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Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?
Abstract
The United States Copyright Act allows for fair use of copyrighted material under certain circumstances, but federal courts have been inconsistent in rulings on copyright infringement cases in which documentary filmmakers claim fair use. This can be problematic for documentarians, who often use copyrighted materials. The 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use” addressed this inconsistency by providing guidelines for filmmakers. This article analyzes relevant federal cases before and after the statement in which a documentary filmmaker was sued under the Copyright Act for infringement and in which a court addressed the issue of whether the use was fair. A case analysis shows that federal rulings have become slightly more accommodating toward the use of copyrighted material in documentaries and the use of copyrighted video in general since the statement was introduced. The statement's relevance to fair use case law is also examined.
... In the last 15 years, scholars have begun to turn their attention to empirical data in copyright. Some of this work features analysis of judicial decision-making, to examine how fair use is interpreted or decided in practice (Abdenour, 2014;Beebe, 2008;Madison, 2004;Samuelson, 2009). This work has found gathering consistency in fair use decision-making since 1990, following the logic of a seminal law review article arguing for the centrality of transformativeness (Leval, 1990). ...
... Finally, some empirical studies have used a combination of longform interviews and surveys of specific creative fields. Some of it has documented the measurable costs of creators' confusion and frustration with copyright law (Authors, 2004(Authors, , 2007Abdenour, 2014;Aufderheide, Milosevic, & Bello, 2016). Other work, sometimes following on this original baseline research, has measured the benefits of copyright exceptions and exemptions such as fair CREATIVE ACTION UNDER TWO COPYRIGHT REGIMES 6 use, when correctly legislated, enforced, adopted by institutions, and communicated to maker communities (Falzone, 2010;Aufderheide & Jaszi, 2018). ...
... In the last 15 years, scholars have begun to turn their attention to empirical data in copyright. Some of this work features analysis of judicial decision-making, to examine how fair use is interpreted or decided in practice (Abdenour, 2014;Beebe, 2008;Madison, 2004;Samuelson, 2009). This work has found gathering consistency in fair use decision-making since 1990, following the logic of a seminal law review article arguing for the centrality of transformativeness (Leval, 1990). ...
... Finally, some empirical studies have used a combination of longform interviews and surveys of specific creative fields. Some of it has documented the measurable costs of creators' confusion and frustration with copyright law (Aufderheide, & Jaszi, 2004;Aufderheide, Hobbs, & Jaszi, 2007;Abdenour, 2014;Aufderheide, Milosevic, & Bello, 2016). Other work, sometimes following on this original baseline research, has measured the benefits of copyright exceptions and exemptions such as fair use, when correctly legislated, enforced, adopted by institutions, and communicated to maker-communities (Falzone, 2010;Aufderheide & Jaszi, 2018). ...
A comparison of the behaviors of two creative populations operating within cross-media environments in the United States and Australia tests the comparative effect of the two nations' legal environments on the range of creative expression and on costs of production in increasingly digitized production processes. The U.S. creators have access to the flexible and expansive exception of fair use, while Australian creators' ability to use third-party copyrighted content are far more constrained. While availability of copyright exceptions plays a crucial role, other factors including demographics, disciplinary norms, and social inequality may also be important in creative practices and professions.
... (Aufderheide & Jaszi, 2011) No large copyright holders complained; indeed, attorneys reported taking on large-media clients, including motion picture studios, newly interested in in employing fair use. Academics studied and cited the effectiveness of the best-practices approach to make fair use more accessible to creative communities (Abdenour, 2014;Falzone & Urban, 2010;Falzone, Jennifer, 2010) Despite these measures, the conversation about the use of copyrighted works within the documentary film community, as reflected in festival panels and discussions in the ensuing decade, continued to be dominated by concerns about risk. This concern, unsubstantiated by data, loomed large in a field where most documentarians work on their own in small businesses, and where one bad decision could threaten the business' future. ...
... (Aufderheide & Jaszi, 2011) No large copyright holders complained; indeed, attorneys reported taking on large-media clients, including motion picture studios, newly interested in in employing fair use. Academics studied and cited the effectiveness of the best-practices approach to make fair use more accessible to creative communities (Abdenour, 2014;Falzone & Urban, 2010;Falzone, Jennifer, 2010) Despite these measures, the conversation about the use of copyrighted works within the documentary film community, as reflected in festival panels and discussions in the ensuing decade, continued to be dominated by concerns about risk. This concern, unsubstantiated by data, loomed large in a field where most documentarians work on their own in small businesses, and where one bad decision could threaten the business' future. ...
This study, based on a survey of 489 documentary filmmakers, is a case study in copyright policy in and through practice. It assesses the changes in documentary production practice around clearance of copyrighted material since the creation of the Documentary Filmmakers' Statement of Best Practices in fair use in 2005. Fair use, an exotic and occasional feature of documentary film in 2004, has become well known and commonly employed. Creative options for filmmakers concerning the use of third-party material have dramatically improved with changes in norms after the issuing of the Statement. Attitudes about fair use are strongly associated with free expression and creative opportunity, and vary with experience. Where filmmakers have changed work because of copyright concerns, they themselves rather than any gatekeeper have made the decision to do so. Where change is associated with fair use, risk is a common concern. Newer filmmakers are more likely to support the use of copyrighted material to make new work, but less likely to know about fair use, and also more likely to have experienced takedowns online. Both education about and experience with fair use appear to have an effect on practice. Filmmakers continue to lack reliable information on the actual risk landscape, and about fair use on digital platforms.
