Fair Use?

Joseph CornellI have been browsing through my old bookmarks and data sources lately and found some interesting things I would like to draw your attention too. First thing is the video underneath on fair use of online video resources from the Center for Social Media at American University. Now what is fair use again? In the accompanying text it says:

 “Fair use is the part of copyright law that permits new makers, in some situations, to quote copyrighted material without asking permission or paying the owners. The courts tell us that fair use should be “transformative”—adding value to what they take and using it for a purpose different from the original work. So when makers mash up several works—say, The Ten Commandment , Ben-Hur and 10 Things I Hate about You , making Ten Things I Hate about Commandments —they aren’t necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.”

Hmmm, although still vague, the video offers some true potential to online creativity, counter posing strict copyright rules with examples of what exactly is permitted under the nomen of fair use, balance, community codes and prevention of censorship. And it seems quite a lot actually. But how exactly do I know when it’s fair use? The video states ‘so long as you don’t use so much that your work becomes the substitute for the original.’ Or ‘don’t use more than you need to illustrate your point.’ These still seem unclear boundaries to me, but at least fair use rights do offer a lot of opportunities for remix and mashup artists to make an argument for their case. Still ‘this code of best practices does not tell you the limits of fair use rights’, it says on the website. It seems it has to be ‘reasonable’ use. Diving deeper into the explanations on the website.

 Remix Culture: Fair Use is your friend

Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In reviewing the history of fair use litigation, we find that judges return again and again to two key questions 

1) Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

2) Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.”

These guidelines actually give people quite some power to defend their use of copyrighted material, as long as it ‘adds’ something. A report which can also be found on the site ‘points to a wide variety of practices—satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups)—all of which could be legal in some circumstances.’

Still, mashups stay contested as the video underneath shows. The discussion continues…


To show a beautiful example of the potential of a remix or collage (or assemblage) of a movie (made as long ago as the early 30’s) you can find underneath part 1 of the mesmerizing work Rose Hobart by Joseph Cornell (which I found through the equally astonishing article ‘Theatre of the spirit: Joseph Cornell and Silence’ by Catherine Corman, in Paul D. Miller’s Sound Unbound). The film is a collage of footage from the 1931 movie East of Borneo, from which the sound was stripped and during live performances accompanied by a record of Brazilian music. The movie is an ode of Cornell to actress Rose Hobart, focusing almost exclusively on the scenes she appears in. Corman quotes Cornell calling the film ‘a communication of her essence as a human being’. Thank god for fair use.



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Open Reflections is created by Janneke Adema



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