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Fair Use – Is It Fair?

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If there are hot issues in copyright, then surely a real thorny one is copyright and fair use. Are fair use laws fair and if so, to whom? The problem with fair use is that it’s a slippery thing and hard to keep a hold on the definition as it seems to often be changing. The easiest thing to do for the time being is to spell out what exactly fair use is.

It’s simply too easy to launch into some hysterical or even calm discussion of fair use or any other copyright or e-book related matter without knowing the basic facts behind the argument, and this reminds me too much of dinners at home in which everyone is speaking at once and yet nobody has done the proper research to know with any authority what it is in god’s name they are talking about. I swore as a child that as a journalist I would research thoroughly, and though I may at times be wrong, or my sources unreliable, I would do my very best to see that they were not and that things added up as they said they were.

Here, instead of relying solely on government guidelines, I checked with various universities since they often deal with fair use more than anyone for paper handouts and things of this nature, book excerpts; music schools, sequences of music; television and media related classes and schools and so on deal in that media or mixed media. So – what I’ve done here is followed what many schools have done, which is to break the subject of fair use down into what the law says is acceptable and then we can have a discussion about whether or not this is fair and/or equitable. This much makes sense to me and I hope it does to you too.

One essential rule of thumb to remember is that it is not you who will be deciding this, but the publisher of the particular piece. You’ll have to decide first, but hold yourself to a high standard because, unfortunately, it will be the copyright holder that you are up against, and remember that fees for breaking copyright law run high and can even, as noted in a previous piece, run into the millions.

Here are some basic guidelines, though note that I’ve edited these down a fair amount and added text from other sources to make these a bit easier to understand because the issues are quite complicated. The general rule of thumb is no more than 10% or 30 seconds of the work.

Motion media: You can use 10% of the work or 3 minutes, which ever is less. This may be copied as part of a multimedia project or another work

Text: 10% or 1000 words, whichever is less. This can be used in various multimedia projects. I believe this particular law also refers to fair use for journalistic purposes and experts for other projects, such as books etc., that may need to reference another project or book, though note that attribution is generally required no matter how little or how much of the work you are using. More, to save yourself any future hassle, you may wish to get permission, if they’ll grant it, from the copyright holder, and whenever possible through the publisher. There may be a fee involved (not in fair use) but in taking more than fair use, say three poems instead of merely quoting part of a poem etc. Permissions often go through sub-rights agents. For more on this, look up publishing contracts or perhaps that will be another topic I’ll write about with a standard publishing contract to illustrate how this works in the publishing world as a general template.

Music, lyrics, and music video: Up to 10%, but no more than 30 seconds from an individual piece of music, lyrics or music video may be used (you may be able to use more lyrics if you are writing an article and wish to quote a whole song). Whether the music is part of another media project is irrelevant and the same terms apply. Any alterations of the work may not change the basic melody of the work under the Music fair use act or any of the above.

Photography and illustrations: Photographs are more complicated as are images and illustrations; according to the Conference on Fair Use, the following guidelines are best to stick by:

The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2.

Nature of the use, character, how will it be used, what effect will this have on the market and success of the work if “its use is widespread” (University of Texas) are all factors in fair use.

Work used in criticism, commentary, journalism reviews, jokes, non-profit or educational purposes (but be careful here – you still can’t copy an entire book, only sections that may be necessary for hand-outs and the like) are all subject to fair use. If you want to use a work commercially but it happens to coincide with journalistic use or criticism, you’re still cooked.

No matter how “fair” you may feel it is, if you’re using the work for any commercial gain – even if it is non-financial commercial gain (though check on this, because “gain” can be defined in many ways and more, fair use is not just about financial gain) – it’s about copyright and what is fair to the author. If the work is in whole or in large part available elsewhere, then profits are taken away from the author as anyone can find the material elsewhere and even for free in some situations.

I can say with certainty, as an author myself, that if someone took a good half of my book or even sections of my published poetry greater than the defined several lines or percent, I would not be happy and most authors I know feel the same way. Maybe not all, but I can’t think of anyone I know, well-known or otherwise, who is willing to give over their work so that another may benefit from their hard years of toil on a particular piece and even take credit for it. And more, even if they do not take credit for it and give credit where credit is due, it’s still not fair use because the work is still commercial in nature. One reason is that the use of the work may impinge on my reputation and be used in a manner that I may not condone and it is my right as an author to keep my work under my own protection for as long as is possible. Even publishers know this and revert the copyright to the author after seven years or so. If you want to buy the copyright from the author for a particular reason after that period of the time, one need only approach the author, who may be easier to deal with than the publishing house, depending on the author, and depending on whether the rights have actually reverted to the author. This can vary from house to house.

What I don’t get is this: I understand that some of the use may be harsh, but to blame the government doesn’t make sense to me. Yes, some or maybe even all of these are government guidelines but they hardly are there to protect the government, or as one commentator noted and understandaby to some extent, The Man. To me, it seems the guidelines are there to protect people like you and me.

I wrote a piece called What Price Free Content. If you write for free, does that then mean that anyone has the right to take what you have written in whole and publish the entire piece? Syndication may be one issue and if it is used to promote the work in some way, then that is a different beast, but to use the work for again, commercial gain, is really the issue.

I cannot stress the issue of commercial gain enough.

Let’s get to that thorny and relatively new beast, the internet. Here are the guidelines:

Caution in Downloading Material from the Internet

Educators and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational multimedia projects, because there is a mix of works protected by copyright and works in the public domain on the network. Access to works on the Internet does not automatically mean that these can be reproduced and reused without permission or royalty payment and, furthermore, some copyrighted works may have been posted to the Internet without authorization of the copyright holder.

