Monday, August 24, 2009

What Movie Monsters Can Teach Us About Fair Use

Last week's edition of Ip Osgoode features an excellent blog post by Patricia Aufderheide, Professor in the School of Communication at American University in Washington, about a recent US ruling that's added some extra oomph to fair use. The ruling in question came out of the recent case of Warren Publishing Co. v. Spurlock. The details of the case are described most aptly by Rodney Perkins over at Film Esq., portions of which I've reproduced here:
"Warren Publishing...the company behind such classic horror magazines like Creepy, Eerie, and Famous Monsters of Filmland...was on the losing end of a copyright dispute involving covers from some of its magazines.

The artwork of Basil Gogos appeared on the cover of at least 50 issues of Famous Monsters of Filmland as well as covers of a few issues of Eerie and Creepy. David Spurlock and Vanguard Productions published a book entitled Famous Monster Movie Art of Basil Gogos that reproduced 24 of these covers, 10 of which were portrayed as covers, and 14 of which appeared without any Warren magazine text.

In response...Warren brought an action for copyright and trademark infringement. Spurlock successfully presented a fair use defense to the Warren's copyright. Of great significance was the court's reasoning ...[which related to] the purpose and character of the work. Here, the judge found that Spurlock's uses of the covers was transformative since the the Gogos book presented the images for an entirely different purpose than the Warren magazines"

In her post, Aufderheide goes into further detail about why the ruling is significant, particularly in terms of the judge's discussion of the importance of the transformative element. She writes:
"The judge emphasized, as have judges consistently in the last 15 years, the importance of the transformative element (without ruling out non-transformative fair uses), and therefore the related importance of the third factor of amount. He found the uses fully transformative; after all, the magazine was describing trends in monster movies, and the book was describing the career trajectory of an artist. He found the amount entirely appropriate. This use accords with previous U.S. decisions over the last 15 years, quite consistently. The transformative defense, allied with appropriate amount, appears to be in the “safe haven” area of fair use. This makes a huge difference to creators of all kinds, from mashup artists to documentary filmmakers to museum programmers."

My favourite part of the article is this extremely quotable line where Aufderheide specifies that: "when fair use is used, it becomes more useable"

What is perhaps most useful to those of us coming at this from outside of legal studies is that Aufderheide's post then shifts to describe some of the great work coming out of the American University's Center for Social Media, which has been working closely with both the AU Washington College of Law’s Program on Information Justice and Intellectual Property (in particular professor Peter Jaszi), as well as various creator and user groups, to produce a free, online repository of fair use best practices codes. Because fair use is such a broad and context-specific doctrine, they have adopted a context-responsive approach, creating a best practice code that is specific to each user/producer/prosumer group, detailing how they can apply the logic of fair use to specific situations. Here are some of the examples that Aufderheide describes in her post:
For instance, documentary filmmakers often capture copyrighted material incidentally in their work; their code helps them evaluate when fair use applies to the moment when the family bursts into a round of the (copyrighted) song “Happy Birthday.” Media literacy teachers often bring current advertisements into the classroom, and they also want to develop a database of such ads to draw upon over time; their code helps them apply fair use to that situation. Online video makers often combine music, photography and video to make a tribute to the Jonas Brothers or to recut “Star Trek” episodes into a gay fantasy or to make a political critique of a presidential speech. Their code helps them understand the logic of fair use governing their choices to make new work composed-often entirely-of existing work."

To date, the impact of these 'best practices' codes has been extremely positive and promising to say the least. You can check out the Center for Social Media website for a full chronicle of their successes, which include the transformation of the documentary filmmakers' code into a tool for insurers to accept fair use claims, and examples of school boards adopting media literacy teachers' codes within their own regulations.

You can access the full range of tools on the site. In particular, I recommend their resources on Fair Use Teaching Tools, Fair Use in Online Video, Recut, Reframe, Recycle, and a report on what creators of user-generated video think about copyright called The Good, Bad and Confusing.

Although I didn't see anything specific to child-generated content or how kids might understand, learn and incorporate fair use logic in their own online creations, there's certainly a lot of potential for something child-specific in the future. In addition to providing some alternative material to all the anti-copyright violation curriculum out there (which is often sponsored by the MPAA and RIAA), it would be a great asset in the advancement and practice of children's authorship rights. As Aufderheide says "when fair use is used, it becomes more useable," so no time like the present to establish some parameters and possible exceptions for a child-specific code of best practices.

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Update Aug. 25, 2009: Potential Starting Points:
Fair Use Remix Institute
Remix Austin!
Shaping Youth post on Fair Use and Youth
I should note, however, that even these (great) sources mostly deal with "youth" not necessarily minors, let alone young children. A particularly notable exception, however, is Remix Austin's Kids Make TV Camp, which includes programs for kids 10yrs + and collaborations with the Girl Scouts. Neat-o!
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