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Fair use and transformativeness: It may shake your world

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:

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Joyce Valenza About Joyce Valenza

Joyce is the teacher-librarian at Springfield Township High School, a technology writer, and a blogger. Follow her on Twitter: @joycevalenza

Comments

  1. Esther Hoorn says:

    In the light of the quote by Jaszi
    “People can’t exercise it in a climate of fear and uncertainty.” it would be a good strategy to set up a blog like Groklaw with a clear anti-FUD (fear, uncertainty and doubt) goal.

    Or does anyone know of similar initiatives?

  2. Michael says:

    Disclaimer: I am not a lawyer, do not have precedents to base this on, and is based mainly on an academic interpretation of Fair Use. My feeling on attribution is: It’s free to give attribution, it doesn’t hurt, and it’s the proper thing to do to acknowledge someone else’s work (unless it truly doesn’t have to do with yours).

    As for transformative use vs. Derivative use, I think the difference between the 2 lies in how the borrowed material is being used. If it is part of your own work but unchanged, that is derivative. If it influences the work you create, but that work is intended to comment upon the used work, or otherwise significantly changes the intended meaning of the original work, then it becomes your own.

    Parody would be the best example of this probably. A parody of a copyrighted work is allowed under fair use. With music, it might be similar in melody, but the actual meaning intended to be conveyed is different than the original, and does so in a different way even though it may be using similar/same musical notes. With video, how many comedy shows utilize copyrighted media as the basis for skits? In all cases, the meaning of the original work has been changed. In a parody of a news show, the goal has moved from using the copyrighted work to inform others and sell advertisements to mocking current events and media. What degree of transformation is needed to go from plagiarism to transformative in so many mediums is something with no clear defined boundary or system of measurement I could come up with.

    Of course that’s speculation on my part and it is how I interpret it. There really aren’t that many legal precedents that clearly define for so many different mediums what is considered derivative and what is transformative. It’s a fascinating question to think about though.

  3. Carol Simpson says:

    Remember that transformation only applies to ONE of the four fair use factors. Just because a use may be transformative does not mean it gets a free ride. The other three factors still come into play, and factor four still is the “eggplant that ate Chicago” among factors. In earlier times, factor one was simply, “Are you non-profit educational or are you doing criticism or commentary?” But we have never stopped there in the analysis. You must go on to the other three factors.

    Now (and for the last ten years or so) courts have tossed in this “transformation analysis” to help assess factor one. But don’t be fooled into stopping there.

  4. Wesley Fryer says:

    I am late catching up with this conversation Joyce, but I want to thank you for sharing this as well as Michael and Carol’s additions. I agree the distinction between “derivative” and “transformative” works is really important to understand. I’d like to learn more about that and see examples of both to clarify the differences in my own mind.

    I also appreciate your encouragement to look at all four factors, Carol.

  5. Jill C says:

    Thank you, Joyce, for providing such a detailed summary. I have admired your leadership in this area for years. This is helping to begin to guide me in Web 2.0 and k-12 use. The above comments were helpful as well-thank you all. I would like to separate plagiarism from copyright issues, however, as I do for my computer literacy students. The former is giving credit to the creator, whereas copyright is related to fair use and getting permission. I agree with Michael and encourage my students to always cite the source, whereas I like the way this article describes where fair use is going in our new creative age and hope that it is more freeing that limiting. Does that balance make sense?

  6. Courtney Lewis says:

    The idea of transformative use is exciting to contemplate, but how many school librarians are really going to push this new view of copyright? While I look forward to a day and age in which this view of intellectual property – educationally enriching and respectful – is a fact and not an exception, the fact remains that we need to worry about lawsuits and modeling super clear behavior to students and teachers. This is a great way to start the discussion, Joyce!

  7. SimeonBeresford says:

    Until we can afford Dorling Kingsley’s lawyers or a lot more case law has been established. Im going to stay clear of transformative use i think.

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