Defining “Fair Use” for the Digital Age

Aufderheide and Jaszi on how to put the balance back in copyright

Reclaiming Fair Use: How to Put the Balance Back in Copyright | By Patricia Aufderheide and Peter Jaszi | University of Chicago Press | 216 pages, $17.00

Say you’re an aspiring documentary filmmaker and your subject of choice is the east coast-west coast hip-hop rivalry of the 1990s. It’s likely in your documentary that at some point you’ll focus on the shooting deaths of east coast rapper The Notorious B.I.G. and west coast rapper Tupac Shakur, two major players in the rivalry. And because you’re focusing on them, you want to use some of the music they recorded that allegedly fueled that feud, including Shakur’s song “Hit ‘Em Up.”

What do you do? Can you use music recorded by those artists (and others) without risking cease-and-desist orders from the song’s copyright holders? How much music can you use? Do you need permission?

Those questions are enough to make your head hurt. Reclaiming Fair Use: How to Put the Balance Back in Copyright, by Patricia Aufderheide and Peter Jaszi, is an attempt to answer those questions. As the authors write in the introduction, the book’s purpose is to understand copyright, to “give strategies to deal with some copyright policy problems” and to reframe the copyright debate.

As defined by the authors, fair use is “the right to use unlicensed material.” In other words, use of copyrighted material you don’t own. Taking the case above, that unlicensed material probably includes music by Biggie and Tupac, and probably news reports and music videos, too.

Reclaiming Fair Use indeed lives up to its purpose and answers many of the questions you may have. Unfortunately, some of the book is spectacularly dull and difficult to slog through.

That’s no fault of Aufderheide and Jaszi, who have worked for years researching copyright law and putting together codes of best practices for fair use. It’s just that copyright law (Jaszi is a university professor on that subject) is dense and complicated for the layperson. The book’s earliest chapters—in which the authors delve into copyright law and why it seems to favor large, deep-pocketed corporations and not, say, documentary filmmakers or remix artists or even teachers—drag on.

The history is valuable, including one short section when Judge James M. Carter—a judge who had no copyright expertise—concludes, according to Aufderheide and Jaszi, that “the copyright owner has more or less complete sovereignty over uses that are more than trivial in quantity or quality.” But there’s a lot of similar information on judicial rulings and laws that don’t have the anecdotes to liven them up. After a while it feels repetitive. When the authors get into specific cases dealing with fair use, the book comes to life.

The authors describe early on the “four factors” within the Copyright Act of 1976 for determining what is fair use, namely “the character of the use,” the “nature of the original work,” the “amount taken” of the work and the “effect of taking on the market value of the work.” Aufderheide (the director of the Center for Social Media) and Jaszi then offer a fair-use calculator to determine whether a use of copyrighted material is fair under the law.

Paraphrasing the questions, is the use of the copyrighted material different from the original intent? Is the amount taken appropriate? And is it reasonable within its field or discipline?

The answers to these questions may help determine whether your use of unlicensed copyrighted material is indeed fair or whether you owe the copyright holder a bunch of money.

Some of the writing about fair use seems vague when not pinned to a specific example (and Aufderheide and Jaszi assert over and over that each case of fair use is different). On their own, the four factors and three questions are abstract but the authors present examples of what may or may not be a fair use of unlicensed material, including a documentary called The Definitive Elvis, a coffee table book about the Grateful Dead called Grateful Dead: The Illustrated Trip, and the documentaries This Film is not Yet Rated, The Trials of Darryl Hunt, and Hip-Hop: Beyond Beats and Rhymes. There are other solid examples throughout the book.

Of course, this is a reference book. It’s not necessarily designed to be a page-turner. But the specifics help engage the reader while providing real-world examples of how to fairly use unlicensed material. (There are several great sections called “True Tales of Fair Use.” In one, documentary filmmaker Katy Chevigny describes regret over not using a particular piece of news footage featuring Walter Cronkite in her film Deadline.)

The authors include a chapter called “How to Use Fair Use.” Their suggestions are practical and include getting together with like-minded people to make codes of best practices and discovering existing problems that the community has with using copyrighted material. (They also suggest that “lawyers, supervisors, insurers, publishers” don’t always take a creative person’s word for it that fair use is a viable option.)

At the back of the book are several helpful appendices, including a list and the locations online for codes of best practices in fair use and a template for your own code of best practices. There’s even an appendix called “You Be the Judge,” in which there are answers to hypothetical fair use questions that are sprinkled throughout the book.

As the title Reclaiming Fair Use implies, this book is a call to action. “New creators and users need to unlock their mind-forged manacles, assert the rights they have, and understand the vital importance of limiting copyright holders’ rights,” the authors say.

That will make it easier to know whether you’re on safe legal ground for using a twelve-second snippet of Shakur’s “Hit ‘Em Up,” or whether your producers should call Shakur’s estate to arrange licensing.

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David Riedel was managing editor of the New Haven Advocate. He's currently a Boston reporter and film critic. Follow him on Twitter @ThaRid. Tags: , , , ,