Fair Use & Digital Media (Extended Version)

fair use CO M 5 5 8 D IGITA L M E D IA LAW & PO LICY FILIZ EFE –UW MCDM – Spring 2009

INTRODUCTION  As a digital media graduate student and a visual content creator working at an academic institution, I face daily the dilemma of whether a piece of visual content is eligible for fair use or not.  Therefore, I want to research the topic of “fair use of copyrighted materials”, the conditions under which users are allowed to publish, distribute, or reproduce copyrighted or trademarked material without permission, for certain purposes.  I am particularly interested in examining the conditions to determine whether a piece of visual content is eligible for fair use or if permission must be obtained.

FAIR USE OF COPYRIGHTED MATERIALS… WHAT IS FAIR USE?:  Fair use is a doctrine in the United States copyright law (Copyright Act - Section 107 ) that allows limited use of copyrighted material without requiring permission from the rights holders.  It is an affirmative defense, not a right! In litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was quot;fairquot; and not an infringement.  Determination of Fair Use is often very fact specific

ARGUMENT NOT FAIR USE! FAIR USE! I will reference a specific significant case in an attempt to more clearly understand the flexible principles of fair use and to demonstrate the different possible arguments on both sides.

USING A RANDOM IMAGE ON AN EDUCATIONAL FLYER

STORY OF THE CASE  I have been asked to design a flyer to promote one of UW’s educational summer camps for high school students.  The camp was about climate science and video production so the first thing I did was searching an image with the keywords globe and video! globe, video

STORY OF THE CASE

STORY OF THE CASE  …And I found an image via google search that qualifies for my flyer design.

FAIR USE OR NOT TO USE?…  The camp is not for free, so is it commercial or educational?  Can I also distribute these flyers off-campus?  What if I use the same image on web?  How flexible are the principles of fair use online and offline? …DO WE NEED PERMISSION?… In determining whether the use made of a work in this case is a fair use, we need to consider following questions and factors:

FIRST STEPS 1. IS THE WORK PROTECTED? Copyright does not protect and we may freely use:  Works that lack originality  Works in the public domain  Freeware  US Government works  Facts  Ideas, processes, methods, and systems described in YES! copyrighted works

FIRST STEPS 2. DO YOU WISH TO EXERCISE ONE OF THE OWNER'S EXCLUSIVE RIGHTS?  Make a copy (reproduce)  Use a work as the basis for a new work (create a derivative work)  Electronically distribute or publish copies (distribute a work)  Publicly perform music, prose, poetry, a drama, or play a video or audio tape or a CD-ROM, etc. (publicly perform a work)  Publicly display an image on a computer screen YES!

FIRST STEPS 3. IS YOUR USE EXEMPT OR EXCUSED FROM LIABILITY FOR INFRINGEMENT?  If an exemption does not excuse infringement and eliminate the need to ask permission or pay fees to exercise the owner's rights, you need permission.  Even if all or part of a work is not protected by copyright law, it may be protected by other laws.  For example, “I let others copy, distribute, display, and perform my work - and derivative works based upon it - but for noncommercial purposes only.” NO!

FOUR FACTOR “FAIR USE” TEST PURPOSE and character of the use; NATURE of the copyrighted work; AMOUNT of the portion used; and EFFECT of the use upon the potential market for or value of the copyrighted work.

FACTOR 1 - PURPOSE FACTOR 1 the purpose and character of the use - Criticism - Nonprofit - Commentary - Newsreporting - Educational - Commercial - Parody - Personal - Otherwise quot;transformativequot; use FAIR USE NEEDS PERMISSION

FACTOR 1 - PURPOSE  Commercial v. Non-commercial is the heart of this analysis: Is the purpose and character of this flyer educational or commercial?  Even though the purpose of this summer camp is educational, it is not for free and the use of flyer is not for critics. It is for marketing. This image has no function to be used as a training tool.  Therefore, we can hardly claim that the use of the image is for educational purposes. We cannot also define it as personal or non-profit.  IT IS MORE LIKELY TO BE ON THE “NEEDS PERMISSION” SIDE ATOUR FIRST FACTOR FAIR USE BALANCE TEST!

FACTOR 2 - NATURE FACTOR 2 the nature of the copyrighted work - Fact - A mixture of fact and - Imaginative imaginative - Published - Unpublished FAIR USE NEEDS PERMISSION

FACTOR 2 - NATURE  Fact v. Fiction (more public interest in publishing facts) Use of works with high “public interest” are given more latitude  Published v. Non-Published (the author is given deference for the first public appearance or the decision to make no public appearance of a work)  IN OUR CASE, THE NATURE OF THE IMAGE WE FOUND VIA GOOGLE SEARCH IS PUBLISHED WORK. THEREFORE, IT IS MORE LIKELY TO BE IN FAVOR OF “FAIR USE”.

FACTOR 3 - AMOUNT FACTOR 3 the amount of the portion used - More than a small - Small amount amount FAIR USE NEEDS PERMISSION

FACTOR 3 - AMOUNT  No “Magic Amount.”  The analysis is not only how much is taken, but also what is taken;  did you take the “heart” of the work?  IN OUR CASE, WE ASSESS THE QUANTITY OR PERCENTAGE OF THE ORIGINAL COPYRIGHTED WORK THAT HAS BEEN IMPORTED INTO OUR NEW WORK. EVEN THOUGH A SMALL PORTION OF THE IMAGE IS USED IN THE FLYER, IT ENTIRELY BUILDS ON THE FLYER ITSELF. THIS USE OF THE WORK WILL WEIGH SOMEWHAT “AGAINST FAIR USE”.

