Why Do I Need to Understand Fair Use?
Re-editing commercials and other types of video or media is a great way to talk back to advertisers and those who create and control the messages we hear and see every day. Though a fun and useful tool for educating and empowering audiences, it is important to understand the laws and limitations associated with using a work that is rightfully owned by another, simply referred to as copyrighted material. Violating copyright laws can result in heavy fines or even jail time, but there are measures in place that ensure people’s rights to free speech. One of these is called fair use.
Fair use is a notoriously gray area of law, and it’s often hard to create a set of easy rules that will apply to all cases. However, the following principles can be generally applied to projects relating to media literacy education, like criticism and video remix.
What Do Copyright and Fair Use Mean?
Copyright
When an item is protected by a copyright, only the author or creator can use it for as long as the copyright is active. Copyright law literally states that the only person with the “Right to Copy” is the owner. You can tell if something is copyrighted by the © symbol at the end of the title or name.
Fair Use
Fair use is the part of U.S. copyright law which says that parts of movies, commercials, music, and books can be used displayed? without breaking any copyright laws, and you don’t need permission of the owner. Some of these special circumstances include criticism, commentary, news reporting, teaching, scholarship, and research. For example, if a teacher decided to show an episode from a television show in the 1970s to show changing attitudes towards conservation and the environment, that teacher is protected by fair use. But even when someone uses copyrighted work to teach, critique, review, or even report the news there are general guidelines that they must follow for the use to be considered “fair.”
THE RULES
Determine the Purpose
Photographs from Tom Forsythe’s Barbie Food Chain series that got him in trouble with Mattel for fair use of the toy.
The first step in deciding whether the use of a copyrighted material is fair is to determine the purpose. If you’re making money off of the material it more than likely will not fall under fair use. Another thing you should examine is whether you’re using the copyrighted work in a “transformative” way. When you add something new to or otherwise manipulate the original work, you can change and transform it into a new work with a completely different purpose or meaning. For example, the toy company Mattel accused a photographer of copyright infringement when he used pictures of a Barbie doll in his original work. The case was lost because the court considered the photographer’s pictures to be a parody of Barbie, making it transformative. Likewise, when you take a commercial and re-edit it or add your own comments, video or voiceover, you’ve transformed it. Adding something new creates a new and different work that has a different meaning and purpose.
Be Critical, Not Just Observational
When you’re making a critique of a work it’s also very important to only make critical statements about the message as opposed to observational statements of opinions about the product or the commercial itself. Critical statements about a copyrighted work put it in a larger context or compare it with other works. To help you make the distinction between critical commentary and non-critical/observational commentary, take a look at these examples of statements you can make about a commercial:
NOT FAIR: “All the toys shown for girls are pink and all the toys shown for boys are blue.”
FAIR: “The advertiser is promoting a gender stereotype by assuming that all girls like the color pink and all boys like the color blue.”
NOT FAIR: “Of course the toys are sold separately.”
FAIR: “Advertisers use manipulative imagery and show multiple toys together even though each one is sold separately.”
Quantity vs. Importance
The amount of the original work being used is another important factor in the argument of fair use. When using a work for criticism you should avoid using the original work in its entirety and without pause. This is one reason why we “break” commercials instead of just commenting at the end of a full advertisement. On the other hand, even when taking a small sample of a larger work, it can fall out of the lines of fair use in court if it is decided that the small portion used was the most important part of the entire work. Importance is generally quantified by the “sell-point” of the work. For example, showing a 5-minute scene from the three-hour movie The Dark Knight can be fine. But if you show the scene where Batman defeats the villains and saves Gotham, that use wouldn’t be considered fair because it is assumed people buy the movie tickets and later DVDs to see that particular scene in the film. If you’ve given away the ending for free, it could mean that people wouldn’t pay to see the movie, thereby damaging commercial value for the film and negatively impacting the copyright holders.
Replacement
As mentioned before, you should always attempt to use portions of an original work as opposed to the entire piece without any additions or pauses. It is not considered fair to replace or affect the market of the original work. For example, if a popular song is uploaded on YouTube, then the public is able to hear the song without having to purchase it, which could be seen as “stealing” the sales the owner of the song may have made if the song wasn’t uploaded and people instead had to buy the song to listen to it in full.
FAIR USE IN TRADEMARK LAW
Trademarks
In 2009, this well-known artist, Shepard Fairey, filed a federal lawsuit against the Associated Press to aqcuire a declaratory judgment that his use of the their photograph, used to create his famous Obama HOPE poster, was protected by the fair use doctrine.
A lot of copyrighted materials and products often have a trademark. If a product has a trademark it will usually be followed by the ™ symbol, the © symbol, or the ® symbol. A trademark is a recognizable sign, design, or phrase that makes one product or service stand out from another product or service. Trademark law is meant to protect an owner from a competitor using its trademark or a similar trademark on his or her own product that may confuse customers. As an example, the “Nike swoosh” is placed on shoes, in commercials, and on packaging so that everyone knows they’re buying Nikes and not another brand of shoe. If another shoemaker were to reverse the swoosh or reposition it on their sneaker in a way that could confuse consumers about the product, it would be a violation of trademark law.
Federal trademark law also protects against dilution of a trademark. Dilution occurs when a consumer understands and knows the source, or creator, of a well-known mark but becomes less able to match it with the associated product or service due to its use on other unrelated products. Going back to the Nike example, if the swoosh was used on a package of coffee rather than solely on sneakers and athletic wear, then in your mind, as a buyer, the association between Nike and athletic wear may grow weaker, even if you don’t believe the two products came from the same source.
