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May 2009 Publications

Code of Best Practices in Fair Use for Online Video

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

Code of Best Practices Committee

Co-chairs

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

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

Members

Michael C. Donaldson, Esq., Los Angeles

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

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

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

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

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

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

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

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

INTRODUCTION

WHAT THIS IS

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

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

WHAT THIS ISN'T

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

It's not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

It's not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on "free use," consult the document "Yes, You Can!" and copyright.cornell.edu.

It's not a guide to using material that someone wants to license but cannot trace back to an owner--the so-called "orphan works" problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

HOW THIS DOCUMENT WAS CREATED

A distinguished panel of experts, drawn from cultural scholarship, legal scholarship, and legal practice, developed this code of best practices, informed by research into current personal and nonprofessional video practices ("user-generated video") and on fair use. Full identification of panelists is on the back cover of this document.

BACKGROUND

Video is increasingly becoming a central part of our everyday landscape of communication, and it is becoming more visible as people share it on digital platforms. People make and share videos to tell stories about their personal lives, remixing home videos with popular music and images. Video remix has become a core component of political discourse, as the video "George Bush Don't Like Black People" and the "Yes We Can" parodies demonstrated. Both amateur and professional editors are creating new forms of viral popular culture, as the "Dramatic Chipmunk" meme and the "Brokeback to the Future" mashup illustrate. The circulation of these videos is an emerging part of the business landscape, as the sale of YouTube to Google demonstrated.

More and more, video creation and sharing depend on the ability to use and circulate existing copyrighted work. Until now, that fact has been almost irrelevant in business and law, because broad distribution of nonprofessional video was relatively rare. Often people circulated their work within a small group of family and friends. But digital platforms make work far more public than it has ever been, and cultural habits and business models are developing. As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone.

It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. Only then will efforts to fight copyright "piracy" in the online environment be able to make necessary space for lawful, value-added uses.

Mashups, remixes, subs, and online parodies are new and refreshing online phenomena, but they partake of an ancient tradition: the recycling of old culture to make new. In spite of our romantic cliches about the anguished lone creator, the entire history of cultural production from Aeschylus through Shakespeare to Clueless has shown that all creators stand, as Isaac Newton (and so many others) put it, "on the shoulders of giants."

In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy.

Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before.

Copyright law does not exactly specify how to apply fair use, and that is to creators' advantage. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is "fair" according to a "rule of reason." This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.

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

Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field. Online video makers' ability to rely on fair use will be enhanced by the Code of Best Practices in Fair Use that follows. This code of best practices serves as evidence of commonly held understandings--some drawn from the experience of other creative communities (including documentary filmmakers) and supported by legal precedents, and all grounded in current practice of online video. Thus, the code helps to demonstrate the reasonableness of uses that fall within its principles.

Video makers can take heart from other creator groups' reliance on fair use. For instance, historians regularly quote both other historians' writings and textual sources; filmmakers and visual artists reinterpret and critique existing work; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.

Unlike many traditional creator groups, nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine. That said, our goal here is to define the widely accepted contours of fair use that apply with equal force across a range of commercial and noncommercial activities, without regard to how video maker communities' markets may evolve. Thus, the principles articulated below are rooted squarely in the concept of "transformativeness."

In fact, a transformative purpose often underlies an individual creator's investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. Images and sounds can be building blocks for new meaning, just as quotations of written texts can be. Emerging cultural expression deserves recognition for transformative value as much as more established expression.

BEST PRACTICES

This code of practices is organized, for ease of understanding, around common situations that come up for online video makers. These situations do not, of course, exhaust the possible applications of fair use to tomorrow's media-making techniques.

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

ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

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

PRINCIPLE: Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.

LIMITATION: The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience's taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).

TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE

DESCRIPTION: Sometimes video makers quote copyrighted material (for instance, music, video, photographs, animation, text) not in order to comment upon it, but because it aptly illustrates an argument or a point. For example, clips from Hollywood films might be used to demonstrate changing American attitudes toward race; a succession of photos of the same celebrity may represent the stages in the star's career; a news clip of a politician speaking may reinforce an assertion.

