Fair Use for Videographic Criticism
One of the outcomes for the Scholarship in Sound and Image workshop we hosted in June is a forthcoming book, The Videographic Essay: Criticism in Sound and Image, that Christian Keathley and I are writing/editing. I’ve written a chapter focused on copyright and fair use issues, which I have posted below for open commentary and feedback before we send the book to press. I’d appreciate anyone who is interested in videographic criticism or remix video to let me know if this chapter covers your questions about copyright, as well as copyright experts letting me know if you think anything should be clarified or changed. Thanks in advance!
[Note: this post has been updated following thoughtful feedback from Steve Anderson and Kevin Ferguson. I will continue to update it with any revisions to maintain it as a useful open resource.]
But Is Any Of This Legal?: Some Notes About Copyright and Fair Use
There comes a time in any discussion about videographic criticism where the question of copyright comes up. As with any form of culture that involves making something new out of materials created by others, videographic criticism raises key issues around notions of ownership, authorship, originality, and ethics. We cannot be comprehensive in such a short volume, and luckily there are many useful resources available to educators and scholars listed at the end of this chapter — including a videographic exploration of the topic, Eric Faden’s ‘A Fair(y) Use Tale’, which explains copyright and fair use via an assemblage of clips from Disney animated films. This chapter provides only a brief overview to the topic, hopefully reassuring videographic practitioners and teachers that what they aim to do is (probably) legal.
A few important caveats. First and foremost, we are not lawyers and this is not legal advice! As with any practice that might tread into thorny legal areas, it is up to you to decide how much risk you are willing to take, and research the particular issues that might arise in consultation with experts. We will note that for those videographic makers and teachers working at universities, institutions tend to be quite risk-averse, so you should know that if you ask your university lawyers or copyright experts if what you are doing is legal, odds are they will say ‘no’. Likewise, you could always ask permission to use copyrighted material in videographic work, but in most instances (especially if the original is owned by a commercial media company), the answer will be to decline the request. It is debateable as to whether proceeding with what might be considered a fair use after the rights holder has refused permission strengthens or weakens a fair use claim: asking permission might be viewed as an act of good faith that is important to establish in legal proceedings, but it also puts your transformative work on the radar of a rights holder, who might be inclined to pursue costly legal action to suppress your work. We also should note that our experience and knowledge is based in United States copyright law, where ‘fair use’ is a legal exception to copyright; few countries follow that exact model, while a number have similar ‘fair dealing’ provisions but with significant variations from each other. If you are producing videographic criticism outside the U.S., you should explore any relevant national laws.
Within the United States, most videographic criticism falls squarely under the provisions of fair use, allowing you to reuse copyrighted materials without permission, with some important exceptions. Fair use is vague by design, requiring a judgment call (by a judge in court) as to whether it violates copyright law based on four interrelated factors: the nature of the use, the nature of the copyrighted work, the extent of the original being used, and the impact the use might have on the market value of the original. None of these factors override each other, and all are judged on a spectrum of degrees, rather than a simple ‘yes or no’ binary. In fact, almost no works are ever formally evaluated to be fair or infringing uses, as that requires an actual court case, which rarely happens. However, a knowledge of fair use guidelines is helpful in assessing whether a use would likely be judged as allowable in the rare case of actual lawsuit going to court, and can be asserted as a defense to any pre-trial actions. Generally, most videographic criticism would likely be seen as fair rather than infringing uses on all four factors, although there are often wrinkles involved in some cases.
The first factor concerns the nature of the use of copyrighted materials. A videographic essay is by definition a transformative use of original material, aimed at providing commentary, criticism, and/or parody that fulfills the spirit of fair use. Additionally, it is often noncommercial and educational, which also leans toward fair use; however, some videographic essays have been distributed commercially, as with supplements to DVD releases, so there is no single mandate that fair uses must be noncommercial. However, not every element in a videographic piece might fall under fair use, an issue that often arises with music. Consider the epigraph exercise created by Jason Mittell as mentioned earlier in the book.
This video uses three copyrighted sources without permission: footage and sound from the film Adaptation, quotations from Michel Foucault’s essay ‘What Is an Author?’, and music from the song ‘I Should Live in Salt’ by The National. The film clip and textual quotation seem both to be clearly transformative in nature, aimed at critical commentary. While the use of the song is transformative by creating a sonic loop from its opening 15 seconds, there is no commentary or criticism implied in its use — in fact, the primary reason for its use was that the mood it evoked felt appropriate, suggesting that it borrows something from the original without transforming it. For that reason, the music would probably fail the ‘nature of use’ factor, but that does not necessarily mean it would be ruled an infringement.
