Author Archives: Krista Cox

Demonstrating impact in the social sciences — and thinking like a social scientist

*Guest blog post by Judy Ruttenberg, ARL Director, Scholars and Scholarship*

“I am more than my H-Index,” is a popular laptop sticker in the open science community, where the index—a long-reigning measure of influence in a field—is the highest number of citations garnered by the greatest number of a scholar’s published articles. Core to open science and open scholarship, however, is sharing research results in advance of formal publication—through preprints, auxiliary materials shared on platforms like GitHub and the Open Science Framework, and scholars’ direct engagement with the public through op-eds, blogs, and Twitter. Sage Publishing just released a white paper on “The Latest Thinking About Metrics for Research Impact in the Social Sciences,” and kicked off a public discussion of its findings last weekend at the Association for Psychological Science (APS) annual convention in Washington, DC.

First, key findings of the Sage report include:

  1. The full scholarly community must believe that new impact metrics are useful, necessary, and beneficial to society.
  2. A robust new regime of impact measurement must transcend, but not necessarily supplant, current literature-based systems.
  3. A new regime of social science impact measures must integrate the experiences and expectations of how nonacademic stakeholders will define impact.
  4. All stakeholders must understand that although social science impact is measurable, social science is not STEM, and social science’s impact measurements may echo STEM’s but are unlikely to mirror them.
  5. Social science needs a global vocabulary, a global taxonomy, global metadata, and finally a global set of benchmarks for talking about impact measurement.

Camille Gamboa of Sage moderated a lively panel at APS comprised of Altmetric founder Euan Adie, HuMetricsHSS team member Rebecca Kennison, and Simine Vazire, co-founder of the Society for the Improvement of Psychological Science (SIPS). While all are champions of impact as a greater aspiration than citations or paper quantity, the panel nonetheless raised deeply thoughtful questions about how impact is defined and measured, how new biases might be introduced and mitigated, and the challenge of maintaining scholarly integrity and accountability while making claims of impact in a direct-to-reader environment. “High-impact journals,” and anonymous peer review, despite their known flaws, have traditionally provided that accountability. And, from an information-seeking perspective (I am a librarian, not a social scientist), they provided filters.

So how does open scholarship in the social sciences advance, and how do scholars meet the demands placed on them by universities and funding agencies for public engagement and demonstration of impact? Do they, as one audience member asked, go directly to where readers are, turning their research papers into TED Talks and slick YouTube videos? Dr. Vazire was not so sure. Science journalists, she argued, play an important role. They pay a professional price for overstating claims of impact, while individual scientists may not. While Dr. Vazire said she includes this kind of feedback as a peer reviewer, that may not be the norm. Rebecca Kennison talked about a journal policy review project she recently undertook around publication ethics, and said such guidelines would be both novel and, from her perspective, welcome. In defining impact at the outset, all panelists noted that impact can be both positive and negative—recalling Andrew Wakefield’s highly influential paper claiming that vaccines cause autism. Vazire wondered whether we can learn from professional sports, which use many different statistical indicators to assess a particular player’s impact—some of which are holistic: Does the team perform better or worse when the player is on the field?

Panelist Euan Adie founded Altmetric precisely to help address the vexing measure of scholarly impact, answering the question, “who’s talking about your research?” on social media, in the press, and in policy documents, the latter of which can be the grand prize for social scientists. He described a robust infrastructure of intermediaries, such as think tanks and policy institutes, that sit (with all their biases, flaws, and sometimes helpful filters) between social science researchers and policy-makers. Less formal networks of scholars, such as the Scholars Strategy Network and the Council on Contemporary Families, help social scientists get closer to readers outside of the academy, boosting their capacity for non-academic “impact,” while providing the scholarly oversight to assess claims based on the evidence provided and methods applied. In a tongue-in-cheek backlash to scholars’ social media popularity, we now have the “Kardashian Index,” coupled with the suggestion that if one’s twitter mentions vastly outnumber one’s formal citations, that may indicate an outsized influence in the field.

