HOWTO Make online videos without getting sued

American University's Center for Social Media has just concluded a long, in-depth project to establish a set of "Best Practices in Fair Use for Online Video." They worked with video makers, legal scholars, eminent sociologists, fans and others to create something that reflects the law, practice and future of fair use for video remixing and sharing online.

Fair use is a legally challenging area: it consists of four factors that judges can weigh when evaluating a claim of copyright infringement (judges can even disregard them or tweak them, based on common sense, as the Supreme Court did when they legalized VCRs in 1984). It's very hard to know beforehand whether a use of a copyrighted work will be found fair or not -- it requires careful analysis of previous caselaw and the direction in which the federal circuits are moving.

In constructing these principles, the Center for Social Media has done an enormous public service: they've created a plain-language document that is aimed at helping people who aren't legal experts to navigate the muddy waters of fair use, to make use of the rights they have under the law and make better videos without getting into legal trouble.

Video is increasingly becoming a central part of our everyday landscape of communication, and it is becoming more visible as people share it on digital platforms. People make and share videos to tell stories about their personal lives, remixing home videos with popular music and images. Video remix has become a core component of political discourse, as the video “George Bush Don’t Like Black People” and the “Yes We Can” parodies demonstrated. Both amateur and professional editors are creating new forms of viral popular culture, as the “Dramatic Chipmunk” meme and the “Brokeback to the Future” mashup illustrate. The circulation of these videos is an emerging part of the business landscape, as the sale of YouTube to Google demonstrated.

More and more, video creation and sharing depend on the ability to use and circulate existing copyrighted work. Until now, that fact has been almost irrelevant in business and law, because broad distribution of nonprofessional video was relatively rare. Often people circulated their work within a small group of family and friends. But digital platforms make work far more public than it has ever been, and cultural habits and business models are developing. As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone.

It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. Only then will efforts to fight copyright “piracy” in the online environment be able to make necessary space for lawful, value-added uses.

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  1. Okay, this bears repeating. Section 107 of the Copyright code (commonly called Fair Use) limits the rights of the author, allowing parts of a copyrighted work to be used without requesting permission.

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall 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.

    Such circumstances are LIMITED to criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

    Fair Use is NOT carte blanche to use any amount of a copyrighted work for any amount of time just because you’re not making money off of it.

  2. Reaper2k, you’re just plain wrong.

    Please see, for example, the dicta in Universal v Sony (commonly called the Betamax trial), which is arguably the most famous fair use case in the history of US jurisprudence.

  3. Cory,

    How is what Reaper2K said “wrong”? Granted, he didn’t exhaustively list all the applications of Fair Use, but Universal v Sony is a case for personal use, not for remixing & rebroadcasting.

    I just want to know what you think was “wrong” in what Reaper2K listed…

  4. Mujadaddy: This:

    “Such circumstances are LIMITED to criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

    Is absolutely wrong. If it were right, then time-shifting would only be legal for critics, commenters, scholars, researchers, teachers. etc.

  5. To be more specific — Reaper2k implies that failure to qualify for any of the four factors (specifically, factor 1) disqualifies the use from being considered fair.

    Betamax (and other cases, including, for example, 2LiveCrew) show that courts must weigh all the factors, and a failure to meet one isn’t a failure to qualify as FU. Arguably, Betamax shows that even if NONE of the factors are met, judges can determine that a use is fair.

  6. Well, that’s the point, really. Reaper2K is quoting the law.

    Time-shifting isn’t remixing or rebroadcast. The point of Universal v Sony is that the end-user can legally time-shift something for their own use. Once you rebroadcast something, in whole or in part, you’re no longer simply time-shifting– you’ve moved into the realm of “comment” (usually and using the most liberal definition of “comment”) and you must then stay on the legal side of the lines of rebroadcast, even though, per “criticism & comment,” you need not seek permission first.

