Reclaiming Fair Use: How to Put Balance Back in Copyrightby Patricia Aufderheide, Peter Jaszi
In the increasingly complex and combative arena of copyright in the digital age, record companies sue college students over peer-to-peer music sharing, YouTube removes home movies because of a song playing in the background, and filmmakers are denied a distribution deal when some permissions “i” proves undottable. Patricia Aufderheide and Peter/i>
In the increasingly complex and combative arena of copyright in the digital age, record companies sue college students over peer-to-peer music sharing, YouTube removes home movies because of a song playing in the background, and filmmakers are denied a distribution deal when some permissions “i” proves undottable. Patricia Aufderheide and Peter Jaszi chart a clear path through the confusion by urging a robust embrace of a principle long-embedded in copyright law, but too often poorly understood—fair use. By challenging the widely held notion that current copyright law has become unworkable and obsolete in the era of digital technologies, Reclaiming Fair Use promises to reshape the debate in both scholarly circles and the creative community.
This indispensable guide distills the authors’ years of experience advising documentary filmmakers, English teachers, performing arts scholars, and other creative professionals into no-nonsense advice and practical examples for content producers. Reclaiming Fair Use begins by surveying the landscape of contemporary copyright law—and the dampening effect it can have on creativity—before laying out how the fair-use principle can be employed to avoid copyright violation. Finally, Aufderheide and Jaszi summarize their work with artists and professional groups to develop best practice documents for fair use and discuss fair use in an international context. Appendixes address common myths about fair use and provide a template for creating the reader’s own best practices. Reclaiming Fair Use will be essential reading for anyone concerned with the law, creativity, and the ever-broadening realm of new media.
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Reclaiming Fair UseHOW TO PUT BALANCE BACK IN COPYRIGHT
By Patricia Aufderheide Peter Jaszi
THE UNIVERSITY OF CHICAGO PRESSCopyright © 2011 The University of Chicago
All right reserved.
Chapter OneThe 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 hyperconscious 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 reunited family sing "Happy Birthday"? License it. Were the middle-school girls on a sleepover listening to pop songs? License them. Did the little autistic boy love "Puff the Magic Dragon" as a comfort song? License it. 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. Only he knew from experience that he probably wouldn't get an answer to an e-mail 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 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 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 2010, Holden had progressed to jungle gyms, and Universal was still stalling. The company had tried to argue that even if Stephanie's use was fair, it was also infringing (yes, that made no sense). Then it argued that it was unreasonable to have to consider fair use before issuing takedowns. None of this worked with the judge, and neither did Universal's claim that Stephanie and EFF were in bad faith themselves. A 2010 summary judgment on some of the charges went against Universal, with the trial continuing.
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, 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 shouldn't risk trouble by challenging 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 she had the right to post her material, under fair use, and that she had the right to a countertake-down. She decided, with EFF's help, to get a court to affirmatively declare that her use was fair. "This case mattered a lot to Stephanie," said Jason Schultz, the lawyer who initiated the case. "When Universal told her she had done something wrong, she felt terrible. Now she's stood up for her rights, and that feels good." Schultz thinks the case will show copyright holders that they can't just issue blanket takedown notices.
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 write a blog, make a video, put together a slide show, build a class lesson, teach a Sunday school class? 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 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 to 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—X-Men, Star Trek, Saturday Night Live routines, or Jay-Z or Stevie Wonder's songs—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) 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 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.
None of that would matter that much if we were not becoming a nation 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 slide shows and scrapbooks, mix CDs and files, mashups and remixes, websites and self-published books. We expect programs such as GarageBand and Windows MovieMaker to come preinstalled on our new computers, and we turn to Flickr 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. Thus you would not want to rest a case for fair use entirely on noncommerciality.
Excerpted from Reclaiming Fair Use by Patricia Aufderheide Peter Jaszi Copyright © 2011 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author
Patricia Aufderheide is professor in the School of Communication at American University and director of the Center for Social Media. She is the author of, most recently, Documentary: A Very Short Introduction.
Peter Jaszi is professor of domestic and international copyright law at the Washington College of Law, American University, where he directs the Glushko-Samuelson Intellectual Property Law Clinic. He is the coauthor of Copyright Law.
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