MyDemocracy

Using Copyrighted Material

The below guide is a code of best practices that can help you interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This code has been simplified from its original form. The code in its unaltered form can be found here

www.centerforsocialmedia.org

Code of Best Practices in Fair Use for Online Video

ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

Description: Video makers often use copyrighted material of popular culture, which they comment on in some way. They may create a fan tribute (positive commentary) or ridicule a cultural object (negative commentary). They may comment or criticize indirectly (byway of parody, for example), as well as directly.

Principle: Video makers have the right to use as much of the original work as they need so long as the maker analyzes, comments on, or responds to the work itself.

Limitations:The use should not be so extensive or pervasive that it becomes a market substitute for the original work. Always provide credit, where possible, to the owners of the material being used.

TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE

Description: Sometimes video makers use copyrighted material (for instance, music, video, photographs, animation, text) to 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: It is fair to use copyrighted material if the video maker is not presenting the quoted material for its original purpose but to harness it for a new one.

Limitations: Illustrative quotations should be no longer than is necessary to achieve the intended effect. Always provide credit, where possible, to the owners of the material being used.

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 or recording their own thoughts in a bedroom with copyrighted posters on the walls.

Principle: 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.

Limitations: 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 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). Gamers may record their performances.

Principle: 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.

Limitations: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 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: 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.

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 poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion.

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, parodies, 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: It is fair to use copyrighted material if the reuse of copyrighted materials creates new meaning. Combining the speeches of two politicians with a love song, for example, as in “Bush Blair Endless Love,” changes the meaning of all three pieces of copyrighted material. The combined 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. 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.