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Code of Best Practices in Fair Use for Online Video

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

The Code of Best Practices in Fair Use for Media Literacy Education

This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question—as it does for certain narrowly defined classroom activities.

This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.

Fair Use in Media Literacy Education FAQ

Educators need to make better use of their fair use rights under copyright law. The Code of Best Practices in Fair Use for Media Literacy Education helps clear away the copyright confusion and, in the process, encourage the use of mass media, popular culture and digital media as a means to build students’ critical thinking and communication skills. Here, the Media Education Lab answers some common questions about the Code.

Recut, Reframe, Recycle

Online videos frequently quote copyrighted material without permission, in ways that could be entirely legal through fair use. But these works are threatened by anti-piracy measures that do not distinguish adequately between legal and illegal uses.

Fair Use Frequently Asked Questions

Since the release of The Statement of Best Practices we have received many inquires about fair use. Here are some of our more commonly asked items.

The Cost of Copyright Confusion for Media Literacy

The Cost of Copyright Confusion for Media Literacy, based on scores of longform interviews with teachers, shows that the fundamental goals of media literacy education—to cultivate critical thinking and expression about media and its social role—are compromised by unnecessary copyright restrictions. As a result of poor guidance, counterproductive guidelines, and fear, teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms. This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment. However, educators today have no consensus around what constitutes acceptable fair use practices. The report concludes with a call for educators to develop a consensus around their interpretation of their most valuable copyright tool: fair use.

Unauthorized: The Copyright Conundrum in Participatory Video

Suppose you’re running an online video platform, and people start uploading video that uses other people’s work. How should unauthorized use of other people’s work be treated in this new environment?

The Good, The Bad and the Confusing: User-Generated Video Creators on Copyright

How do creators of content on the plethora of sites that accept online video understand their rights and responsibilities regarding intellectual property? Addressing this question is challenging, since the pool of creators is not only diffuse but constantly changing. In this study, undergraduate and graduate college students who upload online video were asked to describe their practices and attitudes on using copyrighted material to make new work and on the value to them of their own copyright. Includes links to press coverage of report.

Documentary Filmmakers’ Statement of Best Practices in Fair Use

Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement of fair and reasonable approaches to fair use. Download this useful handbook, written by veteran filmmakers to help other filmmakers understand some instances where using copyrighted material without clearance is considered fair use. Click here for the full report & here for a list of authors and endorsers of the Statement.

Success of the Statement of Best Practices

The Statement has provoked dramatic change in the industry since it was released in November 2005. PBS and ITVS have used the Statement to release programs, and so have cablecasters including IFC. All four of the national errors and omissions insurers now issue fair use coverage routinely, as a result of the Statement.

Teaching about Copyright and Fair Use for Media LIteracy Education

Media Education Lab
The Media Education Lab at Temple University has created a whole set of Curriculum Materials for teaching and understanding copyright and fair use. The materials include lesson plans, songs, case studies, and videos. If you’re interested in learning more about Fair Use in Media Literacy Education, make sure to check out these excellent materials!

Fair Use Language for Course Syllabi[PDF]

In your syllabus, you often have some information on copyright. Here is some language to include in that section, specifically on fair use. This language has been reviewed by lawyers, including law professor Peter Jaszi of American University’s Washington College of Law and Michael Donaldson of Donaldson and Hart law firm, and it has been approved by the University Film and Video Association for use by its members.

Copyright Backgrounder[PDF]

By Michael Donaldson, Esq.
This concise background document describes what copyright is and what can be copyrighted, as well as what material is in the public domain and what is fair useable. Michael Donaldson is an attorney in Los Angeles, many of whose clients are leading documentary filmmakers. His book, Clearance and Copyright (Silman-James Press, October 2003), from which much of this information has been drawn, is widely regarded as a basic text for documentary filmmakers. Donaldson also contributed his expertise to the Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Fair Use Scenarios[PDF]

Here are four scenarios, or hypothetical situations, that a documentary filmmaker might find him or herself facing. The four scenarios are each linked to one of the Statement’s categories. These can be used for classroom discussion, and to inspire you to write other scenarios. The goal of these scenarios is to allow discussion about what the fair and responsible thing to do would be, not to find out “the right answer.” These scenarios thus allow students to consider what they think makes sense, in light of the Documentary Filmmakers’ Statement of Best Practice to see what professional filmmakers established as principles and limitations.

What’s Fair About Fair Use?

Listen to Pat Aufderheide and Renee Hobbs podcast "What’s Fair about Fair Use? The Rights of the Rest of Us under Copyright" at the ACME Summit 2006.

The Law of Fair Use and the Illusion of Fair-Use Guidelines[PDF]

By Kenneth D. Crews

Fair Use and Best Practices: Surprising Success[PDF]

By Pat Aufderheide and Peter Jaszi
Aufderheide and Jaszi discuss the successes of the Statement of Best Practices in an article published in Intellectual Property Today.

Copyright, Fair Use and Motion Pictures[PDF]

by Peter Jaszi, Washington College of Law, Program on Information Justice and Intellectual Property
Motion Pictures and Copyright Discipline

How Documentary Filmmakers Overcame their Fear of Quoting and Learned to Employ Fair Use[PDF]

by Pat Aufderheide
A Tale of Scholarship in Action, this article appeared in the International Journal of Communication, Vol 1 (2007)

How to Find Out What is in the Public Domain[PDF]

Professor Peter Hirtle explains when copyrighted material falls into the public domain.

Fair Use: An Essential Feature of Copyright[PDF]

Hearing testimony by Peter Jaszi explains the legal significance of the doctrine of fair use, for creators, consumers and commerce.

“Yes, You Can!”—Where You Don’t Even Need ‘Fair Use’[PDF]

This helpful guide by Peter Jaszi offers insight into what falls into the category of free use.

Statement of Best Practices FAQ[PDF]

Read a FAQ about the Statement of Best Practices in Fair Use

Untold Stories: Creative Consequences of the Rights Clearance Culture[PDF]

By Pat Aufderheide and Peter Jaszi
The Documentary Filmmakers’ Statement of Best Practices began with a study demonstrating the problems that documentary filmmakers face in getting and controlling rights for their creative work. Here is the 2004 report, funded by the Rockefeller Foundation.

• Documentary Filmmakers’ Best Practices in Fair Use
  Resources for mediamakers on fair use
• “Docu makers rallying for fair use of fair use”
  Written by Gregg Kilday, published in the Hollywood Reporter.
• “Copyright isn’t the Last Word”
  An emerging “fair use” doctrine lets makers of documentary films use some material without obtaining a license. Written by Elaine Dutka, published in the LA Times.
• “Doc-makers Get Specific About Copyright Fair Use”
  Written by Steve Behrens, Published in Current Magazine