When can copyrighted content be used in online videos?

With more videos turning up on the Web, how should "fair use" -- an element of copyright law first developed for the printed word -- best be applied within this emerging medium? That's the subject of a Ford Foundation-funded study.

To help answer questions around the legal repurposing of content, the Center for Social Media -- funded by the Ford Foundation -- has just released a new "Code of Best Practices."

Copyright law has certain features that permit quotations from copyrighted materials without permission or payment, under specified conditions, and fair use is "the most important of these features," according to the authors of the Future for Public Media Project's Code of Best Practices in Fair Use for Online Video.

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The Project describes the new code as "a guide to current acceptable practices, drawing on the actual activities of creators," [and] derived from "the judgment of a national panel of experts."

"Inevitably, considerations of good faith come into play in fair use analysis. One way to show good faith is to provide credit or attribution, if possible, to the owners of the material being used," according to the new report.

Beyond that, the code outlines six conditions under which copyrighted content might be re-used in online videos while staying within the realm of "fair use" -- and by extension to that, copyright law:

  1. Commenting on or critiquing of copyrighted material
  2. Using copyrighted materials for illustration or example
  3. Capturing copyrighted material incidentally or accidentally
  4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
  5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
  6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

Yet the authors of the report also point to limitations of each of these conditions. For example, if the creator of an online video is using copyrighted material for "illustration or example," each use of the copyright content "should be no longer than necessary to achieve the intended effect."

The foundation also cites a number of myths about fair use, such as:

  • If I'm not making any money off it, it's fair use
  • If I'm making any money off it (or trying to), it's not fair use
  • Fair use can't be entertaining
  • If I try to license material, I've given up my chance to use fair use
  • I really need a lawyer to make the call on fair use

"And finally, a special note from the lawyers among us: Be careful not to draw too much from specific past court cases," quipped the Project's panel.

Led by Peter Jaszi and Patricia Aufderheide, two professors at American University, the Code of Practices Committee also includes nine other members. Jaszi -- who is a law professor -- and five other members are attorneys. The other panelists, who are employed by universities, specialize in areas ranging from media studies and cinematic arts to creative writing and library science.

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