformativeness standard, they also consult the pattern of use in the surrounding community of practice. Judges ritualistically pay honor to the four factors, but when courts, including the Supreme Court, interpret those four factors, they turn to questions of what people are actually doing with the material and how that use fits into larger practice. To the extent that communities of practice can articulate how they understand their fair-use rights, and describe them within the terms of their practice (rather than having people individually measure their practice against the highly abstract four factors), they can strengthen not only their own understanding but also the ability of lawyers and judges to make reasonable decisions.
7 Documentary Filmmakers pioneering best practices Don’t skulk around. Do it out in the open, with pride. katy chevigny
Best-practices projects— the creation of codes of best practice in fair use that provide consensus interpretation targeted to particular communities of practice— have played an important role in excavating a place for fair use in the copyright reform conversation. They have been created in an era generally friendly to fair use, and have been welcomed in their fields of practice. These codes have set standards, created interest in fair use, and inspired others to set their own standards. They are focused not on legal change, but on change in practice and behavior, as a result of changed understanding of what the law permits. The story of how filmmakers got their code of best practices shows both the challenges and opportunities of this approach. By 2004, documentary filmmakers had already become poster children for copyright scholars critical of imbalanced copyright policy. Scholars such as Lessig and Boyle had featured the problems of documentary filmmakers who had faced absurd situations. For instance, Jon Else, a revered veteran filmmaker who had begun an illustrious career working on the landmark TV series on civil rights Eyes on the Prize, had been forced to remove images from Major League Baseball playing on a TV in the background during a scene in his film Sing Faster. But for all their poster-child status to copyright critics, in 2004 most documentary filmmakers did not perceive that lack of access to fair use was a major problem for them. They were far more concerned with the threat of digital piracy through downloading, and afraid of doing anything that would jeopardize their ability to collect on their work over the long run. They typically regarded the draconian limits they imposed on their own use of copyrighted material as the price to be paid for copyright security as owners. They were prisoners of their own romantic conceptions about creativity and their own narrow expectations of copyright.
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That is what we learned when American University researchers conducted long- form, open- ended interviews with nationally distributed, independent documentary filmmakers across the United States, with funding from the Rockefeller Foundation. Filmmakers also told us their frustrations with copyright, which were legion. Even when documentary filmmakers wanted to license copyrighted material, they often couldn’t find anyone to pay. Large copyright holders such as Disney or Viacom either didn’t answer an email (probably because the transaction costs would be too high for such a small licensing fee), or set a grossly inappropriate licensing fee, or weren’t certain who owned the copyright. Every time they licensed a piece of film or a snatch of music or an image, that single piece of film might include a host of rights to be cleared— and one hour of film could involve dozens of such licenses. Music writers and performers, celebrities, and actors all might have signed contracts with the company from which the filmmakers licensed the material. And once signing the license, filmmakers were obligated to honor all those contractual arrangements as well. But perhaps the most galling of the copyright problems doc filmmakers faced in using other people’s materials was that of including copyrighted material accidentally or incidentally in a documentary scene. Perhaps someone sang “Happy Birthday” (which until 2015 was thought to be copyrighted) or was listening to the radio in the car, or was sitting in a dorm room with posters on the walls, or chatted in a café with a TV in the background. Or maybe a stagehand was watching baseball on the television while waiting for the next scene change in a Wagner opera (Major League Baseball, like many commercial sports associations, both guards its copyrighted material and charges high prices for it). When researchers asked filmmakers about those problems, filmmakers stopped sounding like hard-bitten small business people and started sounding like outraged First Amendment activists. They were angry because they felt it just wasn’t fair. And they really hated doing what they had to do to get around this problem. Before they went into a scene, they asked people to take stuff off walls, turn off radios and televisions, even change their clothes. Some filmmakers even went on location with prelicensed music, for easy substitution. They took out images and sound in postproduction and substituted something they could license. They cut out scenes. The people in charge of documenting reality were systematically changing it to film it. Our report about filmmakers’ licensing problems, Untold Stories, was released in November 2004, and made a splash at the 2005 Sundance Film Festival— the annual gathering and de facto marketplace for independent
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filmmakers. The biggest news wasn’t the licensing snarl. The biggest news was that documentary filmmakers were actually avoiding entire areas of production out of self-censorship. Because they understood as professionals the problems they would face, they regularly avoided topics that would involve popular music, popular films, politics and elections, and historical archival material. They also avoided genres such as parody and criticism. Even when Robert Greenwald, the gutsy left-wing filmmaker, took on Fox News with his bold critique Outfoxed, he proceeded only once he had secured Lawrence Lessig as a copyright consultant to ensure that every quote he took from Fox News was within fair use. Most people didn’t have that kind of access to top lawyers. They decided it wasn’t worth doing. Too risky. Too time-consuming. Too many headaches. So the people in charge of documenting reality were not just changing reality but avoiding it altogether. They were in fact avoiding realities that were among the most popular and pervasive elements of their culture. Filmmakers Organize
That news was enough to make five national organizations for working filmmakers each agree to participate in shaping a code of best practices in fair use for documentary film. (The Rockefeller and MacArthur Foundations funded this phase of the work.) Over the next year, filmmakers in the major cities for documentary production— New York, Los Angeles, San Francisco, Washington, DC, and Chicago— met in thirteen small- group meetings of veteran makers. Each meeting was hosted by a film organization. We opened each meeting with the highlights from the report, and asked filmmakers to talk about the situations in their own work where they would like— if they could— to employ fair use. Each group came up with very similar lists within an hour or so. Filmmakers typically thought they should be able to use copyrighted material without licensing it in four common situations: when they were critiquing a piece of media (Outfoxed); when they were using media as illustration of an argument or point (“Hip-hop music of the mid-1990s was characterized by the density of its textures and the range of its social references”); when copyrighted work appeared accidentally or incidentally (“God Bless America” behind the political candidate, at a rally); or when they were making a historical reference that wasn’t the primary subject of the film (“During the Roosevelt Administration, jobless men and women lined up at free soup kitchens”). The group would often become vociferous in their defense of using copyrighted material for free. Then we asked the
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group to consider how they would feel if another filmmaker used their own material for one of those purposes. Suddenly they began to rethink. That conversation took longer. By the end of three hours, filmmakers had usually come to pretty much the same place: I need fair use to be able to make work with integrity, and therefore I also need to acknowledge others’ right to use it. But people shouldn’t use my work just to save themselves money or time; if they want to do that, they should pay me. And by the way, I would like other people to give me credit, even if they use it for free. Even if they have the right to use my work for free, they shouldn’t give anyone the impression that they did work that they took from someone else.
Filmmakers had come, on their own, to a place that looked basically like judges’ current interpretation of fair use, more specific to their own practices. This knowledge did not console them, however. They did not believe that even if they could come to a consensus about the interpretation of fair use, it would make any difference. “We’re not the people who get to make the decision,” one said. Distributors typically expect that the filmmaker will give them a completed product that is insured against any errors and omissions in licensing. Without errors and omissions (known as E&O) insurance, no broadcaster, cablecaster, or distributor with an asset to their name was going to risk taking the film. The fact that lawsuits are so rare in this area just made the risk calculation scarier— because even though people “never” sued, every once in a while somebody did. And then even if you won, you were out a lot of money. It had been perhaps two decades since E&O insurers had routinely insured against fair-use claims. Sure, some films did receive such insurance after elaborate negotiations, some famous filmmakers were treated with special care, and many films received insurance that excluded fair-use claims. But neither the insurers nor the filmmakers wanted to discuss having fair-use claims recognized, for fear of calling attention to themselves. Indeed, some filmmakers and their lawyers became angry when we asked them. E&O insurers, without any way to understand what “normal” interpretations of fair use were in filmmaking, were not about to take uncharted risks. But Will It Work?
With plenty of experience with insurers and broadcasters, a filmmaker would say to us, “Why are we doing this? Why not the broadcasters, or the
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lawyers or the insurers? It won’t change anything if we develop consensus around fair-use interpretation.” Peter would explain, “Your gatekeepers don’t really care if you make a pretty good film or a great one. You do. Until you have a code of best practices created by the field, nothing will change. Maybe nothing will change even if you do, but until you do, there’s no way to change the conversation, because only then will the risk calculation change. And you may be giving them a tool they can use.” Peter could say this with some confidence because he had helped the Society for Cinema and Media Studies (SCMS) create a code of best practices in using film stills and frame grabs in scholarly literature. Film scholars, formerly frustrated by publishers’ demands to license illustrations used solely for scholarly discussion, now found themselves routinely able to include such illustrations without licensing them. Often the publishers themselves did not know the extent of fair use, and needed to see the scholars’ statement of best practices to educate themselves. Documentarians typically came to the meetings with a very strong investment in their status as creators and their need to protect their own work. They were afraid that fair use would undermine an already precarious artistic existence (filmmakers often depend on long-term revenues from sales and from footage licensing). Their investment in their creativity, however, was also a valuable motivator to employ fair use. Fair use was often the only way to achieve the highest quality in the production. As artists, they were the only ones who cared whether the film was truly excellent or merely pretty good— good enough, broadcasters and cablecasters would say, for television. So they had to hold out for quality, and that meant giving their gatekeepers a tool to lower their risk and accept fair use. Another reason why filmmakers were so skeptical, even as they were grateful that academics and lawyers were worried about their problems, was that they thought fair use was a question for lawyers to settle. “The lawyers are the ones who are always telling us we can’t afford the risk of using fair use,” said one filmmaker. “And who knows better than them?” Filmmakers had located fair use as a legal issue, rather than a right to their own freedom of expression. The answer went back to the question of mission. Lawyers are, of course, professionals hired to protect their clients’ interests. Frequently clients want to be as safe and secure as possible. When using copyrighted material in a documentary film, absolute safety is in licensing. That is a contract— a binding agreement. The owners cannot sue; they agreed to
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the terms. A right is different. Like any right— the right to free speech, the right to self-defense— it could always be contested. So just as you choose to run that risk when you exercise other rights, you will do the same with fair use. That is why knowing what is normal makes a huge difference. People routinely decide what is reasonable and normal when exercising freespeech rights. They could be liable for charges of defamation, when public speaking, or libel, in writing. They have a general sense of what is appropriate, however, and are guided by that understanding when they speak and write. The same is true for fair use, if the community of practice has expressed what it regards as normal. If filmmakers— or anyone else— want to use their right of fair use, they have to let their lawyers know that they want to incur that small risk. Otherwise, lawyers will do their level best to protect their client— even if it means spending huge amounts, changing reality, or shelving a project. Besides, lawyers have no crystal ball on how a community interprets fair use; they need a code of best practices to inform them. If the lawyer is representing not the filmmaker but the television company or the insurer, then the programmers have to let the lawyers know that the company needs this small level of risk in order to do business. And these gatekeepers will not act without something that minimizes risk— such as a code of best practices defining the community’s norms. What about a Test Case?
Then a filmmaker would say, “But wouldn’t it be better if we could have a test case that would really establish what fair use is?” The “test case” argument was common not only among filmmakers but among copyleftists. Everybody has the dream that they won’t have to work out for themselves how to interpret the law, but that a definitive case by a wise judge somewhere will lay down clear rules. That, however, is simply wishful thinking. First, it is hard to get a test case on fair use, because big companies have good lawyers who see the disadvantages in launching any lawsuit on fair use. Even if they won, they would expose the utility of fair use. So they tend to avoid litigation altogether. Of course, they still threaten to sue. Indeed, many companies send out scary ceaseand-desist letters regularly. The boilerplate for such letters usually points out that charges from a successful lawsuit could run into the hundreds of thousands of dollars in statutory damages. But the threats can be entirely bogus— there is no legal penalty for lying in such letters. Even when they
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make plausible claims, they are rarely followed up by action, and the dollar figures are almost guaranteed to be vastly inflated or not even applicable. (In order to claim statutory damages, you have to have formally registered for a copyright and not just depend on default copyright.) A second reason why “test cases” are not a good way to orient fair use decisionmaking generally is that if a company actually engages in litigation, it may be because there is a good chance of actually winning— something that could destroy the entire logic of a test case. Third, one case is never the end of the story— it’s only another chapter in it. It could be an outlier, a pathfinder, or a middle-of-the road case. And since fair-use decisionmaking is case by case, there is no guarantee that knowing how one controversy has turned out will help in predicting the future. Fourth, as we saw in chapter 6, there is no guarantee that a judge will actually understand copyright law— or the cultural contexts in which quarrels about copyright come up. Any test case would be far stronger if the judge charged with deciding it could turn to a public document saying what community standards and expectations were. Filmmakers’ response to our answers to the “Why me?” question was generally “Hmph.” That meant “we’ll see.” They had to wait for several months. During that time, we distilled the common conclusions of the filmmakers in the different group discussions into a code of best practices in fair use. Then the code underwent close scrutiny and fine-points discussion by a legal advisory board. The board was made up of three lawyers, some of whose clients come from the entertainment industry, and two legal scholars. All were familiar with recent judicial decisions on fair use, and all were acutely conscious of the need for clarity and legality. By the time they had thoroughly worked over the code, it was sturdy and reliable. And it still said what the filmmakers had said. The five filmmaker organizations that had helped to identify participating filmmakers and to convene the meetings now became cosignatories to the final document. Filmmakers’ Best Practices
On November 18, 2005, the Documentary Filmmakers’ Statement of Best Practices in Fair Use was released, both online and in hard copy, at American University’s Washington College of Law. It was a family party of sorts. Gordon Quinn, the Kartemquin Films founder, talked about owning his rights. Byron Hurt, an independent filmmaker, talked about being empowered to make films without fear. Michael Donaldson talked about
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being able to reassure clients. Tamara Gould of the Independent Television Service, part of public broadcasting, celebrated the ability to work with PBS more smoothly to get programs to air. And eighty-nine-yearold George Stoney, who began making documentary films in the 1930s, thumped on the podium and asked, “Who owns our history?” Then the changes started rolling in. Within eight weeks, three films used the statement to do copyright clearance for films to be shown at the 2006 Sundance Film Festival. All three of them were works that could not have been made without fair use. This Film Is Not Yet Rated, Kirby Dick’s exposé of the Motion Picture Association of America’s flawed ratings system, used more than a hundred clips from Hollywood and independent films— all under fair use. He never had an alternative. The licensing contracts for Hollywood films included clauses saying that he would not criticize either the film or the film industry with them. The Trials of Darryl Hunt, by Ricki Stern and Annie Sundberg, used video from two decades of local television to document the history of a prisoner falsely charged with murder. Upon the overturning of his conviction, the local TV station had suddenly decided that it would under no circumstances license any of the material; the TV station apparently was considering making a film of its own. That film’s use of all the TV footage rested firmly on fair use. Finally, Byron Hurt’s Hip-Hop: Beyond Beats and Rhymes critiqued misogyny in hip-hop by quoting and commenting on hip-hop lyrics, music, and videos. Hurt never even considered asking hip- hop stars for permission to use their material to criticize them. What happened next was more surprising: All the films were picked up by television programmers, in spite of the fact that they all contained huge amounts of unlicensed copyrighted material. These were among the many broadcasters that routinely told filmmakers it would be impossible to take work that had fairly used material in it. Cablecaster IFC took This Film Is Not Yet Rated. HBO took The Trials of Darryl Hunt. Public television, via ITVS, took Hip-Hop. Each distribution outlet now faced the challenge of dealing with a film that was in E&O limbo. Seeing broadcasters and cablecasters take on films that were fair-use heavy was gratifying, but the field couldn’t depend on courageous actions by a few. Those actions needed to be the early signs of a wider acceptance. So on the heels of Sundance and the positive reception there, we organized a lunch meeting, hosted by the Rockefeller Foundation, for cable programming and public broadcasting executives. Some twenty- five executives attended, every one skeptical of the notion that fair use would be good for their businesses but afraid to miss an opportunity their competitors
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box 7. 1 >> True Tales of Fair Use: Sundance Compared How much have things changed for documentary filmmakers? Michael Donaldson did the numbers: In the 2005 Sundance Film Festival, eleven months before the Documentary Filmmakers’ Statement of Best Practices in Fair Use was issued, none of the documentaries he worked on exercised their fair-use rights: “Zero. Nada. Nothing.” In 2010 five Sundance documentaries that his office worked on extensively employed fair use. By 2016, twenty of twenty-four Sundance-headed documentaries his firm dealt with involved fair-use claims. Between 2010 and 2016, more and more filmmakers were making use of fair use to excerpt music and employ images. Table 1. Fair use in Sundance documentaries Type of material
2005
2010 (5 films)
2016 (20 films)
Film
0
600
465
Music
0
6
35
Paintings, posters and photos
0
70
591
Total fair-use claims
0
730
1091
He has also seen licensors back off from overreaching claims. Before the statement, said Donaldson, “Evan Greenspan, a leading music clearance house in New York City, would include a button in all the materials he sent to prospective clients. It said, ‘Use a note, go to jail.’ He doesn’t use that button anymore.”
and colleagues might spot. They left politely clutching their copies of the statement, but often without making eye contact. In the ensuing months, though, several of those executives quietly found a reason to employ the statement to justify decisions to acquire or start new projects. Jessica Wolfson, then at IFC, brought the statement back to IFC president Evan Shapiro, who had a problem. He had commissioned a documentary to be called Wanderlust about road films. The producer had budgeted $200,000 for film clips, but the final, take-it-orleave-it best offers of the eighteen studios involved came to over $450,000. At the 2006 Sundance Film Festival, Shapiro had met with lawyer Michael Donaldson and, in the process, had come to see how empowering fair use could be. They worked out a strategy to preserve IFC’s important relationships with the various studios while lowering costs. IFC offered the studios a reduced fee for all the film clips that could be justified as fair use—$1,000 per title. Meanwhile, Donaldson, guided by the statement,
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worked with the filmmakers to bring the film clips that could be reshaped within the purview of the fair-use doctrine. Of the eighteen owners, thirteen— including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films, and Warner Brothers Entertainment— agreed to license the clips at $1,000 a title. The other owners did “not want to set a precedent,” so the filmmakers obliged by using clips from their films for free without a license, under fair use. The total cost came to under $50,000; a New York Times story on the negotiation gave valuable publicity to the new approach to fair use. Insurers Change Policy
The insurers for errors and omissions were still a problem. These insurers had always considered fair-use claims, but on a case-by-case basis, and without a word in public. (None of the filmmakers we talked to were any of these lucky people, of course, nor did they know any.) Simon Kilmurry, codirector of public TV series POV— a haven for documentary filmmakers— helped coordinate a meeting of representatives from the only four companies that handled such insurance for documentaries in the United States. Insurers sat at the table poker-faced during the presentation. They thumbed gingerly through the statement. One said, “I wouldn’t even show this to my account executives; I don’t want them distracted.” Veteran broker Debra Kozee, a friend of Kilmurry’s, watched the reaction with great interest. Kozee’s next job was hunting for the best insurance deal for Hip-Hop. Usually this would be a big problem; the film was laced with fair-use clips from a part of the music business plagued with litigation, and insurers usually did not insure for fair use. She decided to test the waters. She sent out a letter to all of the insurers, letting them know about the Documentary Filmmakers’ Statement of Best Practices in Fair Use and inviting them to bid on Hip-Hop. She called it a “test case” of insurance companies’ willingness to insure fair-use claims, given the new era created by the statement. She often passed the representative from AIG on her way to work. “How about that fair-use film?” she would ask. She did get more than one bid. Not only that, the representative of AIG, one of the four insurers, was willing quietly to insure fair-use claims routinely, now that there was a statement to lower the risk. The Center for Media & Social Impact offered to put out a press release announcing the breakthrough. AIG was not ready to make that public a commitment. But others were. In California, Donaldson had had a similar experience. Like Kozee, he
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box 7. 2 >> True Tales of Fair Use: Katy Chevigny Katy Chevigny, a distinguished documentary filmmaker and cofounder of the media production house Arts Engine, became, as she described it, a “born-again” fair user, and began conducting workshops with the emerging filmmakers featured in Arts Engine’s Media That Matters film festival and at Independent Feature Project workshops. She used her own experience as an example: “When I made Deadline [a film on the death penalty], I was not yet educated in fair use and I was at the mercy of what lawyers told me—both broadcast and archive lawyers. An enormous part of our budget went to archival, even though ten percent or less was archival. We spent about $75,000 on clearances on a low budget film, in which the filmmakers only made $30,000. “In addition to paying inordinate sums and not negotiating, we lost a precious moment that is no longer in the film. We were comparing the situation today with a decision on death penalty made in 1972. To transition back to 1972 we cut to Walter Cronkite—the iconic voice of news at the time—intoning that the death penalty is now illegal in the US. The clip situates the viewer back in that era, and it tells the story crisply and authoritatively. We told the archival clearance person, we’ll pay for it. She said, ‘No, Walter Cronkite has a rule that he doesn’t let his image be used.’” The problem Chevigny encountered was that if you license material, you inherit the contractual agreements that the copyright holder has made. For instance, Walter Cronkite had a contract with CBS. If you fairuse the material, these contracts don’t travel with the material. “Later we found that he’s a nice guy, but his handlers stop everything from getting to him. So now we think we can’t even license this footage from CBS, because Cronkite is involved. We replaced him with an image of an NBC guy who nobody knows, who rambles and doesn’t have the definitive sound bite. It’s much less effective, and we had to pay a lot of money for it. If I could do it again, I would fairly use it, and we would have had a rock solid case for fair use in case he came after us, which I don’t think he would have.” Chevigny is probably right. Cronkite would have had to complain to CBS, which would then have had to sue Arts Engine, in order to trigger his contractual rights, unless he relied on publicity rights, which also would likely not apply in the circumstances. “That clip is still not in the film, and I still mind it. So that’s what happens if you don’t know what you can do. You do something that’s less effective, more expensive, and you feel like crap about it.
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“Then when we were editing Election Day [a 2007 film about the 2004 presidential election] I was armed with the Documentary Filmmakers’ Statement and knew my rights. In that film, we have a scene in a barbershop in Harlem, and on the TV they’re showing people with Puff Daddy [PD], wearing the Vote or Die T shirt. It was a historic image. Tons of people have asked me, ‘How did you clear the image of PD?’ Well, I didn’t clear it, and I didn’t need to. Our characters were watching it. “At the end of the film, we created a montage of all the characters we had been following watching the TV. They were all watching different channels—some of them ABC, some Fox, some Jon Stewart. That diversity alone was a statement about the media in our time. If I had had to clear it, I would only have been able to pay for one. The only way we could do it was by fair using it. If I hadn’t had my fair-use conversion experience, what would I have done in Election Day? We would have lost some of the texture of what was happening, which will be important to people thirty years from now. “So it went to the public TV series POV and nobody sued me. “I try to let people know that employing fair use like this is not some semi-illegal thing, where you hope you can ‘get away’ with it. We need it to do our work; it’s not a favor, it’s a right. And the more we use it, the more we can use it. So don’t skulk around. You need to do it out in the open, with pride.”
had quietly obtained insurance coverage for a fair use— for the song “Fuck the Police” in the documentary first called The History of the F Word and then F*#&!!!. Media Professionals (MediaPro) Insurance company agreed that fourteen seconds of that song fell within fair use. Donaldson suggested to the senior claims counsel of Media Professionals, Russell Hickey, that documentary filmmakers would benefit enormously if they knew that such coverage was available. He agreed. Within days, Hickey had approval and they set to work drafting a rider. Meanwhile, Stanford University’s Fair Use Project director Anthony Falzone had met with the chairman of MediaPro, Leib Dodell, who agreed to move forward with a special policy. The insurance company would issue a policy covering fair-used material, and Stanford would agree to provide free legal defense if there were a lawsuit. This coverage of fair use by MediaPro was announced to a sellout Los Angeles audience attending an evening celebrating the documentaries
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that were nominated for the Oscar. There was a spontaneous, standing ovation. The MediaPro executives were on stage and in shock. They never expected such a reception. Errors and omissions insurance is a highly competitive business; the few companies were all competing with each other for those contracts. Chubb announced its new policy within a week, and AIG went public as well. Within a month the last remaining US-based E&O insurer, OneBeacon, simply added fair- use coverage to its announcement of offerings as if it had always been there. Every single insurer of errors and omissions in the United States began to offer fair-use coverage routinely and often without even a small incremental fee— because the Documentary Filmmakers’ Statement had lowered the risk so dramatically. The landscape had shifted fundamentally. For documentary filmmakers, fair use was no longer a gray area, an area of indecision and anxiety, an area that put your distribution in jeopardy. It was part of normal business practice. There were even “test cases”— or attempts at them, anyway. In 2007 a Chicago filmmaker, Floyd Webb, posted to YouTube clips and a trailer of a film he was making about Count Dante, a martial arts expert who founded Chicago’s Black Dragon Fighting Society. A leader in the martial arts group sued Webb for using the count’s image. Webb defended himself using the principles and limitations of the statement, with the help of Anthony Falzone and Stanford’s Fair Use Project, which provided legal services for free. The case was summarily decided for Webb. That was great news for Webb, but the downside of this particular decision was that there was no written text to use as precedent. The makers of the 2008 Expelled, a pro-creationist documentary, quoted a John Lennon song, “Imagine.” Their lawyer, Michael Donaldson, applied the Documentary Filmmakers’ Statement as he worked with them to make the segment easily defensible under fair use. (He expected Yoko Ono to sue.) The filmmakers massaged the segment to emphasize the connection of the music to the point the filmmakers were making, and they got MediaPro insurance. Yoko Ono indeed sued, and once again the Fair Use Project defended without cost to the filmmakers. In this case as well, the case never went to trial. The judge dismissed it because he believed the lawsuit would not have merit. Yoko Ono never pursued the case, although she is notoriously and stubbornly litigious. Documentary filmmakers had pioneered a new approach to changing copyright policy. They educated themselves about the law, claimed their own right to interpret fair use as citizens and creators, worked together to clarify their common understandings, and used those understandings in
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their work. They also changed their understanding of who they were. They were not only creators, but also users, of culture. They learned to value the selection and repurposing of culture as a creative act, and they learned to accept that other people would sometimes be able to use their work without paying or getting permission because those people too would be creating something new. Slower Shifts
This changed vision did not happen overnight, or universally. At the University Film and Video Association annual meetings, the notion of teaching fair use to budding filmmakers made some teachers nervous. “I’m not a copyright expert— what if they ask a question I can’t answer?” was a common question. Center for Media & Social Impact primers, videos, and lesson plans addressed some of those concerns. More common still was this attitude: “I don’t want my students using copyrighted material; I want them to be original and creative.” That last answer showed that the Romantic notion of individual creative genius was alive and well, and living in academia. But teachers were also willing to consider the notion that compilation might involve creativity. Once again fair-use advocates argued that creativity could be demonstrated effectively by the well-applied reuse of existing materials. Indeed, that was the heart and soul of documentary, which reorganized reality. Gradually, film professors began teaching what documentary filmmakers were already practicing. Fair use was becoming part of the ordinary lexicon of media makers, although at every film festival there were filmmakers who hadn’t yet gotten the word. By 2016, filmmakers often assumed they would employ fair use. When we asked first-time director Marta Cunningham, whose 2013 film Valentine Road was laced with fairly used references to media surrounding the murder the film explores, about her licensing choices, she replied: “Of course we fair- used all that stuff. Why wouldn’t we?” Reminded that it hadn’t always been routine to do so, she said, “Really?” Hannah Buck was editor on Cecilia Aldorando’s Memories of a Penitent Heart, which showed at the Tribeca Film Festival in 2016. The film, about a beloved uncle’s life and death from AIDS, was full of popular movie references. “How did we use fair use? How didn’t we use fair use?” said Buck. Director Cecilia Aldorando explained, “We had to use it, to make the film we made.” And Sierra Pettengill, a rights producer for documentaries, said in 2016: “I never even used fair use five years ago, but it’s something I turn to all the
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time now; it’s much more popular than it used to be.” These days, her biggest complaint is that producers assume so much material can be fairly used that they don’t consider rights issues up front, and she ends up doing “EMT producing” at the end to sort out the licensing and fair-use choices. And the film teachers by 2016 had a range of tools to get them over the “I’m not an expert” hump. Not only did they have a suite of teaching aids at the Center for Media & Social Impact, but two film professors, Diane Carson and Robert Johnson Jr., had made a film, Other People’s Footage, which walked them through film- production decisionmaking on fair use. A Decade’s Change
Ten years after they created their Documentary Filmmakers’ Statement, five hundred filmmakers nationwide took a survey about their current practices in fair use. In 2005 the field had been either confused about or openly suspicious of fair use. In 2015 almost all the respondents (93%) knew the term “fair use,” and about three- quarters ranked their knowledge of fair use good or excellent— accurately. The same proportion said that fair use was critical to their creative process. They easily saw the creative process as recombinant; when asked whether remixes and mashups could be considered original work, almost all (93%) agreed. About twothirds had recently employed fair use in their own productions. We were particularly interested in whether the industry shift to employing fair use as a default had affected filmmakers’ own bottom line negatively. After all, once they made a film, they were potential licensors of that material. But almost no national survey respondents said they believed they had lost licensing revenue as a result of expanded fair- use practice. Those respondents who said their business had been hurt showed in their explanations that their losses were not fair- use-related. Explanations included “an intern took the hard drive” and “my film was running in its entirety on YouTube,” two problems not attributable to fair use. In fact, employing fair use had lowered production budgets. Meanwhile, they had never typically received much licensing revenue from the kinds of uses for which fair use was now invoked. So fair use was helping their bottom line. It also seemed that commercial archives were at least not directly hurt by widespread employment of fair use. In public meetings and in quiet conversations, archivists complained about the difficulties of the business, but they could not attribute them directly to fair use. Perhaps the most irritating feature of the new fair-use era in documentary for them was that for the first time filmmakers actually had some bargaining power.
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box 7. 3 >> True Tales of Fair Use: Digital Art Fair use permits not only more efficient work flows but also innovation. Artists are among those who understand the power of unlicensed quotation under fair use, as two recent examples show. The artist Christian Marclay, much of whose analog work is grounded in collage, took to video to make The Clock, a video assemblage of images of time and timepieces taken from films, timed perfectly to the actual hour of the day where it is shown. Debuted in 2012, it is shown in museums. His employment of existing work to make a new work of art was transformative, and an obvious fair use. In 2017, filmmaker Guy Maddin, whose work regularly features reediting of existing work to create new meaning, was commissioned by the San Francisco Film Festival to make a city symphony–style film to close out the festival. The resulting Green Fog was a retelling of the Hitchcock film Vertigo exclusively using images from San Francisco in other films and television. He used everything from actuality shots from pre-1906 earthquake San Francisco to the TV series The Streets of San Francisco—all under the fair-use doctrine. Maddin follows in the tradition not only of the great city symphony filmmakers of the 1920s and 1930s but also more recently of Thom Anderson, an artist in experimental film whose 2004 feature Los Angeles Plays Itself, composed entirely of film clips and images, got rave reviews but stalled in distribution until the shift in documentary practice around fair use caught up with it almost a decade later.
Licensing fees went down with negotiation. For the first time, their customers had options. Some commercial archives holders found it hard to adjust to the new relationship. However, documentary production was only expanding, and most productions that employ fair use also license material. New work was being made that could not have been made before, and it often needed some licensed material. In 2005, filmmakers were told at every turn that fair use was unusable— by insurers, lawyers, broadcasters. In 2015, overwhelmingly, filmmakers reported no problems with any of these gatekeepers. Universally filmmakers reported that insurers accepted their claims with a lawyer’s letter. Only 1 percent of filmmakers could recall a case where an insurer did not accept a claim, and only 5 percent could recall a broadcaster’s failure to do so. The small group reporting trouble was composed of filmmakers whose career was substantially before 2005. Comparing the most seasoned
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filmmakers with midcareer and entry, we found that the longer documentarians had been in the field, the more comfortable they were with fair use, the more they had used it, and the more they saw its value. Institutions and Individuals
What made the ground shift for documentary filmmakers was institutional change. The shifting began when insurers all started accepting fairuse claims, within a year of the Statement’s publication and as a direct result. Broadcaster policy and behaviors of major law firms followed on. What drove that institutional change was filmmakers not only insisting on the validity of employing fair use but pointing out the added value brought by fair use, while being able to demonstrate the minimal risk with the evidence of community consensus in the Documentary Filmmakers’ Statement. At an individual level, having fair use has meant that filmmakers can exercise their imaginations more widely. But knowing about fair use has not always enabled them to claim it. Almost two-thirds said they have in mind projects they could do if copyright concerns were not an issue at all. (Only one in ten respondents said their work would not change at all if copyright were not an issue.) Often these wish-list projects had to do with mining archives, compilation, collage, and providing historical context and interpretation. Ironically, these uses are all enabled, in some form, under current fair-use law. So documentarians are more aware than they had been of their options and are beginning to dream bigger— but often fail to realize what is possible now. In one highly visible arena, makers of new culture had changed the practice of copyright policy. The actions of the seemingly powerless documentary filmmakers— who had seen themselves as hostage to their broadcasters, cablecasters, and insurers— had changed the way a media business did business. But was that just a fluke? Did a small group of documentary filmmakers really amount to a hill of beans in this crazy world?
