Patricia Aufderheide is a Professor in the School of Communication at American University in Washington.  She is also the Director of the Center for Social Media.

The U.S. doctrine of fair use is getting a healthy workout, and it seems like every challenge is making it stronger. In fact, fair use is becoming a very useful workaround for the problems created by extension of copyright. (Stronger ownership rights in copyright have created, often inadvertently, roadblocks to new cultural creation.) Primarily a U.S. doctrine, it has started to look tempting for reformers in other parts of the world. Fair use deserves more attention, as a model for how to cope with exemptions and balancing, especially for anyone participating in copyright reform efforts.

 The latest legal decision is Warren v. Spurlock, 2009 U.S. Dist. LEXIS 68199 (E.D. Pa., Aug. 4, 2009), in which the owner of copyrights to a now-defunct magazine about movie monsters claimed infringement from the publisher of a book about the art of one of the magazine’s cover artists. District Judge Michael Baylson, rejected Warren’s claim outright, deciding that the defendant had ample room within fair use to reproduce both the cover art itself and actual covers, within the much wider project of a biographical work about the artist.

Fair use is defined entirely on a case-by-case basis, according to a rule of reason. Context is everything, and the law provides four factors-not exclusive, and not a checklist-that can guide such reason. They are: purpose of the copying (does it just re-use the material for the original or market purpose or does it repurpose–”transform” it?); nature of the original (is it in the core valued area of creative expression protected by copyright?); amount of copying (was the appropriate amount taken for a transformative use? Was the core value taken?); and effect on the market (did the use hurt the business of the owner?).

That reasoning by case makes fair use highly flexible and adaptable. But at the same time, these are all judgment calls, and so many people regard fair use as dangerous territory, a foggy grey zone of uncertainty. The Warren case shows again, however, that there is a remarkably large, stable comfort zone-if you understand the logic. (That’s also true of other free-speech practices, for instance libel, slander and obscenity issues; at the margins there can be real argument, but most people pretty much get where the center is.)

The judge emphasized, as have judges consistently in the last 15 years, the importance of the transformative  element (without ruling out non-transformative fair uses), and therefore the related importance of the third factor of amount. He found the uses fully transformative; after all, the magazine was describing trends in monster movies, and the book was describing the career trajectory of an artist. He found the amount entirely appropriate.

This use accords with previous U.S. decisions over the last 15 years, quite consistently. The transformative defense, allied with appropriate amount, appears to be in the “safe haven” area of fair use. This makes a huge difference to creators of all kinds, from mashup artists to documentary filmmakers to museum programmers.

The comfort that such creators take in fair use, however, doesn’t derive from their close reading of the law. Even if they had, there isn’t much to read. Case law has been scarce and spindly, which is why in the U.S. a different approach has worked well to make fair use useable: best practices.

At American University’s Center for Social Media, we have worked closely since 2004 with AU Washington College of Law’s Program on Information Justice and Intellectual Property, and especially with its intellectual inspiration, professor Peter Jaszi. Together, we have facilitated, with interested creator and user groups, best practices codes that describe, for each group, how to apply the logic of fair use to specific situations. For instance, documentary filmmakers often capture copyrighted material incidentally in their work; their code helps them evaluate when fair use applies to the moment when the family bursts into a round of the (copyrighted) song “Happy Birthday.” Media literacy teachers often bring current advertisements into the classroom, and they also want to develop a database of such ads to draw upon over time; their code helps them apply fair use to that situation. Online video makers often combine music, photography and video to make a tribute to the Jonas Brothers or to recut “Star Trek” episodes into a gay fantasy or to make a political critique of a presidential speech. Their code helps them understand the logic of fair use governing their choices to make new work composed-often entirely-of existing work.

Their confidence is justified because the codes of best practices are built up from collective judgment by practitioners invested both in copyright ownership and balancing features that allow people to make new work. The codes, vetted by experienced lawyers and legal scholars, have time and again proven so valuable in business and creative decisions that they are being incorporated into business practice. (For a chronicle of some successes, go here).  The documentary filmmakers’ code in fact has become a tool that now permits every insurer for errors and omissions in licensing to accept fair use claims-something that until 2005 (when the code appeared) was unheard of in standard practice. They have never been challenged either in court or in public opinion by copyright holders. Media literacy teachers are seeing aspects of their code being incorporated into school board regulations.

People who have made calculated decisions to undertake risk based on them have easily won in court. For instance, the makers of Expelled, a pro-creationist documentary, deliberately incorporated a short clip of a John Lennon song, “Imagine,” knowing that Yoko Ono would probably challenge them. When she did, the court summarily dismissed the request for an injunction, because the  case for fair use was so manifest. (The case is Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 [2008].)

Still, some people want to be 101% risk-free. Such was the case of the lawyer for  the  parody band Spinal Tap, who recently refused to incorporate into a performance DVD a video made by a 14 year old that uses Lego characters to enact a rock band performance (and that was actually shown in a Spinal Tap performance). When Lego wouldn’t license the work, the lawyer refused to employ fair use, in order to avoid all risk, even though he himself assured a New York Times reporter that he believed it was clearly fair use.

Codes of best practices don’t require anyone to follow their helpful orientation, but sometimes they can make for better work-as well as less costly budgets and less stressful decision-making. Codes of best practices make fair use useable, and when fair use is used, it becomes more useable. As Judge Alex Kozinsky noted in a conference a couple of years ago, “Comedies of Fair Use,” the law isn’t broken but in many places practice is broken. People need to use their rights. The affirmative defense of fair use builds into U.S. law a healthy balancing feature to the strong copyright ownership protections added to law since the 1970s.

Posted in Copyright, Fair Dealing