These issues hit very close to home for research libraries. ARL has decades of data on outputs and transactions of its membership—number of volumes on the shelf, expenditures, number of reference questions answered—and is making the exciting transition now to measuring impact. Resources like “The Latest Thinking About Metrics for Research Impact in the Social Sciences,” and colleagues like Adie, Kennison, and Vazire, provide excellent food for thought for libraries undertaking this work, and confronting its challenges along with the research and learning community.

Opportunities for Libraries in the AI Ecosystem

*Guest post by Cynthia Hudson-Vitale, Head Research Informatics and Publishing, Penn State University Libraries*

Artificial intelligence (AI) for data discovery and reuse was the topic of a recent conference sponsored by the National Science Foundation (NSF) and hosted by Carnegie Mellon University (CMU), in cooperation with the Association for Computing Machinery (ACM). Beth Plale, Senior Advisor for Public Access for NSF, set the context: Harnessing the data revolution will require research, educational pathways, and advanced cyberinfrastructure.

Librarians, researchers across disciplines, computer scientists, industry representatives, and technologists came together at CMU to share practices and discuss methods for leveraging machine learning and artificial intelligence for metadata generation, data curation, data discovery, and data integration. Prominent themes of data privacy, data security, and mechanisms to limit algorithmic bias were found through many of the papers.    

While many institutions and researchers are exploring or developing AI models to solve complex issues, this conference was unique, both in the variety of perspectives it provided and the intentional focus on data discovery and reuse practices. Notable papers and presentations included:

  • Extracting key phrases from texts to aid in discovery
  • Creating descriptive tags for images
  • Recognizing and transcribe handwriting from digitized assets
  • Finding and extracting dataset references from published articles
  • Protecting clinical patient privacy  
  • Developing synthetic control arms for clinical trials

While much research focused on AI, many speakers emphasized human curation and intervention s a required component of workflows for model design and validation.

Keith Webster, Dean of CMU Libraries, summed up the takeaways and themes of the conference as demands for:

  • collaboration across disciplines and domains,
  • improved mechanisms for data discovery,
  • increased incentives for sharing data,
  • improved standards for data interoperability and adoption,
  • A better understanding and application of ethical guidelines,
  • research on the power of data reuse, and
  • enhanced tools for AI  

Huajin Wang, PhD., Research Liaison, Biology & Computer Science at CMU and Co-PI for the conference said, “I am really excited and touched by the enthusiasm participants shared for moving forward as a unique and diverse community.  I look forward to growing the community, and encourage everyone to keep the conversation going and join the mailing list aidr-all@lists.andrew.cmu.edu”.

For Libraries this conference surfaced a number of opportunities, including:

  • Delivering training and education around AI and data science topics
  • Providing expertise around metadata and controlled vocabularies
  • Acting as facilitators of local communities of practices for AI
  • Leveraging AI models to supplement human curation of datasets and enhance the discoverability of library digital assets (including digitized images, text, etc.)
  • Supporting and advocating for AI privacy initiatives

Discussions around  data privacy and AI reinforced many of the ongoing conversations that libraries are having in protecting student and library patron privacy, including:

Presentation and poster abstracts may be found on the conference website, some of which are published as a F1000Reseach collection.  Full papers of selected presentations will be peer-reviewed and published shortly in AIDR ’19 – ACM ICPS.

 

Marrakesh Treaty Enters Into Force in the United States

Today, May 8, the World Intellectual Property Organization (WIPO) administered Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled enters into force in the United States.  The United States Senate ratified the Marrakesh Treaty last summer and the United States House of Representatives passed the implementing legislation in September 2018.  Following the United States’ deposit of its instrument of ratification with WIPO on February 8 and the subsequent three month period prescribed in the treaty, the treaty is now in force in the United States.

The Marrakesh Treaty is designed to address the “book famine” problem in which it has been estimated that only between 1 and 7% of all published works are ever created in an accessible format for those that are blind, visually impaired or otherwise print disabled.  The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  The cross-border provision also facilitates importation of works created in other languages.

As an organization dedicated to achieving enduring and barrier-free access to information, ARL celebrates this milestone in the United States.  Libraries, as authorized entities, play a critical role not only in serving their own patrons, but also in facilitating cross-border exchange of accessible format works.  The United States is one of 55 contracting parties and countries from every region of the world are members of the Marrakesh Treaty.  Canada previously joined the Marrakesh Treaty in 2016 and, significantly, was the 20th ratifying or acceding country which triggered the entry into force of the Treaty itself.  A number of other ratifications are also currently underway.