ABSTRAK
Para Harimau Yang Menolak Punah(Imanda Dea Sabiella dan Edho Cahya Kusuma, 2013) merupakan judul dokumenter televisi produksi Eagle Institutedengan ciri filmis berupa paduan antara gambar dan tuturan (wawancara). Dokumenter ini merupakan objek material yang menarik untuk diteliti dalam konteks kontinuitas dan perubahan estetika, selama era pasca reformasi dengan zaman Orde Baru sebagai pembanding. Jika pada masa orde baru, kampanye pelestarian lingkungan melalui media dokumenter notabene diproduksi oleh pemerintah melalui estetika sinematik yang bersifat propagandis, maka saat ini dokumenter produksi Eagle Institutejustru menggunakan estetika sinematik yang kritis sebagai konter bagi pemerintah. Fakta dan fiksi (faksi) menjadi istilah yang digunakan dalam penelitian ini sebagai bentuk kontinuitas dan perubahan dokumenter televisi Indonesia. Alasan pemilihan istilah ini adalah dunia fenomenal dalam banyak kasus, seperti yang terlihat dalam dokumenter, seakan berbeda dari "dunia nyata", meskipun dalam kenyataannya rekaman itu berasal dari “dunia nyata/realitas”. Penelitian ini menggunakan pendekatan film kognitif untuk mengamati sejauh mana Faksi beroperasi sebagai media kritik yang secara estetis merangkai dokumenter tersebut. Struktur mental digunakan untuk menjelaskan Faksi melalui petunjuk filmis hingga diperoleh kesimpulan tentang kritik yang ingin disampaikan melalui dokumenter.
ABSTRACT
Para Harimau Yang Menolak Punah (Imanda Dea Sabiella dan Edho Cahya Kusuma, 2013) is the title of a television documentary produced by Eagle Institute. The documentary has characters that specifically contains of expository shots. This documentary is an interesting material object to be examined in the context of continuity and aesthetic change, during the post-reform era with the New Order era as a comparison. During the new order era, environmental conservation campaigns through documentary media were produced by the government through propagandist cinematic aesthetics. Whereas, the post-reform documentary produced by Eagle Institute actually uses a critical cinematic aesthetic as a counter for the government. Fact and fiction (faction) became the term used in this study as a form of continuity and change of Indonesia documentary. The reason for choosing this term is the phenomenal world in many cases, as seen in the documentary, as though it were different from the "real world", even though in reality it came from "the real world". This study uses a cognitive film approach to observe the extent to which the Faction operates as a criticism medium which aesthetically assembles the documentary. The mental structure is used to explain the Faction through filmic clues to the conclusion of the criticism that the documentary wishes to convey.
“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.
As digital opportunities emerge in the visual arts—to produce multimedia art and digital scholarship, publish online, and hold online museum exhibitions—old copyright frustrations have worsened in a field where getting permissions is routine. A national survey of 2828 visual arts professionals, combined with 100 in-depth interviews of visual arts practitioners throughout the United States, explored how visual arts professionals use the US copyright doctrine of fair use. Results showed widespread lack of confidence and misconceptions about fair use; resulting exaggerated risk assessment; personal and social relations within the community that deter reliance on fair use; and consequent delays, deformations, and failure to execute mission.
The fair use doctrine is famous for its uncertainty. As lawyers who counsel clients making fair use of copyrighted materials, we have experienced the frustration caused by fair use’s unpredictability on many occasions. In this Essay we discuss a more positive piece of the story: the development of Statements of Best Practices in Fair Use for various user communities. The Best Practices, pioneered by Peter Jaszi and Patricia Aufderheide, have helped demystify fair use for specific user groups without unduly limiting the flexibility that gives the fair use doctrine its strength, and have helped lawyers and gatekeepers understand important user norms.
This monograph examines the status of the fair use doctrine as a “First Amendment safeguard” used to maintain the proper constitutional balance between authors' rights and public access to creative works. In particular, it examines the role that First Amendment values have played in the courts' analysis of fair use cases since enactment of the 1976 Copyright Act, focusing on a subset of cases involving secondary uses of copyrighted material of the types of speech that would receive greater protection under traditional First Amendment analysis. Cases involving fair use disputes over news reporting and comment and criticism, including political speech and parody, are examined in order to determine the underlying purpose of fair use and its role in preserving First Amendment values within the copyright system.
"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application. The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story of the song demonstrates that a long, unitary copyright term requires changes in copyright doctrine and administration. With such a term, copyright law needs a doctrine like adverse possession to clear title and protect expectations generated when, as with this song, putative owners do not challenge distribution of unauthorized copies for more than 20 years. And Copyright Office recordkeeping policy, which currently calls for discarding correspondence after 20 years and most registration denials and deposits after five years, must be improved to facilitate resolution of disputes involving older works. Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article.