Tag Archives: Fair Use

Fair Use/Fair Dealing Week Day 5 Roundup

Last week was 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 5 of Fair Use/Fair Dealing Week 2020! Don’t see yours? Contact us to get it added! You can view previous roundups here.

Blog Posts/News

Alvin Benjamin Carter III on Fair Use Week 2020 Tumblr, “Sampling In Cultural Context… in Court: ‘You never thought that hip-hop would take it this far’

Brandon Butler on The Taper, “Fair Use and Biography, A First Draft Interview

Brandon Butler on The Taper, “Is Sampling Finally Being Recognized as Fair Use? Kinda.

Kathleen DeLaurenti on Copyright at Harvard Library Blog, “Hacking Fair Use: Making Music Accessible

Marle McKay on Dalhousie Libraries’ Libvine Blog, “Fair Dealing Week 2020” (five-part series)

Robin Sinn on the Sheridan Libraries and University Museums Blog, “Fair Use Can Be Fun!

Sarah Hartman-Caverly on the ALA Intellectual Freedom Blog, “From Lawyers to Language Practices: Two Hip-Hop Professors and the Living Legacy of 2 Live Crew

Fair Use/Fair Dealing Week 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 2020! Don’t see yours? Contact us to get it added! You can view previous roundups here.

Blog Posts/News

Chase Ollis on ACRL Insider, “Learning Opportunities: Fair Use/Fair Dealing

Dave Hansen on Copyright at Harvard Library Blog, “Fair Use: Copyright’s Deus Ex Machina?

Jonathan Band on ARL Policy Notes, “Fair Use in South Africa

Jonathan Band on The DisCo Project, “Harry Potter and the Circular Logic: Oracle and the Solicitor General’s Supreme Court Briefs

Public Knowledge Project, “Fair Use, Worth Celebrating – But Open Access Needs Copyright Reform

Fair Use in South Africa

Guest blog post by Jonathan Band, policybandwidth and counsel to the Library Copyright Alliance

The United States Trade Representative (USTR) is reviewing the eligibility of South Africa (SA) for trade preferences because the SA Parliament has passed a Copyright Amendment Bill (CAB) that the International Intellectual Property Alliance (IIPA) claims will result in inadequate and ineffective protection of copyright in SA. The IIPA consists of US-based copyright associations such as the Motion Picture Association, the Recording Industry Association of America, and the Association of American Publishers. While IIPA raises numerous objections to the CAB, the focus of IIPA’s opposition is that the CAB adopts a US-style fair use right.

IIPA generally urges USTR to pressure foreign governments to adopt US copyright principles. IIPA, however, has consistently opposed the export of fair use. To be sure, IIPA members routinely rely on fair use when sued for infringement in the United States. The IIPA petition, therefore, sets forth justifications for opposing SA’s adoption of a central feature of US copyright law. These justifications have no merit.

First, IIPA states that the CAB creates a “hybrid” system combining a flexible fair use provision with specific exceptions. But that is exactly what US law does, as well as every other country that has fair use. For example, the US Copyright Act combines fair use with specific exceptions for libraries and archives (section 108); educational institutions, religious organizations, and small restaurants (section 110); users of computer programs (section 117); and authorized entities that provide services for people with print disabilities (sections 121 and 121A).

Second, IIPA complains that SA lacks the legal precedent—established over decades—that has served to define, refine, and qualify that doctrine in the United States. Under this reasoning, no country could ever adopt fair use.  Moreover, via the internet, judges in SA would have easy access to hundreds of fair use decisions in the United States, as well as the opinions by judges in the other jurisdictions that have fair use exceptions. Indeed, SA judges can rely upon online tools such as the US Copyright Office’s Fair Use Index, which contains a searchable database of summaries of hundreds of fair use decisions. The Copyright Office explains, “The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public,” thereby directly addressing IIPA’s concerns. (In the introduction to its Fair Use Index, the Copyright Office notes, “Fair use is a longstanding and vital aspect of American copyright law.”)

