Reclaiming Fair Use: How to Put Balance Back in Copyright, Second Edition - Softcover

Aufderheide, Patricia; Jaszi, Peter

Softcover

ISBN 10: 022637419X ISBN 13: 9780226374192

Verlag: University of Chicago Press, 2018

Inhaltsangabe

In the increasingly complex and combative arena of copyright in the digital age, record companies sue college students over peer-to-peer music sharing, YouTube removes home movies because of a song playing in the background, and filmmakers are denied a distribution deal when a permissions i proves undottable. Analyzing the dampening effect that copyright law can have on scholarship and creativity, Patricia Aufderheide and Peter Jaszi urge us to embrace in response a principle embedded in copyright law itself—fair use.
Originally published in 2011, Reclaiming Fair Use challenged the widely held notion that copyright law is obsolete in an age of digital technologies. Beginning with a survey of the contemporary landscape of copyright law, Aufderheide and Jaszi drew on their years of experience advising documentary filmmakers, English teachers, performing arts scholars, and other creative professionals to lay out in detail how the principles of fair-use can be employed to avoid copyright violation. Taking stock of the vibrant remix culture that has only burgeoned since the book’s original publication, this new edition addresses the expanded reach of fair use—tracking the Twitter hashtag #WTFU (where’s the fair use?), the maturing of the transformativeness measure in legal disputes, the ongoing fight against automatic detection software, and the progress and delays of digitization initiatives around the country.
Full of no-nonsense advice and practical examples, Reclaiming Fair Use remains essential reading for anyone interested in law, creativity, and the ever-broadening realm of new media.

Über diesen Titel

Über die Autorin bzw. den Autor

Patricia Aufderheide is University Professor of communication studies in the School of Communication at American University’s Washington School of Communication, and founder of the Center for Media & Social Impact, where she serves as Senior Research Fellow. Peter Jaszi is professor of law and director of the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law.

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Reclaiming Fair Use

How to Put Balance Back in Copyright

By Patricia Aufderheide, Peter Jaszi

The University of Chicago Press

Copyright © 2018 The University of Chicago
All rights reserved.

ISBN: 978-0-226-37419-2

Contents

ACKNOWLEDGMENTS, 
INTRODUCTION, 
1 The Culture of Fear and Doubt, and How to Leave It, 
2 Long and Strong Copyright: Why Fair Use Is So Important, 
3 The Decline and Rise of Fair Use: The Back-Room Story, 
4 The Decline and Rise of Fair Use: The Public Campaigns, 
5 Fair Use Resurgent, 
6 Fair Use in the Courtroom: How Judges Think Now, 
7 Documentary Filmmakers: Pioneering Best Practices, 
8 Codes of Best Practices Catch On, 
9 Fair Use Expands Its Reach, 
10 How to Fair Use, 
11 The International Environment, 
Appendix A. Codes of Best Practices in Fair Use, 
Appendix B. Documentary Filmmakers' Statement of Best Practices in Fair Use, 
Appendix C. Myths and Realities about Fair Use, 
Appendix D. Answers to Fair Use: You Be the Judge, 
REFERENCES, 
INDEX, 

CHAPTER 1

The Culture of Fear and Doubt, and How to Leave It

Gordon Quinn, for forty years a professional filmmaker, including as executive producer on the award-winning film Hoop Dreams, was working on a public television program in 2001. New Americans is about the lives of new immigrants to the United States. In one scene, Israel Nwidor, a Nigerian immigrant trained as a chemical engineer and now working as a cab driver, is listening to a George Strait song in his car when a white guy on a motorcycle pulls alongside and gives him the evil eye. It's one of those little moments that reveal a lot.

Twenty years before, Gordon wouldn't have given the song playing on the speakers another thought. But over the last two decades, he had become all too conscious of the copyrighted material in documentaries. Broadcasters and insurers had become hypervigilant, demanding assurances that he had licensed every stray bit of copyrighted material. Did the guys at the high school reunion sing along with "Sweet Caroline"? License it. Were the middle-school girls on a sleepover listening to pop songs? License them. And what about those posters on the walls? The books on the shelf?

As a result, Gordon didn't doubt that he would need to license the George Strait song that Israel was nodding along to. But he also knew from experience that he probably wouldn't get an answer to an email sent to the music company. The amount of money involved would be so trivial that the music company's licensing executives wouldn't even respond.

