Three communities of practice--documentary filmmakers, visual arts professionals, and communications scholars--have created codes of best practices in fair use to help them employ this right. How did behavior and attitudes change?

1. Does fair use knowledge
change practice?
Patricia Aufderheide
March 17, 2016

2. Documentarians, 2005-2015
• Before:
– Insurers on fair use: NO
– Broadcasters: NO
– Filmmakers avoided
• Popular culture
• Political/News
• Music topics

3. Familiarity & Use of Fair Use
Yes,
78%
No, 12%
Not
sure,
9%
Fair use definition
matches my
understanding
Yes,
58%
No, 34%
Not
sure,
9%
I license when I think
I shouldn’t have to.

4. Fair Use Tag Cloud

5. Effects of Fair Use
187
102
47
47
21
10
0
0 50 100 150 200
Absolutely necessary
Very useful
Somewhat useful
Not sure
Somewhat damaging
Very damaging
Totally damaging
How useful or damaging overall do you think fair use rights are for
filmmaking?

6. Best Practices Code
Yes,
59%
No,
41%
Have you ever heard of The
Documentary Filmmakers’ Statement
of Best Practices in Fair Use?
Have you
ever used it?
yes
Yes,
57%
No,
34%
Unsure, 9%
Did you know that
the International
Documentary
Association was
one of the
creators?
Yes,
64%
No,
36%

7. Insurer refused a fair use claim
0
10
20
30
40
50
60
70
80
90
100
No Yes Can't recall

8. Broadcaster refused fair use
0
10
20
30
40
50
60
70
80
90
No Can't recall Yes

9. Others’ fair use hurt business
0
10
20
30
40
50
60
70
80
90
Yes No Can't recall

10. Use material because it’s PD/Open
license?
0
10
20
30
40
50
60
70
80
Yes No Unsure

11. Visual Arts Professionals, 201
• Artists
• Art historians/art history teachers
• Studio art teachers
• Museum personnel
• Archivists
• Librarians

12. Before
• Artists: Fair Use sometimes
• Everyone else: License all the time
• False confidence
• Self-censorship

13. Fair Use Confidence is Low,
But Most Understand the Term
Excellent
11%
Good
33%
Fair
36%
Poor
19%
How confident are you that
you understand how to
apply fair use in your work?
Definition of fair use
matches understanding of
the term
Yes
72%
No
11%
Unsure
18%

14. Immediate Change with Code Knowledge
Yes
63%
No
37%
Aware of Code
Yes
51%
No
49%
Yes
Used Code
No
No
Yes
Employed FU
No
38%
Pre-
Code
14%
Post-
Code
3%
Pre &
Post
21%
N/A
24%
No
41%
Pre-
Code
16%
Post-
Code
1%
Pre &
Post
22%
N/A
20%
No
29%
Pre-
Code
15%
Post-
Code
8%
Pre &
Post
36%
N/A
12%

15. Fair Use is Educational, Public & Creative
“

16. 91%
90%
82%
89%
82%
68%
95%
93%
87%
95%
92%
76%
Creative appropriation can be
“original”
Creative appropriation shouldn’t
necessarily require permission
CAA
Members
Documentary
Filmmakers
General
Population
US
non-US
Doc and Visual Art Professionals
More Likely to be Pro-Remix
US
non-US
US
non-US
US
non-US
US
non-US
US
non-US

17. Communication Scholars, 2010-
2015
• Before:
– Confusion
– Insecurity
– Lax external vigilance
• After
– Where knowledge increased, change
– BUT…poor circulation of knowledge

18. Communication Scholars Value Fair
Use
145
60
25 29
8 4 3
0
20
40
60
80
100
120
140
160
1 2 3 4 5 6 7
Absolutely
necessary
for creators
and scholars
Totally
unfair
to creators
and scholars
Very
useful
Somewhat
useful
Not
sure
Somewhat
damaging
Very
damaging
Mean:
1.97

19. Fair Use is Educational & Liberatory“

20. Yes
31.0%
No
58.3%
Not sure
10.7%
Few know Code, but those who do…
Familiar with
Code of Best
Practices
Have you ever
used the Code?
Was it helpful?
Yes Yes
Yes
30.7%
No
69.3%
Yes
88.0%
Not
sure
10.7%

21. Thank you!
paufder@american.edu