Study: Many Online Videos Are Fair Use

ausoclogo.gifIt seems like not a week goes by without another online video copyright controversy. Just think of the Web 2.0 parody Here Comes Another Bubble. Or the little kid dancing to Let’s Go Crazy. Or the whole Electric Slide controversy. Heck, you can’t look at anything on YouTube these days without wondering how long it’ll be before some lawyer sends over a takedown notice.

But in fact, many of these online videos are eligible for fair use protection, according to a new study from the Center for Social Media of the American University that will be presented at CES next week.

The study, which is titled Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, identifies nine key areas in which online videos make use of other people’s copyrighted works, from parodies to fan films, and from pure quotes to tricked-out mashups. Each of these areas has some potential for fair use, the study’s authors note, and they use popular examples to illustrate their point: The clip If Dick Cheney Was Scarface is cited as an example of copyrighted content used for satirical purposes that’s protected by fair use; the famous Evolution of Dance is held up as an example of copyrighted music being reused for illustrative purposes that’s protected as well.

The study’s authors don’t shy away from less clearly defined examples, either, such as the case of hobby-archivists that want to show videos to the public that aren’t otherwise available. “In general, online archivists are exposing the grey zone that analog archivists have been in for some time,” the study reads. “Conventional archiving has occurred mainly beneath the radar of copyright, going unnoticed or unchallenged by copyright owners.”

It’s exactly that grey zone that makes fair use so hard to grasp. Though everyone wants to claim it for their own work, no one actually knows what it is because the law doesn’t define strict standards, but requires that it be evaluated on a case-by-case basis. The study does, however, often refer to the Documentary Filmmakers’ Statement of Best Practice in Fair Use as a non-binding, but somewhat authoritative set of guidelines for using copyrighted content, noting that similar guidelines have yet to be created for online video makers.

Recut, Reframe, Recycle is also highly relevant for the discussion about automated copyright filtering. Audible magic-type filters have been shown to be less than reliable in the past, so how will they ever be able to judge whether or not a fat cat watching TV is fair use?