Fair Use: A Guideline For Those In Doubt

Fair UseA Guideline For Those In Doubt

Tuesday, January 12, 2010

What Is Copyright?

To understand Fair Use we must first clarify what Copyright means:

Copyright gives the creator of an idea or item exclusive rights to that work which include its publication, distribution & adaptation. Copyright is only for a certain period of time (usually between 50-100 years after the authorʼs death) at which point the work enters the public domain.


What is Fair Use?

Wikipedia defines Fair Use as: “A doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders.”

In English?

Fair use is the copying or use of a copyrighted material (images, audio, video, etc) for a “transformative” purpose (that is they “transform” the original work).

In general, there are only two categories of Fair Use: Commentary or Criticism and Parody.


Commentary or Criticism

Fair Use principles allow you to reproduce a portion of a copyrighted work for use in a commentary or critical review. The justification for this is that the general population will benefit from the assessment.

Examples

• Quoting an article in a news report.• Copying a paragraph during a book review.• Philip DeFranco summarizing news stories and adding

his own (hilarious) thoughts.


ParodyFair Use principles allow you to create a satire of someone elseʼs work (usually someone who is well known; a celebrity). Compared to the other category of Fair Use, Parody permits extensive use of the original. If this was not allowed then it would be much harder for one to identify the work as a parody.

Examples

• Girl Talk• Weird Al Yankovic• MadTV• Scary(1-4)/Disaster/Date/Epic Movie


Fair Use (USA):

There are four factors that judges consider when ruling on fair use:

1. the purpose and character of your use2. the nature of the copyrighted work3. the amount and substantiality of the portion

taken4. the effect of the use upon the potential market.

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html




History of Fair Use

The concept of “Copyright” was first ratified in Great Britain in 1709. The idea of “authorized reproduction” of content was never part of the original regulation (Statute of Anne) so the courts created “Fair Abridgment” which evolved into what we now consider as Fair Use.

Fair Use as we now know it today was first incorporated into the Copyright Act of 1976. This Act remains as the basis for all Copyright law within the United States to this day.


History of Fair Use(On The Internet)

In 2003 the first court case involving Fair Use on the Internet, Kelly vs Arriba Soft Corporation (now Ditto.com), commenced. This case set the legal precedent for current Internet Fair Use laws.

The case involved the relationship between thumbnails, inline linking & Fair Use. The initial proceedings found that Arriba Soft violated copyright without a fair use defense for using thumbnail images & inline linking from Kellyʼs site to Arribaʼs image search engine.


History of Fair Use(On The Internet)Cont...

The case was appealed and the Judge revised his opinion that thumbnail linking was in fact fair use for four reasons:

1. The thumbnails were sufficiently transformed.2. The photos had already been published.3. Because of their intended use, the thumbnails were the

only way to showcase the links.4. The thumbnail search would increase exposure of the

original images.

The case was remanded to a lower court for trial however it was resolved in default judgement (in favour of the plaintiff) as Arriba Soft had experienced significant financial hardships and failed to reach a negotiated settlement.


History of Fair Use(On The Internet)Cont...

It took five more years (until August 2008) for a Judge to rule that copyright holders cannot command someone to delete a posting without deciding whether or not that item is in accordance with Fair Use laws.

The case involved a video of Stephanie Lenzʼs one year old son dancing to “Letʼs Go Crazy” by Prince. The 29-second video was uploaded the YouTube. Four months after it was posted the owner of the song, Universal Music, ordered it removed from YouTube.


History of Fair Use (Canada)

The Canadian Copyright Act takes a different stance on Fair Use. Our version is called Fair Dealing. Canadian law doesnʼt actually observe the open-ended U.S. concept of Fair Use and instead favours a more stringent regulation. It states that:

“Users may make single copies of portions of works for research and private study.”

It should also be noted that the other difference between the Canadian & U.S. laws on Fair Use is that Fair Dealing does not allow for Parody.


History of Fair Use (Canada) Cont...