PRINCIPLE: This sort of quotation generally should be considered fair use and is widely recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video maker's argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power precisely because they are popular. This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. This kind of use is, thus, creating new value.

LIMITATIONS: To the extent possible and appropriate, illustrative quotations should be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect. Properly attributing material, whether in the body of the text, in credits, or in associated material will often reduce the likelihood of complaints or legal action and may bolster a maker's fair use claim.

THREE: CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY

DESCRIPTION: Video makers often record copyrighted sounds and images when they are recording sequences in everyday settings. For instance, they may be filming a wedding dance where copyrighted music is playing, capturing the sight of a child learning to walk with a favorite tune playing in the background, or recording their own thoughts in a bedroom with copyrighted posters on the walls. Such copyrighted material is an audio-visual found object. In order to eliminate this incidentally or accidentally captured material, makers would have to avoid, alter, or falsify reality.

PRINCIPLE: Fair use protects the creative choices of video makers who seek their material in real life. Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video. Otherwise, one of the fundamental purposes of copyright--to encourage new creativity--would be betrayed.

LIMITATION: In order to take advantage of fair use in this context, the video maker should be sure that the particular media content played or displayed was not requested or directed; that the material is integral to the scene or its action; that the use is not so extensive that it calls attention to itself as the primary focus of interest; and that where possible, the material used is properly attributed.

FOUR: REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE, PRESERVE, OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON

DESCRIPTION: Repurposed copyrighted material is central to this kind of video. For instance, someone may record their favorite performance or document their own presence at a rock concert. Someone may post a controversial or notorious moment from broadcast television or a public event (a Stephen Colbert speech, a presidential address, a celebrity blooper). Someone may reproduce portions of a work that has been taken out of circulation, unjustly in their opinion. Gamers may record their performances.

PRINCIPLE: Video makers are using new technology to accomplish culturally positive functions that are widely accepted--or even celebrated--in the analog information environment. In other media and platforms, creators regularly recollect, describe, catalog, and preserve cultural expression for public memory. Written memoirs for instance are valued for the specificity and accuracy of their recollections; collectors of ephemeral material are valued for creating archives for future users. Such memorializing transforms the original in various ways--perhaps by putting the original work in a different context, perhaps by putting it in juxtaposition with other such works, perhaps by preserving it. This use also does not impair the legitimate market for the original work.

LIMITATION: Fair use reaches its limits when the entertainment content is reproduced in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources.

FIVE: COPYING, REPOSTING, AND RECIRCULATING A WORK OR PART OF A WORK FOR PURPOSES OF LAUNCHING A DISCUSSION

DESCRIPTION: Online video contributors often copy and post a work or part of it because they love or hate it, or find it exemplary of something they love or hate, or see it as the center of an existing debate. They want to share that work or portion of a work because they have a connection to it and want to spur a discussion about it based on that connection. These works can be, among other things, cultural (Worst Music Video Ever!, a controversial comedian's performance), political (a campaign appearance or ad), social or educational (a public service announcement, a presentation on a school's drug policy).

PRINCIPLE: Such uses are at the heart of freedom of expression and demonstrate the importance of fair use to maintain this freedom. When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, its use has been transformed. When protected works are selectively repurposed in this way, a fundamental goal of the copyright system--to promote the republican ideal of robust social discourse--is served.

LIMITATIONS: The purpose of the copying and posting needs to be clear; the viewer needs to know that the intent of the poster is to spur discussion. The mere fact that a site permits comments is not enough to indicate intent. The poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion with an initial comment on a site, or seek out a site that encourages commentary.

