Center for Social Media Fair Use Materials

Location: http://www.centerforsocialmedia.org/resources/fair_use/

Target Audience: Documentary filmmakers and creators of online video content

Normative Values: The Center for Social Media promotes creative use of media, specifically documentaries, as a means of disseminating knowledge and encouraging public action.  Concerned with the media environment in which innovators operate, the Center embraces fair use rights, and it strives to provide a fair use framework within which filmmakers can operate.  Fair use and other limitations on copyright are touted as being just as necessary to preserving cultural integrity as the protections placed on creative works.

Information Presented: Focusing on documentary film making, the Center for Social Media provides a wealth of materials discussing fair use in film and online video contexts.

A. Publications

• Recut, Reframe Recycle:  The report focuses on nine types of re-appropriation commonly used in the creation of online video content.  Research reveals that in many situations, such appropriation constitutes fair use.  Thus, concerns arise that efforts to crack down on piracy will inevitably stifle the creation of legal content as well.  The genres of videos considered were parody and satire, works quoting material to generate discussion, incidental use, illustrations or examples, personal reporting, archiving of vulnerable materials, as well as both critical and positive commentary.  After noting general trends in online video creation, the report addresses each of the use types in relation to the fair use doctrine.  While many of the uses can be assessed – and pass muster – using traditional fair use analysis, the report notes that “mashups” and other types of genre-bending videos raise new questions at the boundaries of fair use doctrine.  The report clearly views fair use as a right that deserves utmost protection, while recognizing the interest of creators to safeguard their works from piracy.
  
• Fair Use Frequently Asked Questions:  The FAQ page addresses concerns regarding industry adoption of the Best Practices statement, the need to attribute copyrighted material, the portion of a work that may be borrowed, the relevance to fair use of an organization's commercial status, whether fair use is distinct from “stealing,” and the scope of the doctrine. 
• Unauthorized: The Copyright Conundrum in Participatory Video:  Summarizing the findings of an April 2007 conference on the management of copyright in emerging Internet environments, the report asserts that overly rigid measures restricting use of copyrighted materials on open video spaces are detrimental to both commerce and society.  Research evidences that most new online creators appropriate material in good faith, though they admit confusion as to the application of copyright in the open video context.  Most online video providers fail to inform users of either copyright restrictions or fair use exceptions.  The report recommends that educational institutions, including universities and libraries, bear the burden of supporting responsible online behavior and educating Internet users about copyright.  Having an understanding of balancing mechanisms such as fair use and Section 512 of the DMCA, the report concludes, is essential for any online video creator.
• The Good, the Bad, and the Confusing: User-Generated Video Creators on Copyright:  Documenting the results of a survey of college-age online video creators, the report reflects the significance of informing first-time content creators of what they can -- and cannot -- legally appropriate in their works, before use habits are established.  Fifty-one survey participants and 15 interviewees, discussed (though not without hesitation) their practices of incorporating content during online video creation.  Their responses revealed a general misunderstanding of both copyright and fair use principles.  Although over 3/4 of those questioned expressed familiarity with the fair use doctrine, none could accurately define what it covers.  The respondents expressed concern over "grey areas" of copyright law, which they attempted to ameliorate by personally defining "good" and "bad" practices (e.g. noncommercial and commercial, personal and public).  The report concludes that among the selected group of college educated, cutting edge creators, all of whom hoped to have a career in media and remain legally in the right, copyright is a misunderstood doctrine.  The researchers assert that better informed creators will more effectively facilitate the development of new practice models as copyright and fair use are translated to innovative forms of media.
• Documentary Filmmakers' Statement of Best Practices in Fair Use:  In 2005, the CSM devised a best practices statement to counsel documentary filmmakers on the inclusion of copyrighted material in their films.  The statement outlines four use scenarios, and explains both the permissions and limitations on use attending the copyrighted works in each.  The document promotes fair use as “a key part of the social bargain at the heart of copyright law,” essential to spurring new creation.  The authors note the acceptance of quoting and borrowing from sources in other fields, such as among scholars and historians, and outlines the questions asked by courts in evaluating whether a particular appropriation of copyrighted content constitutes fair use.  The statement addresses situations where (1) a filmmaker employs protected material as the object of critique, (2) quotes a popular copyrighted work to illustrate an argument or point, (3) captures copyrighted content in the process of filming something else, and (4) uses copyrighted material in a historical sequence.  Each scenario receives comprehensive analysis, yet the guide recognizes that the outlined issues are not exhaustive.  The scenarios, instead, are employed to offer an industry framework for how fair use questions should be approached in any situation that may arise.  The document closes by correcting some common misunderstandings concerning fair use.
• Success of the Statement of Best Practices:  The Center presents its Best Practices statement as a model for creators struggling with fair use questions in the digital age.  This list describes the widespread acceptance and implementation of the Best Practices guide, along with providing specific examples of projects that were seen to fruition only after creators were able to consult the guide and gain and understanding of what they could rightfully appropriate.
• Expanding User Rights for Documentary Filmmakers:  At a 2005 conference, film industry professionals explored the tension between their own interests in copyright protection, and the ability to make use of previously protected materials.  Pervasive issues, including lack of copyright knowledge and the difficulty of tracking down copyright holders, were identified.  Participants examined several approaches, and the on-going projects exemplifying each: investigation, documentation and articulation of both good and bad practices; directly providing legal services; and legal and market policy intervention both directly and indirectly relevant to filmmakers.  Going forward, conference participants proposed education, the formation of institutions, legal reforms, and errors and omissions insurance as key areas to pursue.  Key themes including problem-specific solutions, the value of studying the approaches of other creator, exploring complementary strategies, and stressing cooperation and communication amongst industry professionals were considered integral to navigating "grey areas" of fair use and copyright in the documentary context.

