Category: Fair Use

Google Launches YouTube Fair Use Protection Program

On November 19, 2015, Google announced  the launch of a new Fair Use Protection Program, promising to provide legal support for a select group of videos determined by Google to represent “some of the best examples of fair use.”[1] Videos selected for inclusion in the program will be kept live on YouTube in the U.S. and will be featured as strong examples of fair use in YouTube’s Copyright Center. In addition, should the selected videos be subject to a lawsuit for copyright infringement, Google will provide up to $1 million to cover legal fees.[2] In celebration of Fair Use Week 2016, we are looking more closely at the videos Google has selected for inclusion in its Fair Use Protection Program and discussing what impact the program may have for content creators on YouTube.

The Four Factors of Fair Use

Fair use is found in Section 107 of the U.S. Copyright Act and functions to limit the exclusive rights of a copyright owner. If the use of a work is a fair use, no permission is required from the copyright owner to use the work—the law states that a fair use of a copyrighted work is not an infringement of copyright. The law provides a number of different illustrative examples of potential fair uses, including use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Ultimately, however, it is up to a court to decide if a use is a fair use. Courts consider and weigh four factors in light of copyright’s purpose of promoting science and the arts, in order to make a fair use determination. These four factors include:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

You can learn more about these four factors by visiting go.osu.edu/fairuse.

Looking at the Selected Videos

Google selected an initial four videos for inclusion in the Fair Use Protection Program. In viewing the videos, what are some of the factors that may make these four videos stand out to Google as strong examples of fair use?

 

1. “Raging Citizens/The Simplest Game- Everything is Not Perfect,” a 5 minute video uploaded by Jim Sterling, includes complete trailers from two video games released by MOO Tech: Raging Citizens and The Simplest Game. Included with the two trailers is audio commentary, provided by Mr. Sterling, and a screen shot of negative comments made against MOO Tech on a user forum.

Factors favoring fair use:  Mr. Sterling’s own video served as a criticism of both MOO Tech video games, making his use of the works transformative. The previously published trailers were shown in their entirety in order to comment on the inappropriate inclusion of content, the ambiguous directions provided, and the overall ineffectiveness of the trailers to garner interest in the video games or support the asserted simplicity of the product. While this criticism may cause harm to the market for the video games, this is not the type of harm courts are concerned with under the fourth factor—courts focus on the harm caused by usurping demand rather than the harm caused by suppressing demand.

2. “Speedebunking: Mister UFO,” uploaded by UFOTheater, is a video that features a video clip originally uploaded to YouTube by Mister UFO. The clip in question is alleged live footage of UFO activity. The original clip from Mister UFO, approximately 18 seconds long, is shown multiple times and is accompanied by audio commentary from UFOTheater.

Factors favoring fair use: Like other videos posted on its YouTube channel, UFOTheater used the previously published Mister UFO clip in order to provide criticism of a work they identified as a UFO hoax. While a large majority of the original work was used, such an amount was necessary to support the criticism that the original video was a 100% computer generated shot and not actual live footage. In the new video, clips from the original video were paused and enlarged as UFOTheater directed the viewer’s attention to elements of the recording requiring further analysis. In addition, the name of the original video was provided in the original box, making it easier for others to locate the work.

3. “Questionable questions,” uploaded by NARAL Pro-Choice Ohio, features short clips of Ohio Channel’s footage of an Ohio House Finance Committee hearing. The clips include testimony from two sixth-grade girls speaking on the issue of funding for arts programs in their school district, as well as responses from select representatives. Clips from two representatives include comments and questions related to the “recruiting” of the girls for potential dating relationships with representatives’ grandsons.

Factors favoring fair use: The clips are used to comment on the appropriateness (or lack thereof) of questions posed by representatives to the girls testifying before the Committee. The clips were punctuated with still frames of text explaining what is happening in the hearing in order to direct the viewers’ attention to the content of the questions being asked. The video ends with a final question; “Can’t girls come before the Ohio General Assembly without facing questions on their marriage prospects?” The hearing video was previously published on the Ohio Channel website and is likely to be considered a more factual-based work. In addition, Ohio Channel’s entire hearing video totaled over five hours, approximately three minutes of which was included in the video uploaded to YouTube by NARAL Pro-Choice Ohio. A link to the original video was also provided.