8 Codes of Best Practices Catch On We need one of those for media literacy teachers. professor renee hobbs
Documentary filmmakers had changed their world, and they had done it themselves. They had created a small, eight-page educational brochure that, because of its power to represent community norms, changed the minds and the work of broadcasters, cablecasters, lawyers, and insurers. But compared with the problem of public ignorance of fair use, this seemed insignificant to many copyright critics. “How many documentary filmmakers are there?” said one scholar skeptically at a convening of intellectual property experts held by the MacArthur Foundation in Washington, DC, the following year. “A few thousand? Tens of thousands?” A few thousand, maybe. Not enough to change the way copyright squashes creativity today, was the opinion that ran around that room. That opinion went something like this: We need something that’s a game changer. Something that will put lawyers everywhere on notice, shake up the copyright holders, and empower creators at every level of production— especially those grassroots folks making new digital media. Codes of best practices are nice but laborious to produce, and they focus on small, defined communities. What about high-profile legal cases, or new legislation, or maybe even an international treaty on copyright limitations? These were techniques for achieving change that involved experts and professionals pulling levers of power to influence governments on behalf of creators. They did not have to involve the actual communities of users, many of whom were hopelessly confused about their copyright rights and thus disempowered. These techniques fit the model of most think tanks and inside-the-Beltway public-interest groups focused on direct policy intervention. The nonprofit lawyers could take the good ideas of the legal scholars into policymaker briefings and, with luck, into courtrooms or
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diplomatic conferences. The users and creators would be the beneficiaries, not the agents of change. So codes of best practices didn’t immediately strike many policy advocates concerned with copyright as a replicable or scalable model. But that didn’t stop other groups from being very interested in it. Almost upon release, the code of best practices model pioneered by filmmakers had impressed another group: teachers of media literacy. They define media literacy as the capacity to access, analyze, evaluate, and communicate messages in a wide variety of forms. Like literacy in general, media literacy is about both making and consuming, and media literacy teachers typically focus on commercial popular culture— advertisements, movies, TV shows and characters, popular music performers. Teachers teach media literacy in courses ranging from English to history to public health and journalism. They teach in classrooms and after- school programs. They teach critical thinking and the importance of interactivity, especially feedback, for learning. One leader in the field, communications professor Renee Hobbs, had just completed a media literacy website designed for tween girls, MyPopStudio. It was loaded with popular culture material. She had depended on the Documentary Filmmakers’ Statement of Best Practices in Fair Use when she stocked her website. At a conference in June 2006, she ran into us and shared that news. “We need one of those for media literacy teachers,” she said. Copyright Confusion
She explained that many teachers of media literacy were hamstrung when trying to teach critical thinking or develop interactive or participatory projects using popular culture. Mary Jane Sasser in Howard County Public Schools, in Maryland, was charged with creating a do-it-yourself film festival with high-achieving students. But no one was sure if the work could be released on DVD or even shown on the school’s cable system without getting the school system in trouble. Shay Taylor at Blair High School near Washington, DC, kept hearing from administrators that she couldn’t bring her own videos into the classroom for any purpose. A lot of teachers were used to getting conservative advice in workshops and orientation sessions and then blithely ignoring it once the classroom door was shut. But many were discovering that the students just as quickly opened a new door when they uploaded their classwork to YouTube. The pressure on teachers had intensified in recent years, we discov-
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ered, when thanks to grants from the MacArthur Foundation and Ford Foundation, we interviewed more than sixty media literacy educators for a report called The Cost of Copyright Confusion for Media Literacy. “Up until the late 1990s,” said one teacher, “there was no concern. We used copyrighted materials in whatever way we wanted to. I never thought much about it. We used popular music, clips from videos, films, whatever. Sometime in the late 1990s we got the message: this will cease 100 percent.” Many teachers faced this kind of problem from their gatekeepers— the vice principal, the board of education, sometimes even their own school librarian. Teachers were not really sure they understood what fair use was; indeed some hoped never to find out, because they were afraid they might learn that what they were doing was wrong. They had a lot of reasons for confusion. First, US copyright law contains several explicit exemptions just for educators, the most important of which (section 110[1]) permits them to use copyrighted materials in faceto-face classroom discussion. It has now been extended, with some strict new limitations, to some kinds of distance learning as well, through the so-called TEACH Act (section 110[2]). Teachers often confused fair use, an ample and flexible doctrine, with their own narrow and specific exemptions. Dysfunctional Guidelines
Second, many school systems depended on unhelpful “guidelines” about fair use, harshly and unnecessarily limiting documents distorted by powerful industry interests. One set of guidelines was created during the 1976 revision of the Copyright Act, when congressman Robert Kastenmeier brought together representatives of publishers and educators to negotiate the Agreement on Guidelines for Classroom Photocopying in Not-forProfit Educational Institutions. Although Kastenmeier’s intentions were of the best, the result was not a balanced document. What emerged (and is now, sadly, on educational websites everywhere) was drafted primarily by the publishers. It was included in the legislative history—despite letters of protest from representatives of the American Association of University Professors and of the Association of American Law Schools. This document always was highly and unnecessarily restrictive, and now is woefully outdated as well. It is not part of the Copyright Act and thus has no binding legal force. Court after court has made this clear, most recently the federal appellate panel in a case brought by Cambridge University Press and others, with a big financial boost from the Copyright
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box 8. 1 >> Fair Use: You Be the Judge >> Curriculum You are a biology teacher making a slideshow on photosynthesis for Thursday’s class. Much of the material comes from resources that the school district has licensed. You would also, however, like to provide some introductory material to different sections, quoting scientists from different eras. Your goal is to show students the process of scientific discovery as an individual, human process. Some of these quotations come from books, and others from quotation websites. Your slideshow will go up on the school district’s resources pages, which are open, as well as on the students’ passworded homework platform. Is your unlicensed use of those quotes fair use? Answers at the back.
Clearance Center, against Georgia State’s online course reserve system. Nonetheless, because the so-called classroom guidelines are part of the record of congressional deliberation, they continue to carry some weight among educators, as does a related document, Guidelines for the Educational Use of Music. They were followed by a third, Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes in 1981, also after negotiations called by Kastenmeier. (This third document was not even part of the legislative package.) As you might expect from negotiated settlements where one side is much more powerful and invested in weakening fair use, all the guidelines were harshly limited. The photocopying guidelines, for example, spoke of making copies for class that included “not more than 1,000 words or 10% of the work, whichever is less.” There is, of course, no grounding whatever in the Copyright Act for such a numerical limitation. Indeed, it goes against the very logic of fair use, which is case- by-case and depends on the nature of the use and the nature of the copyrighted material to decide how much is appropriate. Still, these narrow, often arbitrary, and fear-inducing guidelines created a tiny but entirely undisputed center of more or less guaranteed safety— a kind of fair-use fortress— in a much larger field of possibility that the doctrine provides. And, in fact, the text of the guidelines documents makes it clear that that was all they were intended to do. They were not used that way, however. Publishers pushed hard to promote a false interpretation of the guidelines as defining the outer limits of educational practice. And too often, as legal scholar Kenneth Crews
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has shown, they were treated that way within school systems across the country by administrators (and sometimes even librarians) who had been charged with providing teachers clear instructions based on these documents. This was the path of least resistance, and one that led to certainty about fair use— even if it was a false certainty. The guidelines had become counterproductive. They actually kept teachers from their work and from understanding the law. To make matters worse, from 1994 to 1998 another round of negotiations between educators and vendors had taken place, in an attempt to use the same failed strategy to address digital innovations that had occurred since the original guidelines had been issued. The US Patent and Trademark Office had facilitated a series of meetings known as the Conference on Fair Use (CONFU). This time the negotiations simply fell apart. Stakeholders failed to agree about “safe harbors” for various kinds of educational and library uses involving new digital technologies. One of the participants, the Consortium of College and University Media Centers (CCUMC), on its own, produced a highly restrictive set of guidelines for educational multimedia production. These guidelines were quickly endorsed by the publishing, movie, and record industries. They were just as squarely rejected by library and educational organizations, including the major national library associations, the National Association of State University and Land Grant Colleges, and a K–12 coalition led by the National School Boards Association. Although educational stakeholders had rejected them, Copyright and Patent Office officials endorsed the guidelines as a success of the CONFU process. This gave the CCUMC guidelines no special legal status, but it provided them with a great deal of publicity. CCUMC’s Proposal for Fair Use Guidelines for Educational Multimedia— a document endorsed only by the large content holders that discourage others’ fair use— is still found on educational websites everywhere and is used by well-meaning librarians to tell teachers what they cannot do. This is in spite of the fact that CCUMC, as a result of the fair-use movement and the codes of best practices, has rescinded its own multimedia guidelines. Upon rescinding them, it encouraged its members to employ the Code of Best Practices in Fair Use for Academic and Research Libraries. But restrictive “rules” have remarkable staying power, even when illfounded. No wonder the teachers were confused. What they did in their confusion impaired their teaching and weakened the field of education. As we learned in research summarized in The Cost of Copyright Confusion for Media
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Literacy, teachers had three responses: “See no evil” (refuse to learn the law for fear there might be bad news in it); “Close the door” (do whatever you want within the classroom); or “Hypercomply” (follow every rule). The combination of these responses meant that teachers could not bring needed materials into the classroom; that they could not share their materials or strategies with colleagues; and when they or their students did produce materials, they often could not share those materials because either they did not comply with legal standards or somebody else thought they did not. Teachers Build a Code
The report inspired the teachers to develop a code of best practices in fair use, with support from the MacArthur Foundation. We identified key media literacy organizations and put together a set of meetings to come to consensus around a code of best practices in fair use. Unlike filmmakers, teachers were good at forming committees and undertaking a collective project to assert norms. They did things like that all the time. And they immediately saw the need for more flexibility and freedom to teach well. But they brought new questions and problems to the task. Teachers were used to skirting complex and restrictive rules and stifling bureaucracies to do their face-to-face work with children. They often were short on equipment, and maybe even textbooks; they would buy “their” kids art supplies with their own lunch money and copy TV programs at home to bring in to class. They were trying to teach skills to survive a high-octane consumer economy, and they were doing it mostly in spite of their own administrations. They had developed powerfully persuasive explanations for why it was OK for them to break the rules: We have to, if we want to get our work done. The kids come first. We put up with it all because we have a vocation. We are teachers. So they often brought to their deliberations the attitude that they should not have to honor copyright ownership if teaching the kids was at stake. For people on a mission, for underresourced people on a mission, honoring copyright ownership was nearly an insult. It almost seemed as if commercial copyright holders had a moral obligation to let them use materials as they saw fit. The media literacy teachers had the opposite problem from filmmakers. Filmmakers came into the room deeply attached to their control over their material. Media literacy teachers came in passionately committed to using copyrighted material when good teaching demanded it. But it was more
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box 8. 2 >> True Tales of Fair Use: Kristin Hokanson Renee Hobbs tells this story: Kristin Hokanson, a technology integration specialist at Upper Merion High School, was one of those “hypercompliant” teachers before she learned about fair use. She had maintained a rule that students could use only 30 seconds of video in their media presentations. A student came to her to tell her that she would be using 37 seconds of video, even though she knew this would lower her grade. “I need 37 seconds to get the message across,” the student explained. Now that she’s learned about fair use, Kristin Hokanson allows her students to use all kinds of visual, audio and image-based media in constructing their projects. All she asks is for them to document their fair-use reasoning in writing using a simple form based on the Code of Best Practices in Fair Use for Media Literacy Education. “The quality of student work has improved remarkably,” she says.
complicated than that. Teachers were not only users of copyrighted material. As they learned in discussion, they were also modeling appropriate and legal use of copyrighted materials. They were teaching their students about copyright by example. They might be willing to skirt the law to perform their mission, but were they willing to teach their students to disregard it? They were not. Furthermore, teachers also came to understand that they themselves were creators of teaching tools, which meant both that they needed access to copyrighted material and that they were acquiring ownership rights of their own. Media literacy teachers often design their own curriculum materials, in which they quote magazine covers and ads and lyrics. It was one of their aspirations— thwarted, they believed, by copyright restrictions— to be able to share their curriculum materials with others and to publish and sell them for use in classrooms around the country. To make things still more complicated, when teachers assigned students to create work as part of a media literacy project, the student creators often would turn around and upload their creations to YouTube. At the same time they were sharing with friends and the world, they would find the work was not eligible for contests, which typically required all work to license any third-party material. For many teachers, the meetings were the first time they saw themselves— and their students— as producers of potentially valuable, and certainly distributable, copyrighted media, invested in the ownership
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side of the copyright balancing act. This was sometimes hard to grasp. The teachers’ world was a nonprofit environment, where making money was not just unfamiliar, but somehow a little suspect. They thought of themselves as good people partly because they had a nonprofit mission, helping kids, and many distrusted those with a profit motive. When they thought about copyright reform, they confused fair use with other mechanisms to expand access to knowledge, such as Creative Commons licenses, open-access projects, and open-source software. They, like others in the copyright conversation, had turned the discussion into a good guy– bad guy conflict, becoming “data moralists,” in Justin Peters’s term. They had enlisted needlessly in what William Patry called the “copyright wars.” To think in terms of balancing rights meant conceding that not only were some free uses legitimate and appropriate but so were some ownership rights. Indeed, sometimes those rights belonged to themselves and their students. The commitment of the teachers to their mission was impressive, even inspirational. At the same time, they needed to understand that however good a nonprofit mission might be, for- profit circulation of work is not inherently evil. Indeed, sometimes both the teachers and the students might want to sell their own work, even if it was simply to raise money for the media department of the school. For too long both teachers and students had been told that their own work should not circulate, “because of copyright.” The outrage of data moralists had piled onto the fear of administrators and the blanket admonitions against copying by large copyright interests. Some of them also noticed that the boundaries between their nonprofit classrooms and the for-profit world outside it were fairly porous anyway. Their best source of material was in the commercial realm of popular culture that their students responded to, an arena where Creative Commons licenses and open-source material are scanty. When they distributed their work online, even if it was posted with a Creative Commons license, it was typically on a platform with advertising or another commercial business model. The teachers had some of the same questions as documentary filmmakers had. They were just teachers, the frontline workers. Why did they have to do this work of interpreting fair use? What about their media specialists, their principals, their school system rules? That’s who was stopping them from using copyrighted material creatively. Why didn’t we work with the gatekeepers instead? And if the teachers did create a code, how could they expect principals and school system administrators to listen to them?
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The answers for media literacy teachers were similar to those for filmmakers. It was teachers, not their administrators, who knew what students really needed to learn and what materials they needed to do it. No one could promise them that their librarians, principals, and school system lawyers would listen. But surely no one would listen without information that could change the status quo. They were up against the fact that wellmeaning educators were circulating misinformation. A consensus document from teachers would, like the one from documentary filmmakers, make it easier for gatekeepers to understand the real level of risk, the real capacities of the fair-use doctrine, and what was at stake. It could begin a conversation that had languished for too long. On November 11, 2008, at the National Constitution Center in Philadelphia— a stone’s throw from Independence Hall— teachers and students gathered in the auditorium to unveil the Code of Best Practices in Fair Use for Media Literacy Education. The code spelled out the principles and limitations on fair use for teachers when they used copyrighted material in teaching, in making their own curriculum materials, and in sharing them, for instance, on a website. It also explained the same thing for students when they made and distributed work. On the panel was Joyce Valenza, a library information specialist in a Pennsylvania high school, who had initially been deeply suspicious of the idea that a code of best practices in fair use was useful to teachers. Now, she said, this was an auspicious beginning of new possibilities for teachers. “Tell someone,” she said. “We need you to teach your peers.” Changing Practice
Almost immediately teachers began taking advantage of the new tool. Hundreds of copies of the code flew out the doors as teachers seized upon them at in-service trainings and conferences. Individual teachers began making use of the code. Teachers in Ohio, New York, and Pennsylvania began incorporating assignments that involved producing media as part of high-school English classes. Some of their students’ work was posted online. Frank Baker, a media literacy teacher, developed curriculum materials using copyrighted material and posted them online. Within a year, organizations began incorporating the code into their work. Dozens of universities, including Johns Hopkins, Penn State, and the University of Arizona, used the code to teach teachers. School systems in Wisconsin, Virginia, and Maryland incorporated it into their guidelines. The National Writing Project trained all its members on the Code of Best Practices in the context of multimedia composition projects, so that
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K–12 writing teachers across the United States could be more confident in having their students use copyrighted materials in their own creative work. National student video competitions used the code to guide student submissions. Competitions and awards programs for student work, for instance the Alabama Council for Technology in Education, the National Writing Project, and some national student video competitions have changed their requirements, so that students who work within the code’s requirements can submit work with third-party material in it. National organizations have supported it, including the standardsetting National Council for Teachers of English, which adopted it and features it in annual meetings. Signatories also included the National Association for Media Literacy Education, the Action Coalition for Media Education, and the visual communication branch of the International Communication Association. Public television station KQED and national associations such as Educause, Library Leadership Network, and the American Council of Learned Societies all put the code on their websites. The first curriculum guides laced with copyrighted material went online and into print. Renee Hobbs wrote a book, Copyright Clarity, to support educators in their fair- use decisionmaking. Her workshops and those of colleagues began educating a new generation of teachers. In those workshops, teachers described, sometimes with amazement, the realization that fair-use decisionmaking was a reasoning process and that conversation could be education. One noted in evaluations, “The ‘aha’ moment was [realizing] the need to have critical thinking conversations with and among students, teachers and administrators.” Another wrote, “The possibilities for dialogues among teachers and between teachers and their students; to put critical thinking at the center of kids’ understanding and use of digital tools.” A third noted, “It was refreshing to hear about the power of what I can do instead of informing me about the forbidden.” Teachers have seen the difference it makes not only to their work but to their students’ work. Media educator David Cooper Moore, an early user of the code, noted, “Students are easily able to grasp fair-use concepts, and it can often improve the quality of their work. When students ask not just whether they can use copyrighted material, but why they should use the copyrighted material, they ask questions about creative choices that always seem to deepen their own creative work.” Teachers could finally stop whispering and slipping each other bootleg copies of their work. Their work had been recognized and put to use, not only by them but by their gatekeepers. And there hadn’t been a ripple of
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complaint. The code had affected the working lives of hundreds of thousands of teachers, and they were all eager to blog about it on their websites. Their administrators were making presentations about the changes at their conferences. Word was spreading fast. Their fair-use knowledge allowed them to take on the new challenges they had not permitted themselves even to dream about before. Teachers could move from the position of consumers to that of consumerproducers, in conjunction with their students. They could see themselves and their students both as copyright owners and copyright users. They could redefine their work space not as a zoned and protected area but as a workplace open to connect to the world (as indeed it was, in practice). Dance Historians
The media literacy teachers weren’t the only ones who had an eye on the success of the documentary filmmakers in employing fair use. Member institutions of the Dance Heritage Coalition (now a part of Dance/USA) were also inspired, as they faced enormous frustrations in their own. Many dance organization administrators are either former dancers or lifetime members of the dance community. For them, dance is both an art form with a particular beauty because of its evanescent, momentary quality and a fragile and poorly preserved tradition. As administrators, they maintain the tradition and attempt to cultivate a new generation of lovers, students, and teachers of the form. They are not only archivists but champions of their art form. They won a 2007 grant from the Andrew Wood Mellon Foundation to create a code of best practices, and contacted us to learn the best-practices model. With our help, the DHC staff, led by director Libby Smigel, collected stories from their networks. They found, for example, that many administrators of collections of dance materials— photographs, videos, notated choreography— were so concerned about copyright that they wouldn’t even copy items from their holdings for preservation, let alone make them available to the public through exhibits, websites, and the like. Administrators were also loath to supply material to dance scholars for inclusion in course materials or publications. Their anxiety was keeping them from their basic mission. DHC staff organized eight small-group meetings around the country. The rich mix of professionals— not only archivists and librarians but also scholar-teachers and choreographers— discussed passionately their prob-
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lems, needs, and interpretations of the law. Each meeting ended with the effervescent feeling that their mission could be served better with fair use. Out of these discussions came the Statement of Best Practices in Fair Use of Dance-Related Materials. Dance archivists targeted five areas in which they needed fair use to provide support: preservation, exhibition, teaching, scholarship, and the use of materials on collections’ websites. Like other codes, this one carefully balanced rights. For instance, archivists found that they should be able to employ fair use to quote dance materials on websites where the curators were doing something very different from an original dance— for instance, explaining a choreographic style. At the same time they suggested that such use would wisely involve contextualizing clearly, crediting the copyrighted material, building an explanation for why they chose the amount they did, and where possible making it hard to copy. Their code, endorsed by major organizations in the field, made it possible for new generations to learn about the history of dance in their own classrooms and homes. They made it possible for new creators to be inspired by, or push back on, the past. They were promptly joined by some of the major organizations in their field, who endorsed it. Jacob’s Pillow, an important dance institution, promptly showcased on its website a permanent online exhibition of the history of dance, featuring video from its own archives linked to short textual background and sortable in various ways. The entire exhibition, which continues to expand online, is made possible by fair use. Online Video Makers
While teachers were preparing their code of best practices, Stephanie Lenz was watching her toddler Holden learn how to walk, and posted the fateful video of Holden jiggling to the sound of a Prince song, “Let’s Go Crazy,” in the background. Lenz’s problem was symptomatic of a much bigger one: lack of clarity around use of copyrighted material in online video. Before the dawn of YouTube in 2005, this was almost not a problem. True, there were geeks and techies and, increasingly, film students who made videos and schlepped them around the web. Sometimes they did so on private and passworded sites, like many vidders (the people who imaginatively re-edit popular culture such as Star Trek, Lost, and Buffy the Vampire Slayer to remake the narrative). No one outside a privileged group would ever know about them. Sometimes they moved their creations around via FTP, to designated addresses. It was clumsy and only semiprivate. Privacy protected the makers, but it also isolated them.
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box 8. 3 >> Fair Use: You Be the Judge >> School Projects You are a high-school media literacy teacher. Your students all find popular music to be a key part of their culture, and they want to use entire songs from popular artists in their video and slideshow presentations. If it’s just for class projects that will not be distributed outside the classroom, is that fair use? Answers at the back.
With YouTube’s simplification of the process of uploading and sharing, online video had become far more popular. Soon video downloads were accounting for a significant minority of all bandwidth use in the United States. And more and more people— mostly young people— were making them. At first, YouTube’s founders imagined the platform as a service for home movies. But almost instantly it became a place where people uploaded material they thought lots of people could like— material like the latest South Park or The Daily Show or Project Runway episode. That began to sound like piracy to large media companies. By the DMCA’s rules, they could notify the platform of copyright infringement. But this process could leave the video around for up to three days. When Google bought YouTube in 2006 and brought assets into the game, Viacom sued Google for copyright infringement— a case that in 2010 continued on appeal even though Google won the first round. Viacom was the industry’s advance guard in attempting to coerce a settlement that could cut copyright holders in on any profits from a popular online service that still had no revenue model of its own. Suddenly, the prospect loomed of a settlement between two large industry players that could preempt new users’ creative choices. What if Google agreed to remove videos that used copyrighted material? The future of a new form of expression could be crippled at birth by a settlement that could keep users from quoting copyrighted material. Once again, the prospect of hobbled imagination— Blake’s “mind-forged manacles”— loomed. Once again, that prospect was largely invisible, even to many practitioners. The old problem surfaced: How do you demonstrate a loss from something that doesn’t happen? What is the social cost of not letting people develop a cultural trend? Creators of remixes, vids, and fan fiction were also worried. The Organization for Transformative Works was founded in 2007 by legal and cultural studies scholars. Its website proclaimed,
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One of the most exciting and helpful developments in copyright of late has been the development of “best practices,” principles and procedures establishing what constitutes fair use in the judgment of a community of creative users. Best practices can successfully defend fair use rights even without litigation— see the statement of best practices in fair use. It is our position that, at a minimum, noncommercial, transformative fanworks are fair use, and the OTW will defend that position, just as the documentary filmmakers are using their best practices to make films and do business without litigation.
But there still was no standards document to work from, nor was there understanding of practices and attitudes outside the copyleft. The first step was research. With funding from the Ford Foundation, we went in search of people who, at that early stage in the history of online video, were making videos and uploading them to YouTube. We hunted in one of the likeliest places: colleges that have film programs. We interviewed several dozen young people about their habits and choices. In our report, The Good, the Bad and the Confusing: User-Generated Video Creators on Copyright, we found something surprising. Although these budding professionals often used and uploaded unlicensed copyrighted material, they usually believed that they were flouting the law and demonstrated great anxiety and concern. They were far from stereotypical copyright rebels. Some avoided uploading their work altogether, to avoid possible trouble. Others trusted that their work, since it was noncommercial, would be ignored by copyright holders, and they believed they would not be able to do such work in a commercial environment. Their knowledge of their rights as users— and these were college-age young adults, mostly in college— was abysmal. Our small survey had netted a small bit of knowledge: emerging online video practice among people who did not see themselves as rebels was tentative and easily discouraged or at least distorted. We then embarked on a study to map existing practices in using copyrighted material for online video. American University’s graduate film students and law students fanned out over the internet to log practices and understand what people were using copyrighted material for. In the report, Recut, Reframe, Recycle: Quoting Copyrighted Material in UserGenerated Video, we summarized our findings. There was a wide range of reasons why people would repurpose copyrighted material: satire and parody, commentary both negative and positive, as a trigger to discussion, as illustration or example, incidental use, diaries, preservation, and pastiche/collage— or as many now called it, remix. Within a few months
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of YouTube’s launch, people had already figured out more than a handful of different transformative uses that turned old copyrighted material into part of a new cultural expression. That new cultural expression was not necessarily in good taste. Some of it was ludicrous, humiliating, or pointless. One foundation’s program officer, looking at our findings, sniffed and said, “You’ll have to find something more worthy, if you want to impress on our board of directors that this is culture worth saving.” But “Numa Numa” (a nerd sings along with a popular song in his cubicle) and “Dramatic Chipmunk” (five seconds of a hamster looking bemused accompanied by a three notes of a horror soundtrack) were part of the process of developing an emerging culture. The survey of creative work during the first two minutes of an emergent cultural practice showed a wide range of strategies for reusing copyrighted material. The report demonstrated that a vigorous, exploratory, creative new cultural practice was at risk from summary rejection of all copyrighted material without owner permission. We shared the data in a closed session with executives from a variety of internet businesses, lawyers, and legal scholars, who strongly recommended the creation of a code of best practices. They pointed to the existence of an industry code of best practices, Principles for User Generated Content Services, endorsed by CBS, Fox, Viacom, Microsoft, and other content holders, which strongly inveighed against copying but offered empty pieties regarding fair use. These companies were in the habit of demanding that platforms like YouTube take down videos making unlicensed uses of even small amounts of copyrighted content. The platforms generally went along, to maintain a shield against liability under the DMCA. However much the commercial actors here claimed to respect fair use, the result was that legitimate examples of it were being caught in the nets extended to catch infringers. The Electronic Frontier Foundation had developed a set of guidelines for industry to follow to make online video “dolphin- safe” for the fair user, Fair Use Principles for User Generated Video Content. But no one had yet made clear to an ordinary user what fair use looked like in the context of online video. Finding Consensus
We took on the challenge of building the Code of Best Practices in Fair Use for Online Video. Deciding on the body to shape the code was a challenge. Codes of best practices function well because they represent a common understanding
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in a community of practice (rather than, say, the opinion of a group of “expert” lawyers or a negotiated treaty of sorts with organizations invested in copyright ownership). But online video practice was only emerging, and no business models yet existed to establish how and who would be rewarded commercially. Therefore early adopters often disregarded or even disdained the entire question of copyright ownership, often choosing to believe that their nonprofit practice was outside the purview of copyright. No stable, broad-based associations of practitioners had yet grown up, probably for the same reason that there were yet no business models among producers. Eventually, and as a result of consultation with professionals who had been involved in the study and in earlier projects, we decided to form a high-level, interdisciplinary committee of experts in two areas: popular culture and copyright law. The scholars of popular culture understood firsthand both the kind of work being created in this participatory environment and the motivations behind it, and they often sympathized passionately with new media makers. The legal experts understood the recent history of fair-use practice and litigation, and the historical arguments justifying fair use in an analog, professional media environment. Some were clueless about participatory media practice, and came to it with sympathy and curiosity but reserve. We thought these two groups would be able to educate each other, and would mutually be invested in creating a document that would encourage new makers to use their rights without encouraging them to take unnecessary risks. We also believed that the group’s credibility was enhanced by the fact that no one in it had a direct market investment in the outcome. The group brainstormed over four months. At first, some of the lawyers struggled to fully grasp the new media environment involved. Sometimes the group was able to find analogies with more traditional media, or to describe online video practice in terms that allowed consideration of how it could be transformative. Some of the cultural studies experts resisted the idea that the law might frown on activities they knew were common, such as sharing of entire texts of copyrighted works in order to be able to work from them. The group eventually agreed that such practices might fall beyond a code of best practices, but not necessarily beyond the doctrine of fair use. The Code of Best Practices in Fair Use for Online Video described fairuse reasoning, stressed the importance of demonstrating good faith (for instance by attribution), and organized the presentation according to situations in which fair-use questions typically emerge in current prac-
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tice. These included such common situations as critique, reposting for commentary, and remixing. As in earlier codes of best practices, each category was described and provided with a general fair-use principle with appropriate limitations. The code was downloaded tens of thousands of times within the first two months, and was referenced on a variety of websites, including those of Revver, Boing Boing, Rocketboom, and leading remix practitioners such as Jonathan McIntosh. Kirby Ferguson, maker of Everything Is a Remix, became a supporter of the best practices. There were no industry criticisms of the code, other than one nonlawyer’s disparagement of it on the website of the Copyright Alliance (funded by large copyright holders and chartered to promote their interests in Washington, DC). Alliance executive Patrick Ross wrote, This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works. . . . But that is precisely what the best practices guide writers run the risk of doing. . . . What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent.
William Patry, a fair-use expert who had become senior copyright counsel at Google, responded sharply on his personal blog: Let’s see what this means: a guy who isn’t a lawyer, much less a copyright lawyer, thinks it is a dangerous effort for copyright lawyers, educators, and those who deal with real world fair use problems on a daily basis to address some of the common problems presented, not as legal advice, but as “best practices.” The safe sex approach, according to Mr. Ross, is the type of education that Mr. Patrick’s group— a front for large corporate copyright owners— gives, namely always ask permission. . . . I can say, based on my over 25 years of experience with fair use, over 25 years more than Mr. Ross has, that the site doesn’t “imply” “a significant expansion of the current established thinking of fair use, going far beyond legal precedent,” as he states. Mr. Ross’s purpose is not to engage in a constructive debate about specific examples and whether those examples are appropriately a fair use, something reasonable minds might disagree on. Rather, his purpose is to silence those who try to provide responsible, thoughtful guidance to those on the ground, and ultimately to silence those who dare to suggest there can be fair use at all.
