Nicholas Poussin’s painting is used as an illustration, under fair use, in Wikipedia’s entry on the phrase, “Standing on the shoulders of giants.” (Although the painting is in the public domain, the Met’s photo of it is copyrighted.) Cedalion standing on the shoulders of Orion from Blind Orion Searching for the Rising Sun by Nicolas Poussin , 1658, Oil on canvas; 46 7/8 x 72 in. (119.1 x 182.9 cm), Metropolitan Museum of Art
Fair use and copyright exemptions generally are escape hatches to the owner’s monopoly in copyright.
We used the best practices approach to address the problem. This is a process of discovering the hidden norms of interpretation within the group of practitioners/makers/users.
Filmmakers through 5 major organizations, which convened small-group “quiet meetings” across the country, easily identified four areas in which fair use came up: Critiquing media (Outfoxed) Media as illustration (“During the Estado Novo…) Incidental (someone sings Happy Birthday) Historical (this one was very limited, making fair use only applicable when archives could not make material available basically, and when the material was not the central topic of the film) Then a legal advisory board looked over the work. Two major foundations, the John D. and Catherine T. MacArthur Foundation and the Rockefeller Foundation, paid for this work.
When YouTube was bought by Google, Viacom sued YouTube for copyright infringement. Free speech advocates were concerned that any settlement could preclude fair use. We worked with Ford Foundation money to conduct research to identify the actual practices on online video sites of makers who use old work to make new work (e.g. mashups, fan videos, vids, remixes, recuperated video, material posted as an example of an issue that the poster wants to discuss). We found nine kinds of common uses. But there was no reachable “community” to convene through associations. We then convened electronically a group divided into fair use-friendly lawyers and DIY/new media/fan culture cultural studies experts, to construct a code of best practices. They worked over four months to establish a common understanding of 1) current practices 2) legally viable ways to phrase these practices 3) limits of fair use for these practices.
The resulting categories of practice were deliberately designed to be familiar to people more rooted in the analog media and meatspace world, and to refer back to legal precedent on other kinds of media. Google immediately funded the making of a video about the Code, to be posted to YouTube and other sites.
Employing Fair Use in Public History Projects
COPYRIGHT & FAIR USE: PUBLIC HISTORY Pat Aufderheide Center for Social Media American University
<ul><li>FAIR USE </li></ul><ul><li>Legal, unauthorized use of copyrighted material—under some circumstances </li></ul><ul><li>Flexible </li></ul><ul><li>Broad </li></ul><ul><li>Adaptable </li></ul>
INDIVIDUALS FEAR… <ul><li>Will I get it wrong? </li></ul><ul><li>Will I get sued? $125K+ per infringement!!) </li></ul><ul><li>Will my boss/librarian/client get angry? </li></ul>
RESULTS <ul><li>Broadcasters program films </li></ul><ul><li>Cablecasters program films </li></ul><ul><li>Filmmakers develop new kinds of projects </li></ul><ul><li>Television/web companies expand their plans </li></ul><ul><li>All insurers of errors and omissions insurance now accept fair use claims </li></ul>
OTHER CODES useful for public historians <ul><li>Media literacy (video contests/teaching) </li></ul><ul><li>Dance archivists (using archival resources for display/podcasting/digital ILL/preservation) </li></ul><ul><li>Scholars’ (eg publishing) </li></ul>
OTHER OPTIONS <ul><li>Creative Commons (eg CC on Flickr) </li></ul><ul><li>Public domain (e.g. The Commons, Library of Congress) </li></ul><ul><li>Special exemptions </li></ul><ul><ul><li>Classrooms </li></ul></ul><ul><ul><li>Libraries </li></ul></ul><ul><ul><li>Print-Disabled </li></ul></ul>
Please feel free to share this presentation in its entirety. For excerpting, kindly employ the principles of fair use.
CONTACT INFO Pat Aufderheide Center for Social Media School of Communication American University Washington, DC [email_address] 202-885-2069