4. “Rachel Dolezal White NAACP President Passing As Black,” uploaded by KevOnStage, features a number of pieces of media, including interview footage, copies of photographs, and screenshots of Instragram and Facebook posts. These works are featured alongside video and audio commentary from KevOnStage explaining recent allegations that Rachel Dolezal, a local NAACP chapter president, had lied about her race.

Factors favoring fair use: KevOnStage’s use of previously published copyrighted content was done for the purpose of news reporting, education, and commentary. The inclusion of all of the media was used to establish a pattern of false representation from Ms. Dolezal—she had continuously presented herself as black though it had been revealed by her own parents that she was born white. Use of entire photographs or written posts was needed in some instances to show the full context of the image or message. In other instances, only clips or cropped versions of works were presented, including 30 seconds of a 9 minute interview. KevOnStage also used the content as a basis for future discussion, prompting viewers to provide their own thoughts on the issue.

How Are Content Creators on YouTube Impacted?

YouTube is a platform that provides a way for content creators and users to share creative works that include music, images and videos. The Fair Use Protection Program serves as a useful educational tool for copyright owners whose content has been used by others. As Google acknowledges in their Copyright Center, sometimes takedown requests target videos that are more obvious examples of fair use. While copyright owners have a number of exclusive rights in their copyrighted works, the law carves out many authorized uses that do not require permission from the copyright owners. A fair use of a work is a use that is authorized under the law. And as held recently by the Ninth Circuit, copyright owners must consider fair use before sending a DMCA takedown notice.

Google’s actions are an acknowledgement and affirmation of the importance of fair use in U.S. copyright law and are motivated by the recognition that potential litigation and takedown processes can be confusing and consequently frightening experiences for creators faced with accusations of infringement.

With the large amount of videos uploaded to YouTube every day, Google cannot provide legal protection to all videos that are likely to qualify as a fair use. Google’s selection of a handful of videos, however, provides content users and creators more information and direction on their rights under U.S. law and the important role fair use plays in promoting the purpose of copyright. While fair use is ultimately decided by the court, users may refer to the videos as visual examples of works that encapsulate factors courts have regularly held to favor fair use.

Check out the many Fair Use Week 2016 events by visiting fairuseweek.org and join us on Twitter (@OSUCopyright) for a celebration of fair use throughout the week!

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Fred von Lohmann (2015, Nov. 19). A Step Toward Protecting Fair Use on YouTube. Retrieved from http://googlepublicpolicy.blogspot.com/2015/11/a-step-toward-protecting-fair-use-on.html.

[2] YouTube’s Fair Use Protection. Retrieved from https://youtube.com/yt/copyright/fair-use.html#yt-copyright-protection.

Fair Use in Digital Storytelling

 “…(A) digital story is a short (3-5 minute) movie which uses images, voice, and music to tell a story. There are a variety of media that can be used to create digital stories and a variety of reasons for creating them. ” – The Ohio State University Digital Storytelling Program

Authors of digital stories remix and reuse materials to create something new: a short video with a personal narrative. Authors write and record their own narration and often use personal photos, video, and sound; however, they frequently incorporate copyrighted materials from other sources in order to develop powerful digital stories. For example, a narrative may require abstract images to help convey a particular idea or emotion, or a specific element of meaningful culture such as a quote from a favorite book or photo of a particular event.

The stories produced in connection with the OSU Digital Storytelling Program are posted on YouTube and shared on campus through occasional viewings. In order to promote legal use of third party materials and avoid takedown requests, participants in the OSU Digital Storytelling Program are encouraged to source materials as much as possible from the public domain, licensed collections (e.g. Creative Commons photos on Flickr), or create things themselves. However, there are times when an author wants or needs to use copyrighted material, and wants to rely on fair use or seek permission in order to proceed.

As defined in Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fair use exception is quite broad and can apply to a wide variety of uses (which could include digital storytelling) but the lack of specificity can make it difficult to ascertain whether or not a particular use may qualify as fair use.  Those considering fair use, should employ a fair use checklist to conduct an analysis and weigh the criteria favoring and opposing fair use (our video provides more information and an example of doing a fair use analysis).

