Tag: fair use week

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!

_____________________________________________________________________________________

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

________________________________________________________________________________________

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