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

DESCRIPTION: Video makers often create new works entirely out of existing ones, just as in the past artists have made collages and pastiches. Sometimes there is a critical purpose, sometimes a celebratory one, sometimes a humorous or other motive, in which new makers may easily see their uses as fair under category one. Sometimes, however, juxtaposition creates new meaning in other ways. Mashups (the combining of different materials to compose a new work), remixes (the re-editing of an existing work), and music videos all use this technique of recombining existing material. Other makers achieve similar effects by adding their own new expression (subtitles, images, dialog, sound effects or animation, for example) to existing works.

PRINCIPLE: This kind of activity is covered by fair use to the extent that the reuse of copyrighted works creates new meaning by juxtaposition. Combining the speeches by two politicians and a love song, for example, as in "Bush Blair Endless Love," changes the meaning of all three pieces of copyrighted material. Combining the image of an innocent prairie dog and three ominous chords from a movie soundtrack, as in "Dramatic Chipmunk," creates an ironic third meaning out of the original materials. The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended.

LIMITATIONS: If a work is merely reused without significant change of context or meaning, then its reuse goes beyond the limits of fair use. Similarly, where the juxtaposition is a pretext to exploit the popularity or appeal of the copyrighted work employed, or where the amount of material used is excessive, fair use should not apply. For example, fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood rather than to change its meaning; when someone sings or dances to recorded popular music without comment, thus using it for its original purpose; or when newlyweds decorate or embellish a wedding video with favorite songs simply because they like those songs or think they express the emotion of the moment.

CONCLUSION

These principles don't exhaust the possibilities of fair use for online video. They merely address the most common situations today. Inevitably, online video makers will find themselves in situations that are hybrids of those described above or will develop new practices. Then, they can be guided by the same basic values of fairness, proportionality, and reasonableness that inform this code of practices. As community practices develop and become more public, the norms that emerge from these practices will themselves provide additional information on what is fair use

COMMON FAIR USE MYTHS

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

IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE. Although nonprofit, personal, or academic uses often have good 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 CAN’T BE ENTERTAINING. 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 limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.

IF I TRY TO LICENSE MATERIAL, I’VE GIVEN UP MY CHANCE TO USE FAIR USE. Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later, a maker still may decide to employ fair use. The fact that a license was requested--or even denied--doesn't undercut an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.

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

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

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

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

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

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

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

centerforsocialmedia.org/fairuse

An equal opportunity, affirmative action university. UP09-145

Getting to know your Code of Best Practices

by Peter Jaszi

The July 7 release of the new "Code of Best Practices in Fair Use for Online Video" has given rise to an important question about how to interpret the document’s six "Principles" and their associated "Limitations." So it may be worth noting that all the principles also are subject to some general limiting considerations. One of these is what might be called a "rule of proportionality." Read more here.

Discussion

Is it copyright infringement to post on my website two scenes with me in them and the approval of the other actors, to have casting directors or producers to view my work?The scenes are less than 10 minutes in length. and I am wondering how can I showcase my work if I cannot have any demo reels on my site?
Please advise. Thank you so much.

Posted by Gretchen Caln on Mar 17, 2009 at 7:15 AM

On another page (link below), you list links to examples of the various ways Fair Use can be applied—but several of them appear to violate the principle by using a single piece of music as background or accompaniment for much or all of the video.

Also, some of the links lead to notices that the video has been removed or blocked.

In spite of these ‘fluctuations’, I think your site is providing a useful service!

http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle/#discuss

Posted by Nelson on Apr 9, 2009 at 7:49 PM

Thank you for the comments! MakeMyWine asks what Eldred has to do with fair use. It is important because judges noted in the Supreme Court ruling that copyright term extension was all right because people could employ fair use to access copyrighted material. Gretchen Cain wants to repurpose copyrighted material in order to showcase her performance, and to employ fair use to do so. When employing fair use, one does not need to clear rights with other performers, or clear other underlying rights. But Gretchen still needs to ask whether her use will meet both the principles and limitations of a code of best practice in fair use. Gretchen might find the Documentary Filmmakers’ Statement of Best Practices in Fair Use (at centerforsocialmedia.org/fairuse) more helpful than the online video code, but both codes employ the same basic logic. Nelson notes that some of the videos cited in our 2007 report on online video have been retired for one reason or another; that is correct. THis 2007 report provided the research informing the Code of Best Practices in Fair Use for Online Video, also on this site. Nelson also notes that in some cases, the same music underlay the entire piece. This might or might not be appropriate depending on the use. For instance, “Bush Blair Endless Love” depends on a repurposing of the song for the integrity of the piece.

