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Good and bad examples of fair use
noir_blood
Registered User regular
Registered User regular
Hey everybody,
I'm building a copyright lesson for my ninth grade class, and thought that a fun (or as fun as things are going to get when it comes to copyright anyways) thing to start the lesson with would be a game where I put up different examples and the students say whether they think it falls under fair use or not. Trouble is, I'm having a little bit of trouble thinking of good ideas they would find relevant.
So far, I got;
Ice Ice Baby vs. Under Pressure (yeah, see about the relevant thing?)
Pokemon vs. Some random Iphone Pokemon ripoff
Shepard Fairey's 'Hope' art vs. the original photograph
Hobbit vs Asylum's Age of Hobbit
Pride and Prejudice vs Pride and Prejudice and Zombies
Any others that you guys can think of?
I'm building a copyright lesson for my ninth grade class, and thought that a fun (or as fun as things are going to get when it comes to copyright anyways) thing to start the lesson with would be a game where I put up different examples and the students say whether they think it falls under fair use or not. Trouble is, I'm having a little bit of trouble thinking of good ideas they would find relevant.
So far, I got;
Ice Ice Baby vs. Under Pressure (yeah, see about the relevant thing?)
Pokemon vs. Some random Iphone Pokemon ripoff
Shepard Fairey's 'Hope' art vs. the original photograph
Hobbit vs Asylum's Age of Hobbit
Pride and Prejudice vs Pride and Prejudice and Zombies
Any others that you guys can think of?
noir_blood on
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Let's play videos might work.
An old-school example would be the Run DMC song "It's Tricky" which samples the main riff from The Knack's "My Sharona", especially since The Knack sued about that sample roughly 20 years after the song was released.
Then there are mashups, including The Grey Album and pretty much anything by Girl Talk.
If you want a rock example, you can probably build an entire class around Led Zeppelin.
There are also tons of other examples from the art world, with one recent one being a semi-famous artist ripping off the design of a Threadless t-shirt.
Fanfiction in general?
Weird Al's parodies are good examples of Fair Use done right. He recreates the entire song and production with his own band and studio, thus avoiding the copyright pitfalls of sampling.
Glee using Jonathan Coulton's karaoke track for Baby Got Back.
Political Parties using unauthorized music at their rallies/speeches/conventions occasionally find that the artist has dissenting opinions and must stop using that particular song.
The difference is, CBS has generally chosen to tolerate fans' enthusiasm farther than Hasbro has. There's a lot of reasons for that, short version being that they're no longer making any official products (the new movies are a spin off IP owned by Paramount), and fan enthusiasm keeps the licensed novels selling. Hasbro, on the other hand, has an active franchise, with a show on the air and toys on the shelf, and is more inclined to protect it.
There's examples in the other direction, too. IP owners have used threats to shut down legitimate uses. An interesting example is the music used at political rallies mentioned above. The music for those is either covered by batch licenses purchased by the politicians or parties themselves, or more often by the DJ companies they contract to provide the music. In most cases, the artists are not within their rights to stop the use, but most of the time their wishes are respected because fighting it just looks bad. Similar with a lot of Youtube take down notices. Some are legitimate, some are not, but none of them are worth the expense of arguing, so Youtube caves, even in some ridiculous cases.
That doesn't mean it wouldn't be a good example for the class, though, to demonstrate that exact case (fair use vs. infringement vs. non-infrignement).
Fair use is incredibly complicated, and the Supreme Court takes a sort of "we'll know it when we see it" approach. Campbell v. Acuff-Rose Music, Inc. is probably the most relevant commercial parody case.
@DoctorArch knows more about this shit than I do, though.
It's a parody made for commercial purposes, that is a wholesale lifting of the original work.
Most of your examples really aren't about 'Fair Use', they are just straightforward copyright infringement cases. The exception, as Thantos pointed out, would probably be Pride and Prejudice as it's in the public domain.
Fair Use is more about legitimate use of copyrighted work in another work. The Pokemon / Hobbit vs. generic knockoff really doesn't fall under 'fair use', it's either legitimate standalone or simple infringement. Taking the ideas expressed in Pokemon, or the general mechanics of the game* and making a similar game isn't fair use at all.
If you want to illustrate fair use, a good example would be finding somewhere that copies some text from / cites another website (say, Huffington Post quoting Fox News or something).
Thinking of an example of 'fair use' that would apply to video games. Perhaps if you were to create a parody Pokemon game that shows the real Pokemon characters as abused, and stuck in a seedy setting like a dog or cock-fighting ring? That MIGHT be an example of 'fair use', since it's a parody and transformative. That might be an iffy one. EDIT - as long as it was for non-commercial purposes.
Another video game example might be a 'Let's Play' - although it's up in the air if a raw walkthrough video without commentary would constitute fair use, a 'Let's Play' of say...Tube playing Hitman...creates a unique, entertaining, and subjective experience that would fall under 'fair use'.
*There are a few exceptions, such as the 'tap' mechanic of Magic the Gathering where cards were turned 90* that was actually patented. That's a whole different set of rules.
Thanatos is right thought that Fair Use is hard to come up with examples, since it's very much based on the particular situation. However, I think it is important to point out to people that whether an IP owner acts is often tied to the elements of fair use. For example, "does the infringing work harm the sales of the original." If an IP owner sees a work as improving the sales of the original, not only are they less likely to act, but it's also a better case for fair use.
For good examples, photocopy an article about copyright from a magazine (or print out copies from a website, especially one with a paywall). Hand them out to your students, and then ask if you just infringed copyright.
Metacritic is a meta-example of fair use. It aggregates reviews of IP-protected works. It is using fair use to collect data about reviews that use fair use to write their reviews.
