Fair Use

We won’t bother with a formal definition of copyright, because chances are you can find your way to Wikipedia for that. Basically, if you didn’t create it, you don’t own the rights to it, and using it likely infringes on someone else’s copyright. Ideas, however, generally aren’t copyrighted. This doesn’t mean that photosynthesis isn’t copyrighted – maybe it is – but I haven’t heard of any claims lately.

Hold on – what about dead people? Can’t you use their stuff?

This may sound weird, but it actually depends how dead they are. Most classical music is public domain, meaning you can use it, but the recording itself most likely is copyrighted because it was performed by a modern orchestra. If you’d like to know better if a body of work is public domain, check out this handy chart from Cornell (gotta love those smart people!)

As for that Sarah McLaughlin CD you bought yourself, just because you “own” the album doesn’t mean you own all the rights. All you did was purchase the rights to listen to the music, not to use it or alter it in any way – especially not for commercial purposes.

At this point, you’re probably saying to yourself, “Wait a second. I see news stations using other people’s footage and music all the time without giving credit, not to mention tons of TV shows that use other people’s work for parodies!”

Yes, that inner voice of yours is right. There is a small clause under copyright law that allows you to use someone else’s copyrighted material.

But don’t get too excited just yet. As with most good things in life, there are numerous rules written in dreadful legalese. Thankfully, we’re here to help untangle this deep web of uncertainty for you. Yup, we’re just that cool.

Fair use was created to allow for such things as parody, news reporting, education and research, and commentary without having to get the permission of the copyright owner.

The fact that the Fair Use clause of the copyright statute doesn’t spell out what is and is not protected under Fair Use makes matters a bit more complicated. There are, however, guidelines which include the purpose and characters of use, the nature of the copyrighted work, the amount and how substantial the portion is in relation to the entire work, and the effect upon its commercial value. One thing is for sure: Fair Use is determined on a case-by-case basis.

Let’s start with the easy: Copying an entire body of work is not Fair Use. Period. That was definitely easy. Onward.

Let’s go a bit deeper into the four guidelines of Fair Use:

1. Purpose and character – Is the video (in our case) created to enrich people or to stimulate creativity? Wikipedia simplifies this and says that a key consideration here is if the use is interpreted as informative or just derivative.
2. Nature of the copyright work – Basically if the work is fictional or not. No one can copyright ideas and facts – but they can copyright the expression of them. Certain items, however, will not have their copyright upheld in the name of public interest, such as with the famous Zapruder film of JFK’s assassination (more on Wikipedia).
3. Amount and substantiality – What percentage of the original work is included in the new work? Generally speaking, the smaller the amount used, the greater the chances that the use would count as Fair Use.
4. Effect on future commercial use – Will using the material affect the original copyright holder’s ability to make money off his own work? In the case of video, does watching the new video make it unnecessary for the viewer to watch the original? In other words, does the new body of work act as a substitute for the original one?

Like what was mentioned earlier, Fair Use applies to news stories and commentaries, and documentaries fall under this category. Way back in 2005, a group of documentary filmmakers created the Documentary Filmmakers’ Statement of Best Practices of Fair Use, which you can find here, that is used by many, such as PBS in the US.

The cool part of Fair Use is that if you want to make fun of something, like Star Wars, for example, you wouldn’t need their permission to use Darth Vader’s image. There is, however, a difference between parody and satire. Generally speaking parody is more acceptable as Fair Use than satire.

What’s the difference? A parody is taking someone’s work and making fun of the work itself, while satire is using a work to make fun of something else. Either way, using Fair Use as a defense in either of these cases depends on the four principles outlined above.

One common misconception that is important to note is that just because a body of work does not have a copyright symbol on it does not make it public domain. The person who created the body of work owns all of it, and has the right to allow or refuse anyone to use his work.

Another common misconception is that it’s okay to use someone’s copyrighted materials, like music, if the new work isn’t up for commercial use. In our case, just because you aren’t submitting your video to Producer Rewards does not mean that you are free to use Madonna’s Vogue in your video. Similarly, giving “credit” to the copyright holder does not allow you to use the music in your video, unless the holder explicitly gives you permission to do so.

The most important thing to remember about Fair Use is that it is very vague. While we attempt to assist you here as much as possible, when in doubt, please turn to qualified professionals and do not take our guidelines as legal advice.

To be fair, and not infringe any copyrights, we used the following resources in compiling this article:

-Fair Use in Wikipedia: http://en.wikipedia.org/wiki/Fair_use

-10 Big Myths About Copyright Explained: http://www.templetons.com/brad/copymyths.html

-Documentary Filmmakers’ Statement of Best Practices of Fair Use: http://www.centerforsocialmedia.org/files/pdf/fair_use_final.pdf

-Copyright Law Article 107 – Limitations on Exclusive Rights: Fair Use: http://www.copyright.gov/title17/92chap1.html#107

-A handy checklist to determine if your use falls under Fair Use: http://copyright.iupui.edu/checklist.htm

-Fair Use in a Nutshell: http://copylaw.com/new_articles/fairuse.html

-Copyright and Fair Use – Stanford University Libraries: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html