The second factor concerns the nature of the original copyrighted work(s) being used without permission. Typically, works that are more original and creative are given more protection than less original works. This is not a judgment of quality, but of process and intent, as incorporating shots from a news report showing a public protest would be regarded as less protected than incorporating an original monologue from a fiction film. This factor is typically the least significant in videographic criticism, as most sources are from original fictional materials (or highly original documentaries). All three sources in the Adaptation epigraph qualify as original protected works, thus raising the bar for the other three factors; if the music were replaced by a copyrighted recording of crowd noise, then it would likely be accorded less protection than an original musical piece like The National’s song.
The third factor concerns the extent of the use of copyrighted work, focused on the quantity and quality of the portion used. There is a misconception that there is a magic percentage that is allowable, such as 5% or 10% of the original, but this is untrue. Like all factors, extent is a judgment call that considers both how much of the original is used, and to what degree that use repurposes the ‘heart’ of the original. Most videographic criticism about feature films or television programs use only a small portion of the originals — the Adaptation epigraph incorporates 30 seconds of a 114-minute film, three sentences from a 20-page essay, and 15 seconds from a four-minute song, all of which are clearly very small portions or their originals (approximately 0.4%, 0.7%, and 6.2% respectively). Additionally, none would be considered the most essential parts of those originals, as the looped instrumental guitar riff is the most pared-down element from the song, and neither the quotations nor film clip would be regarded as essential. However, imagine a videographic essay focused on a short film or an epigraph that quotes a large portion of a poem — such uses would be more likely to be considered infringing. Likewise, some transformative works can reuse the entirety of the original, such as Douglas Gordon’s 24 Hour Psycho or Matt Bucy’s Of Oz The Wizard, an alphabetized remix of The Wizard of Oz—these would certainly fail the third factor, but potentially still be upheld on the other three.
The fourth factor considers how the use might impact the value of the original, especially concerning the effect on its commercial possibilities. While a videographic essay that offers a highly negative analysis of a film might arguably suppress its commercial viability, the transformative critical role would override that, in the same way that a negative review that quotes a book might discourage sales but that doesn’t make it a copyright violation. The more relevant question is whether the transformative use would effectively usurp the original’s commercial value, leading consumers to avoid the original in lieu of the derivative work. This is hard to imagine for most videographic work; if anything, transformative reuse of materials as in this Adaptation video would more likely inspire people to seek out the original film, essay, or song to understand their broader contexts. However, if a videographic piece did potentially curtail the market for a similar derivative work produced by the original rights holder, such as an analysis of a film scene that might be included as a special feature on a DVD, it might be regarded as an infringement.
As mentioned above, fair use is primarily understood as a legal defense that can be asserted in court if a copyright holder sues you for infringement, and these four factors would come into play in such hearings. However, this rarely actually happens, as most cases of accused infringement never proceed to formal legal proceedings or they get settled before rulings are issued; as of 2015, only one case involving videographic work or video remix has yielded a legal ruling (and it was determined to be fair use). Given how unlikely that formal legal proceedings will result in directly judging each of the four factors on their merits, it is probably not worth getting bogged down in those legal particularities. Another approach is to follow the “best practices” of other videographic work, as these are the more common precedents of creative transformative uses that have not been found to be infringing—in most cases, rights holders do not object to transformative reuse, and thus we should consider the many instances of videos being published without objection as establishing community norms of best practice. The Center for Media & Social Impact has documented best practices in fair use for a number of different types of creative and critical practice, including the most relevant Code of Best Practices in Fair Use for Online Video. Based on these best practices, nearly all videographic works clearly fall within the purview of fair use.
Just because legal proceedings are rare doesn’t mean that infringement accusations do not occur in the videographic realm. The most common situation is when somebody posts a videographic work on a sharing site like YouTube and receives a takedown notice, such as the publicized case of prominent videographic critic Kevin B. Lee versus YouTube. Such sites have automated ‘bots’ that search new videos for copyrighted material, and when there’s a match with such footage or music, the system will disable the video. There is no analysis for fair use or consideration of the various factors that might override potential infringement, and some automated takedowns are ‘false positive’ hits for non-copyrighted material (especially music)—however a recent court case did put a burden on sites to analyze fair use possibilities before taking down a video, although it is unclear exactly how that will impact these automated systems. If your video has been flagged and taken down, you can file an appeal, dipping into a legal realm that few video makers are familiar with. Even if your fair use claim is upheld by the site (which they often are), the chilling effect is to discourage video creators to transform copyrighted material out of uncertainty and fear.