Why Research Libraries Support an Open Internet

Today, the U.S. House of Representatives will vote on the Save the Internet Act, a bill designed to restore the net neutrality protections put into place in 2015 by the Federal Communications Commission.  The FCC’s 2015 Open Internet Order reclassified broadband Internet under Title II and put in place strong rules prohibiting blocking, throttling and paid prioritization, while also including a “General Conduct Rule.”  This Order was upheld by the Court of Appeals for the DC Circuit, but after a change of FCC leadership resulting from President Trump’s election, the FCC reversed course and eliminated these protections.  The Save the Internet Act would largely codify the 2015 Open Internet Order and passed the House Energy and Commerce Committee by a 30-22 last week.

ARL has long supported net neutrality, taking part in several rulemaking processes and filing comments, submitting amicus briefs, and meeting with key policymakers, because access to an open Internet is critical to the cutting edge research and creation of information platforms facilitated and supported by libraries.  As noted in ARL’s 2017 FCC Reply Comments,

Research libraries depend upon an open Internet to fulfill their missions and serve their communities. Research libraries retrieve and contribute content on the World Wide Web and the other databases that are exposed to consumers on the Internet. ARL suggests that the public interest missions of libraries are inextricably intertwined with the openness upon which the Internet is based. The democratic nature of the Internet as a neutral platform for carrying information to students, researchers and the general public is strongly aligned with the public interest missions of libraries.

The comments point to several different projects at ARL libraries that depend on an open Internet, including ones that provide access to vast datasets, create interactive connected classrooms, preserve and share cultural heritage, facilitate discovery through linked open data, and provision of Internet access itself.  The comments also cite to this collection of additional examples highlighting the importance of an open Internet to ARL member libraries.

Access to information in the digital age depends on strong protections to preserve the open character of the Internet and ensure that non-profit, educational voices are not disadvantaged.  Without rules protecting against blocking, throttling or paid prioritization, broadband providers have already demonstrated the ability and willingness to charge platforms and services more to deliver content, potentially creating fast lanes and slow lanes for information.

Today, the House has the opportunity to take another step forward in protecting an open Internet.  Battle for the Net has live coverage and advocacy tools to encourage this next step in the fight for net neutrality.

Affordable College Textbook Act Reintroduced in Congress

Today, US Senators Durbin (D-IL), King (I-ME), Smith (D-MN) and Sinema (D-AZ) and US Representative Neguse (D-CO) re-introduced the Affordable College Textbook Act.  The bill would create a grant program to support projects on open textbooks.  The current bill is largely similar to the version introduced in the last Congress with a few key changes including new language to improve accessibility of materials created under the bill for students with disabilities and amending the Higher Education Act to require publishers to disclose whether material is an open educational resource (OER).

ARL, along with ACRL, SPARC, Creative Commons, US PIRG and ten other organizations currently support this bill.  ARL urges Congress to pass this bill to help address the high cost of college textbooks, which can be a barrier to education.

Plan S and the UC-Elsevier negotiations—publication as part of research funding

*This is a guest post by Judy Ruttenberg, ARL Program Director*

The first quarter of 2019 is replete with open access significance—from the public comment filings on Plan S, to the news last week that the University of California canceled its system-wide subscription to Elsevier journals over the company’s unwillingness to meet a set of faculty-endorsed principles of scholarly communication. The full set of principles is a magnificent document, made all the more powerful as an expression of faculty and senior university administration will. But one aspect in particular marks a noteworthy shift within the research community—a recognition that fully funding research ought to include the open dissemination of that research. Plan S was conceived by a group of national research councils. The UC proposed agreement included an explicit commitment on the part of the university to fund open dissemination of research (through publishing fees) when external funding isn’t present.

The National Science Foundation (NSF) just published its annual “Higher Education R&D Spending” report. In 2016, “academic institutions spent $72 billion on R&D.” While the largest source of funds comes from the federal government, at slightly more than half which are essential to the advancement of science and research, “higher education institutions [themselves] funded 25% of total academic R&D in 2016.” Universities, along with the federal government, state and local governments, and business, are significant research funders. “Universities not only fund research through grants and other forms of direct financial support, they also pay the salaries/benefits of faculty members and other employees who conduct research, as well as providing labs, equipment, technology, etc. that make research possible,” said Shan Sutton, Dean of Libraries at the University of Arizona. “This positions universities as essential funders of research that could implement requirements and infrastructure for the open dissemination of the resulting research outputs.”

