Jaszi Festschrift, Panel 3 Fair use

Michael Donaldson, Reflections: More lobbyists in Congress for © industries than there are members of Congress.  But fair use guidelines for documentary film weren’t threatening, especially once there was insurance for filmmakers who used the guidelines.  Good fair use decisions, e.g. on replicating scenes from Deep Throat for Lovelace.  Fictional films based on factual situations: pushback from studios, which clear everything; they don’t care.  Clear the spines of books visible on a bookshelf. Independent filmmakers don’t have time, personnel, or money to do that and have to rely on fair use. We found it fairly easy to call these films hybrids, so when they were dealing w/historical facts we used the same logic as in best practices.  Three-question safe harbor developed in our office. When we write our opinion letters we start with the statute, though it’s not always as much help as one would like; our safe harbor/best practices are more helpful.  Difference b/t major studios and small filmmakers: Major studios only relied on fair use in biopic about Steve Jobs, and sadly cut down substantially on the amount of the commercial they were using.  Ringgold case: the defendant didn’t develop an argument for why it was important to use the print on the wall to signal commitment to African-American culture; the script didn’t call attention to why it was important to use that print (but that wasn’t necessary for the lawyers to explain why it was an important signifier of African-American church culture).

Panel 3 - Fair Use

Jonathan Band, Copyright and the Telling of History

Recent fair use decisions have significantly helped solve the problem copyright causes historians, a shorthand for people who want to make use of historical clips—documentary filmmakers, academics, etc.  Long © term is the source of the problem.  Search engine precedents: thumbnails, snippets.  Visible uses in the course of search are fair.  Preservation and identification have become much easier.  Use in telling the story is also a transformative purpose.  Bill Graham v. Dorling Kindersley. Original use was to tell people where/when the concert was; reuse had historical purpose.  (By contrast, use just to make you laugh might not work, as in recent Who’s on First case.)

More complicated: Bouchat v. Ravens: Baltimore Ravens logo.  Flying shield logo turned out to be infringing, so they redesigned it.  But they have all this footage of the games in the first three season where they used the infringing shield. Under what circumstances can you use the footage?  Multiple decisions, some make more sense than others; one decision disallowed the use in NFL highlight films because they didn’t think it was really historical, only entertaining and promotional for Ravens games/NFL. Using still images, even in a display in corporate office, was more museum-like and fair use. Later case: telling more of a story about the draft picks, and that was seen to be a fair use.  That’s more like a real documentary than the highlight films; he’s not sure that line makes sense.  The complicating factor is that the Ravens and the NFL were the initial infringers; maybe a 2 strikes rule (for football). 

Fox News v. NJ Management Gp.: used image of 9/11 fireman juxtaposed against Iwo Jima photo; Fox was trying to say that they didn’t need to license that b/c they were commemorating the event.  The court thought it was more promotional for a broadcast/part of advertising.  Skeptical of transformative purpose. 

Recent fair use jurisprudence can address how family members or owners of estate want to use © to protect the image of a dead person: MLK Jr. and the movie Selma, where they rewrote speeches to avoid threats.  So they don’t use King’s actual words but paraphrases. Fair use is a critical tool in preventing the airbrushing of history.  Prof. Jaszi has made this tool much more effective in preventing such airbrushing.

Rebecca Tushnet, Fair Use Hopefulness

I’m here to praise Professor Jaszi’s work making fair use useful: empowering communities and individuals to rely on fair use, rather than leaving it, as Larry Lessig famously said, merely the right to hire a lawyer.  Professor Jaszi has spent decades working to improve the situation of creators in the real world as they navigate copyright law’s affordances and constraints, because he believes that there are measurable improvements that can be made even when, as has for too long been the case, the political system is captured by large institutions with little regard for fair use or for the budding creators that are the seed corn of culture.  The law’s recent encounters with fandom provide some reason to think that Professor Jaszi’s eternal hopefulness is justified.