In actuality, the risks for posting a video using unauthorized copyrighted material are quite low. The most common outcome would be a takedown from a video site, which would require either appealing or moving the video to another site. CriticalCommons.org is a nonprofit site designed for academics to share videos for teaching and research purposes; they have no automated takedown system, are strong advocates for fair use, and thus are a useful site to post videographic work to minimize fears about potential takedowns. Regardless of the hosting site, it is extremely unlikely that any action would proceed beyond a takedown request or cease-and-desist letter, as the upside for a rights holder to sue an academic videographic creator would be minimal. In fact, the potential negative press coverage and reputation damage could be ultimately more harmful to a company, and the last thing that a media corporation wants is for a court ruling that helps further establish and reinforce fair use rights. However, the potential fear of getting a threatening letter from corporate lawyers can be sufficient to make an independent video maker withdraw their work and stop posting videographic work, even if the legal threat is not substantive.
In the United States, there is another level to copyright concerns beyond fair use. The Digital Millennium Copyright Act (DMCA) added another key obstruction to videographic and remix work: the anti-circumvention measure. The 1998 law made it illegal to override copy protection systems on DVDs as well as other forms of digital rights management (DRM), whether or not the use of such tools was fair use or even if the DVD was of a non-copyrighted film; additionally, circumventing DRM was made a criminal rather than civil offense, even if it was done following fair use. Thus even if a videographic essay is clearly a fair use or draws from authorized material, it was made criminal to circumvent the copy protection on a DVD to be able to create clips and remix the footage.
Thankfully, the law allows for the Library of Congress to establish exemptions to this provision, and since 2010, such an exemption has made it legal for critics, scholars, remixers, and students to override DVD protections to edit clips for scholarly and educational purposes, including videographic criticism. This exemption was expanded to include Blu-ray discs in 2015, meaning that it is no longer illegal to ‘rip’ a DVD or Blu-ray in order to create videographic criticism, regardless of fair use ruling. However, many university technologists and copyright authorities are still reluctant to allow for these exemptions, fearing potential litigation, so it is important for academic video makers to assert our own rights and those of our students. Additionally, technologies of video distribution are changing faster than the laws, so many source materials may only be legally available via online streams or digital downloads, which are not exempted from anti-circumvention laws and might prompt lawsuits for violation of Terms of Services to subscribers or purchasers. Additionally, fair use is predicated upon transforming lawfully-obtained material, and thus the rise of illegal file-sharing might tempt videographic critics and student creators to use illegally downloaded videos as source material, which would greatly weaken any fair use claims (as well as opening you up to other legal action).
It is clearly vital to follow and participate in the legal updates, as the exemptions need to be renewed every three years, and new technologies pose new obstacles to the otherwise legal practices of videographic criticism. Fair use has been compared to a muscle that will atrophy if not actively exercised—videographic criticism is some of the most vigorous exercise that scholars can offer their fair use muscles.
Resources on Copyright and Fair Use
The Center for Media and Social Impact has many resources available for understanding fair use, including “best practices” guides for a number of relevant realms, including online video and documentary filmmaking: http://www.cmsimpact.org/fair-use
The Electronic Frontier Foundation has aggressively defended fair use rights and transformative works, with details on case law and resources for defending against takedowns: https://www.eff.org/issues/intellectual-property
[in]Transition collects and updates resources for videographic criticism, including fair use and copyright: http://mediacommons.futureofthebook.org/intransition/resources
Steve Anderson, “Fair Use and Media Studies in the Digital Age,” Frames Cinema Journal 1, no. 1 (2012), http://framescinemajournal.com/article/fair-use-and-media-studies-in-the-digital-age/.
Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago: University Of Chicago Press, 2011).
Peter Decherney, Hollywood’s Copyright Wars: From Edison to the Internet (New York: Columbia University Press, 2012).
Eric Faden, “A Fair(y) Use Tale,” Online video, 2007, http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale.
Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin Press, 2008).
Jason Mittell, “Letting Us Rip: Our New Right to Fair Use of DVDs,” ProfHacker, July 27, 2010, http://chronicle.com/blogs/profhacker/letting-us-rip-our-new-right-to-fair-use-of-dvds/25797; Jason Mittell, “How to Rip DVD Clips,” ProfHacker, August 12, 2010, http://chronicle.com/blogs/profhacker/how-to-rip-dvd-clips/26090.
 For a good overview of comparative international fair use and fair dealing provisions, see The Fair Use / Fair Dealing Handbook, http://infojustice.org/archives/29136.
 Northland Family Planning Clinic, Inc. v. Ctr. for Bio-Ethical Reform, 868 F. Supp. 2d 962 (C.D. Cal. 2012).
 See Matt Zoller Seitz, “Copy Rites: YouTube vs. Kevin B. Lee,” Slant Magazine, January 13, 2009, http://www.slantmagazine.com/house/article/copy-rites-youtube-vs-kevin-b-lee for a discussion of this case.
Filed under: Academia, Copyright, Fair Use, Publishing, Technology, Videographic Criticism | 1 Comment