Posted by Pat Aufderheide on Apr 10, 2009 at 11:38 AM

Thanks for summarizing all of this - I’m going to make my digital audio students read this, since we discuss/review and occasionally produce mash-ups as part of their audio productions (one of the ways of understanding genre seems to be by completely violating it : )

Posted by Shiva on Apr 11, 2009 at 4:39 PM

delighted to hear it! They should definitely read the Code of Best Practices in Fair Use for Online Video; that’s the document that synthesizes best practice and that will help them make their decisions.

Posted by Pat Aufderheide on Apr 11, 2009 at 4:48 PM

Speaking of giving credit for your sources, it would’ve been nice to see a list of the source clips used.

Posted by mikesum32 on May 18, 2009 at 3:56 AM

For example, fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood rather than to change its meaning

That doesn’t make any sense; it’s covered in item two, illustration or example. Emotions need a way to be illustrated or exemplified as well. Using a copyrighted song for its emotional purpose is no different from quoting a historian for their factual purpose.

Perhaps that bit is included as a concession to the record companies, but that doesn’t mean it makes any more sense to the average video uploader.

It’s a real shame because everything else in this document is wonderful.

Posted by Zacqary Adam Green on May 18, 2009 at 9:40 AM

Zacqary Adam Green disagrees that an entire song may not be a transformed use; he argues that there may be a transformation in such use. There may indeed be, and the Code does not exhaust all fair uses, nor does it chart the grey area between “definitely ok” and “definitely not ok.” But if a popular song is used for the same general purpose as it was made and marketed for, the blue-ribbon committee of lawyers and cultural studies scholars who formed the code cautioned against considering it fair use. If you like using the song in its entirety because you love the song and the emotion it evokes, and you want to experience it again and have others experience it again, the song’s copyright holders think that you should pay for it. If you are saying something about that emotional experience (for instance, that it’s banal, or sexist, or the best example of a ballad form ever), you are repurposing—but you would want to ask if you need to use the entire song to do that. If you are capturing the associated meanings of the song (say, tender romantic love) and repurposing them (as was done in, say, “Bush Blair Endless Love”), you again are transforming the use—and would want to see how much you really need to do that.

Posted by Pat Aufderheide on May 18, 2009 at 10:06 AM

If you like using the song in its entirety because you love the song and the emotion it evokes, and you want to experience it again and have others experience it again, the song’s copyright holders think that you should pay for it.

Has any 17-year-old playing with Windows Movie Maker ever called up EMI to license a song so he can upload his rendition of a music video? Would the license be affordable? Would they even return his calls?

Believe me, I tried a couple years back.

The way large corporations license their material is completely incompatible with 90% of videos uploaded to the Internet. Perhaps we should pair this with a code of best practices for licensing.

