"Using copyrighted images for social commentary:" Jeff Koons (b. 1955), Niagara, 2000, Oil on canvas, 120 x 168", Commissioned by the Deutsche Bank AG in consultation with the Solomon R. Guggenheim Foundation for the Deutsche Guggenheim, Berlin, DGT132.2000, © Jeff Koons.

What's Fair is not Foul

Hannah Eaves July 24, 2008

SF360.org editor’s note: This is the first installment of a new, monthly column by filmmaker and journalist Hannah Eaves on local digital media.

Earlier this month the Center for Social Media (CSM) and the Program on Information Justice and Intellectual Property (PIJIP) at American University released a report called Code of Best Practices in Fair Use for Online Video or, as it was immediately zeitgeisted by boingboing, "HOWTO Make online videos without getting sued." For techies in the online world, "fair use," Creative Commons and net neutrality occupy the same level of heaven as bizarre sea creatures, steampunk gadgets, and cryptozoology. But the paper also makes a very handy tool for ordinary Joes experimenting in the new creative freak zone of User Generated Content.

Fair use, for those not already accustomed to mixing and matching their video/text/art, is "the right to use copyrighted material without permission or payment under some circumstances." This legal precedent (see also, this) is particularly relevant to documentary filmmakers whose projects can sometimes become crippled by overwhelming licensing costs, when the footage they’re using is actually essential to their point (for instance, the work of Adam Curtis, like The Power of Nightmares may never be seen commercially and/or legally in the U.S. because of its myth-makingly high licensing fee quotes). But it can also relate to mash-ups and other experiments in recutting, reusing and otherwise recycling content for wide public distribution. Note that fair use applies to both commercial and non-commercial work. This particular aspect just keeps on getting trickier the more that video-sharing sites like YouTube start offering ad revenue shares to uploaders. Proponents of fair use also quite often support other sharing-friendly philosophies, including limited-copyright licensing of creative work, unrestricted access to Internet bandwidth (especially as it relates to peer-to-peer file delivery, and companies that have been caught out secretly choking the bandwidth thereof), open source software, digital privacy advocacy, and the fight against Digital Rights Management (DRM – i.e., the thing that keeps you from putting your iTunes purchased songs on your friends’ computers).

The only place these connections really trip up is when you get to a certain school of precious older documentary filmmakers who get excited when they hear they could potentially use footage license-free (although they don’t really believe it), but would never condescend to make their own work available in any form online, except for maybe a short watermarked trailer or clip. I have worked with these people, and witnessed their strangled, auto-defensive posturing—more like ostriches with their heads in the sand than knights standing in the imagined forts that surround their livelihood. They are going to have to change. Bad luck.

The CSM report may have been released by the East Coast’s American University, but the Bay Area is in the forefront of the fight for filmmaker-friendly practices not only on the Internet, but in all-things-electronic. CSM’s guide (along with this one) may keep you from being sued in the first place, but if you are well intentioned and still push the boundaries over the edge, there’s a good chance that Stanford’s Fair Use Project at the Center for Internet and Society will provide you with free legal support. In San Francisco, the Electronic Frontier Foundation has long supported digital democracy. There has been a drawn out, Hollywood-backed effort to institute an industry-wide "broadcast flag" on everything delivered to you via DTV tuners, which would mean that in the future any TV content coming through a receiver would essentially be invisibly branded (think: the sound of sizzling cow flesh) and trapped there, so that it couldn’t move to any device like a DVD recorder or networked computer that was not officially supported and loaded with the same DRM management restrictions. For more details on this tricky effort click here. Thanks to the EFF’s court challenge, ALA v. FCC, it was thrown out, but the battle will no doubt resurface.

And, of course, the team at Creative Commons has done a breakthrough job promoting less restrictive copyright licenses for those who are actually excited at seeing what creative work others can do with their content. These come in commercial and non-commercial flavors, and have been adopted even by more well known artists like Hugo and Nebula award-winner Kelly Link, whose fantastic book "Stranger Things Happen," is available for free, non-commercial Creative Commons-licensed, download. If this philosophy were to be widely adopted by commercial concerns, the need for fair use could diminish, as more rights were opened up for free. However, the reluctance of many CC license holders to allow for commercial reuse of their work seems to be a barrier to long term realization of this dream. Lawrence Lessig himself has made his book Code 2.0 available for commercial reuse by others (hear him talk about this on To the Best of Our Knowledge’s recent show Re-Mix Culture).