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Patrick Ross did not respond. But Google did. Google funded the Center for Social Media’s creation of a short film, which was showcased on YouTube, about the code: Remix Culture: Fair Use Is Your Friend. Another participatory video site, Vimeo, asked Aufderheide and Jaszi to participate in rewriting its fair-use advice for its users. Google meanwhile had successfully defended itself in the Viacom case, claiming the benefit of its DMCA takedown provisions as a shield against liability. The company and its YouTube subsidiary did not, however, embrace the online video code of best practices. YouTube continued to grapple with how to stay friends with large copyright companies, within the terms of the Digital Millennium Copyright Act, and to welcome creativity and innovation from its burgeoning flood of users. It struck deals with copyright companies to automatically match ads against content that featured their work (whether through fair use or not), and it not only followed copyright holders’ instructions to take down work claimed infringing but developed its own detection mechanism of Content ID. It created an alarmist explainer video on copying and infringement that featured a comical pirate and that turned fair use into gibberish. In 2015 YouTube backed away slightly when it announced that it would defend selected users employing fair use in any litigation. But it continued to conduct preemptive, bot- driven takedowns beyond the requirements of the DMCA. Users and remixers need their best- practices code even more these days, to push back against unwarranted takedowns. Common Themes
Along with the media literacy teachers, dance archivists and online video makers, we were learning about how creator communities experience copyright and fair use. We were beginning to see patterns that have held ever since, as the practice has grown. We have seen that change happens first among the people who need it most— the filmmakers, the media literacy teachers, the dance archivists, and others would love for someone else to solve their problem. They are the ones who really need their rights, and the ones whose work depends on it. Those who understand they can change their fate by articulating their rights move from frustration into agency. We have been impressed again and again, in deliberations to create a code, with the profound concern for ethical conduct and with the goodwill toward others in the ecology in which creators work. Filmmakers, for instance, worked hard to consider the interests of archives and footage
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houses, while also recognizing their own creative priorities. Media literacy teachers wanted to ensure that their positions were defensible and reasonable to their administrators and spreadable to their students. Again and again, in deliberations professionals asked themselves how they would feel if someone else was employing fair use with their own work. Once a code exists, again the earliest adopters are often those who have work that they urgently want to undertake or complete and that can be done only with fair use. The example set by the membership organizations’ adoption or endorsement of the code is a powerful statement to the community. The first users of the code are closely watched by others for evidence of pushback; when none comes, more experiment with fair use. Institutional communication is critical to this process; communities need to know what happens (or doesn’t) when fair use is employed. Influencers are critical, whether it be the head of an organization, a celebrity within the community, or a champion in the media. Mainstreaming the practice depends on institutional change, which can be slow and easily stalled by the same excessive caution that leads to creative self-censorship. We have also consistently seen one common attitude in thinking about how fair use should be employed. Everyone wants to get credit for having made something. Otherwise, even though it may be legal, it feels like something really important has been snatched away. This demonstrates the close link between fair use and perceived ethical behavior. It is also interesting because copyright law does not require attribution for fair use, or indeed mention of attribution at all. But we found again and again, in all kinds of creative practice, that people wanted to both give and get attribution as part of the process of reusing material for new work. As copyright holders, they felt it honored their work. As new makers, they felt it was the decent thing to do. And we saw again and again what a difference it made to people’s own perception of themselves as creators to know their imaginative world had expanded. This made them not only more flexible creators but also more innovative ones. They were adding possibility to the world, not only with their own work but, as in the case of the dance archivists, stimulating others to imagine and create. That access of agency also made them more policy-aware and more active citizens. By 2009 we had some vivid examples among relatively small communities and one highly dispersed one. We hadn’t really answered the question raised in that MacArthur Foundation convening: was the best-practices approach anything more than a bespoke service to small-scale communities? Our subsequent work, with large professional communities, became the next test of the concept.
9 Fair Use Expands Its Reach Now we’re sitting around waiting for the sky to not fall! lindsay weeramuni
As large and pervasive communities of practice with influential networks— librarians, journalists, scholars— began to adopt codes of best practices, their practices gradually came to influence not only their own communities but related ones. The size of these communities, their visibility in daily life for many people, and their ability to change practice at the institutional level made a big difference in changing attitudes and actions around fair use. In 2010, librarians, who had done so much to nurture fair use, began to organize to clarify their own best practices, especially toward scholarship and teaching. Supported by a grant from the Andrew Wood Mellon Foundation, the Association of Research Libraries began, with our help, to explore the problems that research librarians face in meeting their mission as a result of confusion about copyright and fair use. The morass of misinformation from misleading guidelines, flowcharts, and checklists that media literacy teachers were subject to, discussed above, affected them as well. They were discovering that they could not get their work done— especially in an ever-accelerating digital work environment— under such terms. Prudence Adler, ARL’s associate executive director and head of government relations, was well aware of the success of earlier codes of best practices and agreed to shepherd the process of diagnosing the problems correctly and shaping a consensus document. The standards that the research librarians established in 2013 would, in turn, be highly influential for the larger library community, including public libraries, specialized collections, and archives. Indeed, the final code would be endorsed by a wide range of organizations, including American Library Association, Art Libraries Society of North America, Association of College and Research Libraries, and the Music Library Association.
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Of all the communities of practice that had picked up the best-practices model so far, none was so pervasive throughout society as the librarians. The librarians’ code promised to answer definitively the good question that the scholarly skeptic had been asked, in that meeting of MacArthur grantees, about the scope of best-practices initiatives. The Costs of Doubt
Librarians, it turned out, were remarkably unsure about how to apply fair use, and it hurt their work. An ARL report grounded in sixty-five interviews found standards for electronic reserves (readings for higher education courses) that made no sense— for instance, only allowing teaching material to be posted under fair use every third year or creating arbitrary quantitative limits— concepts that probably trickle down from the illstarred “classroom guidelines” on photocopying. Many looked helplessly at shelves of videocassettes, knowing that most classrooms no longer had VCRs and many of the videocassettes held material no longer (or never) commercially available in other forms. But they were not sure they could copy them to viable formats under fair use. They delayed digitization initiatives for anything that was not in the public domain; prioritizing public domain materials often made no sense from a mission perspective either. They resisted letting students use copying software for audio and video, even for projects that legitimately employed fair use. They found themselves telling scholars that they had to visit physical sites, even at great cost, in order to consult documents that could have been digitized. They had no idea what to do with scholars who wanted to scan entire databases for patterns— one of several research practices that are possible only because of digital affordances. When they put up exhibits, both in their buildings and online, they agonized when they did not own copyright to the material, often taking months of precious professional staff time to solve permissions issues and sometimes simply abandoning projects. They even found themselves giving students with visual disabilities suboptimal access to materials because of their copyright anxieties. Moreover, they were often supposed to be the experts to guide people who wanted exact certainty, when they themselves were confused about the possibilities. Sometimes they knew of options like fair use that their institutions would not let them recommend. Several bemoaned that they had to play the role of “copyright police.” They treated different media differently. They were most comfortable with fair use in text, worried about music (perhaps because of the highly
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publicized industry campaigns against file sharing), and perhaps least comfortable in video. This was despite the fact that, as a matter of legal principle, fair use applies to all media alike. Some librarians held out hope that open-access campaigns could over time convince more and more scholars to work with open-access publishers and donate their work to institutional repositories. This concern about open access was different from the copyleftism that had marked the later 1990s and early oughts elsewhere; it reflected the economics of higher education, where much work is collaborative and part of salaried employment. Librarians generally respected copyright; they worked with many vendors to assemble their resources. But they wanted balance. Fair use was important to their mission. Librarians’ Code
Librarians eagerly embraced the project of articulating their best practices; this was the kind of work they had done in other areas, and they immediately understood the value of it. Knowing they were making the code in the shadow of a major lawsuit, between academic publishers and Georgia State University about how much material was appropriate to upload for e-reserves under fair use, only made them more eager to assert their best practices. The work of creating the code was a process tucked into the annual rhythm of convenings and conferences that this collaborative group of professionals already observed. The result was a code that identified eight common situations, ranging from e-reserves to disabled access to exhibits and more. Librarians, ever the overachievers, believed that it would be helpful not only to include limitations on fair-use practices— the universal feature that creates definition of the practice— but also to provide ways to go an extra mile beyond best practices, called “enhancements” in their document. Almost immediately librarians put the code to work. At the University of California, Berkeley, a diverse and largely unlabeled collection of historic photographs of the region were uploaded to a website. Information flooded in as people identified landmarks and even authors. (The library made it easy to send complaints, but so far it has received only praise and information useful for metatagging.) The University of Tennessee at Knoxville made public on its website a historic collection of tourist postcards from the Great Smoky Mountains— a collection of interest to historians, cultural studies scholars, geographers and more. Administrators at the University of Colorado–Boulder decided it would be uncontroversial for
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the librarians to copy VHS cassettes to digital file formats if no commercial version was available. At Texas A&M a library task force rewrote its standards for uploading copyrighted material to course sites in line with the code. At University of California, Santa Barbara, new standards allowed theses with unlicensed copyrighted material used under the terms of the librarians’ code to be included in institutional repositories. University of California, Los Angeles, opened up a digital portal to its video news collection, Broadcast NewsScape. It made available some two hundred thousand (and counting) captioned TV programs from around the world, from 2005 onward, to students, faculty, and staff of UCLA. Oberlin College launched SongWorks for Children— seven hundred videos of children learning through singing songs (many copyrighted)— open to anyone on the internet. The New York Public Library digitized its vast archive on the New York World’s Fair of 1939 and created an app to allow patrons to search the digital archive on their phones. Harvard reorganized its librarybased scholarly communications activities under the aegis of lawyer and fair-use advocate Kyle Courtney, to ensure that the news about what fair use makes possible was shared as broadly as possible among faculty and students. Other institutions followed the leaders. Archivists and Orphan Works
Some archivists and museum collection managers read the librarians’ code with great interest, but for them it brought up new questions. They rarely had any copyrights in the material they collected, cataloged, organized, and curated, which included manuscripts and ephemera such as posters and leaflets. In many cases, not only did they not own copyrights but they could not find out who did. Those were called “orphan works” because although they were presumably subject to copyright, their owner was not known or reachable. Given the scope of holdings, it would be impossible to even imagine pursuing owners for orphan works. Consider, for example, a famous writer’s correspondence: Hundreds or thousands of authors of letters to her might be involved, perhaps all of them deceased. And what to do about a file of clippings an artist made of designs, decorations, and advertisements he was intrigued, possibly inspired, by? What about posters and buttons from a grassroots demonstration in the early 1980s, or audiotapes of performances by a garage band whose local fame has faded? Archivists believed strongly that the point of having a collection is to enhance knowledge, and at the same time they were acutely aware that
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they held in trust collections given to them for safekeeping. In the past, archivists have simply let on-site visitors look at such material, without concern about copyright. But the digital environment is different. You hadve to make a copy of the work to get it into digital formats, and by making it accessible online, you create the possibility that, one way or another, someone else will have access to it. What are your obligations then, both to knowledge seekers and to copyright holders? A group of archivists, curators, museum staffers, and collections managers— they thought of themselves collectively as representing “memory institutions”— gathered at American University, with help from the Sloan Foundation. They launched a nationwide process of deliberating in small groups, which resulted in the Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives. The effort was inspired by the work of Jennifer Urban on orphan works and fair use, and it concluded that most digitization projects are themselves transformative— and that anyway a market does not exist for such works, by definition. This document reinforced conclusions of research librarians about archives and special collections in their own code, but with greater detail on questions of process. Scholars and Poets
While librarians were deliberating about fair use in their fields, several scholarly communities were working on their own fair-use codes. Film scholars, communication scholars, designers of open curriculum, and poets all worked through deliberative practice to arrive at professional consensus. At the Society for Cinema and Media Studies (SCMS), scholar Peter Decherney had been watching the process of creating codes of the best practices closely. In his research on early cinema he had become interested in the development of copyright in film, and in research for his book Hollywood’s Copyright Wars he had come to see how practice shapes law as much as law shapes practice. He knew how frustrating it was to try to teach about film when boxed in by copyright restrictions. Indeed he had organized a successful effort to win an exemption from the DMCA penalties for breaking encryption, for film professors who make clips of films for classroom teaching. The Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law supported him. Decherney worked with members of the SCMS policy committee to design a survey of problems in the field and, ultimately, a code of best prac-
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box 9. 1 >> Fair Use: You Be the Judge >> Scholarly Publishing You have just had an academic article accepted; it’s a comparison of the work of two major later twentieth-century painters. You’ve been able to find acceptable-quality reproductions of the work that you compare for the article, but the journal has a policy that requires the author to get permissions for all illustrations. Do you need to get permissions? Answers at the back.
tices for film professors in classroom teaching, SCMS Statement of Best Practices for Fair Use in Teaching for Film and Media Educators (2008). Again with help from the AU legal clinic, the policy committee identified appropriate fair-use practices in typical situations: classroom teaching, archiving and use of broadcast materials, presentations both by students and professors. Film professors embraced the code, but they wanted more. They were frustrated by their publishers and other gatekeepers in their scholarship. They wanted to quote frame grabs and stills, and use clips on websites and in media packaged with scholarship. But gatekeepers frequently told them they needed to license all such material. Back in 1993, film scholars through SCMS, with Peter Jaszi, had addressed this with a prototype code of best practices published on the SCMS website, Fair Usage Publication of Film Stills. It had helped scholars use stills in publishing, and it had resulted in no lawsuits against scholars or publishers. Indeed some academic publishers, including Oxford University Press and Columbia University Press, began to routinely reprint unlicensed film, television, and internet images in books and print journals of media scholarship and in media studies textbooks. But digital innovations had further challenged scholars, and an SCMS policy committee, again led by Decherney, decided to rewrite the scholarly advice. The committee conducted a survey, which was analyzed by an SCMS committee. The committee consulted the membership again in 2010 to shape the organization’s second guide, SCMS Statement of Fair Use Best Practices for Media Studies Publishing. Communications scholars, through the International Communication Association (ICA), were inspired by what the film scholars had done, and they were being sorely irritated, in particular, by publishers’ demands that they get permission for all use of any illustrative material in books they published. Their books often featured and discussed elements of popular culture. Permissions for images from, say, Three’s Company or a Marvel
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comic book or a Vin Diesel film could not only be expensive but impossible to get, since there was no money at corporate headquarters in responding to an email from an unknown academic author. In 2010 ICA issued its Code of Best Practices in Fair Use for Scholarly Research in Communication, and the National Communication Association joined it. Professors immediately used it to educate academic publishers about employing fair use to issue stronger scholarly works. The longer-term impact of the code was affected by the ICA’s own failure to promote it. Even so, when we surveyed communications scholars five years later, we saw that communication researchers had changed their awareness and attitudes to some degree. In 2009, 43 percent of respondents said they had employed fair use in their work. The figure grew to 58 percent in 2014. In the earlier survey, 57 percent said their knowledge of copyright was good or excellent. The figure is much higher today, at 87 percent, and the majority of those had a generally correct understanding. The proportion of people who were aware that they had fair- use rights to material that publishers forced them to clear anyway grew, in five years, from 30 percent to 40 percent. This demonstrated an awareness of their fair-use rights and the consequences for not employing them. Some institutional change had taken place. The university-based open-access journal International Journal of Communication had a default fair- use policy. ProQuest moderated its demand for permissions for all third-party illustrations in dissertations it makes available. Communications associations housed the code on their websites. But the field was still plagued by ignorance and confusion about fair use. Five years after the code was created, only a third of communication scholars had heard of their own code, and only a third of those reported having used it (although most of those successfully). A quarter of communication scholars also said that they had broken encryption, while only half of them knew that they had an exemption from DMCA penalties for doing so in aid of fair use; thus a substantial group was breaking encryption believing it to be an infringing act. Many were working around their own universities’ requirements on posting copyrighted material for student assignments by uploading material directly to course platforms such as Blackboard— possibly believing that they were infringing though they might well have been employing fair use. Their graduate students chafed under university restrictions on unlicensed material in theses and dissertations. Scholars were rarely challenging journals with their typical default permissions policies. Rather than challenge those contract terms, some just disregarded them and posted their work on open- access web-
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sites. That solved their immediate problem, but it left institutional practice in place. Then in 2016, scandal provoked change. The academic publisher Routledge— a publisher with a history of negotiating with authors to employ fair use (see p. 154 to learn about Rebekah Modrak’s experience)— told communication scholars Charles Briggs and Dan Hallin to get permission from the New York Times for short quotes in their book about journalistic coverage of health care. Briggs and Hallin paid the Times $1,884, and then declared themselves victims of a permissions culture and launched a Kickstarter campaign to cover their costs and protest the policy. The Times stiffly responded publicly that it had merely answered their question— how much will it cost?— and if they wanted to exercise their fair-use rights, that was their prerogative. Indeed, the Times was right. This was a self-inflicted wound— evidence of failure of the communications community to assert its best practices. The International Communication Association board by 2017 had decided to republicize the code, feature it more boldly on its website, and do more education with members. The ICA also made a commitment to support individuals who want to invoke the ICA Code with their publishers. Creators of OpenCourseWare— curriculum for university courses freely available on the internet— also wanted to make the most of their fair-use options. They chafed at the kinds of courses they had to put up online when professors used a lot of copyrighted materials. They called them “skeletons”— courses so bare that they were unhelpful teaching tools— and “swiss cheese”— full of holes where crucial copyrighted material had been removed. Indeed, cultural studies scholar Henry Jenkins had refused to let his courses go online, because they would be so deformed by the choice not to include third-party material. Led by lawyer Lindsey Weeramuni, who worked with MIT’s OpenCourseWare team, and with funding from the Hewlett Foundation, the group first surveyed their own small field to get a good sense of shared problems, and circulated their report, called “Skeletons and Swiss Cheese,” within it. Then, with our help, they shaped a Code of Best Practices in Fair Use for OpenCourseWare, which enabled them to fill out the skeleton-and-swiss-cheese courses and meet their mission. In the process, they faced a challenge in crossing the line between the alternative-public-domain environment of Creative Commons and copyrighted environments. The OpenCourseWare efforts, part of a general trend toward open educational resources, used Creative Commons licenses. These promised users worldwide that these materials could be
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used and reused at will, usually in any combination for noncommercial purposes, regardless of local copyright law. Employing fair use to put third- party copyrighted material into course materials threatened to compromise the portability and integrity of those materials. It meant that the entire package of material might no longer be available under the one blanket license, since that license would not cover others’ copyrighted materials. The group’s allegiance to the alternative-public-domain concept was central to its mission. Its culture was, to some degree, colored with a data-moralist perspective, which regarded any copyright claims as morally suspect. Fair use was a part of the very copyright law some in the group disdained. But open- access purity clashed directly with another strong belief: that OCW should be of as high a quality, and as complete, as possible. The group, benefiting from Weeramuni’s mediation skills, finally decided that the benefits of employing fair use to flesh out courses outweighed the inconveniences. As their code made clear, it was extremely important to them to label all third- party material clearly, so that its special status would be clear to users. Those users could then decide how they wanted to use it beyond simple consumption, and they would bear all the responsibility for doing so. There was another problem, a practical problem of legitimacy. This group of OpenCourseWare creators was made up of people somewhere in the middle of large organizations’ administrative hierarchy. They were not independent actors like many independent filmmakers, although they were creative workers with a lot of autonomy. The group began its efforts hopeful of attracting support from their university administrators, who often shared with them their frustrations on this issue. But such decisions move within a glacial timeframe. Nor could they get the imprimatur of their own international association, the OpenCourseWare Consortium, which also answered to many of these same administrators. The group took advantage of its main strength— the collegial relationships among the creators across the different universities. The signatories, who typically were the people who headed the OpenCourseWare initiatives at their institutions, signed on to the code as individual creators— not as representatives of their institutions. Nonetheless, and somewhat to the surprise of its creators, the code almost immediately changed practice. By spring 2010, OpenCourseWare designers were launching courses in fields as diverse as engineering, ethics, music, nuclear technology, and robotics with fleshed-out curricula. MIT alone launched thirty-one new courses in the first year. One of them,
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an audio engineering course, employed without incident several versions of a Beatles song to demonstrate the consequences of different kinds of compression. The OCW designers were having success in persuading university lawyers to give fair use in OCW a chance. They were interweaving third-party copyrighted material in the form of text, images, and video clips. They usually used a little red- flag symbol to indicate the presence of third-party material; scrolling over it made explanatory text appear. “Now we’re sitting around waiting for the sky to not fall!” said Weeramuni. In fact, perhaps because of the example of this and other codes, many MOOCs (massive open online courses, a step beyond OpenCourseWare) incorporate fairly used material. Also in 2009, poet and professor Katherine Coles, then head of the Harriet Monroe Poetry Institute at the Poetry Foundation, reached out to Jennifer Urban, a legal scholar at the University of California. She had seen the problems that licensing raised for poets. Could they read others’ poetry in a poetry slam without licensing? How much of someone else’s poem could they quote in theirs? Did editors of anthologies have to license their work? What about advertisers or songwriters? Likewise, poets using found materials, or creating digital poetry by processing existing texts with algorithms, as well as those engaged in practices like erasure, were unsure about the copyright status of their activities. Thanks to Poetry Foundation funding, in 2011 the poetry community, including poets, teachers, scholars, and archivists, created the Code of Best Practices in Fair Use for Poetry. It covers not only the use of quoted material in poetry itself but also scholarly and archival uses. Seven years later, poets had used the code to create experimental work including digital poetry and mashups of obscure tests. Critical works on poetry had employed fair use. Academic librarians and scholars had begun to change the climate of higher education and of library practice more generally, institution by institution, across the US. Each employment of fair use was not only an assertion of rights but a model and demonstration to others of what was possible. Journalists Join In
Meanwhile at the McCormick Foundation, which supports the work of journalists, program officer Janet Liao saw what was happening with other creative communities. The foundation supported our exploration into the viability of a code for journalists. Journalists of course are among the most prolific and frequent of fair users. Journalism would be impos-
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sible without quoting sources, documents, and other journalists, and only a limited number of the uses can— or even should, under US law— be done through licensing. The Society of Professional Journalists and the Online News Association both put us in contact with helpful people at their local chapters. Through them we found scores of working journalists with five or more years of experience to interview. They showed enormous confidence in fair use in relation to text, although most were either unfamiliar with or leery of the term “fair use.” Almost all were uneasy in audiovisual and digital environments. We found people working under policies that required permissions for all photos, that harshly limited the creation of online multimedia work, and that delayed development of new platforms such as podcasts. But most markedly we saw a morass of misinformation about what fair use is. Journalists who had clearly articulated fair-use arguments did not recognize them as such. “I don’t need fair use, because journalists have the First Amendment,” they would sometimes say. They misunderstood what the public domain is, sometimes believing that vast portions of the internet function as a public domain resource. They made good decisions for fair use with bad justifications—“it was less than thirty seconds”; “it was noncommercial”; “I took a screenshot of the website.” This inability to reason well about fair use meant that journalists were vulnerable to weakening of mission as the field fractured. When journalists became free agents, fewer fell under the protective umbrella of organizations setting their operating standards. When journalists debated among themselves the terms of a code, they, like other professional groups before them, debated not only the limits of the law for their professional situations but also what they thought was ethical. They formed a code that, like earlier ones, was focused on common situations in which they encountered fair use. For journalists, this included illustration, direct comment, and aggregation, among others. Nine journalism organizations, including the leading association for teaching journalism, several media outlets, and the prestigious journalism nonprofit Poynter Institute, endorsed it. Interestingly, though, the leading membership organizations of working journalists, the Society of Professional Journalists and the Online News Association, ultimately refused to endorse it. In conversations with their legal advisers, we learned that no one disagreed with the principles themselves. But some of the legal advisers feared that publicly adopting a code, even one called a “set of principles,” could make journalists vulnerable to enemies who would hold them to a standard, as had sometimes happened with the Society of
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Professional Journalists’ ethics code. For us this was a new response to the code model, and one that demonstrated the importance of thorough research at the outset of a project. If we had understood the depth of legal advisers’ hostility to the journalistic ethics code, we would have been able to do better planning. As it is, many journalists and especially independent journalists turn to the Set of Principles in Fair Use for Journalism routinely, teachers use it in the classroom, and the Poynter Institute uses it in its curriculum. Three years after the Set of Principles emerged, the McCormick Foundation’s then- director, Clark Bell, commented at an ONA convention, “That was one of the best investments we ever made— it just keeps on giving.” Bell realized that the creation of a best-practices set of principles for journalism, executed with funding from a major journalism foundation and with the endorsement of major journalism organizations, is a gift to the future of journalism. As journalism increasingly is done outside of traditional institutional spaces, sometimes by people who do not train to be journalists, members of the journalism community have access to fair use in the language of their craft, tailored to the most common situations in which they are likely to encounter a need for it. Visual Arts
One group of professionals was closely, and somewhat wistfully, eyeing what others had done: professionals in the visual arts. The opportunity to expand fair-use practice with this group was potentially at least as great as that offered with academic librarians and scholars or journalists. Like those groups, visual arts professionals deal with situations faced by many, both professional and amateur. Moreover, they deal frequently with both text and imagery. They were relatively comfortable deciding on how to use unlicensed text but far more unsure about how to deal with images. Visual artists, art scholars, art teachers, editors of arts publications, museum curators and other museum staff, gallerists, and other visual arts professionals had been debating among themselves what fair use could mean for their community. Digital opportunities and demands, along with the heating up of the art market, had destabilized long-standing custom in what had been a relatively cloistered and highly interdependent community: when using artists’ work, always ask permission. That had been the guiding rule partly because of the deeply personal nature of many relationships. As the field expanded, with more actors, more purely commercial relationships, and more projects, brokering entities arose,
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including two competing licensing agencies for the rights of various contemporary and modern artists and the estates of deceased ones— Artists’ Rights Society (ARS) and VAGA (known only by its acronym). They negotiate licenses not only with commercial users for purposes such as advertising and marketing but also with teachers, scholars, museums, and others. Visual arts professionals had hoped that having brokers would make their work easier, but these organizations could also be yet another hurdle to overcome in doing work. Not only did they represent artists, but they also took a cut of all transactions for themselves and became two more entities invested in licensing of everything all the time. Meanwhile, a movement of “appropriation art,” a term that dates back to the 1960s but refers to practices as old as art itself, adapted to the discourse of copyleftism as artists who copied others’ work in making their own portrayed their borrowings as dissident and even subversive. The Meiselas-Garnett controversy (chapter 4) was a vivid example of the polarization. Though some visual art professionals believed in exercising fair use openly as a matter of principle, others heard such voices as those of outliers or radicals— well-intentioned people who could get everyone else in trouble. And of course, some of those people did see themselves as crusaders for the copyleft rather than supporters of ordinary free-speech rights. So they were more likely to contribute to the moral panic around copyright than to enable people to use copyright law to access unlicensed work. Meanwhile, the “permissions culture” of the visual arts continued. Then in 2013 the then-president of the College Art Association (CAA), the leading organization representing visual arts professionals of all kinds, Anne Goodyear, contacted us. She was winding up a position as curator at the Smithsonian’s National Museum of American Art. We met with her and Jeffrey Cunard, a leading East Coast copyright lawyer and CAA’s pro bono counsel, at a coffee shop on a steamy Washington, DC, summer day. “I read your book,” Goodyear said, holding up a copy marked with innumerable stickies. “I think it’s time for CAA to create a code like what you’re talking about.” She smiled optimistically. Cunard looked more doubtful. “Maybe,” he said. “We need to find out whether it would be possible, though. This community isn’t like others you’ve dealt with.” They were concerned, they explained, that their own organization represented conflicting tendencies. It included artists, curators, editors, professors, gallerists and more. Some of the organization’s artist members might offer strong resistance to the possibility of others using their work
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box 9. 2 >> Fair Use: You Be the Judge >> Museum Exhibition You’re part of a curating team putting together a museum exhibition on art emerging from twenty-first-century protest movements, with a web component and an interactive online catalog. Some of this art is born-digital, some is ephemeral, some of it was created anonymously. You have access to much of it already, but do you also need to seek permissions? Answers at the back.
free under any conditions. Other artists, self-consciously copyleftists, portrayed copyright itself as a problem, and they might reject an accommodation with it. Then there were often cash-strapped museums that owned a lot of images other people licensed, and they at least hoped to make money off the work. Art publishers almost universally had a permissions-only policy. And there were dragons at the gate, like ARS and VAGA. Several discussions later, we had designed an approach: develop a code project that looked like others— including different sectors of the profession in dialogue with each other, but excluding vendors and brokers— and in the process find the spots of consensus among the different groups about what would be both legal and fair in reuse of copyrighted material to make, study, analyze, exhibit, and publish about the visual arts. Recognizing the scope of the challenge, the Andrew W. Mellon Foundation funded a four-year project. The initial research, including both a field-wide survey and long-form interviews with one hundred professionals, again demonstrated both censorship and self-censorship as leading issues in accomplishing mission in the light of then-current copyright understanding. Fully a third of survey respondents said they had delayed, abandoned, or avoided work because of copyright concerns. Those most likely to do so were editors, scholars, and museum staffers; but fully a fifth of artists who responded had also done so. Professors were telling graduate students to avoid theses on copyrighted work. Scholars’ work was rejected or forced into changes because of demands by artists’ estates, sometimes simply because the estate did not approve of the content. Museums altered exhibitions, in one case dropping an artist from a historical retrospective, because of copyright troubles. Books and even articles could cost thousands or even tens of thousands of dollars in licensing fees, affecting what got published and in what form.
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box 9. 3 >> True Tales of Fair Use: DuChamp’s Chess Set The early modern artist Marcel DuChamp was famous for his “readymades”—repurposing of found objects such as a drying rack as art. He was also an avid chess player and designed an elegant chess set. But the pieces have been lost to time. In 2014 two US contemporary artists, Scott Kildall and Bryan Cera, re-created them as a 3-D digital model, calling their work Readymake: Duchamp Chess Pieces, and shared the file on the online platform Thingiverse. Between the arch importation of DuChamp’s readymade concept into the digital environment and the homage to a beloved artistic ancestor, the work was a huge hit. Except with the DuChamp estate, which asserted the moral rights of the author over a work that had already passed into the public domain. Although the estate could only affect Kildall and Cera’s work in France— the artists needed to worry about getting sued only if they were there— they did not want to be seen as disrespectful to DuChamp’s memory. Moreover, the original chess set might not have yet entered the public domain. DuChamp died in 1968, and today’s copyright law might extend his claim—because the chess set was an “unpublished work”—until 2038. The facts weren’t totally clear. Kildall and Cera didn’t want to gamble. Time for fair use to go to work. Employing the transformative central concept of fair use, they redid their digital design. Now all the chess pieces have little mustaches on them. This is not only an artistic addition that creates a new work but also an homage to DuChamp’s own famous artwork L.H.O.O.Q., in which he drew a mustache on a cheap postcard of Da Vinci’s portrait Mona Lisa.
The price of a custom of defaulting to permissions could be calculated in money for unnecessary licenses and the salaries of people to manage these processes, and it could be calculated in time— the inevitable delays for renegotiations, for redesigning projects. What was incalculable was the cost of projects abandoned, deformed, or, worse yet, not even imagined. The greatest long- term concern in the field was the constant thwarting of digital innovation— whether in creative artistic practice or in publishing or archiving or scholarship— by the mismatch between digital practice and default-to-permissions policies. The report went to all members in early 2014 and was showcased and discussed at the annual meeting. The membership agreed on the urgent next step: build a best-practices code to address the striking examples of both censorship and self-
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censorship in the report. As mixed groups of artists, academics, editors, museum staffers, and others met in confidential sessions around the country, where we acted as careful listeners and conversation facilitators, they talked with each other and discovered sometimes surprising consonances. Scholars and teachers explained how they needed fair use to research, teach, and publish. Artists again and again emphasized that they were not offended by the idea of other people reusing their work as part of a creative process that resembled their own. They clearly differentiated this from plagiarism. Even when considering an artist like Richard Prince, who regularly tests the limits of fair use and accepted appropriation practice and generates many conflicted and conflicting responses, they were careful to protect the principle that appropriation is a legitimate way of making art and to affirm the application of fair use to it. Editors and writers alike believed that analytical work should have illustrations that made the analysis stronger without inhibiting it with payments or permissions. Museum staffers saw their own publications and informational work, including promotional brochures, as integral to the knowledge-shaping experience they offered in their exhibitions, and they saw unlicensed uses as having a role. They pointed out, in meeting after meeting, that almost no museums made money from their licensing; rather, licensing cost them money because of the staff time. Professionals from all sides of the visual arts field discussed ever- finer points of defining the edges of fair use (the “limitations”) as the meeting discussion topics evolved. They accomplished the work in a year. In February 2015 the code builders sat on a dais at CAA’s annual conference, where the thousands of attendees had all received copies in their conference bags, and explained the basics of the code. They met with CAA’s intellectual-property committee and its fair-use task force. And of course, as always seems to happen at the beginning of the public life of such a project, they listened to people explain why it would be impossible to employ the code in their institutions. Big Changes
But in February 2016, on the same kind of dais at the same annual conference, code builders sat with others who explained how much the world had changed. None of the fears that Goodyear and Cunard had raised in that first meeting had come true. Artists welcomed responsible positions on fair use. Copyleftists in the visual arts community did not attack the code, despite early fears that they would accuse it of not going far enough.