Another good non-example is buying a DVD and then selling it to a friend. That's first-sale doctrine stuff, not copyright, but some people get confused by the distinction.
They don't have a patent on tapping, per se. They've got one on basically the entire concept of trading card games. (Which I don't think is actually enforced, aside from you can't make a game with the exact same ruleset--like you can with board games.) They do have the word "tap" in that context and the tap symbol trademarked, and I think they defend those.
fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
that's right we're on a fucked up cruise / God is dead but at least we have booze
bad things happen, no one knows why / the sun burns out and everyone dies
Fair use is all about the legitimate and "fair use" of someone else's copyrighted work in your own work. Normally, only the copyright holder has the right to create "derivative" works of their copyrighted material. For example, J.K. Rowling, as the copyright holder for Harry Potter, alone has the right to create a compendium of quotes from her books. Where fair use comes up is when someone else makes something akin to a derivative work without permission, e.g., someone else makes a Harry Potter Lexicon, calling it "The Unauthorized Guide to Harry Potter."
So let's say Gabe & Tycho (G&T) think that someone is using their copyrighted work without permission. For example, they discover that Scott Kurtz is at Pike Place Market is selling t-shirts emblazoned with something that may or may not be the cardboard tube samurai. Maybe it does if you look at it cross-eyed. Do G&T have a case?
Maybe. The first test a court will perform is to determine if G&T's art and Kurtz's art is "substantially similar" to each other. If the two are substantially similar, then there is copyright infringement. What is "substantially similar" enough? That's fudge-y at best. Usually judge's look to the "can an ordinary person recognize the original artist's work in the allegedly infringing work" test. If the answer is yes, they are substantially similar.
Before we go any further, remember that copyright only protects the expression of ideas and not the idea itself. This is why Zynga got into hot water with EA over their blatant copying of the Sims. While Zynga could have easily gotten away with a game based on the idea and mechanics of The Sims, they went the extra step and copied graphics, transitions, and pretty much everything else. Does G&T's copyright in the CTS prevent other people from developing other cardboard tube samurais. No. It just protects their particular expression of the idea of a cardboard tube samurai.
What if someone says "Yes I copied your work without your permission, but it doesn't matter because I used such a small amount of it no one would recognize it." This is called a de minimis defense. Basically you admit to the copying, but because the amount you used is so small, it doesn't even rise to the level of "substantially similar" which is required for a copyright infringement suit. The movie Seven had an issue with de minimis when it used artistic photographs in the background of a scene without the photographer's permission. Photographer sued for copyright infringement, Seven admitted to using the photographs, but they argued that it didn't matter because it was a de minimis use. The court agreed, holding that because the shots were out of focus, never prominent, were on screen for about 5 seconds at best, and would likely only be recognized by the photographer and his mother, there was no "substantial similarity" for purposes of copyright infringement.
Okay, with that out of the way, let's try a new example. G&T discover that Kurtz took their art, animated it, and made them characters in an animated movie where they sing Beethoven's Fifth. Substantially similar? Absolutely as the characters are clearly recognizable in Kurtz's infringing work. So with that out of the way, what can Kurtz do? He can now claim fair use as a defense.
People mistakenly think that "fair use" protects them from getting sued. Wrong. Fair use will never prevent a lawsuit. It only offers a defense after you have been sued for copyright infringement. Word to the wise, it's always better to ask permission first instead of hoping to rely on a fair use defense after you've been sued.
For fair use to work Kurtz has to admit that "Yes, I took G&T's characters, but my use was fair," so now the court looks to the four fair use factors to determine if the use was indeed "fair."
The four fair use factors considered by the judge are 1) the purpose and character of your use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market. All four factors are weighed together.
Factor #1 tends to be the most misunderstood when people think of fair use. This first factor is the one factor that considers the infringing work, and is the one that looks to see if the infringing work is for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. Also, this is the factor that looks to see if the use is for a nonprofit purpose or a commercial purpose. People tend to think that if their infringing work is not-for-profit they are protected, but that is never the case, because the remaining three factors must also be considered and weighed together. Historically, if an infringing use was for commercial purposes it was almost always the death knell for the fair use defense, however the Supreme Court has stated that this is no longer the case and that all four factors must be weighed. This factor is also the factor that involves the "transformation" analysis, which I'll get into at the end.
Factor #2-4 look to the original work. Factor #2 involves the nature of the copyrighted work, and is it fiction, non fiction, or purely factual. Taking from a fictional work is considered to be a less fair use than taking from a non-fiction work.
Factor #3 involves the amount of the original work used in the infringing work. Commonly referred to as the "heart of the work" test, this test determines whether the infringing work took only ancillary details, or the core of the original's expression when it infringed.
Factor #4 involves the effect of the infringement upon the potential market for or value of the copyrighted work. In our example, do Kurtz's actions hinder G&T's potential to utilize their characters in animated movies where they sing Beethoven? Probably.
Finally, the "fifth factor" transformation, is probably the most important. If a work is transformative, it trumps the analysis of all four fair use factors. To be transformative, however, is a very high bar, because you must take the original work, and change it around enough to be different yet recognizable, or transform the original work into a new medium of expression.
Phew, that's long enough for now, but if you want I can go over the examples in the thread later.
Also, a good idea might be to try to find a range of things on youtube, from remixes, to incidental music, to using music as the main audio, to outright playing someone else's music. Fair use is ultimately a judgement call so that might be a good way to spark discussion about when something does/does not cross into the fair use grey area.
It’s not a very important country most of the time
http://steamcommunity.com/id/mortious
Timbaland basically lifted an entire melody of an original song composed on an old Commodore computer and based a song off it. Claimed he was sampling "from a video game." (it wasn't from a game)