“People are just scared to use fair use… I was scared to use it… lawyers would scare me they would say this does qualify as fair use but I would not use this.” – Byron Hurt, Film Maker
This video reminded me of working in the legal arts clinic my last semester of law school. Many of the artists that would come to the clinic were doing creative projects that included some fair use or even a lot of fair use. I wanted to give advice that their work was likely fair use and thus protected 1st Amendment speech, the advice given was often much more pessimistic and even once painfully crushing to the artist. These are smaller artist that want to spend their days creating, not trying to clear rights on transformative works from rights holder that will not even return their calls. As a lawyers you are trained to minimize risk, which unfortunately is interpreted as avoiding fair use all together. American’s Center for Social Media is trying to change this norm by helping communities create or document their best practices related to fair use and enable artist to use their free speech rights.
Eligibility * Must have primary creative control of the work and have all rights and clearances for material not employed under fair use. * Work must be submitted in NTSC, DVD (DATA only), miniDV, or via youtube* (For screening only. If selected, must provide a hard copy of the work.
Criteria * Work must be a documentary in any genre, including but not limited to essay, satire, parody, historical, musical, and personal * Work must be 5 minutes or less
The report, entitled “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video,” focuses on a wide variety of practices including satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups).
The report, along with other press on the Social Media Website make the argument that these practices may be protected by Fair Use, and that the court has favored works that are transformative in nature when balancing the fair use factors.
Peter Jaszi, one of the authors of the report, has two criteria for transformative work: 1. that it changes the original work in a substantial way and 2. that the change adds value to the society (paraphrased from Peters interview on Chronicle.com)
The report also recognizes that Fair Use is difficult to define and that in the arena of online video there are no current best practices to follow. The authors would like to remedy this with three steps:
1. Talk about Fair Use with creators and corporate stake holders on their blog 2. Conduct a survey of social scientific and participant-observation research of online user practices, as well as further interview-based research with creators. 3. develop best practices recommendations through a body of “lawyers, legal scholars, and scholars in communications, sociology… This ‘blue ribbon’ group’s recommendations could then help to shape regulatory practices, both private and public, for a participatory media era.”
This sounds good at first glance until you realize that the “Blue Ribbon” group is all academics and no creators. If you want readable standard the high level policy group must include creators. Take an editor from Boing Boing or a few non academic podcasters and add them to the mix to make sure the legal academic solutions are actually usable. Overall the report is a great starting point I just believe that to be effective creators need to be involved at all levels of the conversation. The biggest current problem for Fair Use is it is confusing at best any new guide lines need to be easy to use to use or they will only create more litigation.
On a final note my favorite part of the report was going through and looking up some of the videos. Here are my two favorite:
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