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box 9. 4 >> True Tales of Fair Use: Rebekah Modrak Fair use came to the rescue not once but twice for Rebekah Modrak, a visual artist who teaches at the University of Michigan. She needed it first when she created art that incorporated copyrighted material. Her work spoofed the overexemplifying hipsterBrooklyn site Best Made Co. She invented a parody company, Re Made Co, and created a side-by-side video of Best Made’s video ad for an artisanal ax and Re Made’s version promoting . . . an artisanal plunger. Her site, remadeco.org, advertised plunger-centric products poking sly fun at the pretensions of Best Made. After getting a cease-and-desist letter from Best Made, she turned to her lawyers at the University of Michigan. Her university’s lawyers thought the project was hilarious, and they welcomed the opportunity to support her fair uses. She was able to treat the cease-and-desist as the nuisance nastygram it was. She then wrote about her experience for a Routledge academic journal, Consumption Markets and Culture. She included an illustration from her video, featuring a side-by-side image of the original Best Made ad and her own parody. At first the Routledge editors told her that she would have to get permission for the Best Made side of the artwork. The irony of the fact that the journal article was a recounting and explanation of why she did not need permission was apparently lost on them. But when she took the Code of Best Practices in Fair Use for the Visual Arts to the editors, they understood how to apply fair use to her illustration. The journal published the work with illustrations without further ado. Being able to employ fair use, Modrak said, “strengthened my own scholarship. I thought that Routledge would come back and say, ‘Sorry, we’re a UK publisher; fair use isn’t applicable here,’ but instead we were able to inform Routledge’s practice! How awesome is that!”
Museums embraced it. Neither ARS nor VAGA had publicly denounced the code or challenged individuals who relied on it, although neither is likely to cease playing its role as a copyright maximalist anytime soon. The College Art Association’s own publications— including three that were leaders in their niches in the visual arts— all had changed contracts to encourage fair use. Yale University Press, a major visual arts publisher, had changed its contracts as a direct result of the code, openly inviting claims of fair use by authors. Two museums in Houston— the Menil and
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the Museum of Fine Arts— had changed their policy on fair use of images in their publications, and several Detroit museums, including the Detroit Institute for the Arts, had changed policies as well. Professors were beginning to talk about fair use in their classes and to employ it in their own teaching practices. Publications were able to put back issues online; the American Folk Art Museum published its entire back collection of 118 issues in full color, in a searchable format, online. A major artist’s estate, the Robert Rauschenberg Foundation, publicized its policy of embracing fair use both for its own projects and for others using the work of the famed postwar American visual artist. The foundation now “recognizes and supports reproductions of Rauschenberg artworks, for which the Foundation owns the copyright, based on the doctrine of fair use.” Further, it uses “fair use in the Foundation’s scholarly initiatives when reproducing Rauschenberg-related materials, for which the Foundation does not own the copyright.” Just before the 2016 annual conference, we had surveyed twenty-five hundred visual arts professionals about their fair-use understanding. We truly expected to see no real change, given the short time since the code had been released. We were surprised to find that even a few months after publication of the code, awareness was very high and some had also changed their practice. Two-thirds of the community was aware of the code, and half of those had shared it, often more than once— a strong indicator of their confidence and interest in it. Eleven percent had exercised their fair-use rights for the first time since the code. More than fifth said that their institutions had revised their fair-use policies since the code was published. The intricately interrelated world of the visual arts was beginning to change. Fair use was quietly moving into the sphere of the normal for a professional culture that had been hamstrung by its permissions policies. The best- practices example attracted other groups. Softwarepreservation professionals, for instance, have begun the process of shaping their own best practices, with help from the Sloan Foundation. Recombinant Codes
The best-practices codes, grounded in basic principles, have some common threads through them as well. That makes them helpful to adjacent communities of practice, and it makes it possible for related fields to draw from several of them to form their own standards and create secondgeneration codes. This process has already begun. Music librarians,
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members of the Association of Recorded Sound Collections (ARSC), were not sure how to bring the research librarians’ and memory institutions’ codes into their practice. They worked with the Washington College of Law’s Brandon Butler and Peter Jaszi, who created a guide, “Fair Use and Sound Recordings: Lessons from Community Practice,” which appeared as an appendix in the ARSC Guide to Audio Preservation, published by the Council on Library and Information resources. That guide drew upon existing codes of best practices, especially the librarians’ code, to address situations similar to the ones the music librarians faced. The document concerned digital access, collecting online music, digital exhibitions and more. The Authors Alliance, an organization of writers who believe in balanced copyright launched by scholar Pamela Samuelson, drew from the best practices in nonfiction writing in the different existing codes, including the journalism set of principles and several scholars’ codes, to craft a code for nonfiction authors. The improbable process of changing norms by creating best-practices codes— a process of raising awareness, mobilizing a community for action, creating educational tools, and changing personal and institutional behavior as a result— has gained a momentum almost impossible to imagine back when a few documentary filmmakers quietly asserted their rights. Best-practices codes have provided broad guidance across large and pervasive communities of practice. They have generated greater awareness of fair-use rights among community members. They have provided related communities of practice with guidance. The process that began with creators demanding their rights now continues into a next generation that assumes those rights and wants to extend them.
10 How to Fair Use Practice makes practice.
david van taylor, filmmaker
Changing the balance of copyright involves building up fair-use practice. Fortunately, it is easy and legal to expand your opportunities to employ fair use and to help others to do the same. Three immediate options are to develop a code of best practices in a creative or user community; apply the best learning from others’ codes; and encourage such action as a gatekeeper, teacher, and enabler of good choices. Smart fair users are also informed citizens with regard to copyright policy, as we have seen from the savvy interventions some user groups have made at the Copyright Office over the DMCA exemptions. Smart fair users may be interested in joining policy activists working on targeted copyright problems that can expand the pool of copyrighted material available for everyone to use without permission or payment. Make Your Own
Many creators— musicians, software developers, corporate trainers, bloggers, journalists, and others— do not yet have a code of best practices in fair use to refer to. They may have to deal with lawyers, supervisors, insurers, publishers, or some other authority who will not take their word for it that fair use is available. Lawyers, insurers, school administrators, television executives, and publishers have all changed their minds when they see codes of best practices. How does a group of people design a code of best practices in fair use? This is a process that involves many individuals, but it depends on a few of them coordinating the activity. This is why foundation support for efforts to date has been so important, to guarantee the attention of a few coordinators. Those people need to keep good records, in part to make sure that
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box 10. 1 >> Making a Code of Best Practices in Fair Use Find networks and organizations in the community of practice (not the gatekeepers but the creators/users). Document the kinds of problems the community has with using copyrighted material; get good stories! Circulate the results of this documentation to the community; tell the stories. Host or cohost small-group conversations on interpreting fair use; use the stories to locate the problem areas and discuss how to apply fair use to those problem areas. Draft a code of best practices, using templates to the extent they are helpful. Have an advisory board of supportive lawyers review and revise the draft, to ensure that the code of best practices conforms to the law. Get endorsements from community organizations for the code. Circulate news through community networks and organizations. Document your successes. Publicize your successes.
all the people who have become involved with the process can become part of a fair users’ network as it grows. The first step of those organizers is to find your friends. Professional associations are ideal sites for activity; they have regular meetings, membership lists, and email forums, and they want to serve their members. Some have a standards body— for instance, an accrediting association. The industry executives or brokers who license the copyrighted material a community uses are never good friends for this purpose (no matter how lovely or helpful they are in other ways), since they are not interested in making your fair-use rights easier to use. If they were, they already would have. Social networking is a great way to spread the word once a group has something in hand, but it is not a good way to start out, since the work involved depends on the credibility of organizations. The next step is to find out what problems the community of practice has with using copyrighted material. The problems of teachers, librarians, journalists, filmmakers, and others were similar in some ways, but also particular to their areas. Each community has its own stories and
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problems. Representative organizations are the ideal agents to conduct research, perhaps with a survey, or through long- form interviews, or both. Nothing else provides the rich detail of long-form interviews, even if they take time to plan, carry out, transcribe, and analyze. They are especially valuable because people explain not only what their problems are, but how they experience and even imagine them. Long-form interviews also allow the interviewer an opportunity to challenge their own preconceptions. Surveys, particularly with open-ended answers, can provide an opportunity for richer detail. We have benefited from both. We have used methodologies drawn from ethnographic methods, from sociological analysis including discourse analysis, and from cultural production analyses in cultural studies. The data you collect have to be analyzed to explain how people in the field actually experience their problems with fair use. They do not necessarily speak for themselves. The research needs to be focused on unlicensed uses, not the full range of copyright complaints. For instance, licensing, where it is necessary, is frustrating; fair use does not make the actual process of licensing any easier, although it may obviate it. If people need access to materials that are held by only one source, or conveniently available from only one source, fair use will not help with that either. Research can focus on when people need to reuse copyrighted material in their own work; why they use that material rather than, say, creating similar work; what they do when they cannot get it; what gatekeepers stop them from using it, and how; and what they would make or do if they did not have these concerns. The research results will describe in what ways creative action is hobbled by incomplete or incorrect understandings of the doctrine of fair use. They will conclude with recommendations for next steps, prime among which could be creating a code of best practices in fair use. These results can be shared with the field of practice, as widely as possible, with an awareness of timeliness. It may be more appropriate, for instance, to publish results first in a newsletter than an academic journal, in cases where journal publishing could take years. Equally important, for different reasons, is placing research in academic journals or books; they preserve knowledge across intellectual generations. Understanding the networks of the community helps us understand how to reach the people in it, including by using social networking. With luck, the report of problems starts a conversation in the field, particularly if the associations involved engage with the problem. The conversation should pave the way for an engagement with a code of best practices in fair use, if desired.
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The next step, creating a code of best practices, is a process that involves experienced members of the community, possibly identified by representative organizations. They are chosen not for their legal understanding but for their ability to understand the core mission of the creative community. These people will discuss, ideally in a series of small groups of eight to twelve, their most common fair- use problems; what fair- use principles apply in those cases; and limitations on fair-use principles appropriate to the field. They do not need a lawyer to deliberate on their appropriate employment of fair use, if they have grasped the logic of earlier fair-use codes. Indeed, many lawyers find the prospect of nonlawyers making decisions on their own threatening, even though we all do that every day without incident. If they want guidance, organizers can draw upon the resources of an intellectual property law clinic (see next page), or contact the Center for Media & Social Impact. Organizers certainly need a facilitator who understands the larger objective of developing categories of practice, and who can help the participants effectively to brainstorm descriptions of those categories, how fairuse principles apply, and what limitations are important. That facilitator probably needs a good note- taker. As with all good meeting management, a clear agenda and a good timekeeper are essential. Staying on topic is not always easy with such juicy material. An easy way to derail the conversation is to open the discussion to other aspects of copyright that people find hard to deal with, such as licensing. Each session benefits from the learning of the last. As they develop, discussions become ever more sophisticated, because the current meeting can build upon past consensus. Discussion can clarify both principles of fair use and associated limitations. The facilitator needs to pose the problem to the group from two angles: What do I truly think is fair unlicensed use in a particular situation (whether or not I am permitted to do it, and whether or not I’ve been told I shouldn’t)? And second, Would I still think such a practice was fair if someone used the material I had copyrighted (or that belongs to someone I especially respect) in that way? Often the hardest part of these conversations is convincing people to imagine their practice outside the constraints, fears, and misinformation about use of copyrighted material that they experience in their work. Too often people bring their inner lawyer— or boss, or insurer— into the room with them. Before they get to what they think is fair, they default to “I wouldn’t be permitted to do that.” Seeking the good news in a harsh situation, they may well say some version of this: “All these restrictions only make me more creative. I’ll always find a way.” This is a touching
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demonstration of seizing back human agency from a situation where you are being disempowered, and people should be congratulated for doing their best. But there really is no need to suffer when you don’t have to, or to expend creativity in coping when you could be spending it making even better work. The facilitator is always on point to keep participants focused on their position as members of a community with a purpose. First, it is they, as the creators/users, who know what they really need to fulfill their mission, not lawyers or gatekeepers. Second, the creation of a code is not about setting down in writing what is being done or what people think that they can “try for” or “get away with.” Instead it is about establishing the best practices that the field in question should adhere to whenever possible, within the fair-use doctrine. Those best practices are not necessarily, and indeed rarely are, what actual practice is. Rather, they represent what members of that field of practice believe are the best practices given the law, whether or not they are done at the moment. Third, the members of this community perform a valuable function in society with their work, and society’s policies in theory encourage them; they can do their job well only by putting good policy into practice. At many points, people in such meetings say, “What’s the point of talking among ourselves? The real problem is the copyright holders [or gatekeepers, or lawyers]. We need to get them in the room and negotiate with them, if we’re ever going to get anywhere.” But in fact, the people in this community of practice wouldn’t even be in the room with each other if they could persuade content holders or their gatekeepers or their lawyers to take them seriously individually. They will be able to begin a changemaking conversation with their gatekeepers, and act with confidence in front of content holders, only if they first act collectively. That is a lot of work, but it is also effective. What would be death to such meetings is inviting gatekeepers or content holders to them. The gatekeepers are invested in the security of their own operations, and the content holders cannot be asked to agree to fair use of their own materials. Fair use gives you permission to use their materials whether they want you to or not. Usually they do not want you to. Certainly they cannot be asked preemptively to give you permission. These conversations need to be synthesized into a rough draft of a code of best practices, structured around the most common situations in which practitioners in the field experience problems. This document should say, essentially: “In our field, these common situations occur, where fair use applies. In each of these situations, here is how fair use applies and here
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box 10. 2 >> Intellectual Property Clinics in the United States and Canada Sometimes you can get free advice about intellectual property, including fair use, from law schools’ legal clinics. Law students work with you, under supervision from their professors. Here are some that do such work: Cardozo Law School’s Indie Film Clinic Fordham University School of Law’s Samuelson-Glushko Intellectual Property and Information Law Clinic Harvard Law School’s Cyberlaw Clinic Richmond School of Law’s Intellectual Property and Transactional Law Clinic Stanford Law School’s Juelsgaard Intellectual Property and Innovation Clinic Suffolk University School of Law’s Intellectual Property & Entrepreneurship Clinic University of California, Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic University of California, Irvine School of Law’s Intellectual Property, Arts, and Technology Clinic University of New Hampshire Law School’s Intellectual Property and Transaction Clinic University of Notre Dame Law School’s Intellectual Property and Entrepreneurship Clinic University of Ottawa Faculty of Law’s Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic University of Pennsylvania Law School’s Detkin Intellectual Property and Technology Clinic University of San Francisco School of Law’s Internet & Intellectual Property Justice Clinic University of Southern California Gould School of Law’s Intellectual Property and Technology Law Clinic Vanderbilt Law School’s Intellectual Property and the Arts Clinic Mitchell Hamline School of Law’s Intellectual Property Clinic Washington University Law School’s Entrepreneurship & Intellectual Property Clinic
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are the limits of our comfort with applying it.” For each situation, an example is given (“People in this field usually do this, and need that to do it”); fair use is asserted (“People in this field can employ fair use in this situation because . . .”); and limitations are itemized (“They have to be careful to . . . and not to . . .”). Usually the principle derives from discussion of the first question (“What is fair unlicensed use in this situation?”) and is related to a claim to transform the material. The limitations come from the discussion of the second question (“When would I think it was unfair, whether I liked it or not, if my own material were used this way?”), and they are usually linked to the question of how much borrowing or copying is appropriate. In drafting any code of best practices, it is crucial to make clear that although the principles and limitations it contains express a strong consensus of the community of practice involved, they by no means exhaust the full range of potential fair use by members of the community. There will always be examples— sometimes many— of situations in which individuals can and do go beyond what their communities can widely agree on. Many of these uses are ones that also would be found fair if they were tested in court. The code makes it easy to understand where the center of gravity or safe harbor is; it should never discourage those who want to explore the wider, less-charted territory of fair use from doing so. The next step is making sure that the code stays safely within what is known about the law itself. All the codes of best practice developed through American University have benefited from outside legal expertise contributed by lawyers highly conversant with the fair-use doctrine and its balancing role. The selection of lawyers is extremely important. Any lawyer asked to become involved with creating a code of best practices needs to understand the nature of the project, and needs to understand copyright law and the doctrine of fair use. Too many lawyers have bought into the assumption that what people need is better rules, not the ability to reason on their own. To be useful in a project of this kind, lawyers have to accept that codes of best practices are grounded in the expectation that people can reason competently about their own rights, given the right information. In addition, some lawyers are related to communities but not necessarily sympathetic to their aims. For instance, if a group of history teachers is getting together, they may have access to school board lawyers, but the history teachers are not the lawyer’s clients— the school board is. Once the code of best practices has been vetted by lawyers and/or legal scholars, it needs to be sent for review to all potential organizations that can lend credibility, promote, and publicize the information. In each case, the organization’s decision is thumbs- up or thumbs-down; the document
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once vetted is complete, and text cannot be negotiated. It is also a potential asset to every group that endorses it. Once endorsements are in place, the document is ready for formatting and publication. The release to the community of practice and the world is coordinated with all the signatories and endorsers, the allies and friends. At this point, the extensive database of contacts developed in the course of the project and today’s social networking tools become immensely helpful. The release might be coordinated with a major event within that community— an annual conference, a festival, an awards ceremony, a board of directors’ meeting. The launching of the code is the beginning of the community’s education. Now that the code exists, it can (but doesn’t have to) change practice. Success will depend upon people accepting it as the “new normal” in their field. The work after the launching of the code is just as important as all the work in creating the code. This means spreading the word and prompting discussion, at professional meetings, in email forums, in award competitions, within professional practice. It means documenting successes, and spreading the news about them back to the field, through websites, blogs, and newsletters. When people start putting the code to work, change starts to happen. “I get it!” said documentary filmmaker David Van Taylor after he heard the news about insurers accepting fair- use claims. “Practice makes . . . practice!” This is a basic lesson of codes of best practices in fair use: Practice makes practice. When people use their rights, their rights are stronger, and more people can use them. Changing practice is not something that happens because a document is created; it happens when enough people use that tool to change their behavior, and tell someone else. Learn from Others
The kinds of communities that have developed these codes so far have usually been highly self-conscious. They have a strong sense of mission (“I’m not just a customer, I’m a creator!” “I’m a teacher— I teach the next generation!” “We’re sharing knowledge with the world!” “I’m an artist, and the world is my canvas!”), and they have a clearly identified need. Often seemingly small communities can play an important role in larger and more inchoate ones. Ideas spread via networks, and little ones intersect with big ones. For instance, the documentary filmmakers’ work has inspired change in practice not only in large television networks but in studios producing feature fiction films. Michael Donaldson reports that since the Documentary Filmmakers’ Statement came out, he has worked
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on several fiction features that employed fair use: The Stoning of Soraya M. employed fair use for a photo of the actual Soraya at the end of the picture; Bitch Slap fairly used six clips of dancing women over the main title credits; and Dakota fairly used clips from The O’Reilly Factor under fair use, as the lead character struggles with her decisions around an unwanted pregnancy. Scholars facing publishing problems outside the film area turn to the Society for Cinema and Media Studies’ codes of best practices for help with their arguments. Educators in English, history, and even mathematics turn to the media literacy teachers’ code for sound practice. Online video makers impressed by Jonathan McIntosh’s work on the website Rebellious Pixels pick up on his assertion of fair use, perhaps not even knowing that he grounds his assertions in the Code of Best Practices in Fair Use for Online Video. Those not represented within a community that has interpreted fair use still may be able to learn from the conclusions that they have drawn. Right now, someone is making a slideshow presentation for work or for a spouse’s fortieth birthday party; some teacher is teaching history or science rather than media literacy; someone is organizing the exhibit for your small town’s centennial, not running an archive; someone is working on a podcast about conducting genealogical research, not making a documentary film. They all may benefit by referring to existing codes of best practices in fair use. The starting point for freelance decisionmaking on fair use has to be the doctrine itself, which currently is organized around transformative use in appropriate amounts. It can be lonely to make a decision on fair use without such consensus as has been developed in codes of best practices, but it can be done, by using the same reasoning that infused the codes. (By contrast, for the reasons we discussed earlier, trying to use the four factors to conduct a fair-use analysis can be frustrating and inconclusive.) The questions that people making those codes asked themselves to test their fair-use instincts are the same ones we discussed at the outset, representing a distillation of what courts now focus upon: • •
Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose? Was the amount of material taken appropriate to the purpose of the use, in light of the field or discipline in which it took place?
Also, people usually asked themselves how they could demonstrate their good-faith understanding that they were employing fair use, by making gestures of acknowledgment such as crediting the original.
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Increasingly, we see uses that are both widely popular and yet in a fairuse gray zone or even not yet clearly acceptable under fair use. By and large, they go unchallenged. For instance, it is common for people to use popular commercial songs to accompany their homemade slideshows or video. Increasingly, they also take advantage of new technology to create their personal takes on familiar cultural artifacts. Then they post them on the internet, for the pleasure of a small circle of family and friends. These works may quickly spread to wider networks and even commercial sites. Consider this case: During a 2010 snowstorm in Washington, DC, Alison Hanold, suffering from cabin fever, asked her equally bored friends to create video of themselves singing to Alanis Morissette’s “Ironic.” They then sent her video of themselves, and she edited it into a group video that went viral and was showcased on public radio. The video, “Ironic Blizzard,” used the entire track of the song, but the transformative use was manifest; the ability to share the song was crucial to the nature of the work. Public radio station WAMU had no problem posting it on its website, it went up and stayed up on YouTube, and there were no legal repercussions. As people gain confidence in fair use and develop transformative arguments, these practices may move closer to the safe center of fair use. Those who wish to remain squarely in the safe center of fair use today can apply the reasoning that has guided those developing codes of practices. A fair- use judgment is applied common sense. Anyone, an individual or group, can make commonsense judgments about fair use. In general, those judgments will be reliable because this is a doctrine of reasonableness. (Whether common sense can persuade a publisher, a boss, a lawyer, or some other gatekeeper without a code of best practices is another question.) As always, context is everything in fair use. But there are situations so recurrent in different codes that they end up echoing each other. Three areas in which several of the codes have identified a role for fair use are critique, illustration, and incidental capture. These are also areas that recur in case law. Even though the situations each code sets forth are specific to that community, one can learn from that analysis in developing common sense judgments on fair use. For instance: Comment and critique. People who are commenting on, critiquing, satirizing, making a parody, or just plain making fun of some piece of copyrighted work cannot do that without quoting it in some fashion. Imagine, for instance, that a husband is preparing a slideshow for his wife’s birthday and wants to open with a rewritten version of a song
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from one of the wife’s favorite popular music groups. His version pokes gentle fun at the group while evoking good memories of his wife’s fascination with it. He can be just as confident as 2 Live Crew was in recasting, however vulgarly, “Pretty Woman.” Indeed, the use of copyrighted material for such purposes is so well established in the law as fair use that some people think that it is the only kind of fair use. They are wrong, because these days the guide to fair use is in the concept of transformativeness, with its related concern appropriate size of use, and the question of the community’s custom. But commenting on, critiquing, and poking fun at copyrighted work is a perfect example of transformative use. Such efforts may be parodic or satiric, but they do not need to be, in order to be fair uses. Illustration. In many cases, the use of copyrighted material simply to refer to it within another context may also be fair use. For instance, if in that same fortieth-birthday slideshow the husband wants to represent his spouse as the Wonder Woman of the household, or to use photographs of famous events to mark the passage of the years, he can be confident in his use of copyrighted works. How much is too much? That depends on what you need for the repurposed use. Take the case of the filmmakers who made This Film Is Not Yet Rated. The film quotes lots of Hollywood films to show the arbitrariness of the MPAA ratings board. One of their interviewees argues that Hollywood sexual prudery is worse now than in the 1970s, when Coming Home featured an extended scene in which Jane Fonda’s character has an orgasm. The filmmakers cautiously clipped a few seconds of that scene into the interview, to provide a reference point. Their lawyer advised that they put more of the scene into the film, because otherwise they had not actually demonstrated that the scene really was extended. Even though they added a few more seconds, they certainly didn’t give viewers a substitute experience for the film. They merely were able to make their point. Recall as well the book Grateful Dead: The Illustrated Trip, in which entire concert posters from Bill Graham’s Fillmore Auditorium were reprinted in illustration of the evolution of the band’s career. Showing one corner of the poster would merely have baffled readers. On the other hand, the posters weren’t shown at their original size; if you’re a poster collector, you won’t be able to use the book reproduction to make an image suitable for framing. The judges in this case unequivocally agreed with the book authors; it was fair use. By contrast, look at the uses of Elvis Presley performances in the
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multivideo biography that resulted in the Presley estate lawsuit. The Presley estate won the case, because the performances were basically used to entertain audiences, just as the originals had. In a more recent case, the Harry Potter Lexicon author lost his fair-use argument not because quoting from the Harry Potter series was not fair use, but because in a few instances he had simply used so much of a work of fiction that it exceeded the appropriate amount. Incidental/accidental incorporation. Many creator groups’ codes discuss fair use in the context of inadvertently or incidentally capturing some copyrighted material in the process of doing their own work. This too is a specific instance of transformative use. The use being made of the copyrighted material is very different from the market for the work, and the new makers are not using any more of it than is naturally occurring in the course of their getting their jobs done. Perhaps that slideshow includes a clip of a home movie where people are singing a Beatles song, or there is a snapshot of the young couple at a Christina Aguilera concert contrasted with later video of them taking their child to a One Direction concert. Codes created by documentary filmmakers, teachers, open courseware creators, and online video folks all deal with incidental occurrence of copyrighted material. The subjects of a documentary dance at their wedding to a popular song. A teacher’s lecture is recorded for podcast in a room that has copyrighted posters on the wall. A child dances to popular music. A cat watches television. In each case, copyrighted material is interwoven in an activity that didn’t depend on it, and that the creator never selected. Choosing deliberately to incorporate copyrighted material, rather than having it present in material captured for other purposes, changes the calculation. Selecting certain music for the background of one’s own wedding video is different from capturing that music in the context of a video you make about someone else’s wedding. The choice to employ copyrighted material in situations where licensing is typical (for instance for soundtrack) could lead to a decision to license the material. Recombination. Some creators take as their raw material a variety of copyrighted works. They then create something new from that work. If the original work becomes raw material for something that is not merely a derivative of it (like a novelization of the movie or cover of a song), but something new, then they are employing fair use. In that slideshow, perhaps the end features a remix of a Baby Einstein video with a 1990s music video, the juxtaposition making a comment
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box 10. 3 >> Fair Use: You Be the Judge >> Parody and Satire in Slideshows You’re making a live comedy revue sketch satirizing political practices. You would like to create parodic versions of famous people’s names, such as Hiccupy Klingon and Newt Gangrene. You would like to create a slideshow to be projected during the sketch, including photographs of actual election rally signs. You would also like to include some relevant political cartoons that reinforce your message in the slideshow. Can you claim fair use for these uses? Answers at the back.
on life’s passages. The Code of Best Practices in Fair Use for the Visual Arts identifies recombinant art, such as appropriation art, as legitimate fair use. Remixes, mashups, and political collages have all been identified as fair uses in the Code of Best Practices in Fair Use for Online Video, a document that has gone uncontested by content companies. Makers have sometimes seen their work disappear from YouTube because of automatic searches for copyrighted material, but when they have demanded that their work be reinstated, it has been without challenge. (Don’t forget that Stephanie Lenz, with help from EFF, sued Universal, not the other way around.) This too is an example of repurposing and limiting uses to the needs of the repurposing. Extending knowledge. This has been a theme since the earliest bestpractices documents. More recent codes (OpenCourseWare, libraries, visual arts) are quite explicit. The mission of a memory institution, for example, is only partly fulfilled by digitizing a collection of old photos or valuable museum objects; the next step is making the results available to scholars, students, and the general public. There is more to such an online collection than the sum total of the individual images. When you make materials accessible to people with disabilities, or when you create databases of texts for computerdriven research or to develop artificial intelligence, you extend knowledge. Worry, Guilt, Etiquette, and Fair Use
In making a fair-use decision, inevitably people go through some reasoning process. As you do that, you may find it helpful to make a note of your reasons. If this work is publicly available, it may also be helpful to others
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to see the rationale behind your decision to employ fair use. This may be something you will want to do anyway, because it is part of the contextualizing of the selected material. Some makers of online video do this. However, no one loses their right to claim fair use because of a failure to leave a record of their rationale. Even users who believe they are infringing may eventually discover that in fact they are fair users. As you reason, it becomes clear that fair use is not only a legal decision but one that reflects relationships and values. Fair use exists because policymakers decided from the beginning of copyright in the United States that it would not be fair for copyright owners to have total control of their copyrights. The decision to employ fair use often calls up a calculation that goes beyond the questions of transformativeness and appropriateness, and makes people reflect on their own values, relationships and social networks. Some people making fair use of copyrighted materials feel guilty about taking something that belongs to someone else. They are afraid that they may not “get away with it” and don’t want to put themselves at risk. No one should be in this position. The law not only permits but encourages limited incursions on copyright owners’ monopoly in order to protect the future of culture. No one should be trying to “get away” with anything, and nobody should assume more risk than they are comfortable with, when they can avoid it. Fair use does not usually require courage. It should be something that elementary schoolchildren can do without drama. Codes of best practices dramatically lower risk; understanding the logic and reasoning of fair use in today’s judicial climate lowers risk; sharing your deliberations with others who understand the logic and reasoning of fair use also helps you know when you’re in the zone of fair use. The more people share their calculations and their employment of fair use, the easier it gets to understand what is acceptable fair use. Some people also worry about whether someone else will get angry because they fairly used the work. There can be good reasons not to alienate a copyright holder, even if the law permits it. One of the most obvious is that the user may have— or want to have— an ongoing relationship with the rights holder. For instance, some filmmakers deal so routinely with some archives and footage houses, and receive substantial discounts in the process, that they are reluctant to access independently and fairly use a copy of work the archive holds. This choice can make good sense for them, but a different maker might make a different choice. Some makers have visited copyright holders to discuss lowering terms for material that they might well take under fair use but can afford not to, if the price is right. They have received substantial discounts in those negotiations.
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Often people who employ fair use want to make sure that they give credit for the work they take, so that it is perfectly clear that they are not claiming it as their own and that they recognize its value. People do this in many ways. They make a reference to the work in passing; they put a label on it; they mention it in credits; they create a footnote. Many creators value recognition more than any other currency. Users of others’ copyrighted material sometimes find themselves in the position of desperately wanting to use some copyrighted material and being afraid that they are stretching the logic of fair use a little far. There is, of course, a large gray area between a solid, comfortable understanding of fair use (this is what the codes of best practices express) and what a court will almost certainly find as infringement. Some people are comfortable taking risks, as previous lawsuits demonstrate, and taking up space in that gray zone. They also sometimes calculate, correctly, that they can always take back their use if they have to. They know that if someone complains, the first act will be a letter asking them to cease and desist, not a lawsuit. People who post something to a blog or a video website are in a good position to “ask forgiveness rather than permission,” because it is so easy to take down material that is challenged. People who publish a big initial run of a popular book are not well placed to use this approach. More risk-averse people consult others in their peer community and discuss their use with friendly nonprofessionals who can help them understand if their desire has overmatched their common sense. These conversations can help fair users put themselves in the position of the copyright holder, to imagine the arguments they might have to confront. How might a copyright holder use the same logic of fair use against the new user? This is a challenging but healthy exercise to test whether you trust your own fair-use reasoning. Consistently, people find that common politeness is a tremendous aid. It is polite, as well as legally favorable, to provide citations or references to work that is fairly used. It is often polite, although certainly not necessary, to inform copyright holders of the way you found their work valuable. It is much easier to be polite if you understand that you as a new user have solidly grounded rights to reuse when repurposing, recontextualizing, and using the appropriate amount. Then you are not asking permission but saying “thank you” for work you value and have legal access to. Other Free Uses
Makers of new cultural expression may be able to find free material from other pools:
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Public domain works. The public domain is the pool of work that no one can claim ownership of. Work can fall into the public domain when it ages out of its copyright. The original work of Beethoven, Mahler, Caravaggio, Dickens, Machado de Assis, the Upanishads, The Art of War, the Lumière Brothers’ shorts— they are all in the public domain. If someone issues a new translation, or makes a new performance, or publishes a still-copyrighted edition, though, that will be copyrighted. Unlike photographs of public domain paintings and drawings in museums or elsewhere, which aren’t considered “original” enough to enjoy protection in their own right, images documenting three-dimensional art may be copyrighted, although the art itself is not. If you can get at the public domain item independently (say, you take your own photo of a sculpture; your cousin performs Chopin; you excerpt some shorts by the Lumière Brothers off a DVD), you don’t have to worry about licenses. US federal government works of all kinds— manuals, jingles, movies, books— are all in the public domain, so long as they were made by full-time employees, whether they are the words of federal government employees or camera footage taken in civilian or military service. So are federal laws and judicial decisions. The purposes for which you use the material, and the source from which you obtain it, are irrelevant from a copyright perspective. One caution on federal government public domain work: Sometimes federal government works are made by contractors whose work is copyrighted, or they may include third-party work that is copyrighted. Also, state and local governments in the US often copyright their works. Creative Commons. You can use any work that has a Creative Commons license under the terms that the license specifies. The owner has, with that license, given you blanket permission for some uses, and has also usually imposed some limitations— a requirement of attribution, for example, or a prohibition on commercial use, depending on the license chosen. At a minimum, CC licenses all carry the requirement that the work not be distributed with digital rights management. This requirement keeps CC-licensed work from circulating on professionally distributed DVDs. Exemptions. You might benefit from some exemptions that were written into copyright law to accommodate special situations. For instance, there has been copyright in architectural works in the United States since 1990, but the Copyright Act includes an exemption for “any pictorial representation” of buildings. Buildings that can be seen from public areas can be filmed for any purpose without permission.
