On Saturday, January 25, 2014, New York’s Eyebeam Art + Technology Center held a panel discussion on fair use, art, and copyright online. The three speakers were Patricia Aufderheide, Codirector of the Center for Social Media at American University and one of the Principal Investigators for CAA’s Fair Use Initiative (http://www.cmsimpact.org/fair-use), Elisa Kreisinger, video artist and artist-in-residence at Eyebeam and Public Knowledge (http://elisakreisinger.wordpress.com/), and Michael Weinberg, Co-Vice President of Public Knowledge, a digital advocacy group in Washington DC (http://publicknowledge.org/).
Kreisinger began the discussion by presenting her work Mad Men: Set Me Free, a video based on dialogue among the female characters in the television series and remixed into an effective and witty feminist presentation. Kreisinger recounted the challenge she faced posting her video on YouTube, when the hosting site automatically took down the piece because of a scanning system that alerted Mad Men’s producer, Lionsgate Films, about the work. Lionsgate has an ongoing policy with YouTube that asks the company to remove anything from the site that uses their films and TV shows. Kreisinger is in the process of appealing this action. She organized Eyebeam’s panel in order to air her concerns and engage two advocates of the fair use principles that are part of the copyright law to open the discussion on what artists can do in similar situations. Kreisinger stated that when she was faced with YouTube takedowns, Aufderheide and Peter Jaszi’s book, Reclaiming Fair Use: How to Put Balance Back in Copyright, was very helpful in guiding her actions. Especially as an artist working on her own, the book helped her prepare a fair use defense of using sections of the television series for her work.
Kreisinger then asked Aufderheide and Weinberg to discuss the principle of fair use. They described the original intent of copyright law: to promote the dissemination of creative work while attributing credit and ownership to the originator. The complexity of copyright law can be daunting to individual creators of new work. Fair use was instituted to allow users of copyrighted works greater leeway of access and use in certain circumstances. Reclaiming Fair Use discusses what the courts focus on in disputes regarding copyright and fair use: transformativeness (did you re-use the material for a new purpose, and thus add value to the work?) and appropriateness (did you use the right amount of the work, which could be up to 100% if you have a go od reason?). These questions set the priorities, for today’s courts, for interpreting the traditional “four factors” that the law sets down to consider: the character of the new use, the nature of the original work, the amount, and effect on market value.
But many artists don’t know their rights. Aufderheide discussed the Issues Report recently-released by CAA (http://www.collegeart.org/pdf/FairUseIssuesReport.pdf), which summarized 100 recent interviews with art historians, artists, museum curators, editors and publishers regarding issues with third-party images in creative and scholarly work. As she and Peter Jaszi, professor of law at American University, wrote in the report, 34% of the visual arts professionals interviewed altered or abandoned a work because of copyright: 21% were artists, 38.3% were art historians and curators and 57% were editors and publishers. This indicates a critical loss of creative and scholarly work due to complications and costs of copyright and licensing images. There is no doubt that confusion about the lawful use of fair use has led to a reluctance to employ it; this in turn has had a chilling effect on the visual arts community.
Kreisinger had completed a survey of digital artists, especially remixers, and discovered that many said they did know they had fair use rights, but found them blocked by scanning systems used by hosting platforms such as YouTube that identify copyrighted work. The Digital Millennium Copyright Act of 1998 protects Internet hosts from monetary liability if they take down work that copyright holders claim infringes on their rights in a work. The automated systems finding digital matches do not discriminate between fair use and infringement. Sometimes artists’ work, even when employed under fair use, was matched with advertising according to a previous contract between Google and copyright holders, and sometimes it was taken down. For many artists, it feels like a David and Goliath situation.
Both Aufderheide and Weinberg acknowledged the frustrating situation of the ad matches, and emphasized the importance of bringing counter-takedown notices when your work has been unfairly taken down. Most takedowns happen as a result of automatic searches of databases, which don’t distinguish fair uses from infringing uses. So counter-takedowns are crucial to keeping work circulating. Artists, they noted, get tired of contesting sometimes-bogus claims, but persistence is critical to preventing private censorship.
Aufderheide noted that it is hard to push back against a takedown notice unless you are sure you are within your fair use rights. In some fields, codes of best practices exist, identifying common practices that employ fair use, asserting the rationale for that employment and also showing fair use’s limits in those situations. The Code of Best Practices in Fair Use for Online Video is one such code; another is the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Both have been used by remixers making counter-takedown arguments.
The College Art Association has decided to create a code of best practices in fair use for the visual arts communities. Over the next six months Aufderheide and Jaszi will be conducting discussion groups to continue to develop a code of best practices in utilizing fair use for creative and scholarly work. These discussions will be held in Chicago, Dallas, Los Angeles, New York and Washington, D.C. with art historians, artists, museum curators, editors, publishers, visual resources officers and gallerists. They will provide a basis for the development of a code of best practices, which will be reviewed by CAA’s Committee on Intellectual Property, its Task Force on Fair Use, and a Legal Advisory Committee. Once finalized, the code of best practices will be presented to the CAA Board of Directors for approval and widely disseminated.