At the last meetup of Kuwait COETAILers, we conversed at length about creating our Course 3 videos and particularly about selecting the media used therein. There was a lot of confusion about what we were allowed to use, and today when I sat down to plan out my own video I ran into the issue headlong. After researching fair use, I came to the conclusion that while grabbing photos from the internet and songs from your hard drive will greatly reduce the amount of time you spend making your video and result in a higher quality product, it is probably not permissible under US copyright law – but it should be.

 

Summary of US Fair Use Copyright Law

Here’s what Stanford University Libraries and Academic Information Resources (SULAIR) has to say about fair use:

The four factors judges consider are:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

(Measuring Fair Use: The Four Factors)

There’s no numerical formula that decides how many of these criteria you need to meet; you need to puzzle out some very subjective assessments:

Purpose and Character

The first of the above criteria deals with whether your work is transformative – have you changed the meaning of the work? Have you added value to it by including new ideas, aesthetics, and understandings?

Nature of Copyrighted Work

If you’re taking from a nonfiction work, you’re given more leeway. Likewise, if you take from a published source, it’s better than taking from an unpublished one, because the author has the right of first publication and you could hurt the author’s sales by preempting his/her publication.

Amount & Substantiality

The less you take the better, but even taking a little can get you into trouble if you’ve gotten at the “heart” or “value” of the work: “it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song “Satisfaction”” (SULAIR). Using the chorus of any song would seem to fit this definition; “generally speaking, one is not allowed to take the ‘value’ of a song without permission, and sometimes that value is found even in a three-second clip” (SoundExchange as qtd. by Mike Hiestand). Note: parodies get away with using a lot more of a copyrighted work.

The Market Effect

If you deprive the copyright owner of income, you will quite likely run into trouble. Parodies also get more leeway here.

Doesn’t the law specifically protect those of us in academia?

From what I’ve found, there’s no blanket rule directly addressing the use of images and music in student works, which is mostly what’s at issue here. Attorney Mike Hiestand asserts that there is no defined 30-second rule protecting you if you use only small portions of a copyrighted work, and that it’s not even a good rule of thumb.

However, there are proposed (though not yet adopted into law) guidelines created by a group of educators, scholars and publishers. These guidelines do include a “30-second” rule for multimedia projects created by students and teachers – you can use up to 10% of a song or video (but not more than 30 seconds), and you can even use images wholesale – so long as you don’t use more than five images from a single author (Proposed Educational Guidelines on Fair Use). Some school districts appear to be recommending that teachers use these proposed guidelines in practice.

See these useful examples from actual legal cases of what is and isn’t fair use.

Why should you bother to follow US law?

Why should those of us who don’t live in America bother to follow U.S. law? Because even though you may not live in America or show your work to an audience in America, if you upload your work to a site like YouTube then it is subject to copyright law because the servers most likely reside inside the United States and are hosted by an American company. While you can’t be served with a lawsuit (easily), your work could be removed if the copyright holder files a complaint under the DMCA.

The Letter vs. The Spirit

If you’re following the letter of the law, then, you could host your video in a foreign country and not be breaking U.S. law because, well, your work is not in the United States. After all, those of us living in the United States don’t worry about insulting the Thai monarchy and being subjected to lese majeste laws, or blaspheming against God and being put to death under Kuwaiti law. I spent the better part of an hour researching video hosting sites outside of America. If I hosted my video with my own web host, 1and1, then I’d be in Germany and subject to German copyright law. I can’t even begin to imagine where I’d go about learning German copyright law because Ich sprache keine Deutsch.

I also realized that it was ridiculous for me to devote so much time to understanding the letter of copyright law. Isn’t there a commonsense rule we can follow?

Common sense: who is being hurt?

We should be considering intention and effect. If the intention is non-commercial and has no material effect on the copyright holder’s sales, then why should using a portion of an artist’s work be prohibited? Should we need to pay to use something for educational purposes that brings us no material benefit?

So for those of you wondering whether you should use a commercial track or unlicensed image in your five-minute video made as an academic exercise for a class, I say: you should be able to. You’re not hurting the artist and you’re not detracting from their work. Attribute and link; even promote the artists’ clips by linking to Amazon or iTunes. But stop stressing over what in our cases is a victimless, and poorly defined, crime.