Fair use and your role as a digital storyteller

As a digital storyteller, you may have the option to rely on fair use depending on what material you are using, and how and why you are using it. A fair use analysis will help you evaluate your answers to those questions.

The first factor of fair use is concerned with the purpose and character of a proposed use. As an author, you should think carefully about the purpose of your digital story. Is it educational? Are you commenting on, criticizing, or parodying the copyrighted work you wish to use? These types of purposes favor fair use.  Transformative use also weighs in favor of fair use. If you use a copyrighted work in your digital story for a purpose other than which it was originally intended for, you may be able to make an argument for transformative use of that material. Using your favorite song as a soundtrack to your digital story is not a transformative use, but criticizing the lyrics of another song for its message of oppression or intolerance could be a transformative use.

Ask yourself whether you need a particular work in order to accomplish the purpose of your digital story. If you simply need some piece of material that depicts archery as a recreational activity, then you do not need to use a clip of Katniss Everdeen from The Hunger Games.  You can likely find a public domain or Creative Commons licensed photo, or even take your own photo. On the other hand, if your digital story critiques or comments on the character of Katniss Everdeen specifically and how she contributes to the reversal of traditional gender roles in the Hunger Games, then you may actually need a clip or photo from the films to support your narrative.

The second factor of fair use requires you to assess the nature of the work you are using. Is it factual or fiction? Published or unpublished? Is it highly creative? Many materials likely to appear in a digital story, such as music and photos, are considered highly creative works; this weighs against fair use, but it could potentially be balanced out by the other factors.

The third factor of fair use considers the amount and substantiality of the portion of the copyrighted work being used. Ask yourself how much of a particular work you need to use in order to accomplish your purpose. In your digital story about how the television show The Walking Dead saved your life because it inspired you to prepare for emergencies, will a still image from the show suffice, or does your story comment on a particular scene that you need to show as a video clip in order to fulfill your purpose? To strengthen your argument in favor of fair use, use only the amount necessary to fulfill the purpose of your story.

The “substantiality” component of the third fair use factor refers to the significance of the material you want to use in relation to the entire copyrighted work. Could the scene you want to use from The Walking Dead be considered particularly significant to the show or a particular episode? This is sometimes referred to as using the “heart of the work”. Another way to phrase this could be: “how big of a spoiler is it?” Showing the death of a main character or major events from a season finale could be considered the heart of the work and weaken your argument for fair use (particularly if you did not necessarily need to use that particular scene to accomplish the purpose of your digital story).

The fourth factor of fair use considers the effect your use of the material could have on the potential market for or value of the original work. Could your use impact the copyright owner’s ability to profit from his or her work? Digital stories have the potential to cause a detrimental effect on the market for a work because they are accessible to the public online, and they will remain available for a long time. For example, using a popular copyrighted song as a soundtrack for your video could impair the market for that song by providing a substitute for purchasing the song as an MP3. Viewers could simply play the digital story whenever they wanted to listen to the song, as opposed to going out to buy their own copy.

You must consider all four factors of fair use when evaluating whether or not you have a strong argument in favor of fair use. No single factor is more important than the others; for example, an educational purpose does not automatically qualify a proposed use as fair use. Additionally, although each factor is equally important to a fair use analysis, checklist criteria should not be tallied up with a simple “majority rules” determination. You should keep an eye out for significant problems that could outweigh other criteria, such as a particularly damaging effect on the market for a work.

Still have questions about fair use? Contact the OSU Libraries’ Copyright Resources Center for assistance:

Email: libcopyright@osu.edu

Phone: 614-688-5849

Website: go.osu.edu/copyright

Twitter: @OSUCopyright

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Fair use toolkit for librarians

Fair use is an important component to U.S. copyright law that empowers individuals to make use of copyrighted materials without asking or paying for permission for certain socially useful purposes, such as scholarship, research, and education. It should come as no surprise that libraries, being heavily involved in such endeavors, often rely on fair use to accomplish many day-to-day activities in support of teaching, learning, and research.

Unfortunately, misunderstandings and uncertainty about copyright and fair use may prompt librarians and administrators to avoid some projects or limit services that could otherwise qualify as fair use. Librarians are not the only ones to find themselves in this predicament, but the good news is that community-specific best practices help dispel fair use myths and provide guidance within a particular discipline.