In 2004 the Supreme Court of Canada ruled unanimously on a case which clarified the concept of Fair Dealing. The case was CCH Canadian Ltd. vs Law Society of Upper Canada (LSUC).

The non-profit LSUC was sued for copyright infringement for providing photocopying services to students, members, judiciary and researchers.

The ruling was in favour of the LSUC. Their decision was that it did not constitute copyright infringement when single copies of research materials were made.


History of Fair Use (Canada) Cont...

The Supreme Court case established six criteria for evaluating Fair Dealing:

1. Purpose of the dealing (for research, news reporting?)2. Character of the dealing (what happened?)3. Amount of the dealing (number of copies produced?)4. Alternatives to the dealing (alternate to copying?)5. Nature of the work (what was the original?)6. Effect of the dealing (was the original diminished?)


In Depth:Audio & Video


Fair Use: (vs.) Digital Audio

Fair Use pertaining to audio is difficult to wrap your head around.The following statement is from the American Government, and is the general fair use ʻruleʼ pertaining to all works created, including digital audio:

“When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the

situation”...

Because fair use is commonly misunderstood, the American Government has elaborated on the previous statement with a few rules of thumb:

• The distinction between fair use and infringement may be unclear and not easily defined. • There is no specific number of words, lines, or notes that may safely be taken without permission.


Fair Use: (vs.) Digital Audio (cont...)

Basically, what what was previously said boils down to: just because digital audio is easy to obtain, download, copy and redistribute, doesnʼt mean that you are free to do so.

If you think what youʼre doing is illegal or infringing on the fair use act? It probably is.

If youʼre sure what youʼre doing is legal and not infringing on the fair use act? You have the potential to be right...


The best bet for professionals looking to use music and other art-works is to either pay royalties to use copyright-protected music, use public domain music or other types of legitimate free music.

Fair Use: (vs.) Digital Audio (cont...)


Fair Use: Digital Audio (other doctrines)

The following are different versions of ʻuser agreementsʼ all to which the underlying principle of fair use applies.

public domain music collection - not protected under Copyright Law and may be used for any private or personal purpose, including as part of non-profit programs and any classes.

protected by copyright law - can be used as part of non-profit and educational projects as long as the entire work is not used.

creative commons - can be used based on a set of rules and regulations chosen by the creator of the work.


Fair Use: Digital Audio(The .mp3)

Files are available online through legitimate sources such as:• iTunes• Amazon• Puretracks

However, there are just as many illegitimate files available through sources like:

• Blogs• Forums• Etc...

The rise of the .mp3 was responsible for much of the uproar and confusion that is fair use vs. Digital audio. It is hard to regulate the fair use of digital audio with so much of it being ʻfreelyʼ and easily available.


Fair Use: Digital Audio (Obtaining Digital music legally)

iTunes Store

The iTunes Store offers

over 10 million high

quality DRM-Free songs at as low as .69¢


Fair Use: Digital Audio (Obtaining Digital music illegally)

Online BlogsOnline blogs offer over 10 million high quality DRM-Free songs at as

low as free


Fair Use: Digital Audio (Piracy)

A big part of fair use deals directly with pirating music.

Using 20 seconds of an artistʼs song in a school presentation is up in the air as to whether or not itʼs infringing on the legality of copyright.

However downloading Jay-Zʼs full discography off of thepiratebay.net is clearly the opposite of legal.


Fair Use: Digital Audio (Piracy) cont...

The music industry estimates that it loses over 5 million dollars each year to music piracy.

This is largely due to the number of illegitimate web sites and peer-to-peer sharing systems that feature copyright-protected music without the permission of the copyright owner.


Fair Use: Digital Audio (Piracy) cont...

Over the years, the music industry has gone through great lengths to protect digital audio with different forms of Digital Rights Management.

Digital Rights Management (DRM) is used to impose limitations on the usage of digital audio generally by limiting the number of times a song can be copied and or listened to.

People are often furious at the mere thought of DRM. They believe that if they buy a song, or an album, that they are free to do what they wish it. However, this is the very core of the fair use doctrine vs. Digital Music; determining what it is you can, and cannot do with your music.