B. Classroom Materials

• Copyright Backgrounder:  Los Angeles attorney Michael Donaldson outlines the protections and limitations of copyright law, focusing on terms relevant to documentary filmmakers.  He stresses that copyright “protect[s] the rights of those who wish to use the author’s material without permission,” as well as the rights of the author.  Donaldson notes the Constitutional origin of copyright, discusses the types of media and activities governed, explains how copyright ownership is assigned, and discusses the contexts in which copyrighted works can be used without obtaining prior permission.  The overview is peppered with criticism of existing policy and a belief in broad fair use allowances.
• Fair Use Course Syllabus:  The syllabus recognizes that while permission generally must be obtained to use copyrighted material in a documentary, situations arise where the fair use doctrine makes obtaining such permission unnecessary.  Filmmakers are encouraged  to consult the Center’s Best Practices guide as a rubric for deciding whether a proposed use would fall within the excepted category.  Assessing whether the proposed use will be “transformative” remains the key question.  A list of additional documents addressing varied copyright and fair use questions is also provided.
• Fair Use Scenarios:  The worksheet details four hypothetical situations a filmmaker could face, and poses questions concerning whether specific material can be incorporated under fair use principles.  The scenarios cover incorporating scenes from popular films into documentary essays, dealing with the appearance of copyrighted material in the background of one’s film, and using a previously unpublished crime scene photograph in a film documenting a 40-year old murder.

C. More Information

• Fair Use and Best Practices: Surprising Success:  This article reiterates the Center's position that fair use remains the "most important feature" in ensuring copyright's constitutionality.  The Best Practices statement concerning fair use has garnered wide support within the film making and independent television communities, as well as being held up as a model within the legal community.  Release of the statement has encouraged production studios and industry attorneys to insure fair use claims in compliance with the Statement.  The article concludes with the observation that other creative communities have begun to look to the Statement as they attempt to craft similar policies.
• Copyright, Fair Use and Motion Pictures:  An essay describing the history of copyright controversies within the film industry as a whole, as well as in relation to documentary film making.  The essay explains the fair use doctrine, and details cases that show fair use principles in action.  The courts' recognition of industry practices regarding fair use paved the way for issuance of the Statement of Best Practices.  The essay reemphasizes the immediate impact of the Statement on then-pending projects, and discusses its wider recognition and adoption.  In closing, an excerpt from the Best Practices guide is included.
• How Documentary Filmmakers Overcame Their Fear of Quoting and Learned to Employ Fair Use:  Detailing the results of a Center research project, Untold Stories, this report asserts that fair use principles prove most effective when professionals have knowledge of and expressed expectations concerning fair use.  While the idea of fair use has been somewhat maligned in the past, courts have been recognizing applications of the doctrine more frequently.  Nevertheless, film making professionals, Center surveys revealed, remain ignorant of core aspects of the doctrine.  Misunderstanding has had a chilling effect on expression, the report argues.  While balancing mechanisms such as fair use exist and operate to preserve freedom of expression, filmmakers cannot assert rights that they do not fully understand.
• How To Find Out What Is in the Public Domain:  A detailed chart linking the type of work and its date of creation to the copyright term it is under and the date upon which it will enter the public domain.
• Fair Use: An Essential Feature of Copyright:  A transcript of Peter Jazi's 2005 testimony before the House Subcommittee on Commerce, Trade and Consumer Protection.  Jazi asserts that the success of the U.S. copyright regime stems not only from the comprehensive protection it grants, but that balancing mechanisms, such as fair use, that operate in favor of creators, educators, students and consumers.  While courts have continued to support and apply the fair use doctrine, Jazi notes that it remains under threat as long as creative communities hesitate to proactively define fair use practices. Jazi both defines and dispels misconceptions concerning the fair use doctrine.  He argues that the doctrine both spurs creativity and enables consumers to make full personal use of purchased products.  Yet, fair use is under attack, he asserts, by DRM and anti-circumvention measures, areas in which traditional fair use exceptions do not apply.
• "Yes, you can!" - Where you don't even need 'fair use':  Common instances where the incorporation of copyrighted material falls within the scope of "free use" are discussed. Filmmakers generally need not concern themselves with clearance right when filming public buildings, government works, works in the public domain, people in public places, the incidental appearance of logos, or potential "rights of publicity."  
• The "Statement of Best Practices" FAQ:  Providing a list of questions and answers concerning the purpose, motivation, contents and scope of the Center's Best Practices statement, the FAQ reiterates the need for and success of the Statement.  Common misunderstandings about copyright and prevalent concerns over relying on fair use are also addressed.
• Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers:  The full report detailing the results of the Center's 2004 study on the habits of video content creators.  Interviewing 45 documentary filmmakers, researchers confirmed that rights clearance requirements and the threats posed by noncompliance pose creative and financial challenges to documentary filmmakers.  Describing the rights clearance process as costly and arduous, filmmakers struggle with the stiff rights clearance expectations gatekeepers tend to impose.  Furthermore, rights holders may flat out refuse to afford clearance to the filmmaker.  The changes and concessions filmmakers are forced to make, notes the report, adversely affect the quality and public availability of documentary films.  At the same time, filmmakers tend to support and impose the same rights clearance demands on others.  Rights clearance could be better managed, the researchers contend, through the increased utilization of fair use principles, the effective facilitation of the clearance process, and a more widespread understanding of the rights of filmmakers themselves.  The report further recommends that the industry focus on adopting a statement of "Best practices" and form legal resource centers to assist filmmakers struggling with clearance questions.

