Making the Most of Fair Use: How Volunteer Lawyers for the Arts (VLA) Can Use Best Practices

Pat Aufderheide Center for Social Media American University

FAIR USE AND COPYRIGHT:MAKING THE BEST USE OF BEST PRACTICES

THIS COMES FROM• The Fair Use Project

• Five years of work with Washington College of Law

• Funded by MacArthur, Rockefeller, and Ford Foundations

• Co-principal investigator: Prof. Peter Jaszi (pjaszi@wcl.american.edu)

OVERVIEW

• Copyright policy basics

• Imbalance in copyright policy

• Interpreting fair use

• Best practices codes

• Implications for VLA

THE PURPOSE OF

COPYRIGHT

ONE PURPOSE :

TO PROMOTE THE CREATION OF CULTURE

By:

• Rewarding creators with limited monopoly

• Encouraging new makers to use existing culture

WHY BALANCE?

• All culture created on existing culture (we used to know that)

• The First Amendment (no censorship)

BIGGEST BALANCING FEATURE:

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

THE RISE OF

TIGHT COPYRIGHT

HOW WE GOT IMBALANCE• Copyright term extension

• Default copyright

• Punishing penalties (statutory damages)

• DMCA

• Treaties

FORCES IMBALANCING THE LAW

• Post WWII media conglomeration (archives=assets)

• The Feds’ free-trade push

• Digitization + Internet

DARK DAYSOF FAIR USE

• In ’80s, “fourth factor” balloons in importance

•Law-and-economics

•Koons decision 1992

• “Noncommerciality” (Betamax) an economic analysis

TURNING ON THE LIGHT: JUDGE LEVAL

• 1990 Harvard L.R.article

• 1992 Texaco decision

• 1994 Campbell v. Acuff Rose

• And many many more, e.g. Bill Graham

FAIR USE MOVES TO THE CENTER

• Judges love balancing features

• Supreme Court hangs term extension on fair use

•Eldred

•Golan

FAIR USE:A Core First Amendment Right

INTERPRETING

FAIR USE

THE “FOUR FACTORS”

• Reason for the use

• Kind of work used

• Amount used

• Effect on the market

AND, IN THE LAST 15 YEARS…

• Transformation

• Amount related to transformative purpose

Judges focus on

JUDGES ASK:

• Did you transform the use?

• Did you use the appropriate amount to satisfy the transformative use?

PLUS…

Custom and practice of individual creative communities…

...especially when well-documented*

*thanx Michael Madison

FEAR…• Will I get it wrong?

• Will I get sued?

• Will my boss/general counsel client get angry?

RUNAWAY RISK ASSESSMENTFirst Amendment rights all have risk

Risk assessments routine

No info? Assess at high risk

BEST PRACTICES

FROM PERMISSIONS TO AGENCY

• The client makes the call

• The lawyer enables good decisions

COMMUNITIES INTERPRET FAIR USE:

• Documentary filmmakers

• Scholars

• Media literacy teachers

• Online video

• Dance collections

• OpenCourseWare

PROCESS

• Research current practices and problems

• Expose community to consequences of confusion

• Work with community’s organizations to build code

DOCUMENTARY

RESULTS

• TV programmers air films

• New kinds of films made

• All insurers of errors and omission accept fair use claims

• Every H’wood studio employs fair use openly

• Lawyers use the Statement to build and grow their practices

MEDIA LITERACY

TEACHERS

RESULTS

• New curriculum in several states

• School district import the code into standards

• National video competitions use the Code

• New media literacy publications

OPEN COURSEWARE

RESULTS

• University GCs supportive

• MIT: 31 new courses in one year

•Previously rejected for OCW

NEW!

• Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries

• Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research and Study

WHAT HASN’THAPPENED• No loss to lawyers’

business (rather, increase)

• No legal challenges to Codes

• No lawsuits • *(two injunctions

summarily dismissed)

FAIR USE:Practice Makes Practice (not only judges)

MORE INFO, CHEAP

MORE INFO, FREE

Centerforsocialmedia.org/fair-use

Codes!FAQs!Videos!

Find this on Slideshare. Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

Find this on Slideshare. Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

THANK YOU!

Peter JasziVLAMacArthur, Rockefeller, Ford, Mellon and McCormick Foundations

CONTACT INFO

Pat Aufderheide Center for Social MediaSchool of Communication American University Washington, DC paufder@american.edu202-885-2069