Link TV, the non-profit satellite television station where I work, has long been a proponent of fair use. While the Peabody Award-winning Mosaic relies on official agreements with Middle Eastern broadcasters, Global Pulse banks on the tenets of fair use. It comments on world news, which is archived in our studio on to DVD recorders. The broadcast flag might conceivably have killed the show, which demonstrates how a law that is, on the surface, about copyright and not fair use, would impact legitimate makers and artists everywhere.

But so far in this article I’ve given you a lot of written words on a subject that just begs for video, so I’d like to present you with some examples of content that I think fits into the six Best Practices outlined in the CSM’s "Code of Best Practices in Fair Use for Online Video," a.k.a. How To Make Online Videos Without Getting Sued. If you’re a read-along type (actually, even if you’re not), I recommend you download the report to fully understand the fine and sometimes blurry legal lines detailed within. I’d like to point out that I’m not a lawyer, or even a fair-use activist, but on many levels I’m the audience the report is aimed at. This is my interpretation of the document, and thus I do a neat act of pushing all blame off to the CSM’s wordsmiths if I have misread them. I’m sure these aren’t the best, wittiest, or profoundest examples out there—and if I know online communities I’m sure I’ll hear about it – so I invite further suggestions. Please post in the comments section.

1. Commenting on or critique of copyrighted material

I can think of no better example than Kevin Lee’s excellent Shooting Down Pictures project. Kevin calls on his own knowledge, and that of cultural critics and filmmakers, to provide video essay commentary on films that are in the so-called "Top 1000" of all time. Bonus fair use points for diligent attribution, an essential element of all these uses (that doesn’t actually appear in most of my examples).

Shooting Down Pictures #919 (60): Two English Girls

"Featuring commentary by C. Mason Wells, co-writer/co-director of LOL, contributor to The Onion magazine and promotions coordinator for the IFC Center."

2. Using copyrighted material for illustration or example

I couldn’t find anything readily available online that wasn’t a professionally produced documentary with a life outside of the online world, so I’ve stuck with the CSM’s own suggested example. Feel free to post a link if you have one.

Refrigerator Mothers

"In Refrigerator Mothers, about an era when mothers were blamed for their children’s autism, J.J. Hanley and David Simpson quoted popular films of the era. They claimed fair use because the film clips, by demonstrating social attitudes of the time, reflected popular culture of the era."

3. Capturing copyrighted material incidentally or accidentally

There is a line between switching on your stereo to play a Beatles number while you’re shooting an interview and being in a bar where someone happens to have selected it on a jukebox playing quietly somewhere off in the distance. If you’re posting your home movie of your trip to Disneyland on YouTube, you will have captured some strictly copyrighted images. In fact, type Disneyland into YouTube and you’ll come up with over 54,000 results. But as the CSM report so poignantly points out, you can’t change reality.

Also check out the Superman logos and other copyrighted imagery in this Comic-Con video.

4. Reproducing, reposting or quoting in order to memorialize, preserve or rescue an experience, an event or a cultural phenomenon

Barack Obama Yes We Can

The use of network news footage of Obama’s speech for this video seems to fit squarely into the "preserving a cultural phenomenon" category. This video has over 13 million views on YouTube.

Bill O’Reilly Freaks Out (NSFW)

This is old news by now, but too perfect to pass up when I read this sentence in the CSM report: "Someone may post a controversial or notorious moment from broadcast television or a public event (a Stephen Colbert speech, a presidential address, a celebrity blooper)." This seems like a fit to me.

5. Bill O’Reilly Flips Out—Dance Remix (really, really NSFW)

Not so sure about this one, but somehow I can’t leave it out!

5. Copying, reposting and recirculating a work or part of a work for purposes of launching a discussion

When it comes to online discussion, the Bay Area-based Seesmic is the new cool kid on the block. They’ve even hosted a chat with superstar fair use lawyer and CSM report contributor Michael Donaldson, here.

And so Seesmic was the perfect place to go hunting to find a clip that had been posted for the purpose of starting a discussion. Here, a user has uploaded the closing credits from Brazil with this question, designed to prompt a discussion (not the best one as far as fair use goes, but the overall concept is clear): "Written by Ari Barroso, but does anybody know who sings this version?" Discussion ensues.

6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

This one could have been called the mash-up clause.

One of my personal faves is Requiem for a Day Off, benjifilms.

Biographical note: Hannah Eaves is a periodic film journalist with a long, steady background in film, video, and new media. Her writing has appeared in SOMA magazine, the Santa Cruz Sentinel,
Imagining Reality: The Faber Book of Documentary Film, and online at GreenCine, PopMatters, Grist and elsewhere. She currently tries to keep her head above water as a Web Producer and Editor at Link TV, a Peabody Award-winning national satellite television station. In her spare time she dreams about her old, "laid back" Australian life, and the healing qualities of Victoria Bitter.