Posted by Zacqary Adam Green on May 19, 2009 at 6:33 AM

Zacqary is understandably frustrated at the way traditional corporate content holders work in comparison with the possibilities of the digital era. Me too. I’m sorry that the Code doesn’t stretch to the limits of what you (and many many others!) want to do, Zacqary. You might by the way well decide that you have a fair use argument and proceed with a use that is not provided for in the Code, and take the risk. The Code does not cover all the possible fair uses; it merely identifies the most common uses that are easily fair uses, and provides the reasoning behind them. The makers of the Code, who wanted to be sure to stay within an uncontroversial interpretation of the law, considered this common practice of duplicating an entire soundtrack but could not agree that an entire song taken without the intent to transform it demonstrably would be justifiable. As time goes on, business models change, corporate actors change policy, and new digital opportunities open up, this reality and the current Code will undoubtedly become outdated. At the moment, we’re confident that it provides assurance of when you can uncontroversially act to quote others’ copyrighted material without permission or payment legally. I appreciate the suggestion for a best practices code in licensing, but let me explain the logic of this Code. The Code of Best Practices in Fair Use for Online Video achieves its goals so admirably because the fair use doctrine already exists in law, and can be broadly interpreted. It is needed because without it ordinary users without lawyers of their own to consult will not know what is acceptable and normal practice. The Code vastly lowers their risk in taking action. Licensing is a set of private arrangements (regulated by law); developing a code of best practices in this area would not free anyone to act and would not encourage industry actors to be more responsive or realistic. Thank you for your commitment to creativity in this extraordinary era of opportunity.

Posted by Pat Aufderheide on May 19, 2009 at 9:54 AM

Thank you for the information provided here. I began incorporating video onto my blog several months ago. My purpose has been to add the ideas or images found on line to make my arguments. So, if there has been a video that makes an argument that I think has done so much better than I could have, I have copied it onto my blog and, then, given a link to the site, or sometimes a link to several sites where I found that video. In doing this, I have assumed I had given credit.
I am interested in making sure what I present is fairly used. So, your discussion seems very helpful.

Posted by steven andresen on May 19, 2009 at 2:51 PM

There isn’t any equivalent internationally to fair use, and therefore there aren’t Codes of Best Practices in Fair Use elsewhere. Each country has its own copyright law with its own system of exemptions. Every country has exemptions, and it is always worthwhile to explore them. But so far we have not seen any organization outside the U.S. of documentary filmmakers attempt to explore this. There is a movement within Canada, of the Documentarians of Canada organization, to pressure for copyright reform, and in Europe an ad hoc group of producers has developed a call for fair use and better use of exemptions. We strongly encourage national-level creative organizations to explore the exemptions of their own country to and to clarify how they can be used.

Posted by Pat Aufderheide on May 20, 2009 at 10:44 AM

Hi Pat

From the standpoint of both a law student and a filmmaker I just have to say this is an especially eloquent summary of what internet video producers feel “in their gut” should be completely okay, and the best way to legally justify those feelings.

I recently completed a “senior seminar” paper on cyberlaw focusing on internet memes (mostly visual/audio remixes and silly image macros). I argued that most memes play a communicative role in digital literacy and our increasingly interactive audio/video culture. This puts work into a new context and that context is sufficiently transformative as to merit extra protection in the future.

In any case, I wish I had the opportunity to use your document as a source. I hope you and the Center keep up the excellent work.

Posted by Chris Lukeman on Jun 12, 2009 at 1:09 PM

How would this relate to High School Sports Video? Say I go out and film my sons football game. Who has the rights to that video? Could I sell it if I wanted to? Could I license rights to that video?

Posted by vid questions on Aug 19, 2009 at 2:15 AM

I’m so happy that Chris found this material useful for his arguments! Vid questions asked if this would relate to high school sports video. We can only address questions related to the codes. You would apply the logic spelled out in the code to determine that. In this case, you are not repurposing existing material, so the Code does not apply.

Posted by Patricia Aufderheide on Aug 26, 2009 at 2:38 PM

I purchased then download a song that I used to sing to my kids from when they where first born to when they where toddlers. My son and I went camping and took pictures and video of the trip. I put the pictures, video and song together with our purchased movie maker software and then uploaded it to facebook so that the rest of my family could see. Upon doing so, I received a message from facebook that the song is copyright infringement. They would repost the video as long as I signed a form and submitted it. Is this copyright infringement? Personally I don’t believe it is - but that’s just my opinion not the law.

