Patricia Aufderheide talks about copyright and fair use

Patricia Aufderheide is University Professor in the School of Communication at American University, where she teaches about film and media arts in the digital era. She is coauthor with Peter Jaszi of the Washington College of Law at American University of Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, 2011). Among her other books are Documentary Film and Communication Policy in the Public Interest. She most lately worked with the College Art Association to create the Code of Best Practices in Fair Use for the Visual Arts.

CMOS: When people borrow copyrighted material without permission for casual, nonprofit use, such as in a blog post or lecture or slide show, are they doing something illegal?

PA: Not necessarily. US copyright law actually permits and even encourages reuse of material that is still under copyright, under some circumstances. The law is designed to promote the making of culture. Copyright policy does that in two basic ways: first, by giving perks to creators (a limited monopoly on use), and second, by permitting people to reuse already-created work to build upon it and make new culture.

We know all about copyright monopoly rights, but the new-user rights on the balancing side of copyright are less familiar. Fair use is now the major feature on that balancing side.

Fair use wasn’t always as important as it is now. Since 1976, though, copyright in the United States is automatic upon creation, most work is copyrightable, and copyright terms are hugely long. So the little policy called “fair use” has grown and grown in importance, as a major way that people now can get access to copyrighted material in order to make new culture.

CMOS: There must be a limit to how much a person can borrow from someone else’s work. How do we know what’s “fair”?

PA: Both the law and custom are important. Fair use is codified into the Copyright Act at section 107. The law provides four “factors” to consider, although it also says these may not be your only considerations, and it does not prescribe how to weigh these four considerations. The four are (1) the nature of the original work, (2) the nature of the new work, (3) the amount/kind of material taken, and (4) the effect on the market.

CMOS: How does that play out in practical terms?

In practice, judges have since 1990 come to a general understanding about interpretation. If a use is “transformative”—if the way the material is used is for a different purpose than the original—and the amount/kind taken is appropriate to that transformative use, it’s very likely to be fair use. Sometimes people think that “transformative” means you have to actually do something to the original, like colorize or edit it, but that’s one of many pieces of unhelpful folklore; “transformative” most often is used in terms of changed context. And that makes sense—if your use is limited to your transformative purposes, you are very unlikely to be providing a substitute for the original work. So you’re not stepping on the limited monopoly provided by copyright law to the copyright holder.

CMOS: Can you give a couple of real-life examples of transformative works?

PA: Millions of people use fair use every day in transformative works, most of them without knowing it. Scholars quote each others’ work. Journalists reproduce sections of reports in their coverage, and copy each others’ work in advancing the story. They capture sound from a protest march as protesters are singing a copyrighted song or one is blaring from speakers. Schoolchildren throughout the nation quote work from their textbooks in their papers, under fair use. People ridicule someone else’s work on social media, and reproduce it so that you can see what they are talking about. Bloggers show a selfie of themselves standing next to a copyrighted work they saw in a museum or gallery. So long as the use is in a different context, for a different purpose, and the amount is appropriately matched to the new use, generally they’re employing fair use.

CMOS: And an “appropriate” amount means . . . ?

PA: The law doesn’t require a highly precise calculation, but a good-faith one. If your use seems close to simply offering a copyrighted work for free, with no added value, then you’re substituting for the original market for the work (even if the work doesn’t seem to you to be particularly valuable), and it would be beyond fair use. This is a judgment call, but it’s the kind you’re making every day with your other expressive rights.

Myths have arisen about “rules of thumb” for fair use, and they include numbers such as 400 words, 10 percent, 30 seconds, seven changes, and so on. They all have an origin story somewhere, but since fair use is contextual, they are not just unhelpful—they are actively dangerous. They can mislead people into thinking they’ve made a fair-use determination when they have not.

That is why custom and practice are very important in making fair use user-friendly. If you know how people in your situation usually interpret fair use, these calculations are easy in the most familiar cases—in the situations most people are going to encounter routinely. This is why in some fields, professionals have created codes of best practices in fair use, to identify those common situations and the reasoning they believe responsible professionals use to employ fair use in doing their work. The codes give you the reasoning for applying it to your kind of work, but give no specific rules. Codes stay within the logic of fair use and current legal interpretation, and permit you to use this expressive right in the same way you employ your First Amendment rights—with judgment according to the situation. And like your right to have a harshly critical position on public policy (up to the point of treason), to make references to sexual activity (up to obscenity), and to say terrible things about other people (up to libel), whether it is fair use or not depends on the context of your use.

CMOS: Does the creator of a work have any control over what will be considered fair use of it?

PA: No. That is the whole point of fair use. You don’t ask permission; you just go ahead and use it. If the copyright holder had to agree, then they would have control over your product. They would then be in the position of being a private censor. And federal law would have enabled them to do that. That would be unconstitutional, because it would violate the First Amendment, which bans government action to inhibit free speech. Courts have demonstrated great support for this concern for constitutionality, in relation to fair use.

CMOS: How much risk does a fair user actually take? Are lawsuits involving fair use common?

PA: No, they are not. Courts these days generally have a favorable take on fair use, since it is so crucial to copyright’s being constitutional. Good lawyers everywhere know the law around this, and that discourages litigation.

That doesn’t mean you couldn’t get a cease-and-desist letter; the law permits anyone to write such letters, and make any claims they want, bogus or not. So it’s important to know that you do have rights. And it doesn’t mean you couldn’t get a takedown notice from an Internet service provider like YouTube. They send notices, as they are required to do under law (the Digital Millennium Copyright Act, or DMCA), whenever a copyright holder objects to unlicensed material. Large copyright holders use robots to detect all unauthorized uses and do not distinguish between fair use and infringing (substituting) uses.

So for instance if you had posted to YouTube a mashup using snippets from TV sitcoms to show boring tropes on mainstream TV, your odds of getting a takedown notice are huge, because the robots will detect copyrighted content; but your use was clearly transformational, and if your amounts were appropriate to the purpose, you’d be well under a fair-use interpretation. The DMCA also allows you to issue a counter-takedown notice claiming fair use. This will force a human being to look at your work and decide.

Very occasionally, fair use is actually litigated. In one recent case, a major commercial publishing house, Dorling Kindersley, was putting together a chronological history of Grateful Dead concerts, with lots of images. They wanted to get permission from the band’s promoter, Bill Graham, for use of some images from Grateful Dead concerts at the Fillmore Auditorium. Graham denied them. So they went ahead and used them in their entirety under fair use—in black and white, with a variety of other images on the page. Both district and appeals courts found their fair-use case a slam dunk. Dorling Kindersley was reusing the original material in a different, historical context, and they were using the appropriate amount to give readers a flavor of the time. (For instance, they decided that they didn’t really need to reproduce the images at their original size or in color to suit their new purpose.) The publishing house’s transformative purpose was key to the judicial decisions.

CMOS: Are some copyrighted materials more dangerous to use than others?

PA: Not in principle. Fair use applies to all kinds of copyrighted material equally, and that is also true on any platform. If something is on the web, it’s just as copyrighted as if it were written on paper. Music, for instance, is just as eligible for fair use as images and text are.

CMOS: Does fair use entail any obligations to the creator? Attribution? Notification?

PA: It does not. But attribution is generally a smart and polite thing to do, if possible. And it often addresses the one thing many creators really care about—credit. Finally, were you ever to be challenged in your fair use, attribution demonstrates your good faith in understanding and representing others’ work as theirs.

Notification is also unnecessary within the law. However, in some cases you might want to do that, if for no other reason than to say thank you. In other cases, you might decide that notification would not be appropriate.

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