What if universities collectively agreed to the same principles as the Plan S coalition and the UC—that fully funding research also means funding open, immediate dissemination? When we talk about academy-owned, or scholar-led publishing—inclusive of text, data, materials, software, etc.—we would do well to remember that nearly one quarter of R&D is funded by universities. And that’s just STEM.[1] Universities fund a much higher percentage of research in the humanities and social sciences, where open access increases reach, readership, and impact in critical arenas such as policy and civic society.

In partnership with the Association of American Universities (AAU) and the Association of University Presses (AUPresses), ARL is leading a five-year pilot project to flip the financing of humanities and social science (HSS) monographs. Under the TOME initiative, participating universities are providing $15,000 grants to their HSS faculty to publish their monographs openly through participating university presses. Having supported their faculty up to the point of publication, in other words, participating TOME institutions are also funding the open publication of the research, and supporting academy-owned presses in the process.

Changing the premise of scholarly publishing from paying to read, to paying to publish, is a subject of complex debate at the level of implementation (who pays, by what mechanism, how much, and how to ensure global equity of access to publishing). And there are different models on the table. But at the level of principle, we can take a moment to celebrate what the UC system achieved—faculty, student, library, and university-administrator support for the open dissemination of research as part of the cost of doing research.

[1]  In descending order of magnitude: life sciences, engineering, physical sciences, geosciences, social sciences, computer sciences, psychology, and mathematical sciences. (March 2019, NSF 19-303 https://www.nsf.gov/statistics/2019/nsf19303/nsf19303.pdf)  

Fair Use/Fair Dealing Week 2019: Day 5 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here. Stay tuned for a post collecting all the highlights from the week.

Resources:

BYU Copyright Licensing Office: Fair Use Checklist

UCI Intellectual Property, Arts, and Technology Clinic: Presentation: Fair Use for Academics

Videos:

 ACRL Presents, Webinar: “Digging for Gold with Bundles of Sticks: Copyright, Fair Use, & Text Data Mining

Canadian Alliance of Student Associations: Student explaining why fair dealing is so important for education

Podcasts:

Harvard Digital Publishing Collaborative, DigiPub, “Defining Fair Use with Kyle Courtney: What Is It and How Do We Use It?

Blog Posts/News:

Archive of Our Own, “Happy Fair Use/Fair Dealing Week!

Center for Media & Social Impact, “True Tales of Fair Use: Hit Documentary Films

Elliott Harmon on EFF, “Don’t Sacrifice Fair Use to the Bots

IFLA, “Canadian Flu? The Doctor Will See You Now

Krista L. Cox on ARL Policy Notes, “Fair Use/Fair Dealing Week 2019: Day 4 Roundup

Kyle K. Courtney and David R. Hansen on Copyright at Harvard, “Fair Use, Innovation and Controlled Digital Lending

Micah Zeller on Washington University in St. Louis University Libraries, “Fair Use and WashU: Part 2

Smithsonian Institution Archives, “Link Love: 3/1/2019

Stan Adams on CDT blog, “Why the EU Copyright Directive is a Threat to Fair Use

UCI Intellectual Property, Arts, and Technology Clinic, “IPAT Celebrates Fair Use Week

Fair Use/Fair Dealing Week 2019: Day 4 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos:

Connecting to Collections Care Online Community, “When Copyright and Cultural Collections Converge” (includes webinar recording, slides and handouts)

Wayne College, “Webinar: Copyright and Fair Use

Bonus video: This video has been around, but Professor Jack Lerner reminded me of it for Fair Use Week. “Everything is a Remix

Blog Posts/News:

Amber Reichert on University of Virginia Libraries News, “Fair Use: Essential for audio and video analysis in the classroom and beyond”

Authors Alliance, “Fair Use Resource Roundup

Center for Media and Social Impact, “Plungers, Remix and Fair Use

David Free on ACRL Insider, “CopyTalk: Campbell v. Acuff-Rose Music Inc. with Kenneth D. Crews