Posted by Greg Miller on Sep 12, 2009 at 7:45 AM

Dear Greg,
Thanks for reaching out to the Center about this. It is a common practice to dub a home video with copyrighted music. Filmmakers who created the Doc Filmmakers Statement of Best Practices in Fair Use in conjunction with legal advice would not have regarded this as legitimate, as we read the Statement. Neither did the team that put together the Code of Best Practices in Fair use for Online Video. We’d encourage you to review both of the Codes to interpret it for yourself. We do understand that this use is common practice and that in future such practice might affect interpretation of the law.

Posted by Micael Bogar on Sep 14, 2009 at 1:03 PM

When comedy and commentary shows like the “Daily Show” use video clips of tv shows and news coverage to comment on the copyrighted material either directly or indirectly, is this protected under Fair Use? There are youtube content creators who use copyrighted pictures (of celebrities, magazine covers, tv shows, etc) superimposed next to a talking head to illustrate the person or topic they are commenting about. They do this much in the same way news anchors and shows like “Daily Show” do. Does this count as protected fair use? What does a content creator need to do if presented with a takedown notice from youtube even if their use of copyrighted material falls under fair use? I have heard that youtube will automatically issue a takedown notice if notified by the copyright holder of the original work being commented on, even if it qualifies as fair use. Furthermore, youtube partners (content creators who recieve some profits from their videos) must forgo their right to fair use to get a cut of the profits.

Posted by Brandon B. on Oct 13, 2009 at 2:07 PM

Broadcasters who, like Jon Stewart, quote for reference are indeed employing their fair use rights. Broadcasting is an arena in which fair use is extremely robust, partly because it has been so actively employed for so long. Any creator, not just broadcasters, has fair use rights, but they may not be as well aware of them as broadcasters are. I don’t know where you’re getting your information on YouTube posters, but let me share with you what we do know. The Code of Best Practices in Fair Use for Online Video (you’re on the page where it’s posted) summarizes when it’s clearly fair use to quote copyrighted material in an online video. The kinds of uses you describe are definitely included, although you should read the Code and note both the principles and the limitations; fair use is a case by case decision, and context is paramount, so neither we nor anyone else can give any blanket assurances. YouTube posters who repurpose copyrighted material under fair use may indeed suffer from a “takedown” requested by a copyright holder. This copyright holder may well have issued the takedown because of an automatic, robotic search for copyrighted material, and no human being may even have seen the work. People who suffer such a “takedown” have the right to demand reinstatement of their work. If they do, they expose themselves to the risk that the copyright holder may then pursue them. However, if they are using copyrighted material within the terms of the Code—if they have applied the principles and limitations to their case—they can comfortably assume that large media companies also know the law, and will not pursue legal action.

Posted by Pat Aufderheide on Oct 13, 2009 at 6:59 PM

Hello. I thought this article was very interesting. I started researching this topic because of how picky YouTube has become regarding the posting of copyrighted material, and I am trying to figure out what I am allowed to do and what I am not allowed to do. It’s still all very confusing. The closest thing to what i am trying to figure out is related to what Greg said about adding copyrighted music to a custom made video. A more specific example would be a lip-syncing video or such. I am sorry but I could not really understand what you were saying as your response to Greg. You referenced a bunch of stuff but I was unable to get a clear answer from it. If I wanted to create a custom video with existing copyrighted music accompanying it, is there ANY way i can get that covered as fair use? Does the video have to have, or be about, something specific, or would it not matter what the video is at all? Please clarify.

Posted by Ronnie on Nov 10, 2009 at 5:48 PM

In general terms, does it make any difference in analyzing “fair use” how the video captured? For example, downloading video or using screen capture of YouTube video.

Posted by Ryan Shaughnessy on Nov 25, 2009 at 6:37 PM

I run a business and have a monthly charity that 50% of proceeds go to. I also sing professionally and am wondering, IF I put my songs (which are well known to the world by other artists) on a CD and say something like “The first 50 people to donate to XYZ cause will get a FREE CD of me singing some of america’s favorite songs”... is THAT copyright infringement ? Thank you !!