The Association of Research Libraries (ARL), in partnership with the Center for Social Media and the Washington College of Law at American University, has developed several resources to help librarians and library administrators understand and apply fair use as it pertains to academic and research libraries:

Lastly, no fair use toolkit is complete without a checklist to help analyze the four factors of fair use:

 

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair use best practices to the rescue!

Most statutory copyright exceptions tend to be very narrow in scope and limited by explicit requirements or restrictions. In comparison, fair use is quite broad; the statute cites just four general factors to consider when evaluating fair use. Such flexibility permits the use of copyrighted materials in many contexts and for many purposes, but this lack of specificity can also lead to confusion over what may actually qualify as fair use. In fact, the only way to definitively establish fair use is to receive a decision from a judge!

To the detriment of creators and consumers alike, doubts about fair use and anxiety over the penalties for infringement may prevent creators from pursuing educational, creative, and socially useful projects that could potentially constitute fair use. For instance, a recent study on copyright, permissions, and fair use in the arts reports that confusion and apprehension regarding these issues led to self-censorship and abandoned projects for one third of visual artists and visual arts professionals (e.g. editors, publishers, and historians).

Flying superhero

Superhero by Moriah Rich
from The Noun Project

Fair use best practices have been established to address this confusion and to help establish acceptable industry customs. Community-specific best practices help creators feel more confident in their rights and justify the reliance on fair use for a variety of projects. Besides providing guidance for practitioners, community-specific fair use codes may influence court decisions by contextualizing individual fair use cases within industry common practice.

Emerging community-driven best practices recognize the short comings of arbitrary and impractical directives such as the 1976 Classroom Guidelines* and focus on articulating moderate, community accepted practices rather than establishing a maximum or minimum of fair use. Best practice codes help users avoid fair use fantasies and intimidating misinformation when developed in partnership with reliable sources, such as the American University College of Law and Center for Media & Social Impact.

American University regularly partners with communities to devise best practice codes appropriate for those industries. The guidelines produced thus far include:

*Don’t be fooled: The 1976 Classroom Guidelines do not have the force of law!

Read more:

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World – ARL Policy Notes

Timid About Fair Use? – Inside Higher Ed

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair Use 101: Why do we need fair use?

Scale balancing copyright symbol and mortarboard hat,

© 2008 Michael Brewer & ALA Office of Information Technology Policy, CC BY-NC-SA 3.0

The ultimate purpose of copyright is not solely to protect creators’ rights. That may sound like a radical statement, but protecting individuals’ rights is merely the means to an end. Copyright is actually intended to promote progress, creativity, and innovation for the benefit of society as a whole.

Ideally, everyone prospers from new works which generate culture, provoke discourse, commentary, or criticism, and inspire other creators to produce something new in turn. Copyright encourages individuals and businesses to create art, literature, music and other original expressions by granting authors the exclusive rights to their work so that they may have an opportunity to profit from their endeavors. Once creators have had a chance to benefit from their work, copyright expires and others may use an author’s work without restriction, but this doesn’t happen for a long time—70 years after the death of the author!

Particularly given the lengthy duration of copyright protection, fair use provides an important exception to copyright that helps to balance the interests of creators and the public good. Without fair use and other copyright exceptions, it would become prohibitively time consuming and expensive to conduct everyday activities like reporting the news or teaching a class because journalists, teachers, and others would need to seek permission every time they wanted to use copyrighted materials. Additionally, rightsholders can (and do!) refuse to grant permission for uses they see as undesirable or damaging, such as critical reviews. Fair use provides an important safeguard against censorship via copyright.

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair Use 101: What is fair use?

The fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” – Title 17, U.S. Code, Section 107

Fair use is an exception to copyright that permits the use of copyrighted materials for certain purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair use is not limited to just these situations and may be found in a wide variety of circumstances. In fact, it is the most broad and flexible of the statutory exemptions, with none of the specific limitations and restrictions usually attached to copyright exceptions.