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It doesn’t matter whether the building is the subject of the film or an incidental background. And as we have noted, teachers, librarians, and public broadcasters all have special exemptions. Giving Away Your Fair-Use Rights
The law permits people to surrender their rights, which people often do by entering into contracts. This happens regularly, for instance, when people surrender their free-speech rights by signing nondisclosure agreements, or by going to work at a place that may require them not to display any regalia endorsing a political candidate. Many media products come with contracts or licenses attached to them in ways that may be invisible to the user. On websites and in software, these agreements are usually buried in the “Terms of Service” (TOS) or “End-User License Agreements” (EULAs). Frequently, these provisions, on which we must click “I agree” if we want the item, include language that restricts what we can do with it. Much material on electronic databases in libraries is licensed to them on terms that explicitly prohibit or restrict fair use. CDs of images and sounds usually come with fine print limiting your use of them. Film and photo archives typically require users who ask for preview materials to sign an agreement ruling out fair use of the material. Sometimes it is impossible to avoid this surrender of fair-use rights. Sometimes you can gain independent access to material and employ fair use. But if you are bound by a license, contract, or terms of service already, it will not matter that you have independent access. You are still bound by the terms of that agreement. Outside Copyright
Some of the most common stumbling blocks people encounter with regard to copyright do not actually belong to copyright at all. Often they are not really stumbling blocks, either. Consider: Trademarks. The scientist being interviewed in the jungle on the cable documentary is wearing a T-shirt that is weirdly pixeled out— not because it’s obscene, but because it is advertising a rock band. Do you have to do that? No, and neither do the cable producers. Incidental uses of trademarks never need to be licensed, unless (perhaps) they incorporate a mark into the title of a film in a way that misleads people about the content, or if such uses lead people to believe that
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some corporate endorsement is implied. Federal and state trademark laws exist to protect the specially designed ways that a company signals its identity (logos, design, a particular set of colors, even the shape of a bottle). It protects trademarks from competitors (Pepsi versus Coke) and from efforts to confuse customers about the product— or from widespread commercial uses that could “dilute” the value of those marks. The trademark “antidilution” statute has a broad exception for expressive uses. Of course, trademarks can contain copyrighted images or graphics, in which case fair use may apply. When Morgan Spurlock made Super Size Me, a stunt film in which he ate only McDonald’s food for thirty days and tracked his health (which declined precipitously), McDonald’s logos dotted the film. But he wasn’t selling goods and services (such as burgers) within the trademark of McDonald’s, and he didn’t misrepresent the nature of the business. He was not confusing people about what McDonald’s trademark stands for or promotes; he was not “diluting” the quality of the trademark. (Although McDonald’s representatives did say that most of their customers don’t eat there three times a day, the corporation did not take any legal action.) Patents. Patents (available under federal law only) are intended to encourage invention of something tangible, useful, and “nonobvious.” In general, since patents are about technological innovation, patent law doesn’t usually overlap with copyright concerns. That is less true in computer software, however, where both copyright and patent apply. Before adapting a software program without authorization, a user would need to consider both regimes. But for people producing books, movies, songs, plays, photographs and so on, patent law is an irrelevant concern. Trade secrets. This body of state law protects the rights of companies to keep the ingredients or nature of their product a secret, if there is a commercial advantage. It does not usually apply to people making new cultural expressions that make use of existing copyrighted work— though it may matter to employees who are considering using material they have accessed at work for a new, personal purpose. In order to maintain trade secret protection, many firms have standard employee agreements that limit such uses, whether or not they would be permissible under copyright. Right of publicity. What happens if you refer to a Michael Jackson CD cover? Will the Jackson estate invoke “right of publicity” and say that you are unfairly capitalizing on his image? If simply exploiting his
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image is the whole point of your endeavor (you are selling Michael Jackson mugs or T-shirts, for example, where the mug or T-shirt in itself has no particular value without the Jackson image), then they might have a case. But is it? “Right of publicity” is state law and exists only in some US states. It confers on all individuals, and not just celebrities, an affirmative right to control the commercial exploitation of personal information, especially their names, images, and associated traits. In many places the right lives on after a person dies and can be invoked by his or her survivors. However, right-ofpublicity laws have been crafted and interpreted to create plenty of space for freedom of expression— in much the same way that copyright law has been limited by the fair-use doctrine. Judicial decisions and sometimes the laws themselves make it clear that the right of publicity bars only the direct commercial exploitation of a celebrity’s “persona,” and First Amendment–protected expressive uses are specifically exempted. So we can’t go into business selling posters and knickknacks representing Katy Perry, but any of us could write an “unauthorized biography” of her, and illustrate it appropriately, even if we hope to get rich in the process. Privacy and personal releases. It is a good idea to get a personal release form from someone you single out for special attention in your work. But people who are not the main focus of a production, who are in parks, streets, or other public places where they have no expectation of privacy, cannot complain if they are captured in audio or on film, even for a commercial production. Advocacy
Some sore spots in the reuse of copyrighted material cannot be addressed with self-help. While global copyright reform is not likely to happen soon, there are targeted issues that greatly affect the utility of fair use, such as the anticircumvention provisions of the DMCA. Eventually these provisions will have to be reexamined for the backward-looking, creatively stifling clauses that they are. By that time, probably new business models will create a different stakeholder configuration. In the meantime, it is important for anyone who has a DMCA-related problem accessing material they have a right to use under fair use to bring that problem to the Copyright Office. Every three years the Copyright Office hears complaints from users who are stopped by the DMCA from exercising their free-speech rights. The more people appear before the Copyright Office to explain their prob-
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lems, the better organized they are in showing that entire communities of practice are affected, and the better they can show the Copyright Office that they lack adequate alternatives, the more holes are driven into this part of the DMCA and the more its legitimacy is challenged. Another urgent issue for activists, as many organizations— including Electronic Frontier Foundation and Public Knowledge— have noted, is statutory damages. These stiff and utterly out-of-proportion penalties, even if rarely invoked at their highest level, powerfully inhibit people from using their rights in the United States. Only well-organized coalitions of broad constituencies will be able to engage in the inevitable stakeholder politics. We believe that as communities of practice exercise their fair- use rights, they will also understand the need for reform of statutory damages. We think some legislative approaches to improve balance in copyright are not worth pursuing at this time. Some activists have suggested legislative proposals to add noncommercial, personal expression to the list of activities in the preamble to the section of copyright law that describes fair use, section 107. This change certainly would be worthwhile, if it could be achieved. But vastly more likely is that the attempt would open up fair use to reconsideration, inviting a strong lobbying pushback from content owners against the last decades’ developments in case law and practice. Going farther, for instance, to categorically exempt personal noncommercial uses from copyright regulation, would be more problematic. Creating a copyright-free noncommercial zone could create a copyright playpen or, worse, a virtual prison for such information. People who make something valuable enough to share frequently want to share it within commercial venues. Sometimes they have to— for instance, on Facebook, an ad-fed site. There are also suggestions to include lists of other exempted activities in the body of the statute, creating bright-line zones of crystal-clear fair use. We believe that such a measure would entail more problems than solutions. Lists of exempted activities— the strategy used in copyright regimes that employ the continental European approach to exemptions— adapt poorly to new technologies and customs. They also tend, because of the inevitable food fights among stakeholders, to be harshly constrained. Finally, we know from bitter experience that codifying legal safe harbors for fair use is most likely to limit fair use to those safe harbors. Today, fair use does have de facto safe harbors, particularly in the areas where communities have defined their practice. But it also has large gray areas where those using emergent practices or willing to assume more risk may also go, within their rights. Those gray areas are where emerging practices can flourish and gradually move toward the center.
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Copyright will continue to be intertwined with important choices we make about the future of culture. How long should copyrights be? How do we balance security, property protection, and access to culture? How should collectively produced work be honored, protected, and shared? How should we treat the products of folk and indigenous cultures? Both as users and as citizens, we should be part of the discussion about such issues, and we can be, if we understand the implications. A Fair-Use Movement
This era’s version of copyright law is regrettably unbalanced in favor of current copyright holders and against emergent culture of all kinds. New creators and users need to unlock their mind-forged manacles, assert the rights they have, and understand the vital importance of limiting copyright holders’ rights. These limits are not a gift, but a requirement for the creation of tomorrow’s culture. Everyone who uses those rights can see the need. Every person who understands this is also, potentially, another member of a constituency for healthy and sound copyright policies and practices as they change (and they will; they always do). The copyright regime that took shape in the 1976 act and then tipped the copyright balance steadily through to the 1990s developed without significant citizen input. People simply did not realize what was at stake; the world of participatory media creation was still too new. In the name of expanding international trade and economic security, and buffaloed by moralistic talk about copying and stealing, they permitted a harshly limiting version of copyright policy to settle into place. Fair use is not only the law of the land but part of the package of freespeech rights we hold dear and an investment in our cultural future. People who use and respect fair use can better defend it, and also defend other policies that permit greater access to culture.
11 The International Environment Do not fear copyright.
p. bernt hugenholtz
Fair use is a US doctrine, and while most other nations’ copyright laws also contain significant exemptions, relatively few have a close equivalent to the flexible and adaptable doctrine of fair use. Since copyright law is territorial, creators must abide by the law of the nation they are in. Some scholars have disparaged the value of fair use because it is only a national policy in world where information moves easily across boundaries. This may overstate the real problem US creators face in practice. Their reliance on fair use has typically not been a problem for international distribution in recent years. Meanwhile the resurgence of fair use in the US has creatively affected copyright policy discussion elsewhere. Fair use within the US applies to use of materials that come from anywhere. The principles of international “conflicts of laws” deal with situations in which several different national rules might govern a given case. Those principles assert that issues of copyright infringement are governed by the law of the countries where the use occurred. So fair use can be invoked in the US without regard to where copyrighted material originated. Under the same principles, creators based in the US with a website based in the US or a book that gets international distribution needn’t worry much about being held to account under stricter foreign legal standards. And the benefit of the fair- use doctrine is available to international creators whose work is distributed in the US or otherwise challenged in the US, even if they come from countries whose own laws don’t contain a similar provision. But the practical reason why US creators rely on fair use in a globalized information environment has more to do with risk assessment. Copyright litigation is far less common in other countries than it is in the United States. Moreover, most other countries do not have the statutory damages that make a wrong call on fair use potentially risky in the United States.
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Finally, the exceptions and limitations provisions of other nations’ copyright policies might very well overlap with domestic US fair-use claims. Internationally, just as in the United States, copyright policy is grounded in the public interest, as P. Bernt Hugenholtz and Ruth L. Okediji have shown. Monopolies given to creators are necessarily tempered with other measures— limitations and exceptions— that limit that monopoly. Each national copyright policy is grounded in that country’s values and historical experience, with great variety in both the law and its interpretation. But even without incorporating fair use, governments worldwide are expanding limitations to adapt to modern practice. The biggest shadow cast over the future expansion of flexible limitations and exceptions is the “three-step test,” stipulating that national legislatures and courts “shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” Some version of this formulation has been a part of every international copyright agreement since 1971. Regrettably, some countries are also adopting the three-step test as part of their domestic copyright law— a purpose for which it never was intended. Because the language of the test is so general and open-ended, it is subject to a range of interpretations. Copyright owners would like it to mean that whenever a copyright exception interferes with their realization of an actual or reasonably likely stream of revenue, that exception is invalid. On at least one occasion, a World Trade Organization’s dispute settlement panel seems to have adopted this approach. But it is far from inevitable, as Hugenholtz and Okediji argue. More holistic ways of reading the three- step test, which give weight to cultural as well as economic concerns, also are possible— and are gaining ground among legal theorists. Practically, it is important that the US government is committed to acknowledging, if not always to publicizing, that fair use is consistent with the three-step standard. Given the openness and flexibility of fair use, this in itself weighs for a more holistic reading of the three-step test. (Current information on international users’ rights, or exceptions and limitations, is available online at the Global Network on Copyright User Rights, a resource curated by Professor Sean Flynn of American University Law School.) Fair Use Elsewhere
There are three general approaches to limitations and exceptions. US-style fair use is used in a small but growing group of countries— the Philippines, Israel, South Korea, and Singapore among them. These national
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laws, like those of the United States, also have special exemptions— for instance, for libraries, education, or the disabled. Among nations with fair use, the provision backstops the specific exceptions, as well as covering unforeseen situations. So, for example, in the United States libraries may claim fair use for preservation practices that are not specifically permitted by their special exemptions, and online courses, including MOOCs, using illustrations from copyrighted sources can thrive even though specifically educational exceptions (written before online education) do not cover such uses. Other nations are debating whether to adopt fair use or something like it. These include Australia, New Zealand, South Africa, Nigeria, and Hong Kong. One big question for countries considering fair use is whether it would be uncertain or unreliable. The best-practices approach may have a role to play here. It certainly did in Israel. Soon after Israeli lawmakers enacted US-style fair use in 2008, professors and administrators in higher education worked together to craft a code of best practices in fair use within higher education. They used a process modeled on the one described in this book, as scholar Niva Elkin-Koren (who was instrumental in the process) reported. Those best practices were adopted in a settlement agreement between Hebrew University and two leading academic publishers. Making Fair Dealing Flexible
A second approach to exceptions is common throughout the British Commonwealth nations and in other former British colonies. This approach combines specific exceptions with a provision allowing for “fair dealing”— based on a weighing of factors similar to those at work in US fair-use analysis. Unlike fair use, fair dealing covers only some kinds of uses, including those related to news reporting, education or scholarship, and private study. Obviously, the more the kinds of uses are included, the more useful fair dealing is to creators. Many uses undertaken by artists, remixers, video makers, and even documentary filmmakers typically are not covered. But fair-dealing interpretation is moving in the direction of fair use. In the United Kingdom, after expert reports commissioned by the government in 2006 and 2010 recommended a more flexible approach to exceptions, judicial decisions have endorsed more flexibility in interpreting existing ones. In 2014, decisions there substantially expanded the range of covered uses in law, including a revivified quotation right and new recognition of text mining.
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box 11. 1 >> Working across Borders: Three Questions If I am making a work in the United States, can I apply fair use to material I take from other countries— say a clip from a Bollywood film, or a quote from a French text? You always operate under the law of the nation where you are. So if you are using foreign material under fair use within the US, you do not need to worry about the laws of that other nation. How about a coproduction or a US work distributed internationally? Do I have to make sure my work complies with every country’s exemptions policy? In business practice, once a US standard has been met, rarely are copyright licensing issues raised again. Very few other countries with any market significance have statutory damages. In most cases, a mistaken licensing decision results simply in agreeing to a copyright holder’s demand for a standard fee. Furthermore, in most other countries, copyright lawsuits are extremely rare. So even large media companies do not expend much time or energy on how to manage unlicensed use internationally. What if I want to incorporate third-party material under fair use, but my work is circulated internationally under a Creative Commons license? In that case, you simply have to make sure that users understand what in the work is covered by the CC license (that is, the material for which you own the copyright), and what you are fairly using (and therefore is not covered). Consumers have no issue at all; they may use the entire package at will. New international producers who excerpt or repurpose your CC’d work, honoring the conditions you stipulated, must make a decision to reuse the fairly used material under the laws of their own countries.
The expansion of fair dealing in Canada took a somewhat different turn. Advocacy by legal experts including David Vaver, Michael Geist, Ariel Katz, Howard Knopf, and Laura Murray helped persuade the courts there— and particularly the Supreme Court— to apply fair dealing with an emphasis on interpretive openness and technological neutrality. This approach is justified in part by the fact that Canadian judges explicitly regard fair dealing as a user’s right. Interpretations and Hybrids
National copyright laws such as those of continental Europe take a third approach, by relying exclusively on creating specific exceptions and limitations. They may single out for special treatment, for example, not only certain library or educational uses but also critical commentary, parody, pastiche, illustration, or even “fair quotation.” The cumulative effect of
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these exceptions may be considerable, and within their narrow grooves, specific exemptions can cut deep uses that are important to contemporary creators. Perhaps the greatest problem with the “closed” lists of specific exceptions is that they are static and tend to age poorly with social and technological change, and they often fail to reach some socially desirable uses of works. They may, for instance, exempt the use of print but not the use of images in some situations. They may specify that certain materials may be used in certain ways by certified teachers, but not by independent learners. Even within a region such as Europe, different countries may interpret similar exceptions more narrowly (as is France) or broadly (the Netherlands). One of the most interesting approaches to rebalance copyright within such restrictions is a move toward hybrid exceptions systems. These would keep the approach of listing specific exceptions but also explicitly endorse use of such exceptions in similar situations. The Wittem Project brought together European legal scholars to promote transparency and consistency in European copyright law. Its 2010 draft European Copyright Code took this approach (although implementing it probably would require European Union legislation). The Wittem proposal itemizes dozens of specific exceptions organized under categorical headings, including promoting freedom of expression and information, enhancing competition, and furthering social, political and cultural objectives. It concludes, Any other use that is comparable to the uses enumerated . . . is permitted provided that the corresponding requirements of the relevant limitation are met and the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties. (emphasis added)
This conclusion is an acknowledgment of the three-step test, but with an important difference: it explicitly invokes the public interest, since “third parties” include other creators and consumers. Some believe that the long-awaited Chinese copyright act will incorporate a hybrid provision on limitations. Meanwhile in Brazil, another important civil law jurisdiction, copyright scholar Allan Rocha de Souza reported that since 1988 the country’s courts, including its leading tribunals, have been pioneering expansion of exceptions without any specific statutory authorization. (This echoes
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the American history of exceptions, in which judges invented fair use.) Kenyan courts, according to scholar Victor Nzomo, have taken a similar route, interpreting fair dealing in terms that evoke fair use because, as one decision put it, “the difference is disappearing.” Balanced Harmonization?
Historically it has not been easy to loosen up outdated or dysfunctional exceptions within international copyright law. Most efforts at harmonization (as it is called in international treaty negotiations) of national limitations and exceptions have been directed more at constraining exceptions than at enabling them. This has been part of the agenda of copyright industries in free-standing negotiations such the one that produced 1996 World Intellectual Property Organization treaties. Further, as has happened frequently for the last twenty years, copyright and other kinds of IP have been folded in with other issues under the rubric of international trade negotiations. The EU’s Information Society Directive of 2001 actually constrained the conditions for new, more flexible exceptions. But these days, even within a treaty-making environment that usually constrains exceptions, there has been pushback. Advocates for more flexible exceptions won an important victory in 2013 with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled— the first international agreement to deal primarily with harmonizing copyright exceptions in any category. The treaty entered into force in 2016. Treaties dealing with library and educational exceptions were part of the WIPO agenda by 2017. Future treaties may follow the 2016 draft of the Trans-Pacific Partnership’s intellectual property chapter, which included a provision committing participating countries to a full range of possible copyright limitations and exceptions— including flexible fair use. Users Assert Rights
Ultimately, though, the future of copyright flexibilities doesn’t depend on scholars or on states but on individuals and organizations that use their rights. Only articulate constituencies can ultimately support and protect healthy limitations and exceptions, defending them not as special interests but because healthy and flexible users’ rights serve the public interest. The United States has emerged as a world leader in promoting long and strong copyright, and US official “copyright diplomacy” actively promotes
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it around the world. Policymakers in other countries need to know that US copyright works because strong protection is balanced with meaningful exceptions— thus clearing a space for artistic as well as technological innovation. Both (1) international awareness of the importance of exemptions and limitations and (2) vigorous and public use of those that exist are important. Certainly international creator communities sparked into awareness by US fair-use activity have become political actors in their own countries. The first evidence of this was among documentary filmmakers, probably because documentarians typically produce for an international audience and often coproduce internationally. The news of the power of fair use spread rapidly and internationally in this community and prompted a range of reactions and projects. Canadian filmmakers learned, partly through events at the documentary film festival Hot Docs, about the American experience of fair use. They were drawn to the way in which filmmakers had been able to help themselves. Through the national membership organization Documentary Organization of Canada, and with the help of Canadian legal scholar David Fewer, they conducted a member survey. Drawing on the research methodology described in this book, they discovered the same pattern that US filmmakers did. They joined with others successfully pressing for the recognition of users’ rights under the rubric of Canadian fair dealing. Creative communities in Europe have been aware of both the ways in which a US-style fair-use doctrine might work to their and the larger culture’s benefit. Organizations such as the European Documentary Network have placed more flexible exceptions on their policy agendas. In Australia, tech-sector interests have been joined by librarians, academics, and museums in arguing for greater flexibility. Even while developing a voice for more flexible exceptions in their own countries, creative communities can also explore how far their current user rights extend. At a 2009 conference of Scandinavian filmmakers and programmers in Norway, Dutch legal scholar Bernt Hugenholtz began and ended his presentation with a four-word mantra: “Do not fear copyright.” He counseled that creators were far too wary of using unlicensed material. In practical terms, he pointed out, the risks and dangers were fairly low, given the lack of statutory damages and low level of litigation. Makers had an unexplored opportunity to discover what national exemptions they did have and take advantage of them. Invoking their rights in this way would, at a minimum, help them do their work while exploring discover the limits of the current system and providing valuable hard data for EU
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decision makers. It might create important interpretive precedents, since in Europe, as in the United States, the habits and practices of creative communities cannot help but weigh in any judicial interpretation of exemptions. Hugenholtz pointed to the broadly worded and little-interpreted “right of quotation” that exists in many countries ranging from Norway to South Africa. This right of quotation creates a space for the development of best practices designed to leverage that right on behalf of all kinds of creators. The growth of international interest in limitations and exceptions is in some part due to the effectiveness of grassroots efforts in the United States within creator and user communities. It shows that communities can create viable interpretations of fair use, which then enable those communities to do their work, meet their missions, and accomplish progress in their fields more simply. Even in very different copyright regimes, with different underlying principles, one important and healthy response to long and strong copyright is to understand and exercise the rights that people do have. Creative projects that span borders will continue to be complex— messier than anyone would like, like so much else in life. But citizens who know what their rights are, or who can show what is lost in the absence of better rights, can become part of constituencies for copyright that works to nurture, not constrain, the creation of culture.
appendix a
Codes of Best Practices in Fair Use
Communities of practice are constantly developing codes of best practices in fair use. The Center for Media & Social Impact aggregates the codes that it and the Washington College of Law have facilitated and others we are aware of, at http://cmsimpact.org/fair-use. Codes
Code of Best Practices in Fair Use for Academic and Research Libraries Code of Best Practices in Fair Use for Media Literacy Education Code of Best Practices in Fair Use for Online Video Code of Best Practices in Fair Use for OpenCourseWare Code of Best Practices in Fair Use for Poetry Code of Best Practices in Fair Use for Scholarly Research in Communication Code of Best Practices in Fair Use for the Visual Arts Documentary Filmmakers’ Statement of Best Practices in Fair Use “Fair Use and Sound Recordings: Lessons from Community Practice,” appendix A in ARSC Guide to Audio Preservation Set of Principles in Fair Use for Journalism Society for Cinema and Media Studies’ Statement of Best Practices for Fair Use in Teaching for Film and Media Educators Society for Cinema and Media Studies’ Statement of Fair Use Best Practices for Media Studies Publishing Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions Statement of Best Practices in Fair Use of Dance-Related Materials
appendix b
Documentary Filmmakers’ Statement of Best Practices in Fair Use
By the Association of Independent Video and Filmmakers, Independent Feature Project, International Documentary Association, National Alliance for Media Arts and Culture, and Women in Film and Video (Washington, DC, chapter), in consultation with the Center for Social Media in the School of Communication at American University and the Program on Intellectual Property and the Public Interest in the Washington College of Law at American University, and endorsed by Arts Engine, the Bay Area Video Coalition, the Independent Television Service, P.O.V./American Documentary, and the University Film and Video Association. This Statement of Best Practices in Fair Use makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine. Fair use expresses the core value of free expression within copyright law. The statement clarifies this crucial legal doctrine, to help filmmakers use it with confidence. Fair use is shaped, in part, by the practice of the professional communities that employ it. The statement is informed both by experience and ethical principles. It also draws on analogy: documentary filmmakers should have the same kind of access to copyrighted materials that is enjoyed by cultural and historical critics who work in print media and by news broadcasters. Preamble
This Statement of Best Practices in Fair Use is necessary because documentary filmmakers have found themselves, over the last decade, increasingly constrained by demands to clear rights for copyrighted material. Creators in other disciplines do not face such demands to the same extent, and documentarians in earlier eras experienced them less often and less intensely.
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Today, however, documentarians believe that their ability to communicate effectively is being restricted by an overly rigid approach to copyright compliance, and that the public suffers as a result. The knowledge and perspectives that documentarians can provide are compromised by their need to select only the material that copyright holders approve and make available at reasonable prices. At the same time, documentarians are themselves copyright holders, whose businesses depend on the willingness of others to honor their claims as copyright owners. They do not countenance exploitative or abusive applications of fair use, which might impair their own businesses or betray their work. Therefore, documentarians through their professional organizations, supported by an advisory board of copyright experts, now offer the statement that follows. Background
“Fair use” is a key part of the social bargain at the heart of copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture. We have chosen to encourage creators by rewarding their efforts with copyright. To promote new cultural production, however, it also is important to give other creators opportunities to use copyrighted material when they are making something new that incorporates or depends on such material. Unless such uses are possible, the whole society may lose important expressions just because one person is arbitrary or greedy. So copyright law has features that permit quotations from copyrighted works to be made without permission, 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 helps reconcile copyright law with the First Amendment. As copyright protects more works for longer periods, it impinges more and more directly on creative practice. As a result, fair use is more important today than ever before. Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use. Creative needs and practices differ with the field, with technology, and with time. Instead, 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
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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, such as documentary filmmaking, lawyers and judges consider professional expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair-use analysis, courts employ a four- part test, set out in the Copyright Act. In doing so, they 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 the original, or did it just repeat the work for the same intent and value as the original? Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?
Among other things, both questions address whether the use will cause excessive economic harm to the copyright owner. If the answers to these two questions are affirmative, 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. Documentary films usually satisfy the “transformativeness” standard easily, because copyrighted material is typically used in a context different from that in which it originally appeared. Likewise, documentarians typically quote only short and isolated portions of copyrighted works. Thus, judges generally have honored documentarians’ claims of fair use in the rare instances where they have been challenged in court. 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. In the future, filmmakers’ ability to rely on fair use will be further enhanced by the Statement of Best Practices in Fair Use that follows. This statement serves as evidence of commonly held understandings in documentary practice and helps to demonstrate the reasonableness of uses that fall within its principles. Documentarians find other creator groups’ reliance on fair use heartening. For instance, historians regularly quote both other historians’ writings and textual sources; artists reinterpret and critique existing images (rather than merely appropriating them); scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of the news media: fair use is healthy and vigorous in daily broadcast television, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.
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The statement that follows describes the actual practice of many documentarians, joined with the views of others about what would be appropriate if they were free to follow their own understanding of good practice. In making films for TV, cable, and theaters, documentarians who assert fair use often meet with resistance. All too frequently they are told (often by nonlawyers) that they must clear “everything” if they want their work to reach the public. Even so, some documentarians have not been intimidated. Unfortunately, until now the documentarians who depend on fair use generally have done so quietly, in order to avoid undesired attention. In this statement, documentarians are exercising their free-speech rights— and their rights under copyright— in the open. This statement does not address the problems that result from lack of access to archival material that is best quality or the only copy. The statement applies to situations where the filmmaker has ready access to the necessary material in some form. The statement also does not directly address the problem of “orphan works”— works presumably copyrighted but whose owners cannot be located with reasonable effort. Generally, it should be possible to make fair use of orphan works on the same basis as clearly sourced ones. Sometimes, however, filmmakers also may wish to use orphan works in ways that exceed fair use. A more comprehensive solution for orphan works may soon be provided through an initiative spearheaded by the US Copyright Office (for more information, see http://www.copyright.gov/orphan). This statement finally does not concern “free use”— situations when documentarians never need to clear rights. Examples of types of free use are available at the Center for Media and Social Impact web page. The Statement
This statement recognizes that documentary filmmakers must choose whether or not to rely on fair use when their projects involve the use of copyrighted material. It is organized around four classes of situations that they confront regularly in practice. (These four classes do not exhaust all the likely situations where fair use might apply; they reflect the most common kinds of situations that documentarians identified at this point.) In each case, a general principle about the applicability of fair use is asserted, followed by qualifications that may affect individual cases. The four classes of situations, with their informing principles and limitations, follow on the next page.
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One: Employing copyrighted material as the object of social, political, or cultural critique
description: This class of uses involves situations in which documentarians engage in media critique, whether of text, image, or sound works. In these cases, documentarians hold the specific copyrighted work up for critical analysis. principle: Such uses are generally permissible as an exercise of documentarians’ fair-use rights. This is analogous to the way that (for example) a newspaper might review a new book and quote from it by way of illustration. Indeed, this activity is at the very core of the fair-use doctrine as a safeguard for freedom of expression. So long as the filmmaker analyzes or comments on the work itself, the means may vary. Both direct commentary and parody, for example, function as forms of critique. Where copyrighted material is used for a critical purpose, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative book review could) is irrelevant. In order to qualify as fair use, the use may be as extensive as is necessary to make the point, permitting the viewer to fully grasp the criticism or analysis. limitations: There is one general qualification to the principle just stated. 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) critiqued. In other words, the critical use should not become a market substitute for the work (or other works like it). Two: Quoting copyrighted works of popular culture to illustrate an argument or point
description: Here the concern is with material (again of whatever kind) that is quoted not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing— as clips from fiction films might be used (for example) to demonstrate changing American attitudes toward race. principle: Once again, this sort of quotation should generally be considered as fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair-use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media
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do not hesitate to use illustrative quotations (both words and images). In documentary filmmaking, such a privileged use will be both subordinate to the larger intellectual or artistic purpose of the documentary and important to its realization. The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one. This is an attempt to add significant new value, not a form of “free riding”— the mere exploitation of existing value. limitations: Documentarians will be best positioned to assert fair-use claims if they assure that • • •
•
the material is properly attributed, either through an accompanying on-screen identification or a mention in the film’s final credits; to the extent possible and appropriate, quotations are drawn from a range of different sources; each quotation (however many may be employed to create an overall pattern of illustrations) is no longer than is necessary to achieve the intended effect; the quoted material is not employed merely in order to avoid the cost or inconvenience of shooting equivalent footage.
