Fair Use…One Giant headache

September 26, 2009 at 4:38 pm (Uncategorized)

“Fair use” can be deemed as one of the most confusing aspects of Journalism. The NYU Journalism Handbook cites fair use as the ability to “legally use a limited amount of copyrighted material for purposes of commentary and criticism, and parody, without first seeking permission.” However, the question of proper use of the material, in terms of fair use, can leave a writer scratching their head. The laws just simply are not clear-cut in terms of what can be deemed fair use, and what is copyright infringement.

In terms of the basics of fair use, the rules are broken down into examples which can be found in the aforementioned NYU handbook: “A book reviewer, for instance, may quote from the text she is reviewing; a film reviewer may outline the plot of a film to discuss whether the story holds together; a comedian may conjure up characters from a popular movie to be able to poke fun at it.” While fair use does make it possible for works to be used without the creators consent, the issue still remains in terms of what exactly can be seen as fair use.

A number of strong examples of issues with fair use have come about recently. One of the most memorable fair use incidents would be Shepard Fairey’s painting of Obama during last year’s elections.

The artist used a photo from the Associated Press (AP) and created his own artistic rendition. Fairey believed that his use of the photo was within the terms of fair use. However, the AP was infuriated and sued for copyright infringement.

Although actions such as Fairey’s are what fair use is supposed to protect, it is not inhibiting the AP from taking legal action against Fairey. Such an occurrence points out the blurred lines between what is and isn’t fair use. Although fair use is meant to protect the person using the information or picture, it seems to be unable to protect against a company’s legal retaliation.

Another example of fair use confusion would be one that can be found in the NYU handbook. The handbook cites the stories of two different courts’ decisions based on fair use.

“A KCAL-TV broadcast of a 30-second clip taken from a 4-minute copyrighted video videotape that showed trucker Reginald Denny being beaten during the 1992 riots was found to violate fair use. The court ruled that the broadcast borrowed from the heart of the video, and affected the copyright owner’s ability to market the work. Yet when documentarians took 41 seconds from a boxing match for use in a biography of Mohammed Ali, the court ruled it was not a violation of fair use because only a small amount of footage used, and its purpose was informational.”

After reading both the KCAL and documentarian situation, both seem to fulfill an educational and scholarly need. The Fair use terms for video and broadcast apply to any clip that is 30-seconds or less. Therefore, the situation begs the question of why a 41-second clip was acceptable, yet a 30-second clip was not.

The “heart of the excerpt” is to blame in reference to what is and is not fair use. However, who decides what the heart of the video or speech is? By having such laws for fair use a person could cite that someone used the “heart” of their work, solely because they did not want them using it. The definition of the “heart” of a work is truly loose, making fair use a confusing and controversial idea.

Stanford University explains the “heart” of a work by citing that using the riff from the song “Satisfaction” (i.e. “I can’t get no, satisfaction…”) by the Rolling Stones would not be fair use. However, what if the Rolling Stones considered the “heart” to be another part of the song. This would mean that using any part would be copyright infringement, highlighting the confusion that is fair use.

The fair use-“heart” debacle continues when one stumbles into parody. However, a Parodist is allowed to use the “heart” of a work according to the Supreme Court. Therefore, a news program is unable to use a clip’s “heart” for their newscast; however, Saturday Night Live is able to parody any work’s “heart” solely for entertainment. Somehow, fair use seems to have lost its way in its attempts to allow scholarly use of copyrighted material.

Fair use and web sites pose an entirely new set of issues in terms of what is and what is not appropriate. Such issues just further the argument that fair use seems to be doing more harm than good.

Many might believe that linking or citing a source used on a web site would properly protect them from violating fair use rules. However, even if the creator is acknowledged, copyright can still be infringed. NYU’s handbook provides examples of web site fair use violations, which include: “a photo ripped from the New York Times, a picture of a magazine cover, one minute of music, a 3-minute clip from a movie, a facsimile of a map taken from Mapquest or Google Maps, large tracks of text from a research report.”

While fair use is beneficial, its ever-changing, subjective set of rules make it nearly impossible for an artist or writer to legally cite and use information. There is only so much news and video within the world, and each person cannot create their own, personal, copyrighted version of whatever information they may need to use. Therefore, while ownership of what one created is necessary, stricter guidelines must be provided for those who depend on this information. If creators are able to cite copyright infringement based on their version of “heart”, in terms of video, or similarity, in terms of art, then no information will ever be fairly used.

As consumers of knowledge, unfair guidelines in terms of fair use can truly just be seen as censorship. If creators are going to hold back their works then how as a nation can we inform ourselves.


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