Fair Use Reframed in Era of Consumer Generated Content

Conventional wisdom (and big media) would have us believe that using copyrighted material in today’s consumer generated media is just plain illegal – end of story.

Well, not so fast.  While some are strong-arming social online sites to remove consumer media for copyright violation, a good percentage of that CGM may very well be legal under the doctrine of “fair use.” 

An engrossing study, Recut, Reframe Recycle, just released by the Center for Social Media at American University points to a wide variety of consumer activities that are actively incorporating copyrighted material – and it highlights how in many cases these are perfectly legal and can be considered “fair use.”

“Fair use” is the right to legally use copyrighted material under certain circumstances, and more broadly, according to the study, when the value to society is greater than the value to the copyright holder. 

The study authors Pat Aufderheide and Peter Jaszi  categorize our collective CGM activities into: satire, parody, negative commentary, positive commentary, discussion-triggers, illustration, diaries, archiving and remixes and mashups.

In essence, Auferheide and Jaszi illustrate, through the lens of online video making, that new “consumer maker” online activities are often “quoting” copyrighted material to create new pieces of popular culture, which falls under the “transformative” definitions of fair use.

One of the most salient points in the study is that fair use is not something written in the stone tablets of copyright law.  That it necessarily evolves in concert with our culture:

“The provisions of the Copyright Act codifying fair use were intentionally made non-specific, in an acknowledgment of the constantly changing state of cultural production.”

I’m not a lawyer, but I have to believe these same ‘transformative” and “cultural production” concepts might apply equally, if not almost more persuasively in MUVEs.  Virtual worlds like Second Life are cultural production down to the very core and that norms there could push "fair use" into new interpretations.   

I’d be most interested if Benjamin Duranske over at VirtuallyBlind and other IP experts would weigh in on the study and comment on its application to virtual world CGM production.

Most importantly, the study warns that our emerging participatory media culture is at serious risk with current industry practices - including the sites that comply unquestioned - aimed at shutting down what may be fair use consumer activities in the name of piracy control:

“Legal as well as illegal copying could all too easily disappear. Worse still, a new generation of media makers could grow up with a deformed and truncated notion of their rights as creators.”

Know your rights as a "maker." (2 links)

To protect the hands, attention, and minds that feed them, content creators need to examine ways to adapt to IP in a shifting media culture.

The Recut, Reframe Recycle PDF and web page include a list of the researchers' top five videos.  The Center for Social Media has posted a video, titled Remix Culture (3.5 minutes) that is itself a mashup of "unauthorized" material, hoping to stimulate conversation on their blog.  The video is also downloadable.

January 5, 2008

Comments

[Benjamin Duranske]

Hey Linda - I will weigh in on this in a few days, once the dust settles on the last round of edits on Virtual Law that I am trying to push through this weekend.

Basically though, from a business perspective, I have long advocated the idea companies are generally better off finding a way to work with fans rather than stomping on their creative efforts.

I'll give it more legal thought later -- and will probably post and link back to this. I just can't get to it until I meet my promises to my publisher!

Best regards,
Ben

[Linda Zimmer]

No worries, Benjamin - and huge amounts of success to you with the book publication.

I have your blog in my reader, so I'll watch for your comments whenever it happens!

[employment tribunal solicitor]

I have seen the video . it really awesome . i like the way you have written these ..
the video here is really spectacular.. its really a soul of your post .