Analysis for 'Daisy Whitney'
Monday, May 11, 2009, 7:36 AM ET|Posted by Will Richmond
Daisy Whitney, my podcast colleague and omnipresent broadband video industry reporter, has recently released an excellent 25-page E-Book on fair use. It is titled "Keeping You and Your Content Out of Court" is a solidly researched piece on an extremely gray subject area that has tripped up even some of the biggest content creators. If you've ever been concerned about how much of someone else's content you can freely use in your work, and what the guidelines for such usage are, this E-Book is a must-read.
The E-Book is available here, with a VideoNuze discount (enter code "VideoNuze" at checkout), for $31.50. Note, there's no commission in this for me.
In this short interview below, Daisy explains what you can expect.
VideoNuze: Tell us more about the E-Book you've written. What are the key benefits to readers?
Daisy Whitney: For the E-Book I interviewed more than a dozen leading copyright attorneys and IP experts, asking for their understanding of fair use and how they advise their clients. I describe the most important fair use court rulings of the last 35 years and what they mean in day-to-day practice. The E-Book gives content creators the tools and "litmus tests" they need to assess whether a video they've created complies with fair use standards. The book is a cost-effective alternative to hiring a lawyer to address these kinds of questions. I hope that creators will learn how to evaluate, edit and distribute their work in a way that avoids any legal troubles.
VN: Why does "fair use" matter to online video creators in the first place?
DW: The fair use doctrine from U.S. Copyright law impacts many decisions video creators make about their videos. For example: What if you wanted to play background music in a video? Can you zoom in on a copyrighted photograph on a web site in your video? And how about incorporating a 5 or 10 second video clip from a TV show? Are you allowed to do any of these things or are you putting yourself at risk of being sued? The answers are not black and white. Just ask the mom of two who shot a video of her toddler dancing to a Prince song and is now being sued by Universal Music Group!
VN: At a high level, what makes compliance with fair use such a gray area?
DW: Fair use - like many areas of law - is ultimately an art, not a science. That's why lawyers have jobs! Fair use isn't a law per se, it's a set of standards, which can be either a sword or a shield. I have distilled what I heard from the lawyers and experts I interviewed into a set of guidelines and precedents which I think will be invaluable for content creators.
VN: Can you give a couple examples of how fair use has been viewed by the courts?
DW: The Harry Potter case - Warner Bros. and J.K. Rowling vs. RDR Books, is a great example because it helps to define the concept of "transformative" work, which is an important fair use standard. In the case, Warner/Rowling argued that a new online encyclopedia being written with the use of Potter materials would have competed with a similar project Potter author Rowling was also working on. The court ruled that the new encyclopedia did not significantly alter or change the original work so as to become a wholly new work, therefore it was not considered fair use. Ultimately the author added his own comments and critiques, "transforming" his encyclopedia into a new work and qualifying for fair use.
VN: What are the main things an online video creator can do to comply with fair use conventions?
DW: For starters, they should educate themselves about fair use. For instance, some people still believe there's a mythical "15 second rule" that freely allows you to use 15 seconds of someone else's work. That's not true! If your use of someone else's work causes marketplace harm and infringes someone else's commercial rights, that's where you'll get into hot water. So again, the goal of "transforming" the original work into something new is paramount.
VN: Thanks Daisy!
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