Code of Best Practices in Fair Use for Online Video released by Center for Social Media

The Center for Social Media at American University has released a set of best practices for fair use when creating online video – another in its series of best practices in fair use guidelines. The new video guidelines are packaged up in a handy PDF file, under 20 pages. The six best practices are prefaced with a short introduction outlining basic fair use considerations, and are followed by a short list of common fair use myths. This is a very handy tool for teaching, especially for those who teach new media or multimedia. It would certainly be appropriate for first year writing, graduate level courses, or even high school.

http://www.centerforsocialmedia.org/blogs/future_of_public_media/announcing_the_release_of_the_code_of_best_practices_in_fair_use_for_online/

The six best practices in fair use when creating online videos include practices that arise out of the following inventional techniques often used during the remix process:

1. Commenting on or critiquing of copyrighted material.
2. Using copyrighted materials for illustration or example.
3. Capturing copyrighted material incidentally or accidentally.
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon.
5. Copying, reposting, and recirculation a work or part of a work for purposes of launching a discussion.
6. Quoting in order to recombine elements to make a new work that depends for its meaning on often unlikely relationships between the elements.

Some key statements in the introduction which I appreciate as illuminative of the sometimes untapped power of fair use include that “where it applies, fair use is a right, not a mere privilege” (p. 3), and emphasis that the uncertainty of fair use determinations provide flexibility, a good thing. In the study I completed for my dissertation (http://sites.google.com/site/martinecourantrife/), I found that the professional writers I studied were unclear about the distinction between fair use and licensed use. The Code of Best Practices emphasizes this important distinction, noting that fair use is use that takes place without permission. It’s unauthorized use. Licensed use, on the other hand, takes place with some form of permission. The Code applies to unauthorized uses.

The Code was put together by a panel of experts who work in the area of copyright. Many on the panel are law professors or legal experts. This is a Code that does not do what many “best practice” guides do – that is, restrict our fair use rights. Instead, this Code presents a robust set of guidelines based on existing case law.

Writing teachers will appreciate as well the focus on attribution, although copyright law or fair use does not expressly require it. The authors assert that attribution will provide evidence of good faith in the event a use is challenged. I have written a chapter on plagiarism that’s in process – co-authored with Danielle Nicole DeVoss. In that chapter though, we argue that sometimes attribution is unnecessary, especially when it’s obvious where materials came from. For example, a short time ago a parody of The Shining circulated widely on the web. I don’t believe the author of the parody credited Stephen King, nor the producer or directors nor the various actors. But because The Shining has become a kind of “common knowledge” in our culture, I do not think attribution is necessary. The point we made in the chapter is that if the viewer doesn’t know what The Shining is, the parody makes no sense, since parody relies on common knowledge of something pre-existing.

Another example of where I think attribution is not necessary because of the common knowledge argument, is when something, even an image, is available in multiple locations on the web. In her blog, Clancy Ratliff writes a bit about defining common knowledge – noting that some state that if something appears in 3 different texts, then it’s common knowledge and a citation is not needed http://culturecat.net/trying-stay-ahead-demand. In my dissertation I have quite an extended argument on this topic of common knowledge – I basically don’t have a rule like Clancy’s, although I think such rules are helpful sometimes for teaching. But I do note that common knowledge is time stamped, and culture stamped. My example for today though is that I recall from an advanced multimedia production class I took with Prof. Ellen Cushman several years ago, an image of Sequoya. If you do a google image search for “Sequoya” you will immediately get a google page showing 5 or 6 of the same image of Sequoya in several locations, just on the first page of your search. Let’s say you were going to use this image. Which citation would you pick? All of them? Some of them? The most credible? The least credible? My argument is that although you could provide a citation, as long as in the context it’s clear you yourself did not create the image, a citation or attribution is not needed, as this image of Sequoya is common knowledge.

As stated, writing teachers will appreciate the Code’s emphasis on good faith attribution. I tend to think that in many remixed texts, attribution is not necessary, and simply lingers as a vestige of our former modes of traditional writing. The other downside to attributing your sources in fair use, is that it might draw attention to your use in the event a copyright holder is policing the web for any use at all. Yet, Foucault predicted that someday we wouldn’t care who wrote what. Perhaps that day is nearing.