Three: Capturing copyrighted media content in the process of filming something else
description: Documentarians often record copyrighted sounds and images when they are filming sequences in real-life settings. Common examples are the text of a poster on a wall, music playing on a radio, and television programming heard (perhaps seen) in the background. In the context of the documentary, the incidentally captured material is an integral part of the ordinary reality being documented. Only by altering and thus falsifying the reality they film— such as telling subjects to turn off the radio, take down a poster, or turn off the TV— could documentarians avoid this. principle: Fair use should protect documentary filmmakers from being forced to falsify reality. Where a sound or image has been captured incidentally and without prevision, as part of an unstaged scene, it should be permissible to use it, to a reasonable extent, as part of the final version of the film. Any other rule would be inconsistent with the documentary practice itself and with the values of the disciplines (such as criticism, historical analysis, and journalism) that inform reality- based filmmaking.
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limitations: Consistent with the rationale for treating such captured media uses as fair ones, documentarians should take care that • • • •
•
particular media content played or displayed in a scene being filmed was not requested or directed; incidentally captured media content included in the final version of the film is integral to the scene/action; the content is properly attributed; the scene has not been included primarily to exploit the incidentally captured content in its own right, and the captured content does not constitute the scene’s primary focus of interest; in the case of music, the content does not function as a substitute for a synch track (as it might, for example, if the sequence containing the captured music were cut on its beat, or if the music were used after the filmmaker has cut away to another sequence).
Four: Using copyrighted material in a historical sequence
description: In many cases the best (or even the only) effective way to tell a particular historical story or make a historical point is to make selective use of words that were spoken during the events in question, music that was associated with the events, or photographs and films that were taken at that time. In many cases, such material is available, on reasonable terms, under license. On occasion, however, the licensing system breaks down. principle: Given the social and educational importance of the documentary medium, fair use should apply in some instances of this kind. To conclude otherwise would be to deny the potential of filmmaking to represent history to new generations of citizens. Properly conditioned, this variety of fair use is critical to fulfilling the mission of copyright. But unless limited, the principle also can defeat the legitimate interests of copyright owners— including documentary filmmakers themselves. limitations: To support a claim that a use of this kind is fair, the documentarian should be able to show that • •
the film project was not specifically designed around the material in question; the material serves a critical illustrative function, and no suitable substitute exists (that is, a substitute with the same general characteristics);
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• • •
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the material cannot be licensed, or the material can be licensed only on terms that are excessive relative to a reasonable budget for the film in question; the use is no more extensive than is necessary to make the point for which the material has been selected; the film project does not rely predominantly or disproportionately on any single source for illustrative clips; the copyright owner of the material used is properly identified.
Fair Use in Other Situations Faced by Documentarians
The four principles just stated do not exhaust the scope of fair use for documentary filmmakers. Inevitably, actual filmmaking practice will give rise to situations that are hybrids of those described above or that simply have not been anticipated. In considering such situations, however, filmmakers should be guided by the same basic values of fairness, proportionality, and reasonableness that inform this statement. Where they are confident that a contemplated quotation of copyrighted material falls within fair use, they should claim fair use. Some Common Misunderstandings about Fair Use
As already indicated, two goals of the preceding statement are to encourage documentarians to rely on fair use where it is appropriate and to help persuade the people who insure, distribute, and program their work to accept and support documentarians in these choices. Some common errors about fair use and its applicability may stand in the way of accomplishing these goals. Briefly, then, here are some correctives to these misunderstandings: •
•
Fair use need not be exclusively high-minded or “educational” in nature. Although nonprofit or academic uses often have good claims to be considered “fair,” they are not the only ones. A new work can be “commercial”— even highly commercial— in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have. Fair use doesn’t have to be boring. A use is no less likely to qualify as a fair one because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and
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limitations described in the Statement of Best Practices in Fair Use, the fact that it is entertaining or emotionally engaging should be irrelevant to the analysis. A documentarian’s failed effort to clear rights doesn’t inhibit his or her ability to claim fair use with respect to the use in question. Everyone likes to avoid conflict and reduce uncertainty. Often, there will be good reasons to seek permissions in situations where they may not literally be required. In general, then, it never hurts to try, and it actually can help demonstrate the filmmaker’s good faith. And sometimes (as in connection with Principle Four) it can be critically important.
Legal Advisory Board
Professor Julie E. Cohen Georgetown University Law Center Washington, DC Michael C. Donaldson, Esq. Donaldson & Hart Los Angeles, California Professor Michael J. Madison University of Pittsburgh School of Law Pittsburgh, Pennsylvania Gloria C. Phares, Esq. Patterson Belknap Webb & Tyler New York, New York J. Stephen Sheppard, Esq. DeBaets, Abrahams & Sheppard New York, New York Authoring Organizations Association of Independent Video and Filmmakers (AIVF)
Works to increase creative and professional opportunities for independent video and filmmakers and to enhance the growth of independent media by providing services, advocacy, and information.
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Independent Feature Project (IFP)
Fosters a sustainable infrastructure that supports independent filmmaking and ensures that the public has the opportunity to see films that more accurately reflect the full diversity of the American culture. International Documentary Association (IDA)
Promotes nonfiction film and video around the world by supporting and recognizing the efforts of documentary film and video makers, increasing public appreciation and demand for the documentary, and providing a forum for documentary makers, their supporters, and suppliers. National Alliance for Media Arts and Culture (NAMAC)
Provides education, advocacy, and networking opportunities for the independent media field. Women in Film and Video (WIFV), Washington, DC, Chapter
Works to advance the professional development and achievement for women working in all areas of film, television, video, multimedia, and related disciplines. Academic Consulting Organizations Center for Media & Social Impact
Showcases and analyzes media for social justice, civil society and democracy, and the public environment that nurtures them, in the School of Communication at American University in Washington, DC. Program on Intellectual Property and the Public Interest
Sponsors events and activities designed to promote awareness of the social, economic, and cultural implications of domestic and international intellectual property law, in the Washington College of Law at American University.
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Endorsers
Arts Engine Bay Area Video Coalition CINE Doculink Electronic Arts Intermix Grantmakers in Film and Electronic Media Full Frame Documentary Festival Independent Television Service (ITVS) P.O.V./American Documentary University Film and Video Association (UFVA) Video Association of Dallas Women Make Movies Funders
The Rockefeller Foundation The John D. and Catherine T. MacArthur Foundation Additional support from: Grantmakers in Film and Electronic Media For more information, go to the Center for Media & Social Impact web page. Please feel free to reproduce this in its entirety. For excerpts, employ fair use or contact
[email protected].
appendix c
Myths and Realities about Fair Use
myth: Fair use is not a right, just an “affirmative defense.” reality: Fair use is definitely a right, which comes in the form of an affirmative defense. Courts and Congress have acknowledged that fair use is a citizen’s right, rooted in constitutional copyright policy and guarantees of free speech. It’s true that in the rare instance in which a fair user ends up in court, he or she is responsible for making the case that the right has been properly exercised (just as a writer sued for defamation would need to show that he or she is protected by the First Amendment). But that does not make it any less a right. myth: Fair use is valid only when it is noncommercial. reality: Fair use is designed to expand the range of cultural production, not just the range of noncommercial cultural production. Almost all the occasional litigation on fair use that over the years has shaped its interpretation has been over commercial uses. Companies are, of course, more likely than individuals both to be sued and to defend their rights. Fair uses can be made of copyrighted material in any commercial context, so long as the four factors of consideration tilt toward the value of new contributions to culture against the cost to current owners. While courts make judgments after the fact, users must decide how to proceed with any new project. Past judicial decisionmaking, which has moved toward consistency over the decades, helps them do that. The approach preferred by the courts is to find transformation (reuse for a different purpose) and to make sure that only as much of the original has been used as is appropriate to the transformation. This analysis becomes easier and more reliable if there is a stated justification for the habits and practices of a particular creative or user community.
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myth: Any noncommercial use is fair. reality: The law does privilege such uses in some cases, but you cannot safely lean exclusively on the fact that you are not selling your work. That is especially true in online situations, where you may not be making money off your work but somebody else is— such as an advertiser placing ads on a content site. Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair-use claim, that pocketbook problem may not be a bar to exercising the right— depending again on whether the use is for a transformative purpose. But simply not making money does not give you a fair-use pass. myth: Fair use is always valid if you’re using copyrighted material in an educational context. reality: Educational uses have their own special exemptions, but beyond these “safe harbors” fair use in an educational context will have to abide by the same logic as in other contexts. However, because fair-use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some straightforward justifications for transformation (such as that students are analyzing or discussing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator’s use might not be transformative. myth: Fair use is only about criticism and commentary, including parody. reality: Criticism, commentary, satire, and parody are all great examples of ways in which copyrighted material is reused for a different purpose from that of its original market, in the process of creating more culture. How does satire differ from parody? They are closely related. Parody imitates a particular work, usually to provide humorous commentary. Satire employs an existing work to poke fun at something else. But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make— a collage or mashup— can also be a fair use. So can illustrative uses, or incidental ones, or those that use a quotation to stimulate discussion— to name only a few. myth: Fair use is just “the right to hire a lawyer.” reality: In fact, fair use is no vaguer or less clear than other rights of free expression. As with questions of libel, indecency, or obscenity, there are
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clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. And, of course, the overwhelming majority of well-informed choices made every day about fair use simply go unchallenged. myth: Fair use needs a really good “test case” in the courts, to set precedent. reality: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers generally will not risk a lawsuit they stand a good chance of losing. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair-use right to use a press photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about exactly which photograph he used, prejudicing his case and leading to an out-of-court settlement. Far better than waiting for a definitive test case is establishing clear standards of interpretation within practice communities. In addition, such standards could be highly useful were any litigation to ensue. myth: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined. reality: This conclusion is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, millions of people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and they get into no trouble at all. They are in the safe-harbor areas of fair use. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro bono lawyers who are eager to litigate on fair use, including local volunteer lawyers for arts organizations, the ACLU, EFF, and some law school–based intellectual property clinics. Courts strongly encourage settlement and discourage trials. Finally, anyone who proceeds with litigation has rejected plenty of opportunities to
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settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule. People frequently confuse one kind of danger with another. For instance, at the height of music companies’ panic over music on the internet and before legal online music services existed, the RIAA sued a clutch of average-citizen uploaders. By means of a few strategic lawsuits, the RIAA attempted to create publicity and public awareness about the illegality of “sharing” copyrighted material that was otherwise available for sale. This was an entirely different problem from the one most people face in applying fair use in creating new work. Filesharers were getting and giving free access to material that anyone could buy, typically to use in exactly the way it was being marketed. The music industry have been backward-looking, but its legal case was technically sound. It was not grounded in fair-use arguments. Fair users do not need to be frightened of RIAA lawsuits. myth: Fair use is just an interpretation, not part of the law. reality: Fair use is neither new nor a mere interpretation. A 175- year-old feature of the law (which was widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. In 1976 it was specifically included in section 107 of the copyright statute, where it remains unchanged. As the Supreme Court has pointed out, fair use is an essential tool for us to be able to exercise our First Amendment rights. myth: I can’t use fair use, because the copyright holders would never agree to it. reality: Fair use is a right that you employ simply by accessing material, copying it, and incorporating it into your project within an appropriate context. You do not need to get anyone’s permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; an owner’s refusal to license may even increase your case for fair use, if the material is important to what you are trying to say. Some people like to alert those whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship. myth: Fair use doesn’t apply to music. reality: Fair use applies to all media with the same logic. Music, photo-
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graphs, online video, books, visualizations, and more— indeed, all copyrighted materials— are eligible for the same fair use logic. myth: If it’s on the internet, it’s public and so has no copyright. I don’t even need fair use. reality: Material on the internet is just as likely to be under copyright as material found anywhere else. The fact that it isn’t labeled as such doesn’t matter. The fact that you technically can copy doesn’t mean that you don’t have to think about copyright and fair use. The logic of fair use applies across all platforms equally— analog and digital, streaming and downloading, in real life, in a storage format like a DVD, and online. Your fairuse argument is not impaired by your finding material on the internet, but neither can you avoid thinking about copyright. Of course the terms of service of some applications and platforms may impose additional restrictions on users, but this is not the case where many of the most widely used content platforms are concerned. myth: If I already asked someone’s permission to use material, I’ve given up my fair-use rights. reality: You always can have the option of fairly using, unless you signed a contract in which you gave away that right. So you lose nothing by seeking a license. Sometimes a refusal to license, or to license at a reasonable cost, can provide extra reinforcement to an argument for fair use.
appendix d
Answers to Fair Use: You Be the Judge
PTSA Flyer (p. xiii)
This will be an informational document, oriented to members of a nonprofit organization, but it also is promoting a commercial activity (selling books). You won’t be able simply to argue that this is noncommercial use; besides, that is never a sufficient reason for fair use. So apply the reasoning described on p. 25. Ask yourself: why are you using those book covers? Is it merely to decorate the flyer? That is a weak answer. Do you intend to illustrate the kind of activity being described? That is a stronger answer, because you are showing how you are repurposing the original purpose of the book cover. Are you reproducing a range of covers, thus demonstrating a range of choice— for instance, age groups represented, hardcovers, board books, paperbacks in popular series? If so, that is a strong example of how you are repurposing, or transforming. Are you using rather small reproductions, for instance low- resolution thumbnails pulled from the internet? If so, this demonstrates how you are using amounts of the material appropriate to the purpose. Asking yourself these questions, you can create a strong fair-use argument; it might be helpful to you, and save time in the future, to keep a note of your thinking. Once it is a fair use, it really doesn’t matter what medium it is in. Could you be challenged with, say, a cease-and-desist letter? Really, the likelihood is so remote that it should not trouble you. In the wildly improbable event anyone ever did challenge you or the PTSA, you and the PTSA would respond confidently with the answers you had created by asking yourself these questions. Health News (p. 6)
Journalists, whether professional or not, routinely excerpt and share limited amounts of other news sources’ material; fair use is basic to journal-
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ism. You may want to consult the Set of Principles in Fair Use for Journalism, available at cmsimpact.org/journalism. Not every reference to other people’s information even triggers fair use; for instance, you can always put in web links without worrying about copyright law. If you are embedding content, you’ll apply fair-use reasoning. You will ask yourself, What new purpose am I putting this material to? How much do I need for that purpose? The material you want is designed to inform the public about food safety issues. If you want merely to share that information, you are safest providing a description in your own words and a link. In that case, you are performing the same service— informing the public about topical food safety issues— as the original material. If the material is otherwise unavailable, you may have a stronger case, particularly if you add value to it in some way, for instance by commenting on it. If the material is not designed for this purpose (for instance, a scene in a TV program that demonstrates a common myth about food safety), you also have a stronger argument for using the appropriate amount within this changed context. If what you want to do is not merely to aggregate current news but to comment on or critique a particular kind of news coverage, then you may have an argument for employing more of the material, possibly even the entire broadcast segment or newspaper article. In any case, attribution is a polite and useful gesture (links are, effectively, attribution, but otherwise you would be wise to make sure your readers know where you got that material). And in all cases, there is no need to contact the original source, whether you are merely linking to them or quoting them in part or in whole. You may want to do so for other reasons— developing potential partnerships or exchanges, for example. Social Media Images (p. 14)
You’ll be helped by the Set of Principles in Fair Use for Journalism. The fact that you’re producing a background or feature story doesn’t change the logic. Situation four is probably the most useful to you here: “Fair use applies to illustration in news reporting.” You’ve got a transformative purpose, and it matches the principle. Now you turn to the limitations. Will those photos enhance the journalistic purpose of the story, rather than serving as eye candy? Are you using an appropriate amount of material? (Your use of any particular photo might be 100% of it, if it is appropriate.) Are you taking these photos from a service that sells photographs to journalists? (It seems you’re using work that was not specifically designed to report stories, like, say, news service photographs are.) Are you providing
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attribution? Answering these questions lets you know whether your use is within the consensus of the field about appropriate fair use. TV Program (p. 23)
You might want to start by consulting the Documentary Filmmakers’ Statement of Best Practices in Fair Use (at cmsimpact.org/documentary). The understanding of fair use in documentary production described there is relevant whether the work is on television or in a theater or on DVD. Your use here is related to the statement’s second category, of illustration. You have a clear new purpose that would “transform” your use of the old and new films, so you are in fair-use range. Now you just need to take a good look at how much you are using, whether you are using only what you need, and whether what you are using demonstrates the new point you are making. In that introductory montage, is the link between what you are quoting and the subject matter of your program clear, or is that material designed just to tickle the viewer’s eye and keep her there past the commercial? Do the montages make the point you want to make? Have you made clear— perhaps in surrounding narration or setup— what point this montage is intended to make? You don’t need to worry about contracting with celebrities for permission (or paying residuals), because when you fairly use material, you do not inherit any of the contractual obligations to the talent that the original maker entered into. To avoid any problems with rights of publicity, however, you should be sure not to use unlicensed celebrity images in the advertising and promotion of your program. Fan Site (p. 29)
You might want to start by reading the Code of Best Practices in Fair Use for Online Video, which describes some common fair-use situations. Two of them are relevant to you: discussion and comment/critique. As a fan, you are making a commentary; don’t forget, criticism can be positive as well as negative. Should you post the entire episode on your website? This is a big decision, not only because you want to obey the law but also because there is corporate surveillance on the web and you may be challenged by the franchise’s owner. You need a reason to use it, one that demonstrates how you are repurposing and justifies the amount you are using. You have a repurposing reason. As a fan, you selected this episode as uniquely significant. Your project clearly requires people to understand the narrative, too. Now, you need to ask yourself: Do you need the whole episode to make
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your point? Could you achieve that goal by selecting relevant portions and commenting on them? If you can reach your goal with excerpts, that is the smart and safe approach. If not, you need a reason others can understand. In any case, it will be smart to integrate the reasons why you chose the material into the fan site— which likely you are intending to do anyway. By the way, if you were dealing with a very hard-to-come-by piece of work not in commercial distribution, instead of a series that is sold on all platforms, you might be able to make a fair-use case (as the code suggests) for archiving work on the web. Public Radio News (p. 44)
Many gatekeepers believe that hard numbers govern decisions about fair use. Gatekeepers sometimes also say you can never use a work in its entirety under fair use. They are wrong on both counts, as the Set of Principles in Fair Use for Journalism explains. This is always a case-by-case decision based on the reasons for your reuse of the material and the amount you are choosing, as well as other considerations such as noncommerciality and the nature of what you are taking. In this case, you have been given bad information. There is no “10 percent” or “30 second” or “four hundred words” rule. You also don’t get a special break in this case because you work in public radio, but you don’t need one. Although public broadcasting does have some special exemptions, this is a situation where you need to make up your own mind. To help your reasoning, you should refer to the questions on p. 25. You are already comfortable, as most journalists are, employing fair use for quoting excerpts of copyrighted material. Your problem is with the whole amount. Ask yourself: Do I have a good reason for playing all of this commercial? Do I need for the listener to hear the entire thing to grasp the points I am making in the reporting? Will I make it easy for the listener to understand why they need to hear the whole thing? Your answers to these questions will determine your choice. You can then go back and help educate the person who gave you that misinformation. It won’t hurt to make a note for yourself of your reasoning; if anyone within your station or beyond it ever challenges your choice, you’ll be able to show them you thought about this, and had good reasons. Poetry (p. 46)
Even though you’re writing fiction, you still have some fair- use rights to access and refer freely to the culture your protagonist experiences. In
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a commercial culture, the daily life of teens is infused with commercial references, and popular music and poems that circulate rapidly on social media are both part of daily life. In their Code of Best Practices in Fair Use for Poetry, poets expressed their belief that both epigraphs and quotations from poetry are fair uses, if they are relevant to the subject matter, are accurate, are attributed, and are used in appropriate amounts. Orphaned Material (p. 60)
You are probably using copyrighted material, unless it is so old that it has fallen into the public domain (see p. 33). And if you want to license it, then you probably need to do more than a quick Google search to make a good-faith effort to find the owner. But after you have, you still may not be able to find the owner. Then you’re dealing with an “orphan work,” copyrighted material whose owner is missing. Current copyright law makes no special provision for using orphan works. You may, in that case, want to employ fair use, which is available for any kind of material, including orphan works. You might want to start by consulting the Documentary Filmmakers’ Statement of Best Practices in Fair Use, at cmsimpact.org /documentary. You will find the second (illustrative) and fourth (archival) categories useful. You will want to ask what your reason is for employing this material. Are you using the photos and images of letters to further the explanation you are making in the documentary part of the film? Are they important to that explanation? Some of your film is fictional. While fair use has been employed in fiction films, many of the arguments for fair use in documentary would not apply. In the fiction part of this film, you probably have enough opportunity to create material that you do not need to consider using this material under fair use. But if you do, then consider the two basic questions: what is your new creative purpose, and why are you using this amount? It is also worth remembering that the law specifies the effect on the market as one consideration that influences fair-use decision making. When a work is truly “orphaned,” then— by definition— its owners aren’t making a licensing market for its use. This could add additional punch to your argument for fair use. Video Games (p. 68)
You have a clear fair-use argument for using screenshots in your book, as film scholars and communication scholars assert in their codes of best practices (available at http://centerforsocialmedia.org/fair-use). Similar
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uses for illustrative purposes, connected to the arguments of your book, on the website will be fair uses under the same logic. Please consult these codes for their principles and limitations, and then ask yourself questions about how you work within those terms. As for the machinima: Often, people who produce machinima produce it with a license from the video game maker. Then they are hostage to whatever conditions the video game maker imposes. In this case, though, you have impressively gained access to the material without such a license, so you can entertain the question of fair use. You have a clear transformative purpose. You are using this material both to illustrate the form and to further explore an argument you are making about the form. You need to ask yourself how much of this material you need for these two transformative purposes. For instance, you may have designed a narrative in machinima that explores or extends the argument within the form you are describing. In this case, you may have a strong argument for using video game characters in an extended sequence. The fact that you have tried to license this material does not alter your claim to fair use. Indeed, having asked and been turned down may actually improve your argument, since it means that you are not depriving the owner of licensing revenue, and at least suggests that that owner may have a noneconomic reason for rejecting your request. If the rejection is content-based, your argument is strengthened further. YouTube Takedown (p. 73)
You need to revisit your arguments for your fair use of this material. You can get help by consulting the Code of Best Practices in Fair Use for Online Video. Then, if you are still confident that your uses were fair, you can find out what kind of removal it was. The Electronic Frontier Foundation has great online resources (for instance, http://www.eff.org/issues /intellectual -property/guide -to -youtube -removals) to help you figure it out. If you are confident that you have a good reason, depending on the kind of removal you can issue a dispute or a counternotice. A dispute is a simple explanation to YouTube of your fair- use reason for using the material, and it is usually resolved very quickly. In the case of a counternotice, you will have to provide information and agree to resolve the dispute in your local federal court as a jurisdiction should the copyright holder sue you— no matter how unlikely that may be. There was no evidence of a single lawsuit of a copyright holder against a typical YouTube user, as of 2010. If the copyright holder does not contest your claim, the video goes right back up.
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Music in Curricula (p. 80)
You are concerned not about the performance (which you will record with written permission), but about the music. This music, since it’s classical, could well be in the public domain, and you wouldn’t even need fair use. But the orchestra might be using a recent arrangement of the music, which might still be under copyright. (Whether arrangements are actually copyright-protected is in some dispute.) So you need to find out the copyright status of the arrangement they are using. If it is under copyright, then you need to consider whether fair use could apply. The Code of Best Practices in Fair Use for Media Literacy Education, and especially its first and second categories, may give you some help with your fairuse reasoning, even though it wasn’t designed for music teachers. You will ask yourself, Why are you excerpting the orchestra? What do you want your students to take away from this segment? How will you help them to understand what to get out of the segment? The answers to those questions will help you understand how you are repurposing the orchestra’s performance, which we assume was executed in order to share with music-loving listeners a piece of music. They will also guide you as you ask yourself how much of the musical performance you need. Because you will be explaining your pedagogical purpose when you excerpt this material, the logic of your repurposing will be clear. Checklists (p. 89)
No, the most helpful approach will be to help people understand the reasoning that governs a fair-use decision, summarized in the questions on p. 25. People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years. Professors are fully capable of making reasoned decisions about what to post to their own class sites. This is a particularly safe environment, too. These sites are typically passworded and limited only to students enrolled in the class. The professors should ask if the material selected is being repurposed, and if so what that repurpose is, associated with their teaching objective for the class. Then they will ask if the amount
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taken is appropriate to their need. Where they may need help is in knowing which of the materials they are using were designed specifically for the educational environment they are teaching in (for instance a text written for their subject), and if any of the media they use was licensed with terms that rule out fair use. Curriculum (p. 122)
You may want to start by consulting the Code of Best Practices in Fair Use for Media Literacy Education, which wasn’t designed for biology teachers but may help you with your reasoning. The first two sections, on employing copyrighted material in classes and curriculum, may give you some analogies. In regard to the quotations, you will ask yourself: What purpose do you have for aggregating these quotations in your slideshow? You have a specific educational purpose, and you have harvested them from a variety of places. Do you need all of the material you are quoting? You will have selected certain parts of these quotes in order to demonstrate your purpose. If you have good answers to these questions, then you are in the fair-use zone. You probably want to make sure that somewhere in that slideshow, maybe on the slides themselves or at the end, you provide a citation to the works you used. That will also model appropriate behavior in research for your students. If your fair- use reasoning is solid enough for the classroom, it will be just as durable for sharing with other teachers and students. If you are making it available to the general public, you need to make sure that the educational context of your use is crystal clear. School Projects (p. 131)
You are in luck, because you can consult the Code of Best Practices in Fair Use for Media Literacy Education, designed specifically for your community of practice. You’ll want to look at the fourth and fifth categories of the code, concerning student work and its distribution. The code notes, for instance, that “students may use copyrighted music for a variety of purposes, but cannot rely on fair use when their goal is simply to establish a mood or convey an emotional tone, or when they employ popular songs simply to exploit their appeal and popularity.” You will want to design a policy that works both within and beyond the classroom, since you hope that your students will produce good enough work that it can be shared beyond the classroom, and also you know that they probably will share it in any case. If your students want to use entire songs and they can still
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make a strong fair- use argument for them (rather than just relying on their love of that music), they may be operating in a fair- use gray zone that is increasingly well-inhabited and may be close to the fair-use safe harbor zone of the codes. Scholarly Publishing (p. 143)
The Code of Best Practices in Fair Use for the Visual Arts’ first situation focuses on this problem, so the place to start may be reading that document. The section dealing with analytical writing about art defines the conditions under which your peers believe it is acceptable to employ fair use, and the limits of those conditions. Your transformative purpose (analysis of the art) and the appropriate amount to match that transformative purpose are central. Among other things, the code asks you to consider, when choosing illustrations, whether they are justified by your analytic objective, and to consider the amount and kind of material used, as well as size and resolution of the published reproduction. Your solid answers to those questions will be helpful to you when you explain how fair use works to the editor or publisher. Defaulting to permissions may still be normal in publishing in your field, but it will change as authors demand change in accordance with the law. Others have succeeded before you. Museum Exhibition (p. 151)
You can consult the Code of Best Practices in Fair Use for the Visual Arts to see if your uses are within the best practices of the museum community in the arts. You will find that your peers believe that you “may invoke fair use in using copyrighted works, including images and text as well as time-based and born-digital material, in furtherance of their core missions,” with certain limitations. You can check to see how your museum’s uses align with the limitations, which include (among others) a clear link between the selected materials and the purpose of the exhibition or related activity, an appropriate choice of reproductive quality, and, of course, attribution where possible. Parody and Satire in Slideshows (p. 169)
Parody and satire are so closely related that it can be hard to tell the difference, but both are different from just being funny. When you parody, you need to be referring to a text, which can include a performance, because
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you’re imitating it with a critical purpose related to the specific text. Satire is typically focused on behavior not necessarily contained in a specific text. Your project sounds like satire. In this case, you have a range of purposes. You are mocking politicians by developing ridiculous versions of their names. This does not involve copyright, and since they are public figures you are free to make fun of them. Regarding photographs, we’re presuming you took those pictures and therefore own the copyright for them; and we’re presuming you took pictures of a public event. So you have no issues; you are free to use that material. If you are using someone else’s photograph— for instance, a picture off a newspaper’s website— then you have copyright questions. You will need to ask what different purpose you are using it for, and whether your use conflicts with a reasonable after-market for a topical photograph. Your argument here is that you are incorporating it into a musical revue that is critical of election practices. Next you’ll ask if your use is limited to what you need to make a point. So you might have an excellent rationale for one photograph or for a montage of photographs describing a range of, or pervasive, behavior. Or you might have only one point to make and need only one photo to make that point. Finally, you want to include cartoons. These too are copyrighted. Once again, will your use be different from the original purpose of the cartoons? If you just want to use them to make or reinforce your political point, it may be hard to justify fair use, because you are repeating the original purpose of the cartoon. But if you are using the cartoons, for example, to demonstrate that many different perspectives emerged about a particular political act, you would have a strong fair-use argument.