Since the fair use doctrine can be applied in almost any context, how can you decide whether an intended use may qualify as fair use? Fair use must be evaluated on a case-by-case basis, using a fact specific analysis of four factors for each use of copyrighted material:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work

The four factors weigh the characteristics in favor and opposing fair use for each use of copyrighted material. All four factors must be considered holistically: no one factor is more important than the others, while a mechanical tallying of pros and cons is also insufficient to determine fair use. In fact, going to court and receiving a decision from a judge is the only way to find out for sure if a use is fair.

Don’t let this deter you from relying on fair use when it makes sense. Some instances of fair use are more obvious than others; if you aren’t sure that an intended use is fair, try to adjust how you are using the copyrighted materials in order to address the weak areas of your fair use analysis. For instance, use less of the work or restrict the audience to improve your standing on factors three and four. Several tools are available to help you evaluate fair use: an interactive tool from OSU’s Health Sciences Library and a printable checklist from Columbia University are two of our favorites.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

February fair use series

We are featuring fair use in February! Follow this blog and our Twitter (@OSU Copyright) for fair use facts and fundamentals throughout the month of February. We’ll be digging into what fair use really is, highlighting fair use best practices, debunking fair use myths, and sharing our favorite fair use examples. Why not join in the fair use fun and share your questions or experiences with fair use?

If you’re local, join us for the final event – a fair use workshop at The Ohio State University Libraries on February 27 from 1:30-3:00p.m. Whether you know the four factors like the back of your hand or this is the first time you’ve heard of fair use, we invite you to participate. Please sign up for the workshop by emailing LibCopyright(at)osu.edu no later than Thursday, February 20. We hope to see you there!

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

A New Tool To Help Figure Out Fair Use

The Copyright Management Office at OSU Health Sciences Library has developed a new, interactive, online version of the Fair Use Checklist. It is available for anyone to use.

The Fair Use Checklist  is designed to help you work through the four fair use factors in order to make a proper assessment.  This version of the checklist is interactive, allowing you to check the options that pertain to your desired use of a copyrighted work. Once you have completed the four sections of the checklist, you get a summary that shows you the overall picture of your analysis. This is a good way to consider the factors as a whole to see if your use may fall under fair use or not. It also gives you a record of your analysis which you could use to possibly defend against a future claim of infringement.  A copy of your checklist can be sent to you by email.

One great feature of this version of the fair use checklist is that it was designed specifically to work with mobile devices. You can access fair use help wherever and whenever you need to on a smart phone or tablet. It can be a useful educational tool to teach students how fair use works. It can be used in meetings when discussing possible projects in your department. You can also access the checklist when traveling to or attending conferences. Or you can get help making fair use decisions for your own scholarly or research projects in the comfort of your office or lab.

Using the checklist does not give you a definitive yes or no answer as to whether or not your intended use of a copyrighted work is fair use. What it does is help you to think through the four factors of fair use and make an educated assessment. It also gives you the opportunity to rethink your use if it appears that what you originally intended to do may not be fair use. You also have evidence that you considered the fair use factors before you used the material.

For information on fair use and other copyright related issues, take a look at the OSU Libraries’ Copyright Resources Center website.  For help with using the checklist or for any other copyright questions you may have, you can call us at 688-5849, email us at libcopyright@osu.edu or email the Copyright Management Office at OSU Health Sciences Library at copyright@osumc.edu.

Creativity, Copyright, and a Fair Use Video

Come on over to the Digital Union blog and learn about the creative and collaborative process of making our new fair use video.

“Among the Least Efficient Property Systems Known to Man”

For someone who has followed Lawrence Lessig’s career for a while and read his work, there was little new in his Wireside chat last Thursday.    The Open Video Alliance streamed the chat around the world, and, locally, members of the Ohio State University had a chance to watch it at Thompson Library.  Lessig touched on his usual themes: the harm to society and culture that comes from long copyright terms; the  importance of remix in our life today; and his decision, after losing Eldred v. Ashcroft,  to concentrate on combating political corruption.    His presentation followed his usual style as well and was filled with audio and image clips from a variety of sources.  My favorite comment is one I first read in his “For the Love of Culture” essay in The New Republic–“Copyright is among the least efficient property systems known to man.”

But the fact that these are not new points for Lessig doesn’t make them less true.  When a video of his talk was uploaded to YouTube, the audio track was first removed and then restored when Lessig filed a counterclaim, on the basis of fair use.