Fair Use Fundamentals

By Carrie Russell

They say fair use has turned on its head

That schools and libraries take fair use to bed

With veiled threats that litigation has worked before

It surely is not something we should ignore

So much hoopla and oh, such a haul

Schools and libraries follow the law!

While my library is having a couple of formal events I’m plugging Fair Use week in my blog (theconfirmationbias).     The usual disclaimer that I am not a lawyer AND, in this case, this is me as an individual not me representing Notre Dame!

The Clash’s  Know Your Rights  with its frightening warning that “You have the right to free speech as long as you’re not dumb enough to actually try it” is just as timely today as it was in 1982 when it was released.

You probably know that the right to free speech is in the first amendment, along with the right to free assembly and the prohibition against any religious test for participation in this, our happy republic.  But you might not know that our intellectual property law ALSO starts in the first amendment.  Yup, intellectual property law is the love child of the first amendment and Article 1 section 8 of the Constitution.

On October 13, 2010, a Korean high court affirmed a lower court ruling that a 53-seconds-long video clip posted on a blog, showing a 5-year-old humming along to a copyrighted song, constitutes a fair use, and ordered a copyright society to pay the poster damages for unjustly requesting a takedown under the Korean notice-and-takedown system. The judgment was not appealed by the copyright society and has now become final.

The following is a guest post by Julie Grob, coordinator for instruction in Special Collections at the University of Houston Libraries. This week, we’ll feature posts by members of the UH Libraries Copyright Team highlighting Fair Use/Fair Dealing Week 2016. 

Three Famous Fair Use Cases

What do the rap group 2 Live Crew, kitschy artist Jeff Koons, and pop punk band Green Day have in common? They have all been at the center of legal cases in which their use of an image or a piece of music by another artist was ultimately ruled to be fair use.

In 2 Live Crew’s case, they borrowed the familiar lyrics and bassline from Roy Orbison’s song “Pretty Woman” for their satiric song “Pretty Woman.” Koons incorporated a fashion photo of a woman’s feet clad in sandals in his painting “Niagara.” And Green Day modified a piece of street art by Dereck Seltzer for a video that played onstage during concerts on their 2009-10 tour. In each case, the court ruled in favor of the repurposing creators.

Dear CMSI,

A piece that I wrote for class will be featured in a local art journal, print and online. However, I must submit a final edit within a short deadline. I am nervous to include illustrative images supporting my analysis of a twentieth century artist in relation to the political climate of the time. I fear I don’t have enough time or resources to obtain permissions for all the images.

Best,
Colin B.

Dear Colin,

Congratulations! And good news—you may have good reason to employ fair use, which means you wouldn’t have to ask permission. To help you with your fair use reasoning, look at the Code of Best Practices in the Visual Arts, to understand what other peers do in a similar situation. Your case sounds like situations in Principle One: Analytic Writing, so we encourage you to read this principle first.

To herald Fair Use Week, we’re recalling some of the ways in which creating codes of best practices has changed what people can make and say for the better:

ARTISTS: When the College Art Association (CAA), the largest membership organization representing the visual arts community, released the Code of Best Practices in Fair Use for the Visual Arts in February 2015, visual arts professionals were locked into a permissions culture that delayed their work, raised costs, and most importantly, stifled imagination. Today, only a year later, more than 2/3 of CAA members know about the code, and many have told others or taught the code.

The following is a guest post by Nora Dethloff, assistant head of Information and Access Services at the University of Houston Libraries. This week, we’ll feature posts by members of the UH Libraries Copyright Team highlighting Fair Use/Fair Dealing Week 2016.

Fair Use Week

Fair Use Week is an annual celebration of the fair use doctrine—part of the US Copyright Law that provides limitations on a copyright owner’s exclusive rights, and by far the most flexible and empowering part of copyright law. It may also be the most misunderstood.