references
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index
Page locators followed by b indicate text in a box. 24/7: A DIY Video Summit, 76 2 Live Crew, 90, 167 A&E, 92 ABC, 94, 113b Abelson, H., 54 Action Coalition for Media Education, 128 activists: court system and, 96b; documentary films and, 103; First Amendment and, 103; joining, 157; public campaigns and, 48–49, 52, 56, 59, 63; statutory damages and, 176 Adler, P., 138 advertisements, 2, 30, 50, 56, 64, 72–73, 80, 120, 126, 141, 147, 150, 154b, 173, 200, 206 Agreement on Guidelines for Classroom Photocopying in Not-for-Profit Educational Institutions, 121 Agreement on Trade-Related Aspects of Intellectual Property, 42 AIG, 111, 114 Aladdin (film), 2 Aldorando, C., 115 Ali, M., 20, 91 Allen, Woody, 23b “Alone Again” (Biz Markie), 99 Amazon, 73 American Association of Publishers (AAP), 6 American Association of University Professors, 121
American Civil Liberties Union (ACLU), 10, 78, 201 American Committee for Interoperable Systems (ACIS), 44 American Council of Learned Societies, 128 American Folk Art Museum, 155 American Library Organization, 138 American Society of Composers, Authors and Publishers (ASCAP), 50 American University, 78, 103 Anarchist in the Library (Vaidhyanathan), 56 Anderson, S., 76 Anderson, T., 117b Aoki, K., 79 appropriation art, 14, 61, 150–51, 169 archives: alerting holder of, 202; best practices and, 130, 136–37; Bill Graham Archives v. Dorling Kindersley Ltd. and, 86–88; Chevigny and, 112b; documentary films and, 112b, 116–18, 170; footage houses and, 170; freelance decision-making and, 165; judges and, 86–88; libraries and, 17b, 138, 141–42, 173, 187; mass-media business and, 35–36; music videos and, 15; special exemptions and, 17b; Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives and, 142 Artists’ Rights Society (ARS), 150–51, 154, 156 Art Libraries Society of North America, 138
222
Index
Arts Engine, 112b, 188, 198 Associated Press, 69 Association of American Law Schools, 121 Association of College and Research Libraries, 138 Association of Independent Video and Filmmakers (AIVF), 188, 196 Association of Recorded Sound Collections (ARSC), 156 Association of Research Libraries (ARL), 71, 138–39 AT&T, 64 Aufderheide, P., xi–xii, 136 Australia, 179–80 Authors Guild, 97–98 authorship, 21–24, 47, 65 Autolight, 34–35 AwesomenessTV, 73 Baby Einstein video, 168 background images, 102–3, 173, 193 background music, 13, 17, 92, 130, 168 Baldwin, C., 62 Balkin, J., 74 Band, J., 71, 84, 97 Bankler, Y., 53, 61, 74 Barlow, J. P., 48, 59–60, 66 Bay Area Video Coalition, 188, 198 Baylson, M., 94–95 Beastie Boys, 62 Beatles, 17, 63, 147, 168 Beebe, B., 74 Bell, C., 149 Bellagio Declaration, 51–52 Benkler, Y., 53, 61, 74 Benny v. Loew’s, 34–35 Berkman Center for Internet and Society, 75 Berry, C., 20 Best Made Co., 154b best practices. See codes of best practices Beyonce, 17 Bielstein, S., 9 Bill Graham Archives v. Dorling Kindersley Ltd., 86–88 bin Laden, O., 2 Biography (TV show), 92 Bitch Slap (film), 165 BitTorrent, 67
Biz Markie, 99 Black, E. J., 44, 78 Blackboard, 144 Blake, W., ix–x, 131 Blanch v. Koons, 95 Bleistein v. Donaldson Lithographing Co., 30–31 blogs, x; codes of best practices and, 129, 135, 157, 164; copyleft and, 61, 65–66, 70; Doctorow and, 65–66; free culture and, 65–66; Patry and, 135; takedowns and, 171; teachers and, 129 Blu-ray, 85 Bob Hope Comedy Pack (DVD set), 92 Boing Boing (blog), 65–66, 80, 135 Bollier, D., 12b, 13, 53–54 Bound by Law (comic), 79 Bourdieu, P., xiii Boyle, J., 13, 22, 52, 60, 78, 98, 102 Brain from Planet Arous, The (film), 94 Brand, S., 59 Braque, G., 61 Breton, A., 61 Bridgeport Music decisions, 99–100 Bridy, A., 82 Briggs, C., 145 Buck, H., 115 buildings, filming of, 172–73 bulletin boards, 59 Burkart, P., 11, 14, 81 Business Software Alliance (BSA), 42, 50 Butler, B., 156 Cablevision, 19 Calabresi, G., 39 California Intellectual Property Law Clinic, 84 Campbell v. Acuff-Rose Music, Inc., 90 Canada, 50, 62–63, 68–69, 162b, 181, 184 Canadian Recording Industry Association, 50, 63 Cardamone, R., 41 Cariou v. Prince, 95 Carson, D., 115–16 Carter, J. M., 35 Cartoon Networks, 19 CBS, 112b, 133 CDs, 7, 17, 42, 173
Index cease-and-desist letters, 37b, 63–65, 76, 96b, 107, 154b, 171, 204 censorship, 4, 16, 65, 70, 86, 104, 137, 151–53 Center for Internet and Society, 53, 75 Center for Media & Social Impact, xiv, 78, 111, 115–16, 160, 187, 191, 198, 208 Center for Social Media, 136, 188, 191, 197–98, 208 Center for the Public Domain, 53–54 Center for the Study of the Public Domain, 10, 52, 78 Cera, B., 152b Chevigny, K., 102, 112b, 113b Chien Andalou (film), 61 China, 7, 182 Chubb, 114 CINE, 198 Clearance and Copyright: Everything You Need to Know for Film and Television (Donaldson), 9 Clinton, B., 43 Clinton, G., 99–100 Clock, The (film), 117b Coase, R., 39 Code: And Other Laws of Cyberspace (Lessig), 52 Code of Best Practices in Fair Use for Academic and Research Libraries, 123, 187 Code of Best Practices in Fair Use for Media Literacy Education, 4, 80, 121, 125b, 127–28, 187, 210–11 Code of Best Practices in Fair Use for Online Video, 5, 76, 81, 133–34, 165, 169, 187, 206, 209 Code of Best Practices in Fair Use for OpenCourseWare, 145, 187 Code of Best Practices in Fair Use for Poetry, 147, 187, 208 Code of Best Practices in Fair Use for Scholarly Research in Communication, 144, 187 Code of Best Practices in Fair Use for the Visual Arts, 154b, 169, 187, 212 codes of best practices: archivists and, 141–42; back-room story and, 37b; big changes in, 153–55; blogs and, 157, 164; Bound by Law and, 79; comment/critique and, 166–67; common themes in, 136–37;
223
communities of practice and, 79–81; consensus for, 133–36; content companies and, 169; copyleft and, 81, 107, 132, 153; court system and, 86; Creative Commons and, 126; culture of fear and doubt and, 4–5, 9; Dance Heritage Coalition (DHC) and, 129–30; Digital Millennium Copyright Act (DMCA) and, 136; documentary films and, 79–80, 102–20, 126–27, 129, 132, 156, 164–65, 168; DVDs and, 120; dysfunctional guideline issues and, 121–24; educational use and, 4, 80, 115–16, 119–31, 136–37, 143–45, 156, 187, 194–95, 210–11; encryption and, 9, 142; exemptions and, 121; expansion of fair use and, 138, 143–44, 147, 154b, 156; films and, 119–21, 124–32, 136, 142–47, 187–98, 206, 208; gatekeepers and, 106–7, 117, 121, 126–28; gray areas and, 171; illustration and, 178–78; incidental/accidental incorporation and, 168; increased use of, 119–37; intellectual property and, 119; international environment and, 180; internet and, 132–33; journalists and, 147–49; learning from others and, 164–69; legal scholars and, 108, 119, 122, 133; libraries and, 4, 9, 79, 81, 121, 123, 127–29, 138–42, 147, 155–56, 169, 180, 187; list of, 187 (see also specific code); long and strong copyright and, 25, 75, 86; making your own, 157–64; media literacy and, 4, 76, 79–80, 119–21, 124–25, 127–29, 131b, 136–38, 165, 187, 210–11; music and, 103–4, 109–11, 114, 120–22, 131b, 190, 193–94; online video and, 5, 76, 81, 130–34, 136, 165, 169, 187, 206, 209; orphan works and, 141–42; piracy and, 102, 131; poets and, 142–47; publishers and, 106, 121–22, 157, 166; quotations and, 192–93; recombination and, 155–56, 168–69; remixes and, 116, 131–32, 135–36; resurgence of fair use and, 73, 75–85; risk and, 170; scholars and, 142–47; teachers and, 115–16, 119–31, 136–37; video games and, 208–9; visual art and, 79, 149–53, 154b, 169, 187, 212; YouTube and, 114, 116, 120, 125, 130–33, 136 Cohen, J. E., 196
224
Index
Coles, K., 147 collaboration, 7, 13, 21–23, 51, 59, 97, 140 collages, 62–64, 99, 117b, 118, 132, 169, 200 College Art Association (CAA), 150, 153–54 Columbia University Press, 143 Comedies of Fair Use conference, 66 comic books, 50, 79, 94, 144 comic strips, 1–2 Coming Home (film), 167 commentary, 61, 73b, 85, 132, 135, 181, 190, 192, 200, 206 Common as Air: Revolution, Art, and Ownership (Hyde), 75 communities of practice, 10, 73, 75, 79–81, 85, 101–2, 138–39, 155–56, 176, 187 Computer & Communications Industry Association, 10, 77 Conference on Fair Use (CONFU), 123 Conner, B., 62 Consortium of College and University Media Centers (CCUMC), 123 constitutional rights, 15, 21, 25, 27–28, 38, 46–47, 127, 199 Consumer Electronics Association, 10, 77 Consumption Markets and Culture (journal), 154b content companies: all-the-commerceall-the-time approach and, 43; business model crises of, 70; circumvention issues and, 44; Clinton administration and, 43; codes of best practices and, 169; copyleft and, 69–71; copyright-as-property approach and, 45; countermoves by, 82–83; criminal copying and, 48–51; cultural expression and, 52; digital environment and, 48, 78; Digital Millennium Copyright Act (DMCA) and, 19; educational use and, 38; European Union and, 182; Forsythe decision and, 64b; gatekeepers for, 3–4, 8, 67, 106–7, 117, 121, 126–28, 143, 157–59, 161, 166, 207; as hindrances to progress, 66; as hoarding entities, 56; International Intellectual Property Alliance and, 42, 77; licenses and, 19; mass media, 7, 35, 38, 43, 47, 62, 68, 86; piracy and, 60; risk and, 88; statutory damages and, 32; take-
downs and, 3–4, 45, 83; VCRs and, 19; WIPO treaties and, 44, 81–82, 183 Content Scrambling System (CSS), 19 copyleft: appropriation art and, 150–51; Bellagio Declaration and, 51–52; blogs and, 61, 65–66, 70; codes of best practices and, 107, 132, 153; content companies and, 69–71; Copyright Office and, 9; court system and, 86; Creative Commons and, 12b, 13, 54–55, 66, 126, 145–46, 172, 181b; creators and, 61–64; culture of fear and doubt and, 11; disempowering rhetoric and, 69–71; documentary films and, 107; Downhill Battle and, 67; expansion of fair use and, 140, 150–53; free-culture activists and, 48; Garnett and, 64–65, 150; Illegal Art Exhibit and, 63; internet and, 63, 69, 72; libraries and, 69, 71, 140; licenses and, 54–56; public campaigns and, 48–49, 52, 54–56, 61–71; Red Hat Foundation and, 52–54, 58; resurgence of fair use and, 72, 80–81; Students for Free Culture and, 80; test case for, 107–8; utilitarian doctrine of fair use and, 49 copyright: advocacy and, 175–77; aging out of, 172; Agreement on Guidelines for Classroom Photocopying in Not-forProfit Educational Institutions and, 121; Benny v. Loew’s and, 34–35; Bleistein v. Donaldson Lithographinc Co. and, 30–31; blogs and, 129, 135; in collaborative culture, 21–22; collages and, 62–64, 99, 117b, 118, 132, 169, 200; comment/ critique and, 166–67; confusion over, 120–21; content companies and, 48–51 (see also content companies); cultural mission of, 36; Digital Millennium Copyright Act (DMCA) and, 3–4, 9, 19, 43, 45, 52–53, 71, 77, 83–85, 131, 133, 136, 142, 144, 157, 175–76; education of, 50–51; Eldred v. Ashcroft and, 46–47; Elvis Presley Enterprises, Inc. v. Passport Video and, 92–93; evolution of, 25–33; Expelled case and, 77; extension of, 30, 32, 36, 46, 52; fair use and, 3 (see also fair use); fan fiction and, 21–22, 29b, 58, 69, 78, 131; films and, 17, 23b (see also films); first
Index sale doctrine and, 17, 34, 43; four factors and, 24, 28, 40, 74, 87–92, 95, 101, 165, 199, 210; Google case and, 97–98; Grand Upright case and, 99–100; Harper & Row case and, 40–41; HathiTrust case and, 97–98; historical perspective on, 25–33; Hofheinz v. A&E Television Networks, Inc. and, 92–93; illustrations and, 68, 106, 143b, 144, 148, 153, 154b, 166–67, 180–81, 205–6, 212; importance of, 5–8; incidental/accidental incorporation and, 168; infringement of, 3–6, 18, 25, 28–32, 35–36, 39, 43, 45, 61–62, 64b, 69, 72–73, 75, 82–83, 88, 90, 92, 95, 131, 133, 136, 144, 170–71, 178; international environment and, 178–85; International Intellectual Property Alliance and, 77; long and strong, 6, 12b, 14–34, 46, 53, 55–56, 70, 74–75, 86, 183–85; media literacy and, 4, 76, 79–80, 119–21, 124–25, 127–29, 131b, 136–38, 165, 187, 210–11; orphan works and, 60b, 75, 141–42, 187, 191, 208; piracy and, 42 (see also piracy); policy definition of, 16; public domain and, 28 (see also public domain); quotations and, 28, 46b, 62–63, 70, 93, 95–96, 99–100, 117b, 122b, 132, 180–81, 185, 189, 192–95, 200, 208, 211; recombination and, 168–69; remixes and, 7 (see also remixes); romantic notion of, 21–24, 48–49, 58–60, 63, 65, 102, 115; rule of reason and, 189–90; Sony Betamax case and, 39–40; Statute of Anne and, 26–27; Stowe v. Thomas and, 29–30; term extension and, 32, 46; “test case” argument and, 37b, 64b, 107–8, 111, 114, 201; Texaco case and, 89–90; transformative use and, 19–20, 85–91, 96–97, 100, 133, 165–68; TRIPS and, 42, 52, 81; Williams & Watkins case and, 38; WIPO treaties and, 44, 81–82, 183; work for hire and, 23–24; worldviews of, ix–x, 64–69 Copyright Act: architecture and, 172; classrooms and, 121; climate of opinion and, 86; court system and, 86; exemptions and, 172; four-part test for, 190; GPL and, 58; guidelines of, 35–39, 121–22; interpreting fair use and, 24; revision
225
of, 121; terms of, 35–39. See also Digital Millennium Copyright Act (DMCA) Copyright Alliance, 50, 135 Copyright Clarity (Hobbs), 128 Copyright Clearance Center, 121–22 Copyright Criminals (film), 76, 99 Copyright Law: A Practitioner’s Guide (Keller and Cunard), 9 Copyrights and Copywrongs (Vaidhyanathan), 56 Copyright Society of the USA, 80 copyright wars, ix, 126, 142 Corman, R., 92 Cornell, J., 62 Cost of Copyright Confusion for Media Literacy, The (report), 121–24 Council on Library and Information Resources, 156 Count Dante, 114 court system: activists and, 96b; Benny v. Loew’s and, 34–35; Bill Graham Archives v. Dorling Kindersley Ltd. and, 86–88; Blanch v. Koons and, 95; Bleistein v. Donaldson Lithographinc Co. and, 30–31; Bridgeport Music and, 99–100; Campbell v. Acuff-Rose Music, Inc. and, 90; Cariou v. Prince and, 95; cease-and-desist letters and, 37b, 63–65, 76, 96b, 107, 154b, 171, 204; codes of best practices and, 86, 119; content companies and, 32 (see also content companies); copyleft and, 86; DVDs and, 92; Eldred v. Ashcroft and, 46–47; Elvis Presley Enterprises, Inc. v. Passport Video and, 92–93; exemptions and, 88; Expelled case and, 77; films and, 91–94, 96b, 99; Folsom v. Marsh and, 28; four factors and, 24, 28, 40, 74, 87–92, 95, 101, 165, 199, 210; Google case and, 97–98; Grand Upright case and, 99–100; Harper & Row case and, 40–41; HathiTrust case and, 97–98; Hofheinz v. A&E Television Networks, Inc. and, 92–93; internet and, 94, 97; Jollie v. Jacques and, 30; Kelly v. Arriba Soft Corp. and, 94; legal scholars and, 88, 100; Monster Communications v. Turner Broadcasting System and, 91; music and, 87, 90–93, 98–100; online video and, 96b; public
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Index
court system (continued) domain and, 46–47; publishers and, 99; resurgence of fair use and, 76–78; rule of reason and, 189–90; Sony Betamax case and, 39–40; Stowe v. Thomas and, 29–30; Supreme Court and, 19, 28, 30–31, 35, 38–41, 46–47, 90–91, 98, 101, 181, 189, 202; Texaco case and, 89–90; transformative use and, 88–101; visual art and, 95; Wade Williams Distributors, Inc. v. ABC and, 94; Warner Bros. Entertainment Inc. v. RDR Books and, 96; Wheaton v. Peters and, 28; Williams & Watkins case and, 38 Creative Commons: codes of best practices and, 126; copyleft and, 12b, 13, 54–55, 66, 126, 145–46, 172, 181b; culture of fear and doubt and, 12b, 13; digital rights management (DRM) and, 12b, 66, 172; Doctorow and, 66; DVDs and, 12b, 172; educational use and, 12b, 55; free downloads and, 66; General Public License (GPL) and, 54; international environment and, 181b; licenses and, 12b, 13, 54–55, 66, 126, 145, 172, 181b; NGOs and, 55; OpenCourseWare and, 145; public domain and, 145–46; Red Hat Foundation and, 54; teachers and, 126 Creative License (McLeod and DiCola), 76 Creepy (magazine), 94 Crews, K., 122–23 criminal copying, 49–51 Critical Commons, 76 criticism, 85, 104, 135, 192–93, 200, 206 Cronkite, W., 112b cultural studies, 5, 9, 48–51, 56–57, 75, 76, 131, 134, 140, 145, 159 culture jamming, 14–15, 57 culture of fear and doubt: censorship and, 4, 16, 65, 70, 86, 104, 137, 151–53; classroom guidelines and, 121–23, 127; codes of best practices and, 4–5, 9; copyleft and, 11; Creative Commons and, 12b, 13; Electronic Frontier Foundation (EFF) and, 3–4, 10; encryption and, 52; films and, 1–4, 8–10; gatekeepers of, 3–4, 7–8; internet and, 3–4, 8, 11; legal scholars and, 9, 11, 12b; libraries and, 4, 8–10; piracy and, 7, 15; posters and, 1, 3–4; public
domain and, 10–13, 15; remixes and, 7, 10; teachers and, 2, 4, 8–10, 15; visual art and, 9; worry and, 169–71; YouTube and, 3–4, 9–10 Cunard, J., 9, 150, 153 Cunningham, M., 115 cyberliberties, 14, 81 Daily Show, The (TV show), 131 Dakota (film), 165 dance, 9, 129–30, 136–37, 168, 187 Dance Heritage Coalition (DHC), 129–30 Danger Mouse, 63 Daughtrey, M. C., 100 Davenport Community Foundation, 23 DaVinci, L., 152b Deazley, R., 26 Decherney, P., 84, 142–43 “Declaration of the Independence of Cyberspace, A” (Barlow), 59 derivative works, 11, 30–31, 36 Detroit Institute for the Arts, 155 Dewey, J., xiii Dick, K., 109 DiCola, P., 76, 98 Diebold, 76 digital art, 56, 64, 117b Digital Copyright (Litman), 53 Digital Freedom Campaign, 77 Digital Future Coalition (DFC), 44–45, 71, 77 Digital Millennium Copyright Act (DMCA): advocacy and, 175–76; Bellagio Declaration and, 52; circumvention and, 43, 84, 175–76; codes of best practices and, 136; content companies and, 19; Digital Future Coalition and, 71, 77; digital rights management (DRM) and, 45; Electronic Frontier Foundation (EFF) and, 3; encryption and, 43, 84, 142, 144; exemptions and, 84–85, 142, 144, 157; internet service providers and, 3; Lenz and, 4; Litman and, 53; passage of, 45; piracy and, 131; takedowns and, 3–4, 45, 83, 131, 133, 136 digital rights management (DRM), 12b, 19, 45, 66, 172 Disney, 2, 19, 23b, 103
Index DIY culture, 58, 76, 80 Doctorow, C., 8, 65–66, 80 Doculink, 198 Documentary Filmmakers’ Statement of Best Practices in Fair Use, 80, 120, 187; background and, 189–91; court system and, 96b; culture of fear and doubt and, 4; other situations and, 195–96; as pioneering work, 108, 110b, 111; preamble of, 188–89; proper use of, 206, 208; quotations and, 192–93; resurgence of fair use and, 80; statement of, 191–95; supporters of, 188, 196–98 documentary films, xii; activists and, 103; AIVF and, 188, 196; archives and, 112b, 116–18, 170; Bound by Law and, 79; Center for Social Media and, 188, 191, 197–98; codes of best practices and, 79–80, 102–20, 126–27, 129, 132, 156, 164–65, 168; communities of practice and, 79–80; copyleft and, 107; court system and, 91–92, 96; errors and omissions (E&O) insurance and, 105, 109, 111, 114; exemptions and, 10, 84–85, 184; incidental/ accidental incorporation and, 168; international environment and, 180, 184; licensing fees and, 103, 117; music and, 103–4; organization of, 104–5; Statement of Best Practices for Fair Use in Teaching for Film and Media Educators and, 143; Sundance Film Festival and, 103–4, 109–10; test case for, 107–8; transformative use and, 90–94, 91. See also specific work Documentary Organization of Canada, 184 Dodell, L., 113 “D.O.G. in Me” (UMG), 100 dolphin hotlines, 78, 133 Donaldson, M., 9, 80, 84, 108–14, 164, 196 Dorling Kindersley (DK), 86–88 Dow Chemical, 57 Downhill Battle, 67 “Dramatic Chipmunk” (song), 133 DuChamp, M., 61, 152b Duffy, K., 99 Duke University, 10, 52, 78 Dust Brothers, 62 DVDs: codes of best practices and, 120;
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Content Scramble System (CSS) and, 19; court system and, 92; Creative Commons and, 12b, 172; encryption and, 9, 19, 84; exemptions and, 84–85; first sale doctrine and, 17; proper fair use and, 172, 203, 206 DVRs, 15, 19 “Economy of Ideas, The” (Barlow), 59 Ed Sullivan Show, The (TV show), 93 educational use: Agreement on Guidelines for Classroom Photocopying in Not-forProfit Educational Institutions ad, 121; back-room story and, 38, 40; codes of best practices and, 4, 80, 115–16, 119–31, 136–37, 143–45, 156, 187, 194–95, 210–11; Creative Commons and, 12b; curricular context and, 211; exemptions and, 7, 85, 121, 180, 200; international environment and, 180–83; judges and, 31, 88; libraries and, 38 (see also libraries); Media Education Foundation (MEF) and, 37b, 76; OpenCourseWare and, 13, 54, 145–47, 169, 187; proper fair use and, 200; public campaigns and, 50, 55, 70; school projects and, 131b, 211–12; Statement of Best Practices for Fair Use in Teaching for Film and Media Educators and, 143; trade associations and, 50 Educause, 128 Eldred v. Ashcroft, 46–47 Election Day (film), 113b Electronic Arts Intermix, 198 Electronic Frontier Foundation (EFF): back-room story and, 44; culture of fear and doubt and, 3–4, 10; Diebold and, 76; Digital Millennium Copyright Act (DMCA) and, 3; dolphin hotlines and, 78, 133; online media standards and, 78, 133; pro bono legal services and, 78, 201; public campaigns and, 59, 69, 71; statutory damages and, 176; takedowns and, 3–4, 209; Templeton and, 69; Universal and, 3–4, 169; victim politics and, 69 Elkin-Koren, N., 49, 54, 180 Else, J., 102 Elvis Presley Enterprises, Inc. v. Passport Video, 92–93
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Index
EMI, 63 encryption: Burkart and, 81; codes of best practices and, 9, 142; Content Scrambling System (CSS) and, 19; culture of fear and doubt and, 52; Digital Millennium Copyright Act (DMCA) and, 43, 84, 142, 144; DVDs and, 9, 19, 84; exemptions and, 142; films and, 9, 84, 142; user’s will and, 14 End-User License Agreements (EULAs), 173 Entertainment Weekly, 63 Erie (magazine), 94 errors and omissions (E&O) insurance, 105, 109, 111, 114 ethics, 136–37, 146, 148–49, 188 EU Information Society Directive, 183 European Copyright Code, 182 European Documentary Network, 184 European law, 47 European Union, 182 Everything Is a Remix (McIntosh and Ferguson), 135 exemptions: codes of best practices and, 121; confusion over, 14; court system and, 88; Digital Millennium Copyright Act (DMCA) and, 84–85, 142, 144, 157; documentary films and, 10, 84–85, 184; DVDs and, 84–85; educational use and, 7, 85, 121, 180, 200; encryption and, 142; importance of, 17–18, 21; international environment and, 178–85; Lehman report and, 43–44; Librarian of Congress and, 9–10; libraries and, 17b, 82, 84, 88, 121, 173, 180, 184; proper fair use and, 157, 172–73, 175–76, 200, 207; public campaigns and, 55, 70; resurgence of fair use and, 82, 84–85; reverse engineering and, 45; special, 7, 17, 34, 173, 180, 200, 207; teachers and, 10, 17, 84; transformative use and, 85, 88 Exit through the Giftshop (film), 96 Expelled case, 77 Eyes on the Prize (TV series), 67, 102 F*#&!!! (film), 113 Facebook, 7, 21, 77, 176 Fairey, S., 201
fair quotation, 122b, 181 Fair Usage Publication of Film Stills, 143 fair use: Agreement on Guidelines for Classroom Photocopying in Not-forProfit Educational Institutions and, 121; authorship and, 21–24, 47, 65; Benny v. Loew’s and, 34–35; Bill Graham Archives v. Dorling Kindersley Ltd. and, 86–88; Blanch v. Koons and, 95; Bleistein v. Donaldson Lithographinc Co. and, 30–31; Bridgeport Music and, 99–100; Campbell v. AcuffRose Music, Inc. and, 90; Cariou v. Prince and, 95; categories of, 19–20; codes of best practices and, 9 (see also codes of best practices); collages and, 62–64, 99, 117b, 118, 132, 169, 200; comment/critique and, 166–67; communities of practice and, 10, 73, 75, 79–81, 85, 101–2, 138–39, 155–56, 176, 187; Conference on Fair Use (CONFU) and, 123; confusion over, 195–96; content companies and, 49–51 (see also content companies); copyleft and, 54–56; Copyright Act of 1976 and, 35–39; court system and, 86–101 (see also court system); Creative Commons and, 12b, 13, 54–55, 66, 126, 145–46, 172, 181b; criminal copying and, 49–51; decline of, 34–35; dysfunctional guideline issues and, 121–24; economic turn in, 39–41; Eldred v. Ashcroft and, 46–47; Elvis Presley Enterprises, Inc. v. Passport Video and, 92–93; etiquette and, 169–71; evolution of, 25–31; exemptions and, 18 (see also exemptions); expansion of, 138–56; Expelled case and, 77; films and, 76, 79–80, 84–85 (see also films); first factor of, 40, 87; flexibility in, 180–81; Folsom v. Marsh and, 28; fourth factor of, 40, 87–88, 90, 92; giving away rights of, 173; Google case and, 97–98; government policy shifts and, 81–82; Grand Upright case and, 99–100; harmonization and, 183; Harper & Row case and, 40–41; HathiTrust case and, 97–98; Hofheinz v. A&E Television Networks, Inc. and, 92–93; hybrids and, 181–83; illustrations and, 68, 106, 143b, 144, 148, 153, 154b, 166–67, 180–81, 205–6, 212; importance of, 16–33; incidental/
Index accidental incorporation and, 168; international environment and, 178–85; interpreting, 24–25; Jollie v. Jacques and, 30; Kelly v. Arriba Soft Corp. and, 94; libraries and, 17b, 18–19, 38, 40, 44–45, 47, 51, 69, 71, 78–82, 84, 88, 97, 138–42, 147, 149, 155–56, 158, 169, 173; mature doctrine of, 97–98; media literacy and, 4, 76, 79–80, 119–21, 124–25, 127–29, 131b, 136–38, 165, 187, 210–11; Monster Communications v. Turner Broadcasting System and, 91; movement for, 177; myths/realities of, 199–203; other free uses and, 171–73; personal, 7, 10, 17–19, 21, 174–76; private, 7, 10, 17–19, 21, 24, 27–28, 54, 78, 82–83, 86, 174–76, 180; proper use of, 157–77, 199–213; Proposal for Fair Use Guidelines for Educational Multimedia and, 123; public, 18–21, 184; public domain and, 51–54 (see also public domain); recombination and, 168–69; remixes and, 7 (see also remixes); resistance and, 56–58; resurgence of, 72–85; second factor of, 74, 87; Sony Betamax case and, 39–40; Stowe v. Thomas and, 29–30; “test case” argument and, 37b, 64b, 107–8, 111, 114, 201; Texaco case and, 89–90; third factor of, 75, 87; transformative use and, 19–20, 85–91, 96–97, 100, 133, 165–68; TRIPS and, 42, 52, 81; two worldviews of, 18–21, 64–69; utilitarian doctrine of, 49; victim politics and, 69–71; Wade Williams Distributors, Inc. v. ABC and, 94; Warner Bros. Entertainment Inc. v. RDR Books and, 96; Wheaton v. Peters and, 28; Williams & Watkins case and, 38 “Fair Use and Sound Recordings: Lessons from Community Practice” (Butler and Jaszi), 156 “Fair Use as Market Failure” (Gordon), 39 Fair Use Principles for User Generated Video Content, 133 Fair Use Project (FUP), 10, 67, 76–78, 96b, 113–14 Falzone, A., 53, 76–77, 113–14 Famous Monsters of Filmland (magazine), 94 Famous Movie Monster Art of Basil Gogos (magazine), 94
229
fan fiction, 21–22, 29b, 58, 69, 78, 131 Ferguson, K., 135 Fewer, D., 184 films: AIVF and, 188, 196; back-room story and, 35, 37b, 40, 42; codes of best practices and, 119–21, 124–32, 136, 142–47, 187–98, 206, 208; court system and, 91–94, 96b, 99; culture of fear and doubt and, 1–4, 8–10; documentary, 103 (see also documentary films); encryption and, 9, 84, 142; expansion of fair use and, 142–44, 146, 156; Fair Usage Publication of Film Stills and, 143; international environment and, 180–81, 184; long and strong copyright and, 17, 23b; MPAA and, 6, 39, 42, 45, 167; orphaned material and, 208; proper fair use and, 158, 164–75; public campaigns and, 49, 57, 62, 67–69; resurgence of fair use and, 76, 79–80, 84–85; Statement of Best Practices for Fair Use in Teaching for Film and Media Educators and, 143; Sundance Film Festival and, 103–4, 109–10 First Amendment rights, 2, 21, 47, 103, 148, 175, 189, 199, 202 first sale doctrine, 17, 34, 43 Fisher, C., 20 Flynn, S., 179 Folsom v. March, 28 Fonda, J., 167 Food Chain Barbie (Forsythe), 64b Ford, G., 40–41 Ford Foundation, 53, 121, 132 Foreman, G., 91 Forsythe, T., 64b four factors, 24, 28, 165, 199; checklists and, 89b, 210–11; first factor of, 40, 87; fourth factor of, 40, 87–88, 90, 92; judges and, 87–92, 95, 101; second factor of, 74, 87; third factor of, 75, 87 Fox News, 7, 57, 70, 104, 113b, 133 Franzen, B., 76, 99 freebooting, 59–60 Free Culture (Lessig), 66–67 free culture movement, 48–49, 53, 55, 58, 65–70, 80 Freedom of Expression (McLeod), 64 free riding, 20, 193
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Index
free software, 13, 48, 52, 54, 58–59, 126 free speech, 37b, 78, 107, 150, 173, 175–77, 191, 199. See also First Amendment rights free trade, 41–47 Full Frame Documentary Festival, 198 Future of Ideas (Lessig), 53 Future of Music Coalition, xii GarageBand, 7 Garnett, J., 64–65, 150 Gaslight (film), 34–35 gatekeepers: codes of best practices and, 106–7, 117, 121, 126–28; culture of fear and doubt and, 3–4, 7–8; expansion of fair use and, 143; proper fair use and, 157–59, 161, 166, 207; public campaigns and, 67 Gaylor, B., 68–69 geeks, 56, 58–60, 130 Geist, M., 181 General Public License (GPL), 54, 58 Giblin, R., 11 Gibson, J., 74, 100 Gift, The: Imagination and the Erotic Life of Property (Hyde), 75 Gillespie, T., 39, 48, 50 Gilmore, J., 59 Girl Talk, 63, 69 Global Network on Copyright User Rights, 179 Glushko-Samuelson Intellectual Property Law Clinic, 84, 142, 162b “God Bless America” (song), 104 Gogos, B., 94 Goldsmith, D. M., 96b Good, the Bad and the Confusing, The: User-Generated Video Creators on Copyright (report), 132 Good Morning America (TV show), 93–94 Goodyear, A., 150, 153 Google, 10, 18, 33, 77, 83, 97–98, 131, 135–36, 208 Gordon, W., 39, 75 Gould, T., 109 Grand Upright case, 99–100 Grantmakers in Film and Electronic Media, 198 grassroots efforts, 56, 119, 141, 185 Grateful Dead: The Illustrated Trip project, 87, 167