Posted by Jennifer Morgan on Nov 26, 2009 at 4:26 PM

Thank you to Ryan and Jennifer for comments!
You can take images from anywhere for a fair use—with the big exception that you cannot break encryption, as a result of the Digital Millenium Copyright Act’s criminal penalties for doing that EVEN if you are doing so to fairly use the material. (Film professors recently won an exemption from the DMCA in order to teach their classes, and other groups may win more, including documentary filmmakers.)
Jennifer’s question would depend on more information. If Jennifer owns the copyright to her own songs, then she can do what she wants with them. If not, and she is singing the songs on a CD as described, it sounds to me (a non-lawyer) like a reuse of other people’s copyrighted material for the same purpose that they are selling the rights for and/or selling copies of their copyrighted material for. That wouldn’t be fair use. The issue of the charity/donations is irrelevant. Good luck and thank you!

Posted by Patricia Aufderheide on Nov 30, 2009 at 1:48 PM

I am a university teacher and want to use a (5 year old) TV episode in its entirety in the classroom for discussion purposes. Would this be OK?

Also, would I be able to post it onto my website (password protected, only for my students) for the students who either missed class or wanted to re-watch it?

Thank you!

Posted by Nicola on Dec 7, 2009 at 9:35 AM

Will it be okay for me to remix an existing music video, to fit another persons remix? (I’ve got permission from the Dj who made the remix of the song).
What I’m worrying about is the video. Would it be okay to edit it (speed up some parts a bit, play some scenes backwards, use parts of the video several times, even though it only appears once in the original video, etc.)?

Posted by Frederik on Dec 18, 2009 at 10:10 AM

Thank you, Frederik! We as nonlawyers of course can’t tell you what is going to be appropriate, and many lawyers would need to be given the code of best practices in order to understand what is currently acceptable. Therefore your best guide is the code itself. Match up your practices in each instance with the principles and limitations of the code.

Posted by Pat Aufderheide on Dec 21, 2009 at 11:14 AM

Love this discussion.

Let’s say I purchase a cool Moby CD and play the music during a party at my house - 50 guests is not uncommon. That would not be considered infringement by any sane person, would it?

Let’s say, I take that same CD and rip one song for a home video about my friends having a good time, or my kids skiing (if that makes a difference) and post the video with this background music to my facebook account, so that friends and family can share. Why would that suddenly become “infringement”? (It sounds in the discussion above as if it would).
Here are my arguments: (1) There is no damage to the artist or his publishers. To the contrary, some of my friends might enjoy the music enough so that they’d consider buying their own copy. (2) I have about 200 FB friends, I doubt that more than 20 will watch my “productions” So my party with 50 guests have more “users” of my Moby CD playing, than people watching my facebook video. (3) My personal home video does not compete with the original music published. Nobody would use my video for the music experience alone. (4) People who watch my kids’ skiing video, are primarily interested in my kids, not what kind of music was used. The music helps to better the experience but it’s not the main component part. There are many songs that could serve that need. (5) I have no commercial interest and with zero income there would be no equitable share to be attributed to the music.

It’s highly unlikely that any copyright owner would take offense by my “productions”, however it would be nice if things could be cleared up legally - for the many of us that do the same thing.

Thanks for your insights.

Posted by Iko on Dec 29, 2009 at 2:46 AM

I recently got a revenue-sharing offer on one of my more popular YouTube videos, but I’m not sure if I can legally take it or not. Google will automatically send out offers to YouTube users to turn on revenue-sharing for their popular videos. The video in question is tutorial on how to play popular Guns N Roses song Sweet Child Of Mine.. on ukulele. The arrangement that I teach on ukulele is completely my own, is in a different key than the song is normally played in, uses some different chord progressions, and leaves several parts of the real song out. It’s recognizable, but still very different. There are also no lyrics in the video and the arrangement is intended to be instrumental only. Does fair-use protect me in this instance? Would I be able to enable revenue-sharing for this video? Even if fair use did protect me, I’d wonder if Google would be too nervous to approve the video for revenue sharing anyway.. What do you think?