D. Videos

• Remix Culture:  A short video providing examples of the different ways in which copyright material is reappropriated in the creation of online video content. The film illustrates the unauthorized use of copyrighted material in a soundtrack, remix, mashup, commentary, parody, bloopers, character appropriation and fan tribute montage.
• Fair Use and Free Speech:  Chronicles the hype around the release of the Best Practices statement in 2005.  The video stresses the importance of being able to access copyrighted material to cultural development.  Fair use acts as a safeguard against misuse of copyright. Both professors and filmmakers comment on prevalent attitudes within the filmmaking industry toward fair use, and how the Statement provides needed guidance in the area.  The film then walks through the four scenarios set out in the Statement.
• Stories Untold: Summarizes the results of the Center's 2004 study on filmmakers' relationship with copyright and fair use.  The film features creators discussing challenges they have encountered in relation rights clearance, and reflects their concerns over the future of the fair use doctrine.
• Refrigerator Mothers: Using Kartemquin Films' Refrigerator Mothers as its example, these two sets of clips demonstrate where the filmmaker elected to claim fair use rights in the reappropriation of material, and instances in which the filmmaker chose to purchase the rights.
• Fair Use and Documentaries in Court:  Nine different videos detail  the nine court cases since 1996 that have dealt with the concept of fair use in film making.  Filmmakers that have embraced principles similar to those defined in the 2005 Statement have won when challenged by rights holders in court.  The unfounded fear of prosecution prevalent among filmmakers is further diminished by the revelation that only five plaintiffs were involved, as two of the plaintiffs brought two suits each.  
• UFVA and Center for Social Media Fair Use Contest Winners:  Recognizes those films that best exemplified good faith efforts to employ fair use principles and extend the concept beyond the situations described in the Statement of Best Practices.  
• Examples of Successful Fair Use in Documentary Film: Four different clips demonstrating successful reappropriation of material under the fair use context provide viewers with concrete examples of the doctrine in operation.  Each video represents a different type of appropriation, from critical commentary to the use of archival material in a historical sequence.
• Footage from the Fair Use and Free Speech Launch:  Scenes from the event commemorating the release of the Statement of Best Practices on Nov. 18, 2005.

Strongest Part:  The materials do a good job of tying the discussion of fair use principles into real world examples of fair use practices being successfully implemented.  Using online video to underscore the topics discussed concerning video creation further connects the ideas being outlined to concrete works.  The incorporation of clips featuring recognizable material encourages viewer engagement in the topics being addressed.

Weakest Part:  The materials spend alot of time promoting the protection of fair use rights, but provide minimal information on copyright protection.  Other than the copyright backgrounder, the documents seem to take for granted that readers have a basically knowledge of what rights a copyright holder does have in restricting use of his works.  

Suggested Improvements:  The Center needs to more fully address the basic protections provided by copyright law, alongside the discussion of fair use exceptions.  Since teens actively participate in online video creation, it would be helpful to provide documents targeted toward younger readers, in an effort to engage them in responsible practices before they develop a disregard for copyright.  While the Center's own studies recognize the contributions of young, first-time creators, the materials largely focus on practices espoused by industry veterans.  One presumes that they are more likely to be adapting an existing understanding of copyright to new media, rather than plunging into video creation with little knowledge of copyright at all.

Aspects to Consider Using:

The Center might consider having industry professionals maintain a blog detailing their struggles and success with copyright-related issues.  This would allow other filmmakers to see fair use principles in action, while detailing the process of obtaining rights clearance when it arises.

Another alternative would be to conduct interviews with documentary filmmakers who have adhered to the best practices guide, and have them discuss those instances in which it has helped, as well as areas where guidance is still lacking.

Material targeting young filmmakers, such as a kid-friendly video or interactive tutorial, would be helpful in preparing the next generation of media professionals to enter the industry better informed regarding copyright/fair use practices than their predecessors.