There is however, a version of fair use used in trademark law. This is called nominative fair use.
Nominative Fair Use
Nominative fair use is just a fancy term for fair use for trademarks. In nominative fair use, it is understood that it is practically impossible to avoid using a trademark for a product when referring to or criticizing that product. When you use a trademark in a commercial critique or re-mix of other media, you are within your fair use rights if you follow these three rules:
1] The product can not be easily recognized without the use of the trademark. For example, a bottle of water with no label could be any brand. How would anyone know you were critiquing Deer Park instead of another brand like Poland Spring?
2] You only use the minimal portion of the trademark reasonably necessary to recognize the product. Unlike the water bottles, the red and white bull’s-eye of Target is pretty easy to recognize without even showing the name of the store. It wouldn’t really be necessary to use any further trademarks of the company to identify it as Target.
3] You do NOT do anything that would imply sponsorship or endorsement by the trademark holder when you use the owner’s mark. (This is why we include the LAMP disclaimer at the beginning and end of every video edit).
Under nominative fair use, trademarks can also be used for identifying, parodying, criticizing or commenting on the trademark’s owner, or its goods and services. Trademark use is also considered fair when used in advertising or promotion that allows consumers to compare goods or services. For example, Pepsi shows the Coca-Cola logo in its Pepsi Challenge advertisements, where real consumers are asked to taste, rate and guess which product is Pepsi or Coke. This is considered fair and not a violation of trademark law. In addition, all forms of news reporting and news commentary as well as any noncommercial use of a mark would be covered by nominative fair use in trademark dilution.
Product Disparagement
The last point to remember when using or referencing a copyrighted or trademark-protected work is the potential for product disparagement. Product disparagement is when false or misleading statements are made about a product.
You should not, for example, claim that an automobile manufacturer produces and sells “steel death traps” in your broken commercial. However, it would be appropriate to comment on the message the advertiser uses to sell a potentially unsafe car model, or even to provide factual safety or recall information that illustrates how unsafe that particular car is (just remember to provide citation for those facts at the end of your video). The false accusation that the car manufacturer creates cars that cause drivers and passengers to die may be considered a defamatory statement, which is a negative statement that harms the image and character of the product or company. Two common types of defamation are slander, stating negative or harmful statements about a product person or service and libel, the act of writing down negative or harmful statements about a product, person or service. To avoid violating this rule against slander and libel, you should first be able to tell the difference between a statement that is valid criticism of the ad or product, and one that that is false and/or misleading. You should focus the criticism on the message of the advertisement, rather than the product itself.
Now that you’re aware of the definitions and reasons behind fair use, let’s look at one final checklist for creating a broken commercial for commentary or criticism.
MediaBreaker and Fair Use Checklist
Does the broken commercial contain commentary and not just observational statements?
Need Help?
YES: “The advertiser is promoting a gender stereotype by
assuming that all girls like the color pink and all boys like the color blue.”
NO: “All the toys shown for girls are pink and all the toys
shown for boys are blue.”
Do the comments or critiques made in the broken commercial talk about the original commercial’s message as opposed to the product in the commercial?
Need Help?
YES: “The advertiser is using an offensive stereotype of women to
market this product by portraying women as only caring about how
their makeup looks.”
NO: “That makeup is too expensive!”
Does your broken commercial clearly explain your critique to the viewer instead of relying on shortcuts that make the viewer guess? *Hint: Make sure the viewer knows. Don’t just assume that they’ll know what you mean.
Need Help?
YES: “Showing people being bullied is not funny.”
YES: “The narration in the advertisement is trying to sell the idea of [X], but in reality [Y] is true.”
NO: “This is not funny.”
NO: “Really??!!” “Of course not…” “I don’t think so!!”
If you’re using the entire original ad, are there comments and critiques throughout the ENTIRE broken commercial, and not just at the middle or end?
Does your broken commercial contain any language that might be considered product disparagement?
Example of a fair comment:
“This product is being shown in a misleading way, because
it really cannot be used for this purpose or in the way it is shown.”
“This product appears to be potentially dangerous
because it contains small parts that are a choking hazard.”
Example of language that may be considered unfair:
“I hate this product because it is an ugly color.”
“It will kill you!!”
Does the use of all copyrighted materials used in the broken commercial (such as any additional audio, images or video) fall into the category of fair use? *Hint: Make sure the copyrighted materials used are part of the commentary, not simply to make the video more attractive or entertaining.
Is The LAMP disclaimer visible in the video? (Make sure that it clearly appears at the beginning and the end of your video.)
With this checklist and your knowledge about the fair use portion of copyright law, you’re ready to go and responsibly talk back to advertisers and other media creators! Keep in mind that while this checklist focuses mostly on re-edited commercials, these guidelines can be applied to other kinds of video re-edits as well, like when making a commentary on a news story, a film, or a television show while using clips from the original work. When editing these longer works of media, remember the rule we discussed about quantity vs. importance. Try not to solely show the “sell-point” of the piece you have chosen to edit. If it’s impossible to avoid, transform it! Include other clips, audio, and/or lots of critical commentary in between to make sure it’s a fair and justified commentary or critique. Good luck!
For more information:
Aufderheide, Patricia, and Peter Jaszi. 2011. “Reclaiming fair use: How to put balance back in copyright.” Chicago: The University of Chicago Press.
American University Center for Social Media, Fair Use Codes & Best Practices: http://www.centerforsocialmedia.org/fair-use
Hobbs, Renee. 2010. “Copyright clarity: How fair use supports digital learning.” Thousand Oaks, CA: Sage.