Can students use copyrighted material in their assignments?

No*

*unless it’s fair use


From SFU:

“You must obtain the permission of the copyright holder of an image before using, reproducing, or manipulating it in an assignment or research paper. It is a good idea to verify whether you have permission to use an image before including it in your work, rather than saving this step for last.”

http://www.lib.sfu.ca/help/publication-types/online-images


Fair Use: Images

Yo guys! I’m really happy for you and i’mma let you finish this presentation, but Steve

Jobs had one of the best Keynote presentations of all

time!


A few case studies...


Is this fair use?


Ralph Lauren case

• Posted to Photoshopdisasters.com

• reblogged to boingboing

• DMCA takedown to Photoshopdisasters.com and boing boing

• photoshopdisaster.comʼs ISP takes the site down. Boingboing says...

“Every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models.”

http://boingboing.net/2009/10/06/the-criticism-that-r.html






Lesson 1:

Just because the copyright holder says itʼs infringement, doesnʼt mean it is.


Case 2: Kineda.com

Mild-Mannered Fashion Blog

Runs a contest

Fair Use?


Kineda.com But doesnʼt ask permission for the image.Photographer finds out. Blogs about it.


But this is a happy story


Lesson 2:

Just because it isnʼt fair use, doesnʼt mean you canʼt use the image. You just have to ask (and get a “yes”).


Case 3:

City TV uses photos from an amateur photographer on their crime report

http://torontoist.com/2008/05/citynews_gets_slapped.php






City TV Response: "Canadian copyright law recognizes that third party materials like photos may be used for the purposes of news reporting. It was in that context that we used this photo."


“Plagiarism is unacceptable. Broadcast journalists will strive to honour the intellectual property of others, including video and audio materials.”

CANADIAN BROADCAST STANDARDS COUNCIL


The biggest issue for CBSC was lack of credit:

“By failing to provide [credit], the broadcaster has failed to honour the intellectual property rights of the photographer."

Full report: http://cbsc.ca/english/decisions/2008/080509.php


Lesson 3 (and 3.5)

Amateur photographers still hold copyright

Fair use isnʼt always big guy vs. little guy. Can be little guy vs. big guy


Has anyone had photos “stolen” online? (I have!)


Litmus Test for Fair UseAre you talking about the copyrighted work?

ORUsing the work to talk about something else?


Reference Material• Fair Use - Wikipedia: http://en.wikipedia.org/wiki/Fair_use• What is Fair Use: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/

chapter9/9-a.html• US Copyright Office: http://www.copyright.gov/fls/fl102.html• Copyright - Wikipedia: http://en.wikipedia.org/wiki/Copyright• To Share or Not to Share: http://freelanceswitch.com/the-business-of-freelancing/to-

share-or-not-to-share-that-is-the-question/• Royalty Free Music: http://www.royaltyfreemusic.com/public-domain/basic-rules-fair-

use.html• Downloading Music MP3s: Peer to Peer File Sharing: http://netforbeginners.about.com/

cs/peersharing/a/aap2p.htm• Girl Talk Pay what you will: http://74.124.198.47/illegal-art.net/

__girl__talk___feed__the__anima.ls___/

By: David Emmett, Jordan Borth & Sean FiliatraultTuesday, January 12, 2010

http://en.wikipedia.org/wiki/Fair_use

http://en.wikipedia.org/wiki/Fair_use

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html




http://www.copyright.gov/fls/fl102.html

http://www.copyright.gov/fls/fl102.html

http://en.wikipedia.org/wiki/Copyright

http://en.wikipedia.org/wiki/Copyright

http://www.royaltyfreemusic.com/public-domain/basic-rules-fair-use.html




http://netforbeginners.about.com/cs/peersharing/a/aap2p.htm




http://74.124.198.47/illegal-art.net/__girl__talk___feed__the__anima.ls___/




Education

Fair Use: A Guideline For Those In Doubt