Myths And Realities About Fair Use
from the and-a-quiz dept
Here’s the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.
Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we’ll try to incorporate them into the Q&A.
Myths and Realities about Fair Use
MYTH: Fair Use is only valid when it is non-commercial.
REALITY: Fair use is designed to expand the range of cultural production, not just the range of
non-commercial cultural production. Almost all the occasional litigation on fair use, which has
determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits
aren’t begun if there is no money to be gained.) Fair uses can be made of copyrighted material in
any commercial context, so long as the “four factors” of consideration tilt toward the value of new
contributions to culture against the cost to current owners. Currently the simplest calculation, the
one preferred by the courts, is to find transformation (reuse for a different purpose), and to make
sure that only as much of the original has been used as is necessary for the transformation; this is
best done with a justification for the habits and practices of a particular creative or user community.
MYTH: Any non-commercial use is fair.
REALITY: Who’s it hurting, right? That’s a common argument, especially among vidders, remixers,
and other creators in the online video environment, but the law doesn’t in fact exempt
non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately
today be in a grey zone if you lean exclusively on the fact that you’re not selling your work. That’s
especially true in online situations, where you may not be making money off your work but
somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal
definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other
people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim,
that pocketbook problem can be overridden (depending on how severe it is). Simply not making
money does not give you a fair use pass.
MYTH: Fair use is always valid if you’re using it in an educational context, and especially
within a classroom.
REALITY: Being a good guy is not necessarily enough. Educational uses have their own special
exemptions, but fair use in any educational context will have to abide by the same logic as in other
contexts. But because fair use analysis is always done, implicitly or explicitly, within the context
of a community of practice, you can refer to the mission and needs of your field. Educational
contexts provide some very easy justifications for transformation (such as that students are analyzing
the content). Educators need to pay particular attention to their claims to fair use if they are
using commercial materials explicitly designed for their educational environment. In that case, an
educator’s use might not be transformative. Sometimes codes of best practices apply; for instance,
media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education
MYTH: Fair use is only about criticism and commentary, like parody for example.
REALITY: Criticism, commentary, satire and parody are all great examples of ways in which
copyrighted material is reused for a different purpose than for its original market, in the process
of creating more culture. (How does satire differ from parody? They are closely related. Parody
holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything
including behavior.) But they are not the only kinds of activities that qualify as transformative fair
use. Pastiche without a specific point to make—a collage or mashup–can also be a fair use. So might
quotation for discussion–and much more.
MYTH: Fair use is “the right to hire a lawyer.”
REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with
questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal
or risky areas, and troublesome areas. Most people most of the time know where they are. Your
greatest comfort is in knowing that your peers in a community of practice have already agreed
upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence
Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at
face value and repeated it many times since. But Lessig made that remark before the beginning of
the current fair use movement, which has greatly clarified safe interpretations of fair use for many
communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford,
which encourages wider interpretation of fair use.
MYTH: Fair use needs a really good “test case” in the courts, to set precedent.
REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access
to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use
is regarded with such favor by judges. Copyright holders with good lawyers understand that any
greater record of the useability of fair use is not good for their side. Second, any particular lawsuit
may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen
that confuses or changes the story, muddying the judgment you wanted to get. For instance, the
artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack
Obama for a poster. But during preparations for the trial, he admitted lying about the photograph
he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test
case” is establishing clear standards of interpretation. Such standards can be highly useful in any
MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be
REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking
only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts.
If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will
see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal
and uncontested practice. In reality, people are employing fair use casually and comfortably every
single day across the nation, often without thinking about it, and get no trouble at all. They are in
the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a
copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on
fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics.
Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has
rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they
will get plenty of opportunities to settle for relatively small costs. But the most important thing to
remember is that lawsuits are extremely rare, the exception to the rule.
People frequently confuse one kind of danger with another. For instance, the RIAA has sued a
clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity
and public awareness about the illegality of downloading copyrighted material available for sale by
a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while
racking up enormous legal bills for the RIAA and others. But the RIAA’s case against downloaders
bore no relation to any fair uses. Downloaders were simply accessing material they could buy for
free, typically to use in exactly the way it was being marketed. The music industry may be backward-
looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair
users do not need to be frightened of RIAA lawsuits.
MYTH: Fair use is just a defense, not a right.
REALITY: Fair use is in fact a right that comes into play once someone accuses you of
infringement. At that point, you would respond by saying that you had a right to use that material.
Until then, everyone is simply going along minding their own business, creating culture. The right
of defense occurs in other contexts as well. For instance, if you are physically attacked, you have
the right of self-defense. This right never comes into play until you are both attacked and someone
accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is
a defense does not make it any less of a right.
MYTH: Fair use is just an interpretation, not part of the law.
REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law
(and widely exercised before that, without being explicitly invoked), it is a key element of a policy
dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First
MYTH: I can’t use fair use, because the copyright holders would never agree to it.
REALITY: Fair use is a right that you employ simply by accessing material, copying it and
incorporating it into your project within an appropriate context. You do not need to get anyone’s
permission to do that, and you do not even need to let them know that you did it. Some legitimate
and uncontested claims of fair use are even made after one or more attempts to license; the attempt
to license may even increase one’s case for fair use, if the material is vital to what you are trying to
say. Some people like to alert the people whose work they took, as a gesture of respect or homage,
and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a
vendor or archives holder of their fair use, because they have an ongoing business relationship that
involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on
the best terms possible.
Fair Use: You Be the Judge
You are planning to make a series of cable TV programs on the ?real? Greek myths and epics, as
they actually were told and understood in ancient times. To show how different those originals were
from today?s ideas of the same stories, you plan to quote from Hollywood films. For instance, in
an episode devoted to the hero Jason, you would open with a scene from the 1963 version of Jason
and the Argonauts, in which Jason confronts one of Harry Harryhausen?s terrifying monsters. For a
discussion of The Iliad, you would like to start with a battle scene from Troy, including a close-up
of Brad Pitt as Achilles. In each of these cases, you would be choosing a clip that contrasts sharply
with what you?ve found out about the ?real? Greek tales. In addition, you would also like to do
entertaining montages showing the importance of Greek myths in modern movies; Woody Allen?s
Mighty Aphrodite, Pier Paolo Pasolini?s Medea and the Disney animated film Hercules might feature
in such a montage, using evocative short clips to make the point of the continuing importance of
Greek culture in general.
- Do you have a fair use right to use the introductory clips contrasting with your research results?
- Can you claim fair use for montages of clips from popular films to make a general point about the
pervasiveness of these references in films today?
- Would it be better to stay away from the scenes that feature celebrities?
Scroll down for answer…
ANSWER: (from the back of the book)
You might want to start by consulting the Documentary Filmmakers? Statement of Best Practices in Fair Use
(at centerforsocialmedia.org/fair-use). Documentarians? choices are relevant whether the work is on
television or in a theater or on DVD. Your use here is related to the Statement?s second category,
of illustration. You have a clear new purpose that would ?transform? your use of the old and new
films, so you are in fair use range. Now you just need to take a good look at how much you are
using, only using what you need, and whether what you are using demonstrates the new point you
are making. In that introductory montage, is the link between what you are quoting and the subject
matter of your program clear, or is that material designed just to tickle the viewer?s eye and keep
them there past the commercial? Do the montages make the point you want to make? Have you
made clear?perhaps in surrounding narration or set-up?what point this montage is intended
to make? You don’t need to worry about contracting with celebrities, because when you fair use
material, you do not inherit any of the contractual obligations that the original maker entered into
with talent. To avoid any problems with rights of publicity, however, you should be sure not to use
unlicensed celebrity images in the advertising and promotion of your program.