IFLA, “Where Fair Use and Fair Dealing is Being Fought For

Krista L. Cox on Copyright at Harvard, “Celebrating Fair Use in Films” cross-posted to ARL Policy Notes

Krista L. Cox on Above the Law, “Raindrops on Roses and Whiskers on Kittens . . . And a Few of my Favorite Fair Use Things We Enjoy Every Day

Krista L. Cox on ARL Policy Notes, “Fair Use/Fair Dealing Week 2019: Day 3 Roundup

Marlo MacKay on The Libvine, “Fair Dealing Week 2019—Fair Dealing and Students

New Media Rights, “Fair Use Week 2019: Fair Use is an Indispensible Part of Our Economy and Culture

The Odyssey Online, “Fair Use: What it Is and Why it Needs Protecting

Rebekah Modrak on Fair Use Week Tumblr, “Miller Beer-Cam & Fair Use

UCI Intellectual Property, Arts, and Technology Clinic, “IPAT Celebrates Fair Use Week

Other Resources:

Not released as a Fair Use/Fair Dealing Week resource, but Professor Matthew Sag has a new article, “The New Legal Landscape for Text Mining and Machine Learning

Fair Use/Fair Dealing Week 2019: Day 3 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Video:

BYU Copyright Licensing Office: “Modicum Interview: Kerry Soper and The Far Side

Center for Textual Studies and Digital Humanities, Loyola University Chicago: “Fair Use in Teaching and Research, with Margaret Heller and Niamh McGuigan – Part 1

Center for Textual Studies and Digital Humanities, Loyola University Chicago, “Fair U se in Teaching and Research – Part 2

Blog posts/News:

Ashland University, “Fair Use Week: Infographic

Center for Media and Social Impact, “Chess, Moustaches, and Fair Use

David Robinson and Amanda Wakaruk in The Hill Times, “Fair dealing is a right, not a privilege

Doug Pete, “Fair Use/Fair Dealing Week

Hallie Brodie on The Quad, “A Look at Educational Fair Dealing

Jonathan Band on The DisCo Project, “Amicus Briefs Filed in Support of Google’s Petition in Oracle Case

Jonathan Band on ARL Policy Notes, “Betty Ballantine and the Manufacturing Clause

Krista L. Cox on ARL Policy Notes, “Fair Use/Fair Dealing Week 2019: Day 2 Roundup

Lachlan MacLeod on The Libvine, “Fair Dealing Week 2019—Faculty and Fair Dealing

Celebrating Fair Use in Films

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross posted to Copyright at Harvard Library*

This year, Fair Use/Fair Dealing Week immediately follows the Oscars and I definitely have movies on my mind. The Green Book (which I haven’t seen yet) was one of the nominees—and ultimately winner—of the coveted Best Picture Award, but was not without its share of critics. Like other movies dealing with race, critics said that it minimized the true extent of racism and fell into the “White Savior” trope. Just before the Academy Awards, comedian Seth Meyers released a video highlighting these criticisms parodying popular films, including Hidden Figures, The Blind Side, and The Help. Meyer’s White Savior: The Movie Trailer is a fantastic example of parody which, of course, is protected by fair use. Since Kenny Crews covered parody so well in his Day 1 post, I’ll turn to a different aspect of fair use and movies.

Although films obviously create their own creative content, protectable by copyright, often these works incorporate existing content. Depending on the particular use, a filmmaker or production studio may choose to license a particular copyrighted work, but in other instances the film creator has relied on fair use. Here are some examples where fair use and films have gone hand-in-hand—both in the documentary film context as well as feature films and shows.

Documentary filmmakers have relied heavily on the doctrine of fair use, which makes a lot of sense. If documentary filmmakers constantly had to rely on permission and licenses—which would also mean that a rightholder could refuse to grant permission—the result could be that these documentaries lacked proper historical references and context. In a 1996 case, the Southern District of New York refused to grant Turner Broadcasting’s motion for injunctive relief, finding that the clips of a boxing match film involving Muhammad Ali and George Foreman in a documentary about Muhammad Ali was likely a fair use. In Monster Communications, Inc. v. Turner Broadcasting Systems, the court noted that only a small portion of the total film—just 41 seconds—was taken and that the documentary used it for informational purposes.

