Best Practices for Fair Use of Online Video
Posted in Best Practices, Blog, Social Media, Web Content by Marcelo with No Comments
Excellent reference article about using video found on the web. It was written by the Center for Social Media at American University.
Besides providing a great framework for determining if something is fair use, it also discusses and debunks some commonly held myths:
COMMON FAIR USE MYTHS
IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE. Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If people want to share their work only with a defined closed-circle group, they are in a favorable legal position. But beyond that, in the digital online environment, wholesale copying can be unfair even if no money changes hands. So if work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in “commercial” settings.
IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE. Although nonprofit, personal, or academic uses often have good claims to be considered “fair,” they are not the only ones. A new work can be commercial–even highly commercial–in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.
FAIR USE CAN’T BE ENTERTAINING. A use is no less likely to qualify as a fair one because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.
IF I TRY TO LICENSE MATERIAL, I’VE GIVEN UP MY CHANCE TO USE FAIR USE. Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later, a maker still may decide to employ fair use. The fact that a license was requested–or even denied–doesn’t undercut an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.
I REALLY NEED A LAWYER TO MAKE THE CALL ON FAIR USE. Fair use is a part of the law that belongs to everyone. A lawyer usually works for a client by reducing risk; in copyright law, that often means counseling purchase of rights for all uses of copyrighted material. If clients tell lawyers that they want to assert their rights (something that has a very low risk, if they understand what their rights are) then lawyers can recommend appropriate policies; but lawyers need to be told what their clients want.
Tags: best practice, code of best practices, content, copyright, Fair Use, Fair use myths, legal, Online video, Social Media, web video