FACTOR 4 - EFFECT FACTOR 4 the effect on the potential market - Original is out of print - Competes with the - After evaluation of the or otherwise unavailable original first three factors, the - No ready market for - Avoids payment for proposed use is tipping permission permission in an towards fair use - Copyright owner is established permissions unidentifiable market FAIR USE NEEDS PERMISSION

FACTOR 4 - EFFECT  Does the use deprives the copyright owner of income including both new or potential market for the copyrighted work.  IN OUR CASE, THE COPYRIGHT OWNER DOES NOT SEEM LOSING MONEY BECAUSE OF THIS USE, HOWEVER THIS DOESN’T GIVE THE RIGHT TO USE THE IMAGE WITHOUT PERMISSION: OUR CASE STILL WEIGHS MORE ON “NEEDS PERMISSION”.

THE USE OF DIGITAL IMAGES “The use of visual images poses distinct challenges for applying fair use. The use will most likely require the entire work, a fact that most often weighs against fair use.A photograph may also be a highly creative work, which also generally weighs against fair use. Moreover, a single photograph may involve layers of legal claims. The photographer may hold the copyright, but the photograph may capture the image of a painting or other copyrighted work, or of a sign that has trademark protection, or of a person who has rights of privacy or publicity. The image may be from a book or slide collection, to which a publisher other party holds a compilation copyright. These circumstances give rights to multiple claimants with respect to one visual image.” - Kenneth D. Crews (2001)

 Fair use depends on a lot of variable factors which seems to have a large grey area in law practice.  The best way to deal with the use of copyrighted materials issue is to assess the cost-benefit of that use, before copying, modifying, displaying, performing or distributing another’s work.

IS IT FAIR USE?…  After considering the three step right-defining questions and four factor test, using this image on our flyer… IS IT FAIR USE?

IS IT FAIR USE?…

FAIR USE AND PROFESSIONAL COMMUNITIES  Fair Use For Documentary Filmmakers Documentary Filmmakers' Statement of Best Practices in Fair Use  Media Literacy Educators Code of Best Practices for Fair Use in Media Literacy Education

COMMON MISUNDERSTANDINGS  Any use that seems fair is fair use.  No liability if its an adaptation.  No liability if there is a disclaimer.  It's okay to quote up to 300 words.  No liability if I can’t find the owner.  Noncommercial use is invariably fair.  It's copyrighted, so it can't be fair use.  If you're selling for profit, it's not fair use.  No liability, I found it on the Internet .  If it's not fair use, it's copyright infringement.  You can deny fair use by including a disclaimer.  If you're copying an entire work, it's not fair use.  Acknowledgment of the source makes a use fair.  Fair use interpretations, once made, are static forever.  Strict adherence to fair use protects you from being sued.  The lack of a copyright notice means the work is public domain.

REFERENCES  American University Center for Social Media, retrieved June 10, 2009 from http://www.centerforsocialmedia.org/resources/publications/statement_of_best_pract ices_in_fair_use/  Baker, Kraig L. (2009). 2009 Digital Media Law & Policy - Day 6.PPT  Cornell University Law School (n.d.), US Code Collection, Retrieved April 29, 2009 from http://www4.law.cornell.edu/uscode/17/107.html  Crews, Kenneth D., (2001) The Law of Fair Use and the Illusion of Fair-Use Guidelines, Ohio State Law Journal [Vol. 62], retrieved on June 10, 2009 from http://www.centerforsocialmedia.org/files/pdf/crews.pdf  Fair Use (June 11, 2009). In Wikipedia, The Free Encyclopedia. Retrieved on June 12, 2009 from http://en.wikipedia.org/wiki/Fair_use  The University of Texas System (n.d.), Fair Use of Copyrighted Materials, retrieved April 29, 2009 from http://www.utsystem.edu/OGC/intellectualProperty/copypol2.htm

IMAGE CREDITS  Slide 1 – image source Fraser Smith (camera shake) http://www.flickr.com/photos/glenelg/1823218729/  Slide 3 – image source whitperson / Marc Whitman (obamicon) http://www.flickr.com/photos/whitperson/3255613925/  Slide 10 – image source TilarX (Creative Commons Swag Contest 2007_2) http://www.flickr.com/photos/tylerstefanich/2117607887/  Slide 17 – image source Ricardo Martins (Science Fiction Museum) http://www.flickr.com/photos/redneck/186228783/  Slide 17 – image source Ricardo Martins (Science Fiction Museum) http://www.flickr.com/photos/redneck/186228784/  Slide 19 – image source Dan Queiroz (Crystal Ball) http://www.flickr.com/photos/nyllows/3475906797/  Slide 22 – image source majya00 (_3297429) http://www.flickr.com/photos/majya/3393881281/

fair use CO M 5 5 8 D I GI TA L M E D I A L AW & PO L I C Y S PR I N G 2 0 0 9 This is a final course project by Filiz Efe, who is a graduate student in the University of Washington Master of Communication in Digital Media

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Fair Use & Digital Media (Extended Version)

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