In another instance of documentary filmmaking, artist Bouchat sued over the use of the Baltimore Ravens’ logo in several videos. While a prior case held that the Baltimore Ravens had infringed the logo design by Bouchat for several years, the use in the films (and historical exhibits) was considered fair.   The Fourth Circuit held in Bouchat v. Baltimore Ravens that the videos at issue used the copyrighted material in a transformative way, telling the history of the Baltimore Ravens and the logos were “fleeting” in nature.

And in yet another litigated case over a documentary film, National Center for Jewish Film v. Riverside Films, a district court noted that the use of film clips in Sholem Aleichem: Laughing in Darkness (about the life of a 19th century Yiddish author) was transformative because it incorporated various clips with scholarly commentary (NB: whether the films had entered the public domain was also questioned, a factor that the court weighed in favor of fair use). Again, because these clips were used in a transformative way that did not supplant the market for the original film, the court held the use to be fair.

Not every fair use ends up being litigated, though. Indeed, most documentary movies probably don’t involve rightsholders claiming copyright infringement in part, thanks to the Documentary Filmmakers’ Statement of Best Practices in Fair Use. That Code of Best Practices, like other Codes (see: Code of Best Practices in Fair Use for Academic and Research Libraries or the Code of Best Practices in Fair Use for Software Preservation—two best practice statements released by ARL), relies on the consensus view of fair use best practices in the community for which it was written. The 2005 Code for Documentary Filmmakers has had a tremendous impact on the community, making it easier for filmmakers to get insurance, avoiding unnecessary licensing costs and leading to the release of films that may never have been finished otherwise. One of the successes is This Film Is Not Yet Rated about the MPAA’s rating system. While the director had initially planned to license the clips used, those licenses would have prevented him from using the material in a way that criticized the entertainment industry.

While the documentary filmmaker community relies heavily on fair use there are a number of examples where fair use was invoked in feature films, as well. For example, the Oscar-winning movie Midnight in Paris, about a screenwriter, played by Owen Wilson, who travels back in time to the 1920s and hangs out with luminaries like Scott Fitzgerald, Ernest Hemingway, Gertrude Stein, Cole Porter, Salvador Dali and others was the subject of a lawsuit. In one scene, the main character paraphrases a line from novelist William Faulkner’s novel, Requiem for a Nun (the line in question is, “The past is never dead. It’s not even past”) and provided attribution back to Faulkner. Nonetheless, the Faulkner estate sued, claiming that the use of the line infringed copyright. The Northern District Court of Mississippi referenced de minimis usage (discussed a bit more below), but also conducted a full fair use analysis finding that the quote was of “miniscule” importance to Faulkner’s novel as a whole and the use in Midnight in Paris, which amounted to a mere 8 seconds of the feature-film, did not harm Faulkner’s market for his novel. To the contrary, the court questioned: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.”

Similarly, in the 2013 film Lovelace, based on the biography of Linda Lovelace, an actress who starred in a famous pornographic film but later became a spokesperson against pornography, the producers re-created three scenes from Deep Throat. The Southern District of New York in Arrow Productions v. The Weinstein Company ruled the use transformative because it provided “new, critical perspective” on Lovelace and would not supplant the market for the pornographic film.

Courts have considered and upheld fair uses in the film context, but some have found in favor of the defendant without even needing to go through the four fair use factors. Instead, for various uses of copyrighted works in TV shows and feature films, some courts have found in favor of the use on the basis of fair use’s cousin, de minimis use. In these de minimis use cases, courts have determined that the amount used was so small and trivial, the court need not engage in a full fair use analysis. These cases have included, for example, the 2000 rom-com What Women Want, featuring Mel Gibson (involving the depiction of a pinball machine in the background); the 1995 crime thriller SE7EN, featuring Brad Pitt and Morgan Freeman (use of copyrighted photos appeared fleetingly and out of focus); and HBO’s TV series Vinyl which was created by Mick Jagger and Martin Scorsese about a record executive in the 1970s (fleeting use of a dumpster tagged with graffiti in the background of a single scene).