Five Essential Fair Use Resources for Online Video Makers

Happy Fair Use Day everyone! That’s right: Section 107 of the U.S. copyright law, also known as the Fair Use Doctrine, now has it’s own day, joining such noble causes as “biking to work” and “being nice to your sysadmin.” The first annual World’s Fair Use Day is organized by Public Knowledge, which is celebrating the occasion with a number of panels and film screenings.

Of course, in the world of online video, pretty much any day is fair use day. Thousands of videos utilizing other people’s work get uploaded on YouTube every day, and some of them actually become really, really popular. Just take The Evolution of Dance for example, which happens to be the second most popular video of all time on YouTube. But why is this video protected by fair use, while others are not? A number of essential resources can help online video makers to learn more about their right to mash up.

First, a word to the wise. Fair use is a copyright exception, but that doesn’t mean it is a legally binding contract or a clear rule-book. In fact, countless videos have been taken down on the request of rights holders despite being protected by fair use, and fair use doesn’t protect someone from getting sued either. It just gives you a legal defense, and with it, a number of powerful allies tying to protect your right to fair use. Video makers should always know what they’re doing when they’re making use of other people’s works — and learning more about fair use is a first step towards an informed decision. Here are five resources that can help:

The Code of Best Practices in Fair Use for Online Video, compiled by the American University’s Center for Social Media, breaks down the basics of fair use and shows how fair use principles — like the right to copy a work for the purpose of launching a discussion — can apply to online video. It’s a must read for anyone active in this space.

Recut, Reframe, Recycle is another study by the American University’s Center for Social Media, this time looking at specific examples everyone has seen on YouTube. Why is the video of Filipino prisoners dancing to Michael Jackson’s Thriller protected by fair use? And how about uploading clips of Fox News to YouTube that are supposed to show the network’s conservative bias? Recut, Reframe, Recycle explains it all.

The Documentary Filmmakers’ Statement of Best Practices in Fair Use, published in 2005, is a slightly older guide about video production and fair use, and it’s similar to the best practices for online video, minus the online video aspect. However, this document is actually authored by prestigious organizations like the Association of Independent Video and Filmmakers and endorsed by well-known documentary makers, as well as online video players like Joost, adding just a bit of gravitas that might help to convince educators or sponsors that using certain material is within the scope of the law.

The EFF’s Guide to YouTube Removals helps if your video has been taken down despite possibly being protected by fair use. One of the problems that online video makers face today is that automated copyright filters don’t know anything about fair use. Using a certain song in your video may be perfectly legal, but YouTube might still block its upload, or rights holders might force a video hoster to take it down. In fact, 20th Century Fox even took down clips that were part of its own mash-up promotion last year. Users can dispute these take-downs with counter-notices, and the EFF’s guide helps you to get started with that process. However, you should be aware that YouTube will forward your counter-notice to the rights holder in question, who could then sue you. If the rights holder doesn’t follow up with a lawsuit within 14 days, your video will be reinstated.

The EFF’s contact page is the last resort for online video makers who feel like they’ve been unfairly sued for exercising their fair use rights. The organization has helped a few online video makers in the past, and it is currently engaged in a lawsuit with Universal Music with the goal of getting damages for the take-down of a home video. Th EFF’s contact page clearly warns that it doesn’t have the resources to help everyone, but it might be able to assist with finding an attorney with knowledge about the subject.