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.

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