Fans, Fair Use, and Transformation

Earlier this year, I ran an interview with Pat Aufderheide and Peter Jaszi from American University’s Center for Social Media about their work articulating the “fair use” rights of documentary filmmakers and media literacy teachers.

I have been lucky enough to be one small part of a team they pulled together of media scholars and lawyers focused on better understanding how fair use might apply to remix practices now common online. Other members of the team included: Mimi Ito, Lewis Hyde, Rebecca Tushnet, Anthony Falzone, Michael Donaldson, Michael Madison, Panela Samuelson, and Jennifer Urban. Last week, the Center released their findings.

The resulting report offers a very strong, legally credible defense of many now common remix practices, including some language which should prove especially helpful in helping fan vidders to know how far they can go and stay within a common sense understanding of fair use rights. The report’s recommendations center around two core questions:

  • Did the unlicensed use ‘transform’ the material taken from the copyrighted work by using it for a different purpose than that of the original or did it just repeat the work for the same intent and value as the original?
  • Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answers to these two questions are ‘yes,’ a court is likely to find a use fair. Because this is true, such use is unlikely to be challenged in the first place.

I was happy to have a chance to share news of this report when I spoke to Portus, a gathering of Harry Potter fans in Dallas this weekend, where the news generated lots of interest.

This focus on “transformation” clearly compliments the focus on “transformative works” in recent fan conversations in the wake of the creation of the Organization for Transformative Works.

And the report’s findings will be especially relevant to fan vidders, who have been struggling to decide how public they want their work to be, given their historic vulnerability to legal prosecution and yet their concern that other remix communities are gaining greater visibility in the era of YouTube. The report certainly doesn’t address every concern vidders will face — in particular, it raises questions about whether vidders would be legally better off drawing on multiple songs rather than basing the entire video on a single piece of music. But the authors hope that the publication of this document will spark further conversations.