Code of Best Practices in Fair Use for Online Video

The Center for Social Media at American University’s School of Communication has just released an important new report:  Code of Best Practices in
Fair Use for Online Video, which builds on the Center’s
findings
from its Recut, Reframe,
Recycle: Quoting Copyrighted Material in User-
Generated Video report. (The report might well have been called: How not to be slammed by copyright law in the age of YouTube and the personal media revolution.)

The
code, grounded in the practices of online video makers and in the law,
was collaboratively created by a team of scholars and lawyers from leading
universities. The best practices will
allow users to make remixes, mashups and other common online genres
with the knowledge that they are staying within the bounds of current copyright law.

The code identifies, among other things,
six kinds of unlicensed uses of copyrighted material that may be considered
fair, under certain limitations. They are:

• Commenting or critiquing of copyrighted material
• Use for illustration or example
• Incidental or accidental capture of copyrighted material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships
  between existing works

The guide points out that a blogger’s critique
of mainstream news is commentary. The toddler dancing to the song “Let’s
Go Crazy” is an example of incidental capture of copyrighted material.
Many variations on the popular online video “Dramatic Chipmunk”
may be considered fair use, because they recombine existing work to
create new meaning.

“This code of best practices will
protect an emerging creative zone—online video—from de-facto censorship,” the center’s director, Patricia Aufderheide, said in a statement. “Creators, online video providers and copyright holders will be able to know when copying is stealing and when it’s
legal.”

Short excerpt of the section on common fair use myths:

IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE. Noncommercial
use is indeed one of the considerations for fair use, but it is hard to
define. If people want to share their work only with a defined
closed-circle group, they are in a favorable legal position. But beyond
that, in the digital online environment, wholesale copying can be
unfair even if no money changes hands. So if work is going public, it
is good to be able to rely on the rationale of transformativeness,
which applies fully even in “commercial” settings.

IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE.
Although nonprofit, personal, or academic uses often have good claims
to be considered “fair,” they are not the only ones. A new work can be
commercial—even highly commercial—in intent and effect and still invoke
fair use. Most of the cases in which courts have found unlicensed uses
of copyrighted works to be fair have involved projects designed to make
money, including some that actually have. …

I wish we had a roadmap like this when we launched Ourmedia.org, the first video hosting site, back in March 2005. I’m still reading this first-of-its-kind
14-page guide, which aims to help creators, online video providers and
copyright holders understand and interpret fair use in
online video in a remix culture. You can download the full report here (PDF). All video producers and content creators should absorb this common-sense set of principles.

More info: centerforsocialmedia.org/fairuse
JD Lasica, founder of Inside Social Media, is also a fiction author and the co-founder of the cruise discovery engine Cruiseable. See his About page, contact JD or follow him on Twitter.