Graves, P., 92 Great Recession, 78 Greek myths, 21, 23b Green Fog (film), 117b Greenwald, R., 57, 67, 104 Grey Album (Danger Mouse), 63, 67 Guetta, Thierry “Mr. Brainwash,” 95–96 Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes, 122 Guidelines for the Educational Use of Music, 122 Hall, S., xiii Hallin, D., 145 Hanold, A., 166 “Happy Birthday” (song), 103 harmonization, 183 Harper & Row case, 40–41 Harriet Moore Poetry Institute, 147 Harryhausen, H., 23b Harry Potter series, 96–97, 168 Harvard Law Review, 89 hashtags, 72 HathiTrust case, 97–98 Hauben, M., 59 Hauben, R., 59 HBO, 109 Heartfield, J., 62 Hewlett Foundation, 145 Hickey, R., 113 hip-hop, 62–63, 99, 104, 109, 111 Hip-Hop: Beyond Beats and Rhymes (film), 109, 111 History of the F Word, The (film), 113 hoarding, 17, 56, 59 Hobbs, R., 119–20, 125b, 128 Hofheinz v. A&E Television Networks, Inc., 92–93 Hokanson, K., 125b Hollywood’s Copyright Wars (Decherney), 142 Holmes, O. W., 31 Hong Kong, 179, 180 Hoop Dreams (film), 1 Hot Docs festival, 184 “Hound Dog” (Presley), 92 Houston Museum of Fine Arts, 155 Hugenholtz, P. B., 178–79, 184–85 Hurt, B., 108–9
Index hybrids, 181–83 Hyde, L., 27–28, 75 IFC, 109 Illegal Art Exhibit, 63–64 “Imagine” (Lennon), 77, 114 Independent Feature Project (IFP), 112b, 188, 197 Independent Television Service (ITVS), 109, 188, 198 individualism, 22 information commons, 49, 53 Infringement Nation (Tehranian), 75 Instagram, 7, 21 insurance, 105, 109, 111–14 intellectual property: Agreement on Trade-Related Aspects of Intellectual Property and, 42; asset control and, 6; clinics for, 78, 84, 142, 160, 162b, 201; codes of best practices and, 119; College Art Association (CAA) and, 150, 153; congressional powers and, 28; copyright and, 3 (see also copyright); cultural expression and, 34; Glushko-Samuelson Intellectual Property Law Clinic and, 84, 142, 162b; international environment and, 42; overprotection of, 16; patents and, 28, 55, 123, 174; photocopying and, 9, 18, 38, 89, 121–22, 139; piracy and, 76, 81–82 (see also piracy); Program on Information Justice and Intellectual Property and, 78; Program on Intellectual Property and the Public Interest and, 188, 197; public campaigns and, 50–52, 55, 57–59, 63–64; resurgence of fair use and, 77–78, 81, 84; reverse engineering and, 45; scholars and, 51–54; takedowns and, 3–4, 10, 45, 72–73, 78, 83, 131, 133, 136, 209; trademarks and, 7, 55, 57, 62–64, 123, 173–74; TRIPS and, 42, 52, 81; Working Group on Intellectual Property Rights and, 43; World Intellectual Property Organization (WIPO) and, 44, 50, 81–82, 183 Intellectual Property Alliance, 42 Intellectual Property and the National Information Infrastructure (policy paper), 43 Intellectual Property and the Public Interest, 188, 197
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International Communication Association (ICA), 80, 128, 143–45 International Documentary Association (IDA), 84, 188, 197 international environment: codes of best practices and, 180; copyright diplomacy and, 183–84; Creative Commons and, 181b; documentary films and, 180, 184; educational uses and, 180–83; exemptions and, 178–85; films and, 180–81, 184; flexibility in, 180–81; Global Network on Copyright User Rights and, 179; harmonization and, 183; hybrids and, 181–83; intellectual property and, 42; interpretations and, 181–83; legal scholars and, 182, 184; libraries and, 180–84; publishers and, 180; remixes and, 180; teachers and, 182; three-step test and, 179; United States and, 178–85 International Intellectual Property Alliance (IIPA), 42, 77, 197 International Journal of Communication, 144 internet: authorship and, 22; back-room story and, 43–46; Berkman Center for Internet and Society and, 75; blogs and, 129 (see also blogs); bulletin boards and, 59; Center for Internet and Society and, 53, 75; codes of best practices and, 132–33; content companies and, 69 (see also content companies); copyleft and, 63, 69, 72; court system and, 94, 97; culture of fear and doubt and, 3–4, 8, 11; digital distribution technologies and, 43, 62–63; Digital Millennium Copyright Act (DMCA) and, 3–4; expansion of fair use and, 141, 143, 145, 148; fan fiction and, 21–22, 58, 69, 78, 131; Lessig on, 60; libraries and, 141 (see also libraries); licenses and, 11; long and strong copyright and, 19, 22; OpenCourseWare and, 13, 54, 145–47, 169, 187; profit issues and, 19; proper fair use and, 162b, 166, 202–4; public campaigns and, 50, 53, 59–64, 69; resurgence of fair use and, 72, 75, 77–78, 81–84; school curriculum on safety of, 50–51; search engines and, 77, 94; teachers and, 50–51; Well bulletin board and, 59 Internet Policy Taskforce, 81
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Index
internet service providers (ISPs), 3–4, 8, 11, 43–45, 72, 82–83 In These Times (newspaper), xiii invention, 30, 174 Iraq Campaign (video), 62 “Ironic” (Morissette), 166 Ironic Blizzard (video), 166 Israel, 179–80 It Conquered the World (film), 92 Ito, M., 76 Jackson, Michael, 70 Jacob’s Pillow, 130 Jamaica, 42 Jaszi, P., xi, 22, 44, 51, 136, 143, 156 Jay-Z, 63 Jefferson, T., 27–28 Jenkins, H., 57–58, 69, 75–76, 145 Jenkins, J., 78 Jhally, S., 37b, 76 Johns, A., 58, 81 Johnson, R., Jr., 115–16 Joint Anti-Piracy Intelligence Group, 42 Jollie v. Jacques, 30 journalists, 18, 20, 79, 88; codes of best practices and, 120, 138, 145, 147–49, 187, 193; culture of fear and doubt and, 6b, 10; ethics of, 149; Online News Association and, 148–49; proper fair use and, 156–58, 204–5, 207; public campaigns and, 66–67, 69; Set of Principles in Fair Use for Journalism and, 149, 187, 205, 207; Society of Professional Journalists and, 148 Joyce letters, 53, 77 judges: archives and, 86–88; back-room story and, 34–35, 41; codes of best practices and, 107–8, 111, 114; Copyright Act and, 86; educational uses and, 31, 88; exemptions and, 88; films and, 91–94, 96b, 99; four factors and, 74, 87–92, 95, 101; legal scholars and, 88, 100; long and strong copyright and, 16, 30, 86; mature fair use doctrine and, 97–98; music and, 87, 90–93, 98–100; posters and, 87; resurgence of fair use and, 76; “test case” argument and, 37b, 64b, 107–8, 111, 114, 201; today’s fair use and, 86–88;
transformative use and, 88–101. See also court system Jungle Girls Gone Wild Collection, The (DVD set), 92 Kaplan, B., xiii, 26, 34, 45, 89 Kaplan, L., 91 Kapor, M., 59 Kartemquin Films, 84, 108 Kastenmeier, R., 38, 121–22 Kasunic, R., 74 Katz, A., 181 Keller, B., 9 Kelly v. Arriba Soft Corp., 94 Kenya, 183 Kickstarter, 145 Kildall, S., 152b Kilmurry, S., 111 Knopf, H., 181 Koons, J., 41, 61–62, 88, 95 Kozee, D., 111 Kozinski, A., 16 Kreising, E., 81 Kruger, B., 61 Lardner, J. 39 Latman, A., 36 legal scholars: categories of fair use and, 19–20; codes of best practices and, 108, 119, 122, 133; court system and, 88, 100; cultural mission of copyright and, 36; culture of fear and doubt and, 9, 11, 12b; doctrinal feedback and, 74; economic view and, 39; expansion of fair use and, 147; importance of fair use and, 19–23, 26; international environment and, 182, 184; pattern-oriented approach and, 74; proper fair use and, 163; public campaigns and, 51–53, 56, 60; resurgence of fair use and, 73–75, 77; second factor of fair use and, 74; third factor of fair use and, 74–75 Lehman, B., 43 Lennon, J., 77, 114 Lenz, S., 2, 4–5, 8, 73, 130, 169 Lerner, J., 84 Lessig, L., 11, 12b, 46, 52–54, 57, 60, 66–68, 73, 102, 104
Index “Let’s Go Crazy” (Prince), 130 Leval, P. N., 86, 88–91, 95, 98 Levine, S., 61 L.H.O.O.Q. (DuChamp), 152b Liberation Music, 73 libraries: American Library Association and, 138; archives and, 17b, 138, 141–42, 173, 187; Art Libraries Society of North America and, 138; Association of College and Research Libraries and, 138; Association of Research Libraries (ARL) and, 71, 138–39; Code of Best Practices in Fair Use for Media Literacy Education and, 4, 80, 121, 125b, 127–28, 187, 210–11; codes of best practices and, 4, 9, 79, 81, 121, 123, 127–29, 138–42, 147, 155–56, 169, 180, 187; copyleft and, 69, 71, 140; costs of doubt and, 139–40; Council on Library and Information Resources and, 156; culture of fear and doubt and, 4, 8–10; exemptions for, 17b, 82, 84, 88, 121, 173, 180, 184; fair use and, 17b, 18–19, 38, 40, 44–45, 47, 51, 69, 71, 78–82, 84, 88, 97–98, 138–42, 147, 149, 155–56, 158, 169, 173; international environment and, 180–84; mature fair use doctrine and, 97–98; Music Library Association and, 138; organizations of, 138; orphan works and, 141–42; Proposal for Fair Use Guidelines for Educational Multimedia and, 123; public campaigns and, 51, 56, 69, 71; publishers and, 38, 40, 97, 140; Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives and, 142 Library Leadership Network, 128 licenses: Columbia University Press and, 143; confusion over, 1–3, 9–15; content companies and, 19; copyleft, 54–56 (see also copyleft); Creative Commons and, 12b, 13, 54–55, 66, 126, 145, 172, 181b; digital rights management (DRM) and, 12b, 19, 45, 66, 172; fees of, 38, 103, 117, 151; General Public License (GPL), 54, 58; internet and, 11; journalism and, 20; OpenCourseWare and, 13, 54, 145–47, 169, 187; Oxford University Press and, 143; teachers and, 122b
233
Linux, 52, 54 Litman, J., 11, 22, 53 Logie, J., 48 Los Angeles Plays Itself (film), 117b MacArthur Foundation, xii, 53, 104, 119, 121, 124, 137, 139, 198 MacPherson, C. B., 22 Maddin, G., 117b Madison, J., 28 Madison, M., 20, 74, 100–101, 196 magazine covers, 2, 94, 125 Major League Baseball, 102–3 Marclay, C., 117, 117b Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Disabled, 82, 183 mashups, 7, 20–21; codes of best practices and, 116, 147; collages and, 62–64, 99, 117b, 118, 132, 169, 200; proper fair use and, 169, 200; resurgence of fair use and, 72, 83 massive open online courses (MOOCs), 147, 180 mass media, 7, 35, 38, 43, 47, 62, 68, 86 Maxwell, T., 29 Mazzone, J., 75 McCormick foundation, 147–49 McDonald’s, 174 McIntosh, J., 81, 135, 165 McLaren, C., 63, 80 McLeod, K., 57, 64, 76, 98–99 Medea (Pasolini), 23b media companies, 6–8, 34, 36, 38–39, 43, 86, 131, 181b. See also specific company Media Education Foundation (MEF), 37b, 76 media literacy, 1, 4, 76, 79–80, 119–21, 124–25, 127–29, 131b, 136–38, 165, 187, 210–11 MediaPro, 113–14 Media That Matters film festival, 112b Meiselas, S., 64–65, 150 Mellon Foundation, 129, 138, 151 meme makers, 21, 72 Memories of a Penitent Heart (film), 115 Menil Museum, 154–55
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Index
MGM, 111 Microsoft, 133 Mighty Aphrodite (Allen), 23b Miramax Films, 111 Modrak, R., 145, 154b Muhammad Ali: The Whole Story (film), 91 Mona Lisa (DaVinci), 152b monopolies, 5, 8, 11, 16, 18, 26–28, 34, 50, 55, 81, 170, 179 Monroe Doctrine, 42 Monster Communications v. Turner Broadcasting System, 91 Moore, D. C., 128 Morissette, A., 166 Morrissette, J., 84 Motion Picture Association of America (MPAA), 6, 39, 42, 45, 50, 109, 167 Mozilla, 58 MTV, 37b Murdoch, R., 70 Murray, L., 181 museums, 38, 117b, 141–42, 149–55, 169, 172, 184, 212 music: background, 13, 17; back-room story and, 34, 37b, 40, 42–43, 46; codes of best practices and, 103–4, 109–11, 114, 120–22, 131b, 190, 193–94; court system and, 87, 90–93, 98–100; culture of fear and doubt and, 1, 6, 11, 13, 15; in curricula, 80b, 210; documentary films and, 103–4; expansion of fair use and, 138–39, 146, 155–56; Guidelines for Educational Use of Music and, 122; long and strong copyright and, 17, 20, 23–24, 28, 30; Napster and, 46, 49; proper fair use and, 157, 167–68, 202, 208, 211–13; public campaigns and, 50, 61–63, 67–68; religious services and, 17b; remixes and, 7 (see also remixes); resurgence of fair use and, 72–73, 76–84; RIAA and, 6, 50, 63, 202; sampling and, 57, 62–63, 76, 92, 98–100; school projects and, 211–12; songwriters and, 59, 147; Theft: A History of Music and, 79; transformative use and, 90–93, 98–100, 167. See also specific work Music and Cyberliberties (Burkart), 81 Music Library Association, 138 MyPopStudio, 120
Napster, 46, 49 Nation, The (journal), 40–41 National Alliance for Media Arts and Culture (NAMAC), 188, 197 National Association for Media Literacy Education, 80, 128 National Association of State University and Land Grant Colleges, 123 National Communication Association, 144 National Council for Teachers of English, 128 National Museum of American Art, 150 National Writing Project, 127–28 NBC, 112b Negativland, 14, 62 Netanel, N., 11, 74 Netizens (Hauben and Hauben), 59 New America Foundation, 54 New Americans (TV show), 1 New Media Literacies (NML), 76 News Corp, 14, 70 Newsweek magazine, 2 Newton, I., 21 New York Times, 57, 64, 111, 145 New Zealand, 179–80 Nigeria, 179 Night Ripper (Girl Talk), 63 nondisclosure agreements, 173 No Pity (film), 86b Norway, 184 “Numa Numa” (song), 133 NWA, 99–100 Nwidor, Israel, 1 Nzomo, V., 183 Obama, B., 201 “Oh, Pretty Woman” (Orbison), 90 Okediji, R. L., 179 Olson, D., 53 OneBeacon, 114 Online News Association, 148–49 online video: codes of best practices and, 5, 76, 81, 130–34, 136, 165, 169, 187, 206, 209; collaborative culture and, 21; court system and, 96b; culture of fear and doubt and, 5; proper fair use and, 165, 168–70, 203, 206, 209; resurgence of fair use and, 76, 81
Index Ono, Y., 77, 114 open access, 12b, 13, 45, 126, 140, 144–46 OpenCourseWare, 13, 54, 145–47, 169, 187 Open Diary, 65 open-source software, 13, 48, 52, 54, 58, 59, 126 Open Video Alliance, 67 Orbison, R., 90 O’Reilly, T., 8 O’Reilly Factor (TV show), 165 Organization for Transformative Works, 10, 78, 84–85, 131–32 orphan works, 60b, 75, 141–42, 187, 191, 208 orthogonal use, 19–20 Ortiz, R., 62 Oscar award, 114 O’Sullivan, G., 99 Other People’s Footage (film), 115–16 Outfoxed (film), 57, 104 Oxford University Press, 143 Palmedo, M., 78 Paramount, 19 Park, W., 44, 78 parody, 19, 34–35, 62, 73, 88, 90, 96b, 103, 132, 154b, 166, 169b, 181, 192, 200, 212–13 Parsons, R., 34, 43 Pasolini, P. P., 23b Passport Video, 92–93 patents, 28, 55, 123, 174 Patiris, P., 62 Patry, W., 8, 48, 70, 126–27, 135 Patterson, L. R., xiii, 36, 38, 89 Patterson, R., 96–97 Paul’s Boutique (Beastie Boys), 62 PBS, 109, 128 peer-to-peer (P2P) sharing, 6–7, 49–51, 63 Permissions: A Survival Guide (Bielstein), 9 personal releases, 175 Peter, Justin, 106, 126 Pettengill, S., 115–16 Phares, G. C., 196 Philippines, 179 Phillips, V., 23 photocopying, 9, 18, 38, 89, 121–22, 139 Picasso, P., 61 Pinterest, 7, 77 piracy: back-room story and, 42, 45; Bar-
235
low and, 59; China and, 7; codes of best practices and, 102, 131; criminal copying and, 49; culture of fear and doubt and, 7, 15; Digital Millennium Copyright Act (DMCA) and, 131; dolphin hotlines and, 78, 133; freebooting and, 59–60; infringement by, 30; Joint Anti-Piracy Intelligence Group and, 42; outlaws and, 49, 62–63; public campaigns and, 48–50, 56–60, 64, 66, 68, 70–71; resurgence of fair use and, 76, 81–82; Seventh Commandment and, 99; Stop Online Piracy Act (SOPA) and, 82; trade associations and, 50; TV signals and, 42 Piracy Crusade, The (Sinnreich), 76 plagiarism, 50, 153 Plan 9 from Outer Space (film), 94 podcasts, 60b, 77, 148, 165, 168 poetry, 9, 21–22, 30, 46b, 79, 142–47, 187, 207–8 Poetry Foundation, 147 Polyvore, x postings: culture of fear and doubt and, 1, 3–4; digital content and, 3–4, 45, 83, 131, 133, 136, 209; judges and, 87; legal rights of, 4–5; physical posters and, 1, 30–31, 50, 72, 87, 103, 110b, 141, 167–68, 175, 193, 201; takedowns and, 3–4, 45, 83, 131, 133, 136, 209 POV (TV show), 111, 113b P.O.V./American Documentary, 198 pranksters, 14, 57, 62, 64, 69 Presley, E., 92–93, 167–68 “Pretty Woman” (2 Live Crew), 90, 167 Price of Pleasure: Pornography, Sexuality & Relationships (Media Education Foundation), 37b Prince (singer), 3, 130 Prince, R., 61, 95–96, 153 Principles for User Generated Content Services, 133 privacy, 68, 130, 175 professional associations, 9, 158. See also specific organization Program on Intellectual Property and the Public Interest, 188, 197 Project Look Sharp, 1–2 Project Runway (TV show), 131
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Index
proportionality, 195 Proposal for Fair Use Guidelines for Educational Multimedia, 123 ProQuest, 144 PTSA flyer, xiiib, 204 public campaigns: activists and, 48–49, 52, 56, 59, 63; codes of best practices and, 81; copyleft and, 48–49, 52, 54–56, 61–71; educational uses and, 50, 55, 70; Electronic Frontier Foundation (EFF) and, 59, 69, 71; exemptions and, 55, 70; films and, 49, 57, 62, 67–69; gatekeepers and, 67; intellectual property and, 50–52, 55, 57–59, 63–64; internet and, 50, 53, 59–64, 69; legal scholars and, 51–53, 56, 60; libraries and, 51, 56, 69, 71; music and, 50, 61–63, 67–68; piracy and, 48–50, 56–60, 64, 66, 68, 70–71; publishers and, 50, 67; remixes and, 62–63, 68–70; teachers and, 50–51 public domain, 33; back-room story and, 46–49; Center for the Public Domain and, 53–54; Center for the Study of the Public Domain and, 10, 52, 78; the commons and, 49, 51, 53–56, 60–61, 81; copyleft and, 54–56 (see also copyleft); court system and, 46–47; Creative Commons and, 12b, 13, 54–55, 66, 126, 145–46, 172, 181b; culture of fear and doubt and, 10–13, 15; delayed digitization incentives and, 139; DuChamp and, 152b; early copyright policy and, 28; expired copyright and, 172; First Amendment and, 148; floating, 80; information commons and, 49, 53; monopolies and, 26; music in curricula and, 210; open access and, 12b, 13, 45, 126, 140, 144–46; orphaned works and, 208; owner-free zone of, 34; proper fair use and, 172; scholars and, 51–54 Public Domain, The (Boyle), 98 public interest groups, 73, 78–79, 119 publicity, 2, 20–21, 49, 66, 111–12, 123, 174–75, 202, 206 Public Knowledge, 10, 54, 71, 78, 176 public radio, 44b, 166, 207 publishers: American Association of Publishers (AAP) and, 6; American
Society of Composers, Authors and Publishers (ASCAP) and, 50; back-room story and, 38–40, 42, 46; Bill Graham case and, 86–88; codes of best practices and, 106, 121–22, 157, 166; court system and, 88, 90, 97, 99; expansion of fair use and, 140, 143–45, 151, 154; international environment and, 180; International Intellectual Property Alliance and, 42; libraries and, 38, 40, 97, 140; photocopying and, 38; proper fair use and, 157, 166, 180; public campaigns and, 50, 67; public-domain books and, 46; quotations and, 19, 39, 99, 143, 145; Seltzer and, 19; teachers and, 144; transformative use and, 88; United Kingdom and, 26–27; writer rules and, 67 Puff Daddy, 113b Quinn, G., 1, 3–4, 84, 108 quotations: codes of best practices and, 192–93; publishers and, 19, 39, 99, 143, 145; Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (report), 132; right of, 28, 46b, 62–63, 70, 93, 95–96, 99–100, 117b, 122b, 132, 180–81, 185, 189, 192–95, 200, 208, 211 Racine, L., 53 readymades, 61, 152b Readymake: Duchamp Chess Pieces (Kildall and Cera), 152b Reagan, R., 42 Rebellious Pixels, 165 recombinant art, 116, 155–56, 169–69 Recording Industry Association of America (RIAA), 6, 50, 63, 202 Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (report), 132 Red Hat Foundation, 52–54, 58 Reese, A., 74–75 religious services, 17b Re Made Co, 154b Remix Culture: Fair Use Is Your Friend (film), 136 remixes, ix, 47; as anticorporate banner, 10; codes of best practices and, 116, 131–32,
Index 135–36; collages and, 62–64, 99, 117b, 118, 132, 169, 200; culture of fear and doubt and, 7, 10; international environment and, 180; mashups and, 7, 20–21, 62, 72, 83, 116, 147, 169, 200; proper fair use and, 168–69; public campaigns and, 62–63, 68–70; resurgence of fair use and, 72, 74, 76, 80–81, 83, 85; YouTube and, 10, 20, 72, 116, 136 repurposing, 6–7, 35, 65, 86, 93, 115, 132, 167, 169, 171, 181b, 204, 206, 210 reverse engineering, 45 Revver (website), 135 right of publicity, 2, 174–75, 206 “Riot” (Garnett), 64 RiP: A Remix Manifesto (film), 68–69 Robert Rauschenberg Foundation, 155 Robot Monster (film), 94 Rockefeller Foundation, xii, 103–4, 109, 198 Rocketboom (website), 135 Rogers, A., 41 Rose, M., 22 Ross, P., 135–36 Routledge, 145, 154b Rowling, J. K., 96 royalties, 29, 61 rule of reason, 189–90 Sag, M., 75 sampling, 57, 62–63, 76, 92, 98–100 Samuelson, P., 11, 19, 44, 74, 156 Sasser, M. J., 120 satire, 19, 34–35, 57, 132, 169b, 200, 212–13 Scheibe, C., 1–2 Schloss, C., 77 school projects, 131b, 211–12 Schultz, J., 4–5 Seltzer, P. L., 19 Senate Judiciary Committee, 36 Set of Principles in Fair Use for Journalism, 149, 187, 205, 207 Seventh Commandment, 99 Shamans, Software and Spleens (Boyle), 52 Shapiro, E., 110–11 Sheppard, J. S., 196 Siegel, J., 93–94 Singapore, 179 Sing Faster (film), 102
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Sinnreich, A., 76 Situationist International, 62 “Skeletons and Swiss Cheese” (report), 145 slideshows, 7–8, 52, 73, 122b, 131b, 165–68, 169b, 211–13 Smigel, L., 129 Smithers, F., 23 Smithsonian, 150 social benefits, 3, 24 social media, 14b, 18, 72, 136, 188, 191, 197–98, 205–6, 208. See also specific platform social networking, 65, 158–59, 164, 170 Society for Cinema and Media Studies (SCMS), 106, 142–43, 165, 187 Society of Professional Journalists, 148 Sonic Outlaws (film), 62 Sonny Bono Copyright Term Extension Act (CTEA), 32, 46 Sony Betamax case, 39–40 Sony Pictures Entertainment, 19, 39, 111 Souter, D., 90 South Africa, 179–80 South Korea, 179 South Park (TV show), 131 Spurlock, J. D., 94–95 Spurlock, M., 174 Stallman, R., 54, 58, 61 Stanford Cyberlaw Clinic, 76 Statement of Best Practices for Fair Use in Teaching for Film and Media Educators, 143 Statement of Best Practices in Fair Use of Dance-Related Materials, 130, 187 Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives, 142, 187 Statute of Anne, 26–27 statutory damages, 11, 32, 93, 107–8, 176, 178, 181b, 182, 184 Stay Free! (magazine), 63 Stern, R., 109 Steve Allen Show, The (TV show), 92–93 Stewart, J., 113b Stolen Movie (film), 62 Stoney, G., 109 Stoning of Soraya M., The (film), 165 Stop Online Piracy Act (SOPA), 82
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Index
Story, J., 28, 38, 90, 95 Stowe, H. B., 29–31 Stowe v. Thomas, 29–30 Strait, G., 1, 3 Streeter, T., 22, 59 Streets of San Francisco, The (TV show), 117b Students for Free Culture, 67, 80 Sundance Film Festival, 103–4, 109–10 Sundberg, A., 109 Super Size Me (film), 174 takedowns: Digital Millennium Copyright Act (DMCA) and, 3–4, 45, 83, 131, 133, 136; Electronic Frontier Foundation (EFF) and, 3–4, 209; frivolous, 3; YouTube and, 3–4, 10, 72–73, 78, 136, 209 Tallman, R., 93 Taylor, D. V., 157, 164 Taylor, S., 120 TEACH Act, 121 teachers: Agreement on Guidelines for Classroom Photocopying in Not-forProfit Educational Institutions and, 121; blogs and, 129; changing practice for, 127–29; classroom guidelines and, 121–23, 127; Code of Best Practices in Fair Use for Media Literacy Education and, 4, 80, 121, 125b, 127–28, 187, 210–11; codes of best practices and, 115–16, 119–31, 136–37; Creative Commons and, 126; culture of fear and doubt and, 2, 4, 8–10, 15; curriculum issues and, 2, 13, 15, 50, 54, 122b, 125, 127–28, 142, 145, 149, 211; educational use and, 115–16, 119–31, 136–37, 181, 200; exemptions for, 10, 17, 84–85; expansion of fair use and, 138, 147, 149– 50, 153; international environment and, 182; internet and, 50–51; licenses and, 122b; media literacy and, 1, 4, 76, 79–80, 119–21, 124–25, 127–29, 131b, 136–38, 165, 187, 210–11; OpenCourseWare and, 13, 54, 145–47, 169, 187; pressure on, 120–21; proper fair use and, 157–58, 163–65, 168, 173, 210–11; Proposal for Fair Use Guidelines for Educational Multimedia and, 123; public campaigns and, 50–51; publishers and, 144; resurgence of fair use and, 79, 80b, 84–85; school projects
and, 131b, 211–12; Statement of Best Practices for Fair Use in Teaching for Film and Media Educators and, 143; statutory damages and, 32 Tehranian, J., 75 Telecommunications Act, 59 Templeton, B., 69 terms of service (TOS), 173 “test case” argument, 37b, 64b, 107–8, 111, 114, 201 Texaco case, 89–90 Theft: A History of Music (comic), 79 think tanks, 10, 54, 77–78, 119 This Film Is Not Yet Rated (film), 109, 167 time-shifting, 19, 39–40 Time Warner, 34, 43 TNT, 91 Toomey, J., xii “Toward a Fair Use Standard” (Leval), 89 trademarks, 7, 55, 57, 62–64, 123, 173–74 Trade-Related Aspects of Intellectual Property Rights (TRIPS), 42, 52, 81 trade secrets, 174 transformative use: broad interpretation of, 101; collages and, 62–64, 99, 117b, 118, 132, 169, 200; court system and, 88–101; documentary films and, 90–94; DuChamp and, 152b; exemptions and, 85, 88; judges and, 97–98; legal category of, 19–20; mature fair use doctrine and, 97–98; move to center by, 91–97; music and, 90–93, 98–100, 167; Organization for Transformative Works and, 10, 78, 84–85, 131–32; parody and, 19, 34–35, 62, 73, 88, 90, 96b, 103, 132, 154b, 166, 169b, 181, 192, 200, 212–13; printed material and, 94–97; publishers and, 88; repurposing and, 6–7, 35, 65, 86, 93, 115, 132, 167, 169, 171, 181b, 204, 206, 210; rise of, 88–91; sampling and, 57, 62–63, 76, 92, 98–100; satire and, 19, 34–35, 57, 132, 169b, 208, 212–13; search engines and, 94; video and, 85, 165–66, 168; visual arts and, 95–96 Trans-Pacific Partnership (TPP), 81–82 Trials of Darryl Hunt, The (film), 109 Truman, H., 35 Tushnet, R., 21–22, 74, 84
Index Twitch.tv, 73 Twitter, 14b, 72 Tzara, T., 61 U2, 62 UMG, 100 Uncle Tom’s Cabin (Stowe), 29–31 United Kingdom, 26–28, 180 United States, 1, 29, 52; CCIA report and, 77; codes of best practices and, 103, 111, 114, 128, 131; copyright diplomacy and, 183–84; copyright in, 6, 36 (see also copyright); democratic participation and, 26; documentary films and, 103, 111, 114; errors and omissions insurance and, 114; fair use in, 11, 18 (see also fair use); individual rights in, 176; intellectual property clinics in, 162b; international environment and, 178–85; litigation in, 178–79; Monroe Doctrine and, 42; Oswald ban in, 63 Universal Studios, 3–4, 111, 169 University Film and Video Association (UFVA), 79, 115, 188, 198 University of Southern California Intellectual Property Law Clinic, 84 Untold Stories (report), 103–4 Urban, J., 142, 147 US Congress, 9–10, 28, 32, 36, 67, 121–22, 199 US Constitution, 2, 21, 27–28, 46–47, 103, 127, 148, 175, 189, 199, 202 US Copyright Office, 9, 33, 50, 83–84, 157, 175–76, 191 US Department of Commerce, 81 US Patent and Trademark Office, 123 US Supreme Court, 19, 28, 30–31, 35, 38–41, 46–47, 90–91, 98, 101, 181, 189, 202 VAGA, 150–51, 154 Vaidhyanathan, S., 56, 76, 98 Valenti, J., 39, 45, 49 Valentine Road (film), 115 Valenza, J., 127 Vaver, D., 181 VCRs, 19, 39–40, 49, 139 VHS, 84, 141 Viacom, 14, 103, 131, 133, 136
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Vicious, S., 96 victim politics, 69–71 vidders, 70, 72, 78, 130 Video Association of Dallas, 198 video games, 31, 68b, 208–9 Vimeo, 96b visual art: Artists’ Rights Society (ARS) and, 150–51, 154; codes of best practices and, 79, 149–53, 154b, 169, 187, 212; court system and, 95; culture of fear and doubt and, 9; illustrations and, 68, 106, 143b, 144, 148, 153, 154b, 166–67, 180–81, 205–6, 212; proper fair use and, 169; transformative use and, 95 (see also transformative use); VAGA and, 150–51, 154 Vote or Die T shirt, 113b Wade Williams Distributors, Inc. v. ABC, 94 WAMU, 166 Wanderlust (film), 110 Warhol, A., 61 Warner Bros. Entertainment Inc. v. RDR Books, 96 Warner Brothers, 96, 111 Warren, J., 94 Washington, G., 28 Wealth of Networks, The (Benkler), 74 Weatherall, K., 11 Webb, F., 114 Weeramuni, L., 138, 145–47 Weinstein, J., xiii Well, the (bulletin board), 59 Weschler, L., 65 Wheaton v. Peters, 28 When We Were Kings (film), 91 White Paper (report), 44–45, 81 Whole Earth Catalog, The, 59 Williams & Watkins case, 38 Wilson, Sonsini, Goodrich, & Rosati, 86b Windows Movie Maker, 7 Wired magazine, 59 Wittem Project, 182 Wolfson, J., 110 Women in Film and Video (WIFV), 188, 197 Women Make Movies, 198 Woodmansee, M., 22, 51
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work for hire, 23–24 Working Group on Intellectual Property Rights, 43 World Fair Use Days, 78 World Intellectual Property Organization (WIPO), 44, 50, 81–82, 183 World Trade Organization, 42, 57, 179 Yes Men, 14, 57 YouTube: advertising and, 72–73, 80; codes of best practices and, 114, 116,
120, 125, 130–33, 136; culture of fear and doubt and, 3–4, 9–10; Digital Millennium Copyright Act (DMCA) and, 3–4; dolphin hotlines and, 78, 133; frustration with, 72–73; Google’s acquisition of, 131; posting to, 3–4; proper fair use and, 166, 169; remixes and, 10, 20, 72, 116, 136; resurgence of fair use and, 72–73, 77–80; takedowns and, 3–4, 10, 72–73, 78, 136, 209