In media fandom, a set of communities often constituted primarily by people who identify as women, practices of remix and appropriation are performed for pleasure and in order to provide the community with more of what it wants, a “more” that the supposedly endless productivity of capitalism has been unable or unwilling to provide in return for money.  Through iteration, individuals recognize themselves as creators and as part of a community, sharing meanings and developing identities. 

Although fandom communities are far from utopias, and can partake of the worst features of mainstream culture (fans are, after all, people), they also offer feminist models for understanding the dialogue between individual and community at the heart of almost all creative practice.  The apparent contradictions embodied by fanworks—produced by individuals in a communal context, created by authors while explicitly acknowledging copying, intermingling noncommercial activities with works created for commercial profit—find in fandom communities a partial but productive synthesis.

In the legal literature as well as elsewhere, there are increasing numbers of thick descriptions of fan communities, types of fanworks—fan art has a different trajectory than fan fiction or fan video—and different national or historical experiences of fanworks.  In addition, fanworks are now increasingly part of the copyright “test suite,” used to examine implications of various rules or rule changes.   A rule that would treat noncommercial fanworks as infringing is, by default, an unattractive one to most copyright academics and even some policymakers.  I’m very happy about that.

Scholars have also explored other low-IP spaces, trying to glean why they could remain so creatively productive despite a lack of propertization.   Noncommercial fan creators joined an ever-growing list of exemplars of well-functioning creative communities with only glancing intersection with the intellectual property system, including stand-up comedians;  American fashion designers;  high-end chefs;  roller derby performers;  magicians;  tattoo artists;  typeface creators;  substantial parts of the pornography industry;  graffiti artists;  athletes;  and drag queens.  Recent work by Jessica Silbey and others also shows that even in supposedly “high-IP” spaces, the actual process of creating and monetizing copyrightable works and patentable inventions relies much more on intrinsic motivations, attribution, and behavioral norms than on law.  

Meanwhile, a lot was going on in other areas of copyright law and scholarship.  In the courts, fair use was finally resuming its role as an important guarantor of free expression.   No longer was fair use merely the “right to hire a lawyer,” as Larry Lessig famously disparaged it.  In particular, the concept of “transformativeness,” which is to say, adding a new meaning, message, or purpose to the existing work, began to have real bite in identifying works that copyright owners should not be allowed to control, even in the absence of savage criticism of the original.   Fanworks are regularly transformative—even when they’re celebratory, they create new readings and meanings for the originals that inspired them.  Recent cases involving noncommercial video are also promising in more readily finding fair use.

Outside the courts, we’ve seen greater flexing of fair use muscles as well.  Patricia Aufderheide and Peter Jaszi have shepherded the development of fair use best practices in various communities.   These include best practices in online video, though that project (in which I participated) doesn’t fully cover fan practices.   The various best practices projects are one implementation of a larger idea: creative communities can engage in deliberation about how to respect earlier creators’ rights while also preserving important freedoms for subsequent creators.  The best practices projects turn implicit knowledge into useful guidelines for newcomers as well as providing good examples for people to think with.

Fan creators have been participating in legal dialogue in other ways.  The Digital Millennium Copyright Act barred circumvention of technical measures used to prevent copying,  but provided for a temporary exemption process where the anticircumvention rules hampered noninfringing uses.  In 2010, following submissions from fans collected and curated by the OTW, the Copyright Office for the first time recognized the needs of noncommercial remix artists, including fanvidders, to make clips of video using high-quality source.   It specifically mentioned fanvids in its rulemaking, and again when the exemption was renewed and expanded in 2012,  and again in 2015.   Although the Copyright Office does not bind courts in copyright infringement cases, the fact that fairly conservative copyright lawyers recognized that at least some fanvids constituted fair use was another indication that fair use law has moved to where fans need it to be.  (Quite relevantly, Professor Jaszi was vital in convincing the Electronic Frontier Foundation that it was worth trying to get an exemption for noncommercial video makers like vidders, after AU’s IP Clinic helped Peter Decherney secure the first use-specific exemption for film studies classes in 2007.  We discussed how to frame our arguments with him, which was very valuable in successfully presenting our evidence to the Copyright Office.  And I was not as hopeful as Prof. Jaszi: after the first time I testified, I wrote in my journal that “Today I did a very good job at something where the extent to which I did a good job doesn’t matter and should,” but Peter’s optimism was more justified.) 