    Weird Al Yankovic is actually probably the subject matter expert who needs to chime in on this. I know that he _always_ errs on the side of legal caution with respect to parody, even though the law is probably on his side no matter how vicious a parody he might perform. Al gets permission first — he’s never done a Prince song for lack of permission (and is quite bitter about it, if you’ve ever heard him talk about it…).

    To sum up, “Fair Use” is different from the “Fair Use Doctrine” which is explicitly stated in Sec.107 — the latter are limitations on the rights of authors; the former are the unspecified rights of the public.

  7. And of course this isn’t about how to make online videos without getting sued — it’s how to optimize your chances that, if you do get sued and you don’t run out of money before the corporation does (good luck!), the last court to consider the case will rule in your favor.

    Otherwise, saying “HOWTO make online videos without getting sued: fair use!” is like saying “HOWTO not get sued by the RIAA: be a laser printer!”

  8. re: #5 — I bet you wish you could edit your comments :)

    Anyhow, something else I wanted to mention was the fact that the Doctrine (Sec.107) is there to prevent some jagoff from time-shifting a football* game by a few minutes and adding his own running commentary on the action, and then rebroadcasting that in his bar and charging people a cover based on the fact that the game is on.

    That’s not fair use by any definition, but that’s an extreme example of something that isn’t, just so we have a negative reference point, capiche?

    *See? I used the Atlanto-agnostic term just for YOU. :P

  9. “The point of Universal v Sony is that the end-user can legally time-shift something for their own use. ”

    No, the point of Betamax is that judges can create new exceptions to copyright that dramatically fail one or more of the four factors.

    The dicta in Betamax show that the judges believed that Betamax doesn’t have jurisprudence on its side. They were making up new law because common sense made them believe that this was a fair use.

    Regarding retranmission: the majority (the vast majority) of successful fair use defenses have involved public distribution/transmission of copyrighted materials (because private use is invisible to rightsholders). Indeed, most scholars at the time of Betamax believed that Sony would lose because a VHS recording *failed to transform* the copyrighted work — that is, failed to do the thing that made fair use defenses successful in past.

  10. No, the point of Betamax is that judges can create new exceptions to copyright that dramatically fail one or more of the four factors.

    Codifying new public rights based on common sense is sort of what judges do. The judge isn’t “creating” new exceptions (hello, Right Wing Paranoid Fantasy), he’s merely explicitly defending them. It’s the same as the “Right to Privacy” that isn’t explicitly stated anywhere but must be fought for in the judicial arena when it is threatened.

    Regardless, timeshifting for personal use *is* what Universal v Sony was about, not for rebroadcast.

    Are you missing the distinctions that I make between timeshifting (covered in Universal v Sony) and criticism/comment Fair Use (covered in Sec.107)? Law is a funny old bird in that it insists that things be spelled out in tortuous (tortious? :D) language.

  11. What I think is being missed here is that the quoted section of copyright law says:

    the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    “Including” implies that there are other cases in addition to the ones being mentioned. If Congress had said “specifically” instead of “including”, or just left off everything before the word “whether”, then the argument that Fair Use is limited to the mentioned cases might be valid.

  12. 1. On the report from American: This is the first time I have been disappointed with a report or set of recommendations that American has put out. The usually amazing cast of academics that worked on these recommendations wrote a short document that does little to help online video creators.

    The text of the document reads like a law school exam and was clearly not reviewed by your average UGC video creator to see if it makes sense or if it is useful. Many of the recommendations appear to be pulled from the documentary film maker principles with little regard for the different audience.

    I hope the report is rewritten in a more useful manner to average users.

    2. fair use: Fair use is more then the 4 factors, fair use is the codification of the 1st Amendment in the copyright act. PS Israel has fair use also, it will be interesting to see how the courts interpret it there.

    3. Post #1 wrongly quotes section 107, the languge is: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

    The term “such as” gives examples but does not limit uses to the list.

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