Copyright Clarity

“We’re changing what it would mean to be a creator just at the time that technology is enabling anybody to be a creator. So, just when it matters most, the law steps in and destroys the opportunity...” — Harvard Law Professor Lawrence Lessig

www.archive.org

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COORDINATORS

! The Media Education Lab (Renee Hobbs, Temple University) ! The Program on Information Justice and Intellectual Property (Peter Jaszi, Washington College of Law: American University) ! The Center for Social Media (Patricia Aufderheide, School of Communication: American University)

SIGNATORIES

! Action Coalition for Media Education ! Media Education Foundation ! National Association for Media Literacy Education ! National Council of Teachers of English ! Visual Communication Studies Division of the International Communication Association

LEGAL ADVISORY BOARD

! Jamie B. Bischoff ! Robert W. Clarida ! Kenneth D. Crews ! Michael J. Madison ! Jennifer Urban

FUNDED BY

! The MacArthur Foundation ! The Ford Foundation

What is copyright?

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Section 8).

What is fair use?

“Fair use is the right to use copyrighted material without permission or payment under some circumstances — especially when the cultural or social beneﬁts of the use are predominant” (“Code” 1; emphasis added).

“That authors and inventors beneﬁt from copyright is a side effect of encouraging the dissemination of knowledge, and not a direct intent of copyright” (Carrie Russell, Complete Copyright).

“In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment” (“Code” 5).

“Copyright Law Balances Rights of Owners and Users” (Hobbs 20). OWNERS USERS

The Four Factors Section 107 of the COPYRIGHT LAW of 1976 1. The Nature of the Use 2. The Nature of the Work Used 3. The Extent of the Use 4. Its Economic Impact (6)

Professor Eric Faden, Bucknell University “A Fair(y) Use Tale”

COMMON MYTHS

“Fair use is too unclear and complicated for me; it’s better left to lawyers and administrators.”

“Educators know best what they need to use of existing copyrighted culture to construct their own lessons and materials....Once they know, they can tell their lawyers and administrators” (15; emphasis added).

“Educators can rely on ‘rules of thumb’ for fair use guidance.”

“The guidelines are negotiated resolutions of conﬂicts regarding fair use, and yet they are often presented as standards to which one must adhere in order to remain within the law.” — Kenneth Crews “The Law of Fair Use and the Illusion of Fair-Use Guidelines”

“...in fact the guidelines bear little relationship, if any, to the law of fair use” (emphasis added).

these guidelines were "not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated [above] may nonetheless be permitted under the criterion of fair use."

“School system rules are the last word of fair use by educators.”

“Rather than following a speciﬁc formula, lawyers and judges decide whether an unlicensed use of copyrighted material is ‘fair’ according to the ‘rule of reason’” (6; emphasis added).

“Fair use is just for critiques, commentaries or parodies.”

“Transformativeness, a key value in fair use law, can involve modifying material or putting material in a new context, or both” (15; emphasis added).

“If I’m not making any money off it, it’s fair use.”

“...some more public uses may be unfair even if no money is exchanged” (16; emphasis added).

“Employing fair use is too much trouble; I don’t want to ﬁll out any forms.”

“But, if you choose, you may...still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims” (16).

What a creative way to incorporate media literacy into the social studies curriculum! As I look at the piece, it seems that your students have demonstrated their understanding of the content by transforming the “This American Life” segment into a new work through their imaginative multimedia slides.

The educational value of this assignment is based, in fact, on the careful relationship between the audio and the images.... [W]here you have asked permission and been refused, your decision about distribution rests completely on your comfort level about whether this use indeed a fair use....

I think it’s a great example of how, sometimes, we use a whole piece of media in our work with students — and for the speciﬁc learning objective, we need to use the whole piece.

“Fair use could get me sued.”

1. “That’s very, very unlikely” (17) 2. “Cease and Desist” letter

Case Studies Seeking Repurposing Angry Email Permission Google Images Response 4:49 5:49 5:04

Best Practices 1. The use of the copyrighted work is transformative. 2. The kind and the amount of the copyrighted work used is appropriate to accomplish the legitimate purpose. 3. The author of the copyrighted work is cited, whenever possible.

All forms of media

images

web sites

moving-image media

sound media WNYC’s

analog

digital

newspaper clippings = digital ﬁles

However...