Outside the United States, there were also important developments.  Most notably for fan scholarship, Canada enacted an exception for noncommercial remix or “user-generated content,” known as the YouTube exception although it applies to far more than video and audio remix.   Because of this exception, Canada is arguably ahead of the US in protecting noncommercial transformative works.  In 2014, the Australian Legal Reform Commission recommended the introduction of fair use into Australian law, predicting that change’s positive effects on  “musical compositions, new films, art works and fan fiction.”   Similarly, Peter Yu has been working tirelessly for reform in Hong Kong that would, among other things, protect remix and fanworks.  Naming a thing is usually a predicate for assigning it legal meaning and value, and so these are important positive developments for noncommercial transformative works.

Fans have also begun to engage in deliberate activism around copyright reform.  New York Times best-selling author Naomi Novik, also a fan writer and vidder who helped found the Organization for Transformative Works (OTW), testified before Congress at hearings on fair use.   Among other legal initiatives, the OTW helped renew and expand existing exemptions to §1201’s prohibition on circumventing digital rights management technologies in order to make remix videos.  Fan video makers provided the bulk of the evidence used to secure the remix exemptions, and are likely to continue to do so.   Even in individual interactions, fan creators increasingly adopt the language of transformative fair use, deploying the arguments of fan-friendly lawyers.

Fandom is, after all, a training ground that teaches people that they can speak creatively, and that their speech is often welcome.  And it’s a place where communities of like-minded people meet up and do things together.  Political possibility is thus inherent in participatory fandom: transformative fandom is definitionally about the possibility that things might be different.

Professor Jaszi’s long-term project of creating numerous fair use best practices is a particularly striking example of using within-community dialogues to have a broader impact; but there are also other ways in which the presence of multiple voices can change how we think about creativity and creative freedoms.

“Work” is a noun in copyright, but a verb in the everyday practice of creativity.  One of the implications of thinking about process is that valuable acts of creativity occur even when the results are similar to those that have come before, because it represents the creative development of the individual.  And as Jessica Silbey’s interviews with professional creators and the people who support them have revealed, economically successful authors and fans are not all that far apart in their needs and concerns for process. 

Work from across many kinds of creative spaces also shows that creators place value on attribution across communities, though with specific twists: in each community, some creations or credits are shared and others aren’t.  Credit plays an important role in incentivizing production and structuring community relations and in-community hierarchies.  Credit is also highly context-dependent in terms of what suffices for proper credit and who’s credited.  This extensive variation suggests some of the problems with a legal attribution right, which can never be as responsive to context as community norms.

Likewise, communities always have people who do the difficult and underappreciated work of making the community function—for the derby girls David Fagundes studied, the work was running the master name roster, but it can be making sure that the chairs are set up and that the coffee is brewed for a local meeting, or paying the website hosting costs and writing the code for a fan fiction archive, something Abigail De Kosnik has written about.   If we value communities, we need to know more about how to keep those structural features in place, especially as they seem to degrade in broader society—and we need to think about how gendered expectations of work have contributed to their structural invisibility.  

How should the law react to the kinds of variations we see?  I have a few lessons to suggest. 

One direct legal lesson from the seemingly endless variety among fanworks is the importance of epistemic humility.  Because different audiences may read a new work in varying ways, some may see parody and transformation while others see merely repetition.  To take a recent copyright example, where some people saw feminist toy company Goldieblox’s rewriting of the Beastie Boys song “Girls” as feminist and critical, others claimed that the original song was already mocking the sexism Goldieblox sought to criticize in its ad for an engineering toy directed at girls.   The lesson of this inevitable multiplicity is that no one group’s reactions should be prioritized in assessing transformativeness; where an interpretive community finds a new meaning or message in a new work based on an existing work, that should strongly favor fair use.

