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Fair use and transformativeness: It may shake your world

April 1, 2008
I am no longer sure that anything I learned, or anything I regularly share relating to fair use, is either helpful or relevant.  As a gatekeeper, I've been far too conservative.

As I watched the information and communication landscapes shift over the past few years, I secretly viewed fair use as a doctrine that guided what we couldn't do. Fear and guilt seemed regularly in the way of innovative teaching and creative expression. I was reluctant to use, or bless the use, of copyrighted materials--movies, television, advertising, popular music, etc.--in teaching and student projects, especially those that were broadcast or published online. To avoid danger, I guided teachers and learners to the use of copyright-friendly materials. As wonderful as these growing collections are, sometimes what you really need to use is commercial or more conservatively licensed materials.

Recently my Temple University colleague, Renee Hobbs shared, what was for me, a relatively foreign (but perhaps obvious) idea: copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation.

And fair use may be far more fair than I ever imagined. 

Fair use is a doctrine within copyright law that allows use of copyrighted material for educational purposes without permission from the the owners or creators. It is designed to balance rights of users with the rights of owners by encouraging widespread and flexible use of cultural products for the purposes of education and the advancement of knowledge.

My new understanding:

I learned on Friday night that the critical test for fairness in terms of educational use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context. 

Examples of transformativeness might include: using campaign video in a lesson exploring media strategies or rhetoric, using music videos to explore such themes as urban violence, using commercial advertisements to explore messages relating to body image or the various different ways beer makers sell beer, remixing a popular song to create a new artistic expression.

My old understanding:

Long ago, I learned that educational use of media had to pass four tests to be appropriate and fair according to U.S. Code Title 17 107:

1. the purpose and character of the use, including whether the use is commercial or nonprofit
2. the nature of the use
3. the amount of the use
4. the effect of the use on the potential market for the copyrighted work.

For years, I attempted to interpret those tests to advise teachers and learners using existing, but rather rigid and terribly fossilized, guidelines developed to define the scope of those four tests.  These negotiated agreements often served to limit the quality of technology and media integration, to say nothing of creativity.  

But the meeting I attended on Friday--A Conversation about Media Literacy, Copyright and Fair Use--stirred up more cognitive disonance than I've experienced in years. 

Hosted by Renee Hobbs (professor at Temple University's Department of Broadcasting, Telecommunication and Mass Media, Media Education Lab) and Peter  Jaszi, expert on copyright and fair use (from the Program of Information Justice and Intellectual Property, American University Washington College of Law), the discussion was one of several to be held around the country designed to clear up widespread confusion and to:

develop a shared understanding of how copyright and fair use applies to the creative media work that our students create and our own use of copyrighted materials as educators, practitioners, advocates and curriculum developers.

The Cost of Copyright Confusion for Media Literacy, Hobbs' and Jaszi's recent research study, strongly recommends that, like other creative communities, educators articulate their shared understandings of fair use in a national code of practice, a code that would guide us as we responsibly used copyrighted materials in our teaching.

Hobbs and Jaszi believe that it is time for media literacy educators to move beyond outworn guidelines and dubious rules of thumb.  According to Jaszi, the guidelines are not law. They are, rather, someone's attempt to interpret the law.  They represent the outer limits on permission--floors rather than ceilings for practice. 

Our Friday meeting was a step in the direction of discovering the ceilings, a step in the direction of developing a code for the educational community.  A group of teachers and a few librarians spent the evening examining scenarios of teacher and student use of media and exploring the degree of our consensus.

The proposed document (planned for release in November) would not be the first such code of practice relating to fair use.  Jaszi and his colleague Pat Aufderheide of the Center for Social Media, supported by a MacArthur Foundation grant, worked with the documentary filmmaker community, another group for whom reuse of media is critical.  Formerly filmmakers had to clear nearly everything they used, paying for rights to use every little thing they borrowed.  Conversations held with the filmmakers led to consensus within that community about what uses were appropriate and inappropriate and to the development of a statement of best practices that broke through what Jaszi called the clearance culture.

