Fair usage is a relatively newish concept within the law and the advent and proliferation of digital files, DVD's and CD's it is exceptionally easy to access and use the work of others. Whereas in the past you would have to try and tape from TV, radio or often in the case of moving image contact the creators or film companies and get copies made most of this is now online and a mouse click away. The 100 best movie moments, funny scenes compilations with C-List celebs discussing them that proliferate our TV screens are examples of this in action. They use very small clips and a documentary style premise to use a lot of these clips for free.
As it is a new area there are many myths surrounding the Fair Usage concept the three main ones outlined below.
Myth #1: If you are making money off a video using copyrighted content, this is not fair use.
Reality: Whether or not something is used for commercial purposes is not a factor that goes into deciding whether it is fair use or not. She says that there are many commercial enterprises that actually rely on fair use. So if you are creating commercial work, for profit, you can use copyrighted content as long as it falls under fair use.
Myth #2: As long as you give credit to the original creator then you won’t be liable for copyright infringement.
Reality: You are not required by law to give credit when using another person’s work under fair use and, by the same token, crediting someone will not protect you from copyright infringement. That being said, it is often advised to give credit when using someone else’s content. It just may help you avoid a lawsuit and sometimes all that the original creator wants is credit for his or her work.
Myth #3: If I use less than thirty seconds of copyright material, I’m in the clear!
Reality: There are no precise numbers dictated under the fair use doctrine when it comes to how much of a copyrighted video or song you can use. Simply put, the amount that you use just needs to be reasonably related to your purpose.”
So as I have discovered fair usage is a murky territory but from reading around guide lines whilst not written down as law or set in stone are generally accepted as the correct way to use the moving image work of others. The two main issues are the following.
• Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
For both of these I feel I can abide by them. Whilst not completely "transforming" the material I am re-contextualizing it to make a different point by Appropriating it to make s different point from its intention. I am also going to be using it alongside other material which again will change the context from it being viewed solely as one entity. As far as if the material is taken in appropriate kind and amount a fairly good rule of thumb is not to take too much. There is no definitive amount for this but from case studies and researching every case is dealt with individually but 30 seconds seems to be the norm.
Questions to ask of the use of copyrighted material are.
1. What are you doing with the copyrighted content? If you are doing something highly transformative with the content then you will have more room under the fair use doctrine. You are more likely to be covered if you are saying something quite different from what the original creator was trying to say.
2. What is the nature of the copyrighted content you are using? Use of creative or fictional content (for example, a film or cartoon) is less frequently allowed under fair use than less creative, non-fictional material.
3. How much of the original content are you using? You should be careful to use a reasonable amount. Just use enough of the copyrighted content as you need to in order to get your point across. 4. Will your work serve as a substitute for the original? If your video will take away views or sales from the original then it is less likely to be covered under fair use. Additionally, you shouldn’t create work that occupies markets that copyright owners are entitled to exploit.
I feel confident that by using the work in an uncommercial (well currently anyway!) art installation piece I will stay clear of any issues. The length of the clips I use may be an issue but if i keep these intentionally short as possible I feel I will avoid any problems here too.
The Centre for Media and Social Impact also put out guidelines which again I feel I am comfortably within. They mention 6 key areas but only a 5 apply to my use and appropriation of others work.
ONE: Commenting on or Critiquing of Copyrighted Material
Video makers often take as their raw material an example of popular culture, which they comment on in some way. They may add unlikely subtitles. They may create a fan tribute (positive commentary) or ridicule a cultural object (negative commentary). They may comment or criticize indirectly (by way of parody, for example), as well as directly. They may solicit critique by others, who provide the commentary or add to it.
PRINCIPLE: Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.
LIMITATION: The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience’s taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).
TWO: Using copyrighted material for illustration or example
Sometimes video makers quote copyrighted material (for instance, music, video, photographs, animation, text) not in order to comment upon it, but because it aptly 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: This sort of quotation generally should be considered fair use and is widely recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video maker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power precisely because they are popular. This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. This kind of use is, thus, creating new value.
LIMITATIONS: To the extent possible and appropriate, illustrative quotations should be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect. Properly attributing material, whether in the body of the text, in credits, or in associated material will often reduce the likelihood of complaints or legal action and may bolster a maker’s fair use claim.
FIVE: Copying, restoring, and recirculating a work or part of a work for purposes of launching a discussion
Online video contributors often copy and post a work or part of it because they love or hate it, or find it exemplary of something they love or hate, or see it as the center of an existing debate. 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: Such uses are at the heart of freedom of expression and demonstrate the importance of fair use to maintain this freedom. 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. When protected works are selectively repurposed in this way, a fundamental goal of the copyright system–to promote the republican ideal of robust social discourse–is served.
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 mere fact that a site permits comments is not enough to indicate intent. The poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion with an initial comment on a site, or seek out a site that encourages commentary.
SIX: Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements
Video makers often create new works entirely out of existing ones, just as in the past artists have made collages and pastiches. Sometimes there is a critical purpose, sometimes a celebratory one, sometimes a humorous or other motive, in which new makers may easily see their uses as fair under category one. Sometimes, however, juxtaposition creates new meaning in other ways. 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: This kind of activity is covered by fair use to the extent that the reuse of copyrighted works creates new meaning by juxtaposition. Combining the speeches by two politicians and a love song, for example, as in “Bush Blair Endless Love,” changes the meaning of all three pieces of copyrighted material. Combining the image of an innocent prairie dog and three ominous chords from a movie soundtrack, as in “Dramatic Chipmunk,” creates an ironic third meaning out of the original materials. The recombinant 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. Similarly, where the juxtaposition is a pretext to exploit the popularity or appeal of the copyrighted work employed, or where the amount of material used is excessive, fair use should not apply. 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; or when newlyweds decorate or embellish a wedding video with favorite songs simply because they like those songs or think they express the emotion of the moment.
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