A broader, though perhaps less helpful, lesson for the law is that it doesn’t do particularly well at regulating relations within communities.  The creative ecosystem is a blooming, buzzing confusion of different kinds of creators, and of norms that differ as between insiders and outsiders.   For example, in many areas of media fandom, creating unauthorized new stories based on the work of profit-seeking copyright owners isn’t just fine, it’s constitutive of creative fandom.  However, doing the same thing to a work of fan fiction—creating a fanwork of a fanwork—without the original creator’s permission is highly controversial.  Fan art is routinely sold, but “pulling to publish”—removing fan fiction from online distribution and rewriting it so that it can be sold as a separate work—is controversial, perhaps precisely because it seems to be withdrawing a gift that has been reciprocated with gifts of feedback and praise.   These differing norms by medium are an example of the kind of context sensitivity—and lack of fully settled rules—that communities routinely produce and that generic legal regimes find hard to replicate.

Low IP-communities are also spaces of creative risk-taking.  In transformative fandom, any given story is just one of many featuring the same characters; you can kill them all and see if that works, and give them all babies and happily ever after and see if that works, and so on.  Similarly, fanworks can easily experiment with form—not just the short story (for which there is an extremely limited commercial market) but also with poetry, mixed media, and other innovations.   Fanworks are also well-known for experimenting with content, especially sexual content, and for providing stories that feature heroes other than straight white men.   People who are drawn in by the presence of favorite characters are willing to take more chances in their media consumption than they otherwise would.

When they succeed, the experiments found in fandom can also be the source of important and economically significant innovations.  Fifty Shades of Gray is a controversial example, but it involves a classic innovation story of the kind studied by Eric von Hippel: a “user” who did not professionally produce the text at issue customized it for her own particular interests (rewriting Twilight without supernatural elements and with a lot of explicit sex).  The customized version proved popular with other users.  This altered version was then commercialized (during which process some of the rougher edges were smoothed over).  The example of Fifty Shades has led commercial publishers to seek to satisfy a previously unrecognized market for written erotica that appeals to women, a market they had been unable even to see before a revised fanwork illuminated the demand. 

So, another lesson is that the ability to move into and out of the formal economy is an important part of the creative cycle.  To deem an experimental act of creativity infringing because of its potential connection to economic reward risks shutting down that generative flow. Just as Uber, Airbnb, and other startups are trying to turn once limited, often freely offered personal interactions into monetized transactions in which a third-party intermediary makes most of the profit, copyright owners see the possibility of controlling every creative expression related to their works.  But to do so would be both futile and potentially deadly to creativity.

Feminists working in intellectual property need to talk about the way that our pleasures are mobilized in order to keep us providing uncompensated value to copyright owners: after all, we like it.   One ongoing goal is to make economic hybridity less repressive and exploitative than the coopation offered by initiatives such as Kindle Worlds.  As commercial entities move from suppression to cooptation, our legal and practical strategies must change as well.  Continued insistence that commercial motivations are not fatal to fair use defenses is one important part of these strategies. But supporting communities through other ways, such as preserving permeable noncommercial spaces and through using nonprofit law, is also important and doesn’t rely on IP law as such.

To borrow a famous line, women can make our own history, but we do not make it as we please; we do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.  Remix is a way of taking what we’re given and making it better.  It remains for us to keep choosing our conditions, recognizing that our choices are partial and constrained but not therefore meaningless.  Remix, then, is fundamentally a hopeful act: it reminds us that things could be different. 