The work resulted in the 2005 publication of the Documentary Filmmakers' Statement of Best Practices in Fair Use, a code of practice which describes far more liberal guidelines than were previously assumed.  Jaszi describes the filmmakers' statement as a tremendous shift in practice.  Practitioners are now doing things they were previously unable or afraid to do. 

Jaszi points to Bill Graham Archives vs.Dorling Kindersley (2006) as a clear example of how courts liberally interpret fair use even with a commercial publisher. Dorling Kindersley planned to include images of posters owned by the Bill Graham Archives in its book, Grateful Dead: The Illustrated Trip, a cultural history of the band. They sought permission to use the posters. Permission was refused, but DK choose to use the images anyway.  BGA filed suit against DK for copyright infringement.  The courts threw the case out, agreeing with DK's claim of fair use. The posters were originially created to promote concerts.  DK's new use of the art was designed to document events in historical and cultural context. The publisher added value in its use of the posters. And such use was transformative.

Transformativeness gives us new freedoms in a mix-up, mash-up world of broadly shared media.

Another study by Jaszi and Aufderheide, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, contends that the many uses of copyrighted material in online video are eligible for fair use consideration.  A video introducing the study, shares a different kind of focus, a focus on what users can do with borrowed media and that use includes "quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture."

Here's what I think I learned on Friday about fair use:

• The Multimedia Fair Use Guidelines describe minimum rules for fair use, but were never intended as specific rules or designed to exhaust the universe of educational practice.  They were meant as a dynamic, rather than static doctrine, supposed to expand with time, technology, changes in practice.  Arbitrary rules regarding proportion or time periods of use (for instance, 30-second or 45-day rules) have no legal status. 
• The fact that permission has been sought but not granted is irrelevant.  Permission is not necessary to satisfy fair use.
• Fair use is fair use without regard to program or platform. What is fair, because it is transformative, is fair regardless of place of use. If a student has repurposed and added value to copyrighted material, she should be able to use it beyond the classroom (on YouTube, for instance) as well as within it. 
• Not every student use of media is fair, but many uses are. One use not likely to be fair, is the use of a music soundtrack merely as an aesthetic addition to a student video project. Students need to somehow recreate to add value.  Is the music used simply a nice aesthetic addition or does the new use give the piece different meaning? Are students adding value, engaging the music, reflecting, somehow commenting on.the music?
• Not everything that is rationalized as educationally beneficial is necessarily fair use.  For instance, photocopying a text book because it is not affordable is still not fair use.

Jaszi and Hobbs are eager to spread good news for practice community but first need to be translate the news into into more specific examples based on the consensus they gather from within the educational community. The goal is to see whether we can develop alternate forms of guides based not on outsiders say, but based on what we as a community embrace as fair and reasonable practice.

According to Jaszi,

Copyright law is friendlier to good teaching than many teachers now realize. Fair use is like a muscle that needs to be exercised.  People can't exercise it in a climate of fear and uncertainty.

But for me, beyond the celebration (and it is a celebration!) of academic freedom, the new potential for creativity, and a more democratic and fertile approach to intellectual property, a few big questions emerged and remain after our local conversation. Those questions relate to my roles as a content user and a content creator and as a possible fuddy duddy:

• How will we nail down the word transformative? 
• What if my transformative is your nontransformative? What if your transformative is merely my junk? Or what if your transformative approach to my work looks like plagiarism? 
• How is derivative use, which may be restricted under a selected Creative Commons license, different from transformative use under fair use?
• Even if we may not have to ask permission for use or for transforming copyrighted work under a proposed future code, won't we sometimes choose to because we feel the ethical impetus?
• And what will the code suggest relating to attribution?

Additional materials from Temple University's Media Education Lab:

• Ten Common Misunderstandings About Fair Use
• Fair Use and the Educational Guidelines

Posted by Joyce Valenza Ph.D on April 1, 2008 | Comments (6)