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Best Practices in Copyright and Fair Use for User-Generated Content Released

Publication Date: 
July 07, 2008
Source: 
Stanford Law School

STANFORD, Calif. (July 7, 2008)—The Fair Use Project of Stanford Law School's Center for Internet and Society today announced the release of a new code of best practices in fair use for creators in the burgeoning online video environment (centerforsocialmedia.org/remix). The code, grounded in the practices of online video makers and in the law, was collaboratively created by a cross-institutional team of scholars and lawyers coordinated by American University's Center for Social Media and led by American University professors Pat Aufderheide and Peter Jaszi.

The first of their kind, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law. The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

  • 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

For instance, a blogger's critique of mainstream news is commentary. The toddler dancing to the song "Let's Go Crazy" is an example of incidental capture of copyrighted material. Many variations on the popular online video "Dramatic Chipmunk" may be considered fair use, because they recombine existing work to create new meaning.

"There is a lot of confusion out there about what is in bounds or out of bounds in the online video environment," said Fair Use Project Executive Director Anthony Falzone, who served as a member of the Code of Best Practices Committee. "These best practices will go a long way in helping people understand what they're allowed to do creatively. I'm proud to be part of this and elated that the Center for Social Media brought this all together"

Until now, anyone uploading a video has run the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the Internet. As online providers have begun to negotiate with media companies, everyone has agreed that fair use should be protected. Before the code's release, there was no clear statement about what constitutes fair use in online video.

"This code of best practices will protect an emerging creative zone–online video–from de–facto censorship," said Aufderheide. "Creators, online video providers and copyright holders will be able to know when copying is stealing and when it's legal."

"The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment," said Jaszi. "Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution."

Other code committee members include individuals affiliated with Harvard University; Georgetown University; Massachusetts Institute of Technology; Stanford Law School; University of California, Berkeley; University of Pittsburgh School of Law; and University of Southern California. A complete list of committee members is available at the end of the release.

The code is part of a larger participatory media project (centerforsocialmedia.org/fairuse), funded by the Ford Foundation as part of the Center for Social Media's Future of Public Media Project. The project has already generated a convening and a study on common copyright practices in remix culture, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (centerforsocialmedia.org/recut).

Code of Best Practices Committee Members

Co-chairs

  • Peter Jaszi, professor of law, faculty director of the Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University
  • Patricia Aufderheide, professor, director of the Center for Social Media, School of Communication, American University

Members

  • Michael C. Donaldson, Esq., Los Angeles
  • Anthony Falzone, lecturer, executive director, Fair Use Project, Stanford Law School
  • Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; fellow, Berkman Center for Internet and Society, Harvard University
  • Mizuko Ito, research scientist, School of Cinematic Arts, University of Southern California
  • Henry Jenkins, professor, program head, comparative media studies, Massachusetts Institute of Technology
  • Michael Madison, associate dean for research, associate professor of law, University of Pittsburgh School of Law
  • Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley
  • Rebecca Tushnet, professor, Georgetown University Law Center, Georgetown University
  • Jennifer Urban, clinical associate professor of law; director of Intellectual Property and Technology Law Clinic, University of Southern California

About the Fair Use Project

The Stanford Center for Internet and Society's Fair Use Project ("the FUP") was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP.

About Anthony Falzone

Anthony Falzone is executive director of Stanford Law School's Fair Use Project. He is an intellectual property litigator who has represented technology and media clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. He is also a lecturer in law at Stanford Law School, teaching Fair Use in Film. Prior to joining Stanford Law School, he was a partner in the San Francisco office of Bingham McCutchen LLP.

About the Center for Internet and Society

Founded by Stanford Law Professor Lawrence Lessig in 2001, the Center for Internet and Society is a public interest technology law and policy program at Stanford Law School which engages students, academics, technologists and policy makers in exploring the interactions between technology, law, and society.

About Stanford Law School

Stanford Law School is one of the nation's leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

About American University's Center for Social Media

The Center for Social Media at American University showcases ways to use media as creative tools for public knowledge and action. It focuses on social documentary films and on the public media environment that supports civil society and democracy. In addition to hosting film festivals, conferences and working groups, it maintains a Web site that serves as a clearinghouse of resources for filmmakers, activists and scholars.

Media Contacts

Amy Poftak, Stanford Law School, poftak@law.stanford.edu or 650-725-7516
Maggie Barrett, AU Media Relations, barrett@american.edu or 202-885-5951