Attribution and Acknowledgement

Educators and students are reminded to credit the sources and display the copyright notice © and copyright ownership information if this is shown in the original source, for all works incorporated as part of the educational multimedia projects prepared by educators and students, including those prepared under fair use. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher, and place and date of publication). The copyright ownership information includes the copyright notice (©, year of first publication and name of the copyright holder).

The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project (e.g. credit section) except for images incorporated into the project for the uses described in Section 3.2.3. In such cases, the copyright notice and the name of the creator of the image must be incorporated into the image when, and to the extent, such information is reasonably available; credit and copyright notice information is considered “incorporated” if it is attached to the image file and appears on the screen when the image is viewed. In those cases when displaying source credits and copyright ownership information on the screen with the image would be mutually exclusive with an instructional objective (e.g. during examinations in which the source credits and/or copyright information would be relevant to the examination questions), those images may be displayed without such information being simultaneously displayed on the screen. In such cases, this information should be linked to the image in a manner compatible with such instructional objectives.

Today, most work is protected under various Commercial Commons licenses, which means that the author decides how little or how much of his or her work may or may not be used. For example, some work may be used provided there is attribution of some kind. Other work may be used if there is attribution and you are further allowed to alter the work in some kind. Other work may be available for free but with no attribution but in almost all cases, credit is due to the author and the copyright for the original work remains with the author and must be noted as such. You may, depending on the license, use the work in your own piece, but you must give credit where credit is due; depending on how much of the work you have used, you can say the work is collaborative or with ‘excerpts from’ or ‘based on’ or any number of ways of phrasing, but you must give the copyright symbol and the author or artist’s (define this broadly) name with the copyright symbol.

Illustrations and images are more complicated. In brief, you cannot use an entire work under the guidelines, or an illustration may be used in its entirety but no more than five images may be reproduced for educational purposes. You may use no more than 10% or fifteen images, whichever is less and they may be used as part of an educational work.

It’s understandable that one would simply give up at this point and say why bother, since copyright law is so complicated and fair use may seem truly unfair. According to one source, penalties for breaking fair use laws are serious and harsh. According to the law at Cornell:

…the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don’t know that you are infringing, you still will be liable for damages – only the amount of the award will be affected. Then there are attorneys’ fees.. There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use – as would likely be the case if you followed this Policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This makes someone who ignores policies a handsome target for a lawsuit.

Just like copyright law, which I wrote about yesterday, I think before we can have any meaningful discussion regarding fair use laws, we need to first know them fully and completely and study them. Without this, it is virtually impossible to have a discussion.

Thanks for listening,

sadi ranson-polizzotti

Ed:LM

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About Sadi Ranson-Polizzotti

  • http://dracutweblog.blogspot.com Mary K. Williams

    Sadi-
    Thanks for laying this out. I’m working with some others on an anthology of some of our work, and this question just came up this week.

    I worked in a tech library for five years – you’d think I’d know something about this – as the general subject of copyright came up all the time. But I’m still pretty ignorant of it all.

    This will be another good reference to store away.

  • http://www.tantmieux.squarespace.com sadi ranson-polizzotti

    hi Mary:

    i’m really glad this will help and be a reference of sorts… that’s super. use it as you see fit; it’s a good simple guide. i have another on copyright if you’re interested, but the fair use piece is better i think and more pertinent to the moment.

    best of luck with your anthology,

    sadi

  • http://nukapai.typepad.com Nukapai

    You might want to edit this while you still can; spotted a few little mishaps in there (for example: dinner’s should be dinners). :)

    Otherwise, GREAT resource, thank you for the work in pulling this together! I will probably return to check it in the future!

  • http://freewayjam.blogspot.com uao

    Nice article; I learned a lot from it. Nice reseach, too.

    Fair use has always been a fuzzy concept to me; nice to see some rough guidelines compiled, even if the law remains fairly fuzzy.

    One of the most useful articles I’ve seen in a while.

  • http://www.tantmieux.squarespace.com sadi ranson-polizzotti

    hey all:

    i’m grateful for the pointing out the typos, though going through the whole thing again seems daunting but i’ll do it because it should be perfect, so when i have some time tomorrow.

    i’m glad this is such a great resource as several of you have said…. i hope it helps. these are not my opinions, but the guidelines layed out by the government etc and i think before you can say anything meaningful, you need to know the law as it is…

    so i hope this helps, and it sounds like it is.

    i’m really glad of that.

    rock on.

    sade.

  • http://www.morethings.com/log Al Barger

    Miss Sadi, this is an exceptionally good and useful piece of writing. Thank you.

  • http://www.tantmieux.squarespace.com sadi ranson-polizzotti

    why Mr. Barger ~ long time no talk; do you have my new email address? if not, ask EO for it…would love to hear from you. Glad you like this…

    cheers to you,

    s.

  • http://dumpsterbust.blogspot.com/ Eric Berlin

    This story has been chose as a Blogcritics Editor’s Pick for the week, congrats!

    You’ve honored yourself up the right to select your favorite story over the next week for the new column, which will be published on Wednesdays or thereabouts. In any event, please feel free to nominate your fave piece under this week’s column. The time frame will always run between Wednesday (today in this week’s case) and next Tuesday night.

    Thanks and congrats again ~ EB

  • http://www.tantmieux.squarespace.com sadi ranson-polizzotti

    EB ~ wow, and thanks. What an honor. So, choose a piece between this last Wednesday and next Tuesday evening in the Opinion piece column. That shouldn’t be too difficult. I’ll shoot you and EO an email once i’ve decided. Thanks again and i’m glad – really glad – that you all like this piece.

    Cheers and i’ll do my best on choosing a great piece for Best of….

    Cheers and as ever, best.

    Sade