![]() In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within the field. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.įair use is flexible it is not uncertain or unreliable. Creative needs and practices differ with the field, with technology, and with time. As a result, fair use is more important today than ever before.Ĭopyright law does not exactly specify how to apply fair use, and that is to creators’ advantage. As copyright protects more works for longer periods than ever before, it makes new creation harder. ![]() In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. Where it applies, fair use is a right, not a mere privilege. It has been an important part of copyright law for more than 150 years. Fair use is the most important of these features. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy.Ĭopyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. In spite of our romantic cliches about the anguished lone creator, the entire history of cultural production from Aeschylus through Shakespeare to Clueless has shown that all creators stand, as Isaac Newton (and so many others) put it, “on the shoulders of giants.” Mashups, remixes, subs, and online parodies are new and refreshing online phenomena, but they partake of an ancient tradition: the recycling of old culture to make new. Only then will efforts to fight copyright “piracy” in the online environment be able to make necessary space for lawful, value-added uses. 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. As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone. But digital platforms make work far more public than it has ever been, and cultural habits and business models are developing. Often people circulated their work within a small group of family and friends. Until now, that fact has been almost irrelevant in business and law, because broad distribution of nonprofessional video was relatively rare. More and more, video creation and sharing depend on the ability to use and circulate existing copyrighted work. The circulation of these videos is an emerging part of the business landscape, as the sale of YouTube to Google 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. 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. People make and share videos to tell stories about their personal lives, remixing home videos with popular music and images. 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.
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