Posted by Joshua Isaacson on Jan 8, 2010 at 7:15 PM

Hello,
I have a question that seems to have been touched on, but im not sure about my situation and if / where it falls within the Code.

I have recently decided to create a music video to a favorite childhood television show. I have made the video only of various clips used from the show, which is currently the subject of Youtube removals, as well as some music not being removed on Youtube to my knowledge.

My question: Is taking clips from a tv series and stringing them into a short music video changing it’s meaning or purpose, or is it no longer covered as it could be overusage? I wanted to get a clarification on this before I post the video (my first decent one) or think about producing more in my spare time.

Posted by Mike on Jan 23, 2010 at 1:19 AM

Of course and as always we cannot offer legal advice; the advice contained in the codes of best practice is solidly backed both by legal expertise and by the considered consensus of practice communities, however. “Taking clips from a TV series and stringing them into a short music video” could or could not be fair use. You would make the decision by looking at the transformed meaning you believe you are now making, articulating how it differs from the original,and matching it with situations in either the code of best practices in fair use for online video, or the documentary filmmakers’ statement of best practices in fair use. Good luck, Mike!

Posted by Pat Aufderheide on Jan 25, 2010 at 1:01 PM

Hi there - what is the amount of seconds a broadcaster can use from a copyrighted song without infringing on the copyright?

This is a case where the familiarity of the music piece - (even as little as the first few bars) will trigger an emotional reaction because the poularity of the song in today’s culture. Our goal is to evoke the same emotional bond with the viewers/listeners to get them to take action on an important community topic aimed to save lives, although the client is not a nonprofit.

I remember when producing news segments we were allowed to use 18 sec. of video/audio without paying royalties - is this still the case? Where can I find specific information on this since time is of the essence? Thanks for your response in advance, Hope

Posted by Hope on Jan 31, 2010 at 5:48 PM

Do read this code of best practices in online video for the answer! You’ll discover that there is no “amount of seconds” in the law; fair use is and always will be a case by case decision. But there are helpful interpretations that you can make, armed with solid logic and the interpretation codified in this code. Good reading and good luck!

Posted by Patricia Aufderheide on Feb 1, 2010 at 7:07 PM

The problem with this, it takes a starting point and assumes all users are the same. E.g. YouTube, if you Google / that legal case looked at my stats, they’d see a repeated viewing of certain videos, and thus could on its face value (and a hearing norm) be described as non fair use. This is a rather simplistic view, and doesn’t take into account other variables.

I own legal copies of the music I view, but I will watch the video repeatedly (a) for subtitles or (b) for a visual representation. Why? Because I’m deaf. It takes me many many views to understand the beat, appreciate the song. I can watch something to death.

However, from a statistical viewpoint ... it won’t make any sense, and a hearing majority might assume “she’s breaking the law”. When in fact, I’m just trying to get around structures that exclude me. It fails to take into account how certain cultures exclude (e.g. lack of accessibility through traditional music channels, etc).

It is vital that minority groups are included in any best practice guidelines, and they aren’t just constructed to suit the majority, or rather based on unintentional assumptions due to a lack of understanding.

Posted by Pariuri on Feb 3, 2010 at 4:27 AM

Repeated viewing will not impair your fair use rights. Fair use allows you to employ copyrighted material in your own work without licensing it, or asking for permission, if you are repurposing it and only using as much as you need for that purpose. We welcome your reading of our codes of best practices to explore your fair use rights further. They apply equally to Deaf as to others.

Posted by Micael Bogar on Feb 4, 2010 at 9:38 AM

Don’t forget that for promotional purposes, the permissions process is appropriate and the teacher or a school has specifically agreed to a license, then (of course)
its terms are likely to be binding , even if they impinge on what would otherwise be considered fair use. And, of course, illustrative material should be properly attributed
wherever possible.

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