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Making the Most of Fair Use: How Volunteer Lawyers for the Arts (VLA) Can Use Best Practices
 

Making the Most of Fair Use: How Volunteer Lawyers for the Arts (VLA) Can Use Best Practices

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A description of how lawyers can serve their arts clients with codes of best practices in fair use.

A description of how lawyers can serve their arts clients with codes of best practices in fair use.

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    Making the Most of Fair Use: How Volunteer Lawyers for the Arts (VLA) Can Use Best Practices Making the Most of Fair Use: How Volunteer Lawyers for the Arts (VLA) Can Use Best Practices Presentation Transcript

    • FAIR USE AND COPYRIGHT: MAKING THE BEST USE OF BEST PRACTICESPat AufderheideCenter for Social MediaAmerican University
    • THIS COMES FROM• The Fair Use Project• Five years of work with Washington College of Law• Funded by MacArthur, Rockefeller, and Ford Foundations• Co-principal investigator: Prof. Peter Jaszi (pjaszi@wcl.american.edu)
    • OVERVIEW• Copyright policy basics• Imbalance in copyright policy• Interpreting fair use• Best practices codes• Implications for VLA
    • THE PURPOSE OFCOPYRIGHT
    • ONE PURPOSE :TO PROMOTE THECREATION OF CULTURE
    • By: • Rewarding creators with limited monopoly • Encouraging new makers to use existing culture
    • WHY BALANCE?• All culture created on existing culture (we used to know that)• The First Amendment (no censorship)
    • BIGGEST BALANCINGFEATURE: FAIR USE legal, unauthorized use of copyrighted material--under some circumstances
    • THE RISE OFTIGHTCOPYRIGHT
    • HOW WE GOTIMBALANCE • Copyright term extension • Default copyright • Punishing penalties (statutory damages) • DMCA • Treaties
    • FORCESIMBALANCINGTHE LAW • Post WWII media conglomeration (archives=assets) • The Feds’ free-trade push • Digitization + Internet
    • DARK DAYSOF FAIR USE • In ’80s, “fourth factor” balloons in importance •Law-and-economics •Koons decision 1992 • “Noncommerciality” (Betamax) an economic analysis
    • TURNING ONTHE LIGHT:JUDGE LEVAL • 1990 Harvard L.R.article • 1992 Texaco decision • 1994 Campbell v. Acuff Rose • And many many more, e.g. Bill Graham
    • FAIR USE MOVES TOTHE CENTER • Judges love balancing features • Supreme Court hangs term extension on fair use • Eldred • Golan
    • FAIR USE:A Core FirstAmendment Right
    • INTERPRETINGFAIR USE
    • THE “FOUR FACTORS” • Reason for the use • Kind of work used • Amount used • Effect on the market
    • AND, IN THELAST 15 YEARS…Judges focus on• Transformation• Amount related to transformative purpose
    • JUDGES ASK:• Did you transform the use?• Did you use the appropriate amount to satisfy the transformative use?
    • PLUS…Custom and practice ofindividual creativecommunities…...especially when well-documented* *thanx Michael Madison
    • FEAR…• Will I get it wrong?• Will I get sued?• Will my boss/general counsel client get angry?
    • RUNAWAY RISKASSESSMENTFirst Amendment rights allhave riskRisk assessments routineNo info? Assess at high risk
    • BEST PRACTICES
    • FROMPERMISSIONSTO AGENCY • The client makes the call • The lawyer enables good decisions
    • COMMUNITIESINTERPRET FAIR USE: • Documentary filmmakers • Scholars • Media literacy teachers • Online video • Dance collections • OpenCourseWare
    • PROCESS • Research current practices and problems • Expose community to consequences of confusion • Work with community’s organizations to build code
    • DOCUMENTARY
    • RESULTS • TV programmers air films • New kinds of films made • All insurers of errors and omission accept fair use claims • Every H’wood studio employs fair use openly • Lawyers use the Statement to build and grow their practices
    • MEDIA LITERACYTEACHERS
    • RESULTS • New curriculum in several states • School district import the code into standards • National video competitions use the Code • New media literacy publications
    • OPEN COURSEWARE
    • RESULTS • University GCs supportive • MIT: 31 new courses in one year •Previously rejected for OCW
    • NEW! • Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries • Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research and Study
    • WHAT HASN’THAPPENED• No loss to lawyers’ business (rather, increase)• No legal challenges to Codes• No lawsuits • *(two injunctions summarilydismissed)
    • FAIR USE: Practice Makes Practice (not only judges)
    • MOREINFO, CHEAP
    • MORE INFO,FREE Centerforsocial media.org/fair- use Codes! FAQs! Videos!
    • Find this on Slideshare.Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.
    • THANK YOU! Peter Jaszi VLA MacArthur, Rockefeller, Ford, Mellon and McCormick Foundations
    • CONTACT INFO Pat Aufderheide Center for Social Media School of Communication American University Washington, DC paufder@american.edu 202-885-2069