Fair Use Best Practices Guide for Online Video

Is this video fair use?

You shouldn’t have to have a lawyer to know whether or not a user is fair. The good folks at the American University’s Glushko-Samuelson Intellectual Property Clinic and Center for Social Media have done it again and developed a Code of Best Practices in Fair Use for Online Video. It is a short 16 pages and easy to read, so you have no excuse to go check it out!

In this best practices, the experts go beyond the typical “four factor test” laid out in Title 17, Section 107, to determine whether a use is fair and consider: “the nature of the use, the nature of the work used, the extent of the use and its economic effect.” Other ways to look at those questions, the study points out, can be:

  • Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

  • Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

  • Did the user acted reasonably and in good faith, in light of general practice in his or her particular field.

The guide lumps fair use of online video into six common scenarios:

  • Commenting or critiquing of copyrighted material

  • Use for illustration or example

  • Incidental or accidental capture of copyrighted material

  • Memorializing or rescuing of an experience or event

  • Use to launch a discussion

  • Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works.

This is the guide to read if you’re a avid YouTuber—as a viewer or uploader. It will help you understand the boundaries of fair use so you can more vigorously use those rights to express your views in legal and more innovative ways.

Kudos to Professors Peter Jaszi and Pat Aufderheide, their staffs, and the amazing list of experts who have given us incredibly useful fair use guide. You can find the HTML version here and the PDF version here.

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