Comments on: Code of Best Practices in Fair Use for Online Videos

By: Pat Aufderheide

Pat Aufderheide — Wed, 10 Feb 2010 20:16:45 +0000

How delightful that you got a chance to benefit financially from your creative work! This is a great moment to realize that fair use is NOT, repeat NOT, tied to noncommercial use (even though that can be one consideration). Most fair use, including the extensive fair use employed by all the film studios and TV programmers, is commercial use, and people benefit from it financially. If it was fair use before revenue sharing, it’s fair use during and after revenue sharing as well. It’s fair use as much if you put your video on a DVD as it is if you put it online. So you just need to be confident that your unlicensed use is fair in the first place. Can you explain to others how and why this use deserves to be unlicensed? You’re on the most solid ground when the use is 1) transformative, and 2) appropriate amount given the transformative use. Your use of a different key etc is probably not as significant as the teaching purpose. You also need to ask yourself if you have a teaching justificaiton for using the whole work (for instance, do you need to take people through the whole song in order to teach them all the elements? Or could you teach them, say, one refrain and have them get all the changes needed?) You may want to look at the Documentary Filmmakers’ Statement of Best Practices in Fair Use as well as the Code of Best Practices in Fair Use for Online Video, both of them at centerforsocialmedia.org/fairuse.

By: Biletul Zilei

Biletul Zilei — Wed, 10 Feb 2010 20:16:08 +0000

I recently got a revenue-sharing offer on one of my more popular YouTube videos, but I’m not sure if I can legally take it or not. Google will automatically send out offers to YouTube users to turn on revenue-sharing for their popular videos. The video in question is tutorial on how to play popular Guns N Roses song Sweet Child Of Mine.. on ukulele. The arrangement that I teach on ukulele is completely my own, is in a different key than the song is normally played in, uses some different chord progressions, and leaves several parts of the real song out. It’s recognizable, but still very different. There are also no lyrics in the video and the arrangement is intended to be instrumental only. Does fair-use protect me in this instance? Would I be able to enable revenue-sharing for this video? Even if fair use did protect me, I’d wonder if Google would be too nervous to approve the video for revenue sharing anyway.. What do you think?

By: Pat Aufderheide

Pat Aufderheide — Mon, 07 Jul 2008 14:59:50 +0000

Alison, thank you for the important reminder that best practices should be inclusive. We think you’re in a great position here. Fair use applies (in some cases) when a new creator uses copyrighted material, *not* when a user watches it. So watch as many times as you like! And when you make your own videos, please consult the Code (centerforsocialmedia.org/remix), which as danah points out, takes the worry out of the question, “Is this fair use or do I have to license this material?” Since the Code is written to have broad and flexible principles, they can apply to a wide variety of situations.

By: Alison

Alison — Mon, 07 Jul 2008 14:18:01 +0000

The problem with this, it takes a starting point and assumes all users are the same. E.g. YouTube, if you Google / that legal case looked at my stats, they’d see a repeated viewing of certain videos, and thus could on its face value (and a hearing norm) be described as non fair use. This is a rather simplistic view, and doesn’t take into account other variables.

I own legal copies of the music I view, but I will watch the video repeatedly (a) for subtitles or (b) for a visual representation. Why? Because I’m deaf. It takes me many many views to understand the beat, appreciate the song. I can watch something to death.

However, from a statistical viewpoint … it won’t make any sense, and a hearing majority might assume “she’s breaking the law”. When in fact, I’m just trying to get around structures that exclude me. It fails to take into account how certain cultures exclude (e.g. lack of accessibility through traditional music channels, etc).

It is vital that minority groups are included in any best practice guidelines, and they aren’t just constructed to suit the majority, or rather based on unintentional assumptions due to a lack of undesrtanding.