Michael Madison, Patterns and Fair Use in Copyright 2: The Sequel

Past work: found patterns in fair use decisions. A descriptive claim: a community or group is present; this can predict a fair use finding.  Social science links behavior of individuals in communities to creative outputs, not in a linear way but a probabalistic way. Trying to step beyond norms and customs as such (responding to Jennifer Rothman’s criticism) to look at groups, whether commercial or noncommercial, small or large.

What do the cases decided since the end of 2003 tell us?  Provisional results: to a significant degree, those patterns still matter.  What’s changed?  Google cases, Kelly v. Arriba Soft—different valence compared to the history; the word Madison uses is info “infrastructure”—to evoke Brett Frischmann’s work on infrastructure.  I don’t think it’s a social pattern or community activity, so a gap has opened up compared to 2004 where I saw social groups as explaining most of the cases.

Storytelling no longer quite captures the idea that defendants might be legitimately engaged in acts of affirmative creation of new artwork, whether in narrative form or otherwise.

There’s a gap opened up b/t the path of legal doctrine that focuses on transformative use as Campbell and the idea of social patterns as an independent explanatory variable.  Jaszi liked the idea of talking about socially patterned activity, aligning with transformativeness under Campbell. Since then, transformativeness acquired a gravitational pull of its own, no longer as clearly derived from or driving patterns of social activity.

Micro observation: linkage b/t socially patterned idea and what Jaszi & team did in best practices.  Influential b/c they had a strong descriptive and normative foundation. Worry about whether normative foundation is still as robust as it was—need to keep working to ensure they’re founded in where the law is.  Madison is invested in knowledge commons, community self-governance as a way of dealing with knowledge, linked to “IP without IP” studies.

Patricia Aufderheide, The Impact of Codes of Best Practices in Fair Use

Worked w/more than ten different communities on best practices. Each is distinctive, and we’ve learned a lot.  The method: deeply research actual practices to understand the community’s problems, facilitate discussions about balancing their interests as people who own © and people who need © material.  Evidence-based action.

Copyright Office adopted Rothman’s critique that these are unreliable b/c not negotiated w/rights owners [critique from the right].  Jim Gibson says: they could become ceilings and not floors [critique from the left].

What evidence?  Insurers started routinely accepting fair use claims.78% of filmmakers surveyed started to understand fair use; they thought it was very valuable, especially younger filmmakers who saw it as essential tool. We asked how many had had fair use claims rejected? 1-3% reported problems—that is an industry standard, where 99% of insurers accept claims and 97% of broadcasters.  In 2005, Donaldson’s firm didn’t handle any fair use issues for Sundance; 2010, they’ve got 5 films using fair use, and 730 different fair use issues (two films used lots of clips); 2015, they’ve got more than 25 (lost the exact number) sprinkled throughout types of fair use.

Communications scholars’ best practices. Less successful story, b/c communications associations that adopted code haven’t been particularly interested in promoting it.  The codes do nothing; the community must absorb and use the code. Nonetheless, saw changes in 5 years among communications scholars. More people know they’ve employed fair use; they are more frustrated when they can’t get fair use claims accepted. Sad news: only 1/3 know they have a code of best practices. Most of the people who use the code find it helpful. People doing multimedia publishing are a subset who know about fair use and are using the code heavily.

Best practices for fair use in the visual arts: in survey, nearly 2/3 of them knew about the code 10 months after release.  Half who knew had used the code.  Increased likely use of fair use. Also huge institutional change w/in 10 months. Major publications in the field, including the leading publication which is by College Art Association—changed default to fair use; Yale Univ. Press created similar guidelines; museums changed institutional policies internally; MIT and Smithsonian Presses in negotiations. These institutional changes have huge effects, similar to insurers.

Creating the document opens the door to what might happen. Culture of community will change if and only if leaders circulate the information and institutions take the opportunity.

Critics: Unreliable?  Not to insurers, broadcasters, publishers.  Is it a ceiling or a floor? We do have uses that keep expanding.  The same thing happened with open courseware.  Documentary filmmakers move from a position of believing they’re doing something that might be illegal to believing that they have a right to do it to believing that they’re entitled to defend it in public, as at the DMCA hearings.