So Gordon cut out the scene. Nobody watching it even knew they were missing anything. It was one of a thousand little cuts that nobody knew they were missing, each one of them a silent erasure of a piece of reality.

Cyndy Scheibe, a psychology professor at Ithaca College and director of Project Look Sharp, a media literacy initiative, uses comic strips from newspapers and other pieces of popular culture — clips from documentaries, popular films, and print advertisements — in her classes to teach about point of view and representation. Her team at Project Look Sharp has created online curriculum materials about the media's representation of the Middle East, featuring among other things a clip from the Disney film Aladdin.

Could Cyndy's teaching materials safely be shared with other teachers? Did she dare to put it on an open website? The Ithaca College legal experts and administrators were divided, and finally demanded that both Cyndy and her colleague Chris Sperry personally pledge their willingness to go to court to defend themselves should their use of unlicensed copyrighted material be litigated.

Cyndy and Chris gambled, and let the site go up. They erred on the side of caution where they could. For one exercise that involved comparisons of covers of the magazine Newsweek, they tried to license the covers from the news corporation. But the company would not license them for an appropriate fee, and furthermore, the company told them, Cyndy and Chris would also have had to negotiate with the subjects of the covers. The company spokesperson was actually talking about two kinds of rights: the company's copyright, and the celebrities' right of publicity. Cyndy and Chris believed, correctly, that they did not need to get permission from the likes of Osama bin Laden, since they had a First Amendment right that overrode any publicity claims he could make. As for the copyright claims, they decided to use the magazine covers under fair use; they and their university counsel believed there was no question that they had a right to do so.

Even when they were sure they were within the law, though, Cyndy and Chris were given pause by what they'd heard in the rumor mill. That little clip from Aladdin — did that put them in jeopardy from the Disney Corporation? They'd heard that Disney was wildly litigious. They finally added that clip to the website, and held their breaths.

They were relieved to see Project Look Sharp be widely used, and even more relieved as the threat of litigation failed to emerge. They had pledged if necessary to loot their 401(k)s for legal funds to defend their rights to reference their own culture, and — for now — they thought they didn't have to.

Stephanie Lenz, proud mother of thirteen-month-old Holden in State College, Pennsylvania, posted one of those hilariousfor-family videos of Holden jiggling up and down in the kitchen, dancing to the beat of a Prince song. Unlike media professionals, she never once thought about copyright as she did so. But no sooner had she let friends and family know about the video than it was gone. YouTube had obeyed a request from Universal to take down the video for copyright infringement.

Stephanie did what most YouTube posters don't. She went to the Electronic Frontier Foundation, which in 2007 sued Universal for abusing the Digital Millennium Copyright Act. (The DMCA requires internet service providers like Verizon and YouTube to take down works that copyright holders claim infringe on their copyright.) EFF seized on the chance to work with Stephanie; the lawyers there wanted a good case to establish that frivolous takedown notices could be costly. They sued Universal for bad faith in issuing the takedown notice.

By 2015 Holden was in middle school and the rights and wrongs of the company's conduct had not yet been resolved, but that year the court established an important principle: "Copyright holders cannot shirk their duty to consider — in good faith and prior to sending a takedown notification — whether allegedly infringing material constitutes fair use." (Just what this affirmative duty consists of also remains to be seen.)

Walking Away from Fear and Doubt

Whatever their rights to use the copyrighted material they employed in these works, Gordon, Cyndy, Chris, and Stephanie all were trapped within a culture of fear and doubt. They didn't necessarily participate in it, but they faced gatekeepers who were also enmeshed in the same culture, and who enforced it (sometimes willy-nilly). Ultimately, each of these people challenged that culture, in a way that gatekeepers could hear and, in some cases, even listen to. These are just a few of the people who are changing their own stories and showing the way for the rest of us.

Gordon Quinn had been trained by the last two decades of producing for television to know that he needed to show insurers a...

Details zur Ausgabe

• Verlag: University of Chicago Press
• Erscheinungsdatum: 2018
• Sprache: Englisch
• ISBN 10: 022637419X
• ISBN 13: 9780226374192
• Einband: Taschenbuch
• Anzahl der Seiten: 254
• Kontakt zum Hersteller: The University of Chicago Press; https://press.uchicago.edu/index.html; ; 5801 S. Ellis Avenue; Chicago; IL; 60637; USA
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