Third, IIPA argues that SA does not have statutory damages, which copyright owners in the United States rely upon to deter and remedy infringement. The link between exceptions and remedies is unclear. Regardless, SA does allow the award of “additional damages” in cases of flagrant infringement. Additionally, SA follows the “English rule” for the award of attorney’s fees. Under the English rule, the prevailing party automatically recovers attorney’s fees. The English rule strongly discourages a defendant from pursuing a defense unless it has a high degree of confidence it would prevail. This would insure that defendants would not assert fair use frivolously.

On January 30, 2020, USTR held a hearing on IIPA’s petition, at which the Library Copyright Alliance (LCA), of which ARL is a member, testified in favor of maintaining trade preferences for SA. Additionally, LCA is submitting a post-hearing brief at the end of this week. The withholding of trade preferences could harm the SA economy by disrupting SA exports to the United States.

Other countries in Africa, and elsewhere in the developing world, are looking to see how this story ends. The CAB could become a model for progressive copyright legislation; or it could be a cautionary tale of what happens when a developing country tries to “step out of line.”

Fair Use/Fair Dealing Week 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 2020! Don’t see yours? Contact us to get it added! You can view previous roundups here.

Blog Posts/News

Carla Myers on Copyright at Harvard Library Blog, “Fair Use and Video Streaming

Hannah Gunderman and Matthew Lincoln on Carnegie Mellon Libraries Tartan Datascapes Blog, “Special Installment: dSHARP and Fair Use Analyses of Text Data Sources

Karen Coghlan on National Network of Libraries of Medicine Blog, “Fair Use/Fair Dealing Week

Sara Benson on IFLA Library Policy and Advocacy Blog, “The HathiTrust Digital Library: A Fair Use Story

University of Manitoba News, “Fair Dealing Week: Understanding User’s Copy Right

Event

UCLA Library, Sounds Fair to Me! The Copyright Game Show

Podcast

University of Illinois at Urbana-Champaign Library Copyright Chat, “Melissa Ocepek’s Insights into Copyright Instruction

Video

Association of College and Research Libraries, “ACRL Presents: Understanding Fair Use Through Case Law

Fair Use/Fair Dealing Week 2020 Day 2 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 2020! Don’t see yours? Contact us to get it added! You can view previous roundups here.

Blog Posts/News:

Authors Alliance, “Fair Use Resource Roundup

Brandon Butler on Copyright at Harvard Library Blog, “The Feist-y Reason That Text and Data Mining is Fair Use

Erin Nevius on ACRL Insider, “ACRL Books Exploring Fair Use/Fair Dealing

Digital Exhibit:

Carnegie Mellon University Libraries, “Pertains To Me: I Heard the Mother of All Not Dead Youth, A Mountain Pensive, On Her Side, Gazing

Events

MIT Libraries, Fun and Legal: Making Art through Fair Use

Fair Use/Fair Dealing Week 2020 Day 1 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 1 of Fair Use/Fair Dealing Week 2020! Don’t see yours? Contact us to get it added! You can view previous roundups here.

Blog Posts/News:

Brandon Butler on The Taper, “Fair Use Week Day 1: “Fair Use in Seven Words” (Reprise)

Cathryn Copper on Open @VT Blog, “Fair Use in the Visual Arts

Christine Fruin on Atla Blog, “SCOOP: Fair Use Week 2020 – Fair Use in Pop Culture

Chase Ollis on ACRL Insider, “Celebrate Fair Use/Fair Dealing Week 2020

Denise Nicholson on IFLA Library Policy and Advocacy Blog, “Report on Status of Copyright Amendment Bill in South Africa

Kenneth D. Crews on Copyright at Harvard Library Blog, “Presidents, Politics, and Fair Use

LeEtta Schmidt, “USF Libraries Celebrate Fair Use Week

Oklahoma State University–Tulsa Blog, “What’s the Use in Fair Use?

Events:

Fair Use/Fair Dealing Week 2020 events

Fair Dealing Week 2020 events in Canada

Duke University Libraries, What happens when Netflix is Dead? How licensing and copyright threaten the future of our cultural heritage (and how Fair Use can save it)

Video:

Kyle Courtney, “Fair Use Fights Fascism: Some Fair Use Week Thoughts on the 1st Amendment & Fair Use

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).