Brandon Butler, Rationalizing and Operationalizing Non-Transformative Fair Use

He’s from U. Va., founded by the “he who lights his taper from me” guy (a civics lesson from a slaver).  Transformative fair use & why it works so well: you need to know your purpose, the other guy’s purpose, and how much you took.  That’s a very different situation from life w/o transformativeness. Takes the user’s point of view—the client in the clinic or the community for best practices. They’re in the driver’s seat explaining why they want the use. The normative force is clear, unequivocal and even constitutional: you aren’t begging.

Alternatives: varieties of market failure: HathiTrust, no interest in market; Georgia State: favored purpose + market failure. Fails b/c the details are often arcane: Georgia State involves 600 pages of market information which no librarian could ever know ex ante.

Jennifer Urban (remotely from Berkeley), Comments

Shift in the way fair use is thought about, theorized, and practice.  Cluster of work in scholarly world that is loosely empirical—Sag, Beebe, Madison, Samuelson—making sense of the case law for practical application. Tushnet, Silbey etc. talk about how practice has changed naturally with this as tools have become more democratically available. Shift from individual view of fair use to community view underpins the statements of best practices. 

How do statements of best practices fit into broader landscape of change? From lawyer’s perspective, change relationship b/t lawyer & client, and ability to counsel the client.  Demystifying fair use: article w/Tony Falzone.  Triad relationship between practitioner/creator, lawyer, and gatekeeper/distributor/superior in creator’s organization.  Each participant encounters a set of barriers to making a fair use.  For the practitioner there are things like downside risk, permission culture, lack of expertise, unclear legal boundaries, difficulty negotiating w/gatekeepers when you don’t speak copyright, wish to be ethical/collegial, desire to avoid expense of lawyers.  Newcomers may not know limits of collegiality/ethics.

Gatekeepers: permission culture is a big thing; very aware of downside risk. They often don’t want to be blockade and would like to give more leeway, but they’ve come to believe that a norm of licensing is actually required, and that makes them less flexible.  Lawyer faces highly contextual caselaw; worries about downside risk to client; has limited sense of community norms.  Together, those things in the past set up fair use as an unusable right.

Best practices address all these issues together, shifting from jargon to community vocab. Go from unclear cases that have to be analogized to common specific scenarios encountered in the field and allow decisions based on known facts.  Practitioners can reflect ethical practices of her community. She has the tools to negotiate w/gatekeepers about what she’s trying to do in concrete terms.  Specific and applicable examples can diminish the distance b/t case law and this situation; helps to calculate practical risk.  Teaches the lawyer the community norms and vocabulary for whatever community we work with.  Some people develop expertise w/ communities, e.g. Donaldson for documentary film, but best practices allow more people to do that, to compress education in the community’s practices.

There is no way to completely remove downside risk, w/o reform of remedies. But best practices can put that into perspective. There’s even insurance for documentary filmmakers.  Simple steps can move a creator and a community from essentially being unable to use fair use to being able to use it on a regular basis. Poets routinely paid permissions even for critical commentary in a scholarly article.  Hope that best practices can move them.  Relatively simple statements can have profound effect w/in communities. 

There are definitely skeptics; she was a friendly one at the outset. Her concern was the concern for defining a ceiling/failure to update as practices change. But as she’s worked w/clients over the years and her students have, she’s come around to the view that they can describe the most important situations practitioners encounter and that they can be updated over time.

Too permissive/dream of fair use?  When she hears that from a lawyer, she invites them to read 3 of the statements; the statements are careful and ethical.

It’s easy to forget how strong the skeptics were at the start.

Jaszi comment: thinks Gibson is now no longer as serious a critic and now has agreed. Also, insurance isn't just for movies. You can get E&O insurance for books. It's possible that while we wait for remedy reform, the missing piece of all this, we need to experiment more with the additional possibilities of insurance.