Monday, May 18, 2009

Fair Use: When it Comes to Your Rights, Use Them or Lose Them!

What I think is interesting about "fair use" is the amount of mystery surrounding the term. People often know it, but don't really know what it means. That includes industry people (Film, TV, journalism, literature) who actually need to know the ins and outs, but don't.

In particular, what I find interesting about the fair use doctrine, is that these are rights that are basically yours, mine, ours... that we either take because we know they are ours to take (like a tax deduction) or we lose the rights by our own doing! To continue the analogy, the IRS is not likely to call you up and tell you that you missed a deduction. OK, it's never going to happen, let's face it.

Similarly, no author/filmmaker/musician is ever going to say, "Sure, take my work and use it! For free! No charge! It's Fair Use!" This is really one of those times when it is a Don't Ask, Don't Tell proposition. So, we'd better know, ourselves, when we rightly can take the position: this is ours to use, it is fair to do so.

According to the Center For Social Media (American University), "Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it."

See? I just did exactly that. There are rules for doing so.

The Center for Social Media is a great resource on Fair Use, and publishes a code of best practices in fair use, to help to educate and encourage filmmakers to understand what constitutes fair use and to know their rights.

The Center's "Yes, You Can!" checklist (also available on its website) is a valuable tool as it provides answers to some of filmmakers most common clearance questions. As it points out, many of these questions don't fall into "fair use" at all, but rather "free use."

Example: "Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright protection in architectural works in the United States since 1990, the Copyright Act includes an exemption for filming. It doesn't matter whether the building is the subject of the film or an incidental background."

As you can see, there are other issues, related to fair use, but which might be more properly called free or unrestricted use. For example, when something is actually not copyrighted or in the "public domain," then its use is not restricted. It can be confusing to figure these things out, which is why there are people like me who help to research rights.

Also, when it comes to fine points of law, as these matters are often contested, there are some good lawyers out there. One whom I really admire is Michael C. Donaldson, author of Clearance and Copyright. I know that you are thinking that this doesn't sound like a fascinating read, it isn't a Grisham novel, but Donaldson has some truly amazing stories to tell. I've heard some. Tales of those who got away with things, and those who didn't and paid a big price (and there are some very famous filmmakers and films included in both categories!)

One notable story concerns a church sculpture used as a backdrop in the movie Devil's Advocate, starring Al Pacino. Although the cathedral sculpture was assumed to have been in the public domain due to the age of the building, it turned out that the sculpture was a relatively new addition to the building.

The relief sculpture was created by renowned sculptor Frederick Hart, who won an international competition to design the facade of the west entrance to the Washington National Cathedral. The sculpture was was filmed and used as a wall on the penthouse suite of John Milton, the character depicted by Pacino, as he delivers a diabolic speech in which the figures on the sculpture come to life and writhe erotically.

Neither the Cathedral nor the artist had endorsed the use in the motion picture, and so they sued. The movie had already been released into general distribution, but was slated for home video release. As part of a settlement that also included Warner Brothers attaching stickers to all of the videocassettes disclaiming any relationship or endorsement by the Cathedral, Warner had to re-shoot over 20 minutes of scenes where the sculpture could be seen.

How's that for a copyright infringement nightmare? It is a classic example of assuming that something was in the public domain, and therefore not subject to any kind of copyright, which was actually a more recently copyrighted item.

On the other side of the spectrum, there seems to be a fear in many circles of using trademarks visibly in any kind of TV production, which I've seen on a number of reality shows I've worked on. This seems to confuse trademark with copyright. It extends to logos on t-shirts, ball caps, etc. And, although many TV shows will limit the use of trademarked items on its shows, the reasoning for doing so has nothing to do with any legal or copyright issues.

Trademark, as Donaldson points out, merely tells you the source of a product, and the appearance of the trademark is protection for the owner. As long as the trademark appears and is used, the protection is there.

As mentioned, many networks want to limit the appearance of trademarked items for an entirely different reason. They may have relationships with a brand by virtue of their sponsorship deals. If they have big sponsorship deals with Pepsi, they are going to limit their promotion of any trademark relating to Coca Cola, etc. These are business decisions, not based on any kind of legal issue.

Yet, many producers have become confused by this (apparently) and concluded that there is some danger in using a trademark in TV or film. Of course, if there is some implicit sponsorship, or negative use of a brand, it could generate some kind of complaint. But, the trademark is not a copyright. As long as it's not used in an unfavorable light, it's going to be hard for a trademark owner to complain that it's getting exposure for its brand, as exposure and attribution to the owner is the entire reason for a trademark.

Fair use, which means the use of copyrighted material in a new production, has a definite place in creative work. For example, satire couldn't be done without it. Saturday Night Live makes this kind of use its bread and butter, in skits that satirize movies, TV and politics. They aren't paying huge licensing fees to make fun of these properties, nor are they asking permission.

The video, "Recut, Reframe, Recycle" that appears on the Center website is a great primer on fair use in online video. As the commentary points out, some distribution centers are starting to filter out third-party content from videos appearing on their sites. This doesn't necessarily mean that filmmakers, or those budding geniuses creating online mashups for YouTube or other online venues, don't have the right under "fair use" to use the copyrighted content in their new works.

You can also watch the Center's video on its Code of Best Practices in Online Video at the bottom of this blog... so check that out, as well.

Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video