Guide for staying legal in remix culture created by scholars, including USC’s Jennifer Urban
The Intellectual Property and Technology Law Clinic at USC Law announced the release of a new code of best practices in fair use for creators in the burgeoning online video environment (centerforsocialmedia.org/remix).
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| Jennifer Urban |
The code, grounded in the practices of online video makers and in the law, was collaboratively created by a cross-institutional team of scholars and lawyers, including Jennifer Urban, director of the Intellectual Property and Technology Law Clinic at USC, who served as a member of the Code of Best Practices Committee.
The code was coordinated by American University’s Center for Social Media and led by American University professors Pat Aufderheide and Peter Jaszi.
“The outpouring of creativity enabled by digital media is inspiring — but online video creators can be stymied by confusion over what legally is allowed and what is not,” Urban said. “The Best Practices will help online creators better understand fair use; I am delighted to have been a part of the Center for Social Media’s excellent work.”
The first of their kind, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law.
The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that
may be considered fair, under certain limitations. They are:
• Commenting or critiquing of copyrighted material
• Use for illustration or example
• Incidental or accidental capture of copyrighted material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a remix,
whose elements depend on relationships between existing works
For instance, a blogger’s critique of mainstream news is commentary. The toddler dancing to the song “Let’s Go Crazy” is an example of incidental capture of copyrighted material. Many variations on the popular online video “Dramatic Chipmunk” may be considered fair use, because they recombine existing work to create new meaning.
Until now, anyone uploading a video has run the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the Internet. As online providers have begun to negotiate with media companies, everyone has agreed that fair use should be protected.
Before the code’s release, there was no clear statement about what constitutes fair use in online video.
“This code of best practices will protect an emerging creative zone—online video—from de-facto censorship,” Aufderheide said. “Creators, online video providers and copyright holders will be able to know when copying is stealing and when it’s legal.”
The fair use doctrine is as relevant in the digital domain as it has been for almost two centuries in the print environment,” said Jaszi. “Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution,” he said.
In addition to USC Law, other committee members include individuals affiliated with Harvard University; Georgetown University; Massachusetts Institute of Technology; Stanford Law School; University of California, Berkeley; and University of Pittsburgh School of Law.
The code is part of a larger participatory media project (centerforsocialmedia.org/fairuse), funded by the Ford Foundation as part of the Center for Social Media’s Future of Public Media Project. The project has already generated a convening and a study on common copyright practices in remix culture, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video.
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