“When a user’s copy was obtained illegally or in bad faith, that fact may affect fair use analysis.” (9)

SOURCE = irrelevant

Recorded over-the-air broadcast

Personal copy of newspaper

Personal DVD

Rented media

Borrowed media

Labels = irrelevant

eg., “licensed for home [or private or educational or noncommercial] use only”

Untested Case Study “PERILOUS TIMES: Civil Liberties in Wartime” American Studies Group Project

Reinforcement Videos What is Cost of Copyright? Copyright Confusion 3:41 5:38 User’s Fair Use Rights for Media Literacy 3:10 6:26

• Renee Hobbs: http://api.ning.com/ﬁles/ 3xBu0cBSMiiG-qw0tbU3knTMNteLjB8X- xqouKhJi40_/ReneeProfessional2009.jpg • Hobbs, Jaszi, Aufderheide: “How Media Literacy Educators Reclaimed Copyright and Fair Use”, International Journal of Media and Learning, vol. 1, No. 3 • Kutiman, “The Mother of All Funk Chords”: http://thru-you.com/

• Copyright Criminals: http:// www.copyrightcriminals.com • “Copyright and Fair Use Guidelines for Teachers”: http://www.halldavidson.net/ chartshort.html • Creative Commons Logos: http:// www.creativecommons.se/images/ highquality.jpg • Balance: http://blog.wineenthusiast.com/wp- content/uploads/2008/12/balance.jpg

• Supreme Court: http://www.flickr.com/ photos/vgm8383/2044910536/ • U.S. Constitution: http://www.archives.gov/ exhibits/charters/charters_downloads.html • Courtroom Gavel: http://www.flickr.com/ photos/63126465@N00/117048243 • Flexibility: http://www.flickr.com/photos/ khalid-almasoud/474399662/

• Robin Williams: http://images.starpulse.com/ Photos/Previews/Dead-Poets-Society-04.jpg • Edward James Olmos: http:// pantskicker.com/wp-content/uploads/ 2008/01/0standanddeliverbwcrop.jpg • Michelle Pfeiffer: http:// images.allmoviephoto.com/ 1995_Dangerous_Minds/ 1995_Dangerous_Minds_036.jpg

• The Wire: http://www.hbo.com/thewire/img/ episodeguide/season04/ep38_04.jpg • Hilary Swank: http:// www.independentcritics.com/images/ freedom%20writers%20SPLASH.jpg • Kevin Kline: http://videodetective.com/ photos/633/026626_27.jpg

• Jack Black: http://fraser.typepad.com/ a_girl_a_gun/images/ School_of_Rock_01.jpg • Kindergarten Cop: http:// i153.photobucket.com/albums/s229/ longjohnjohn05/arnold1.jpg • Crews, Kenneth: “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” The Ohio State Law Journal 62 (2001): 602–700

• Parthenon Detail Replica: http:// www.ﬂickr.com/photos/brent_nashville/ 2455550267/ • “in y’own mix”: "pirøbølo", Copyright Criminals Contest. http://ccmixter.org/ copyrightcriminals/people/spirobolos • “The Next Step”: Trifonic, Copyright Criminals Contest. http://ccmixter.org/ﬁles/ trifonic/4163

• Time Magazine (Obama cover): http:// www.flickr.com/photos/tonythemisfit/ 3142216126/sizes/l/ • Reel-to-reel: http://www.flickr.com/photos/ dmitry/531285082/ • “HITECH” photo: http://www.flickr.com/ photos/tsevis/2282944393/in/ set-72157608680934688

• “Klutz Clippings”: http://www.flickr.com/ photos/tantrum_dan/2344581860/ • “VHS’sss”: http://www.flickr.com/photos/ 33917831@N00/1018612301/ • Newspaper article: http://www.flickr.com/ photos/44789431@N00/52308403/ • DVDs: http://www.flickr.com/photos/ 23327787@N08/2348565675/

• Blockbuster Video: http://www.flickr.com/ photos/40736030@N00/51415142/ • Yo-Yo Ma: http://www.flickr.com/photos/ 21651009@N00/2606693331/ • Apollo 13 DVD: http://www.flickr.com/ photos/clith/153418933/ • Pirate: http://www.flickr.com/photos/ 83135223@N00/285200741/

www.mediaeducationlab.com www.centerforsocialmedia.org www.spirobolos.com

Copyright Clarity

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