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.