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Fair Use 101 (Part Deux) February 21, 2010

Posted by friedgreenbananafish in Around the Blogosphere, Facebook, Journalism, Twitter, Youtube.
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According to Scott Simon, of National Public Radio:

“Every time you listen to your iPod, every time you use your TiVo, every time you watch “The Daily Show,” you’re participating in something called fair use. It’s what makes documentary films and news programs… a lot easier to produce. But unless youre an intellectual property lawyer, you probably don’t spend much time thinking about fair use.”

The Center for Social Media believes that we are living in a “remix culture.”  

Take online videos, for example.  How many viral videos have we seen that are a hybrid of two or more videos that came before it?  (Case in point: “David after Dentist” meets “Christian Bale’s rant” in this hilarious mash-up).  

There are even entire websites devoted to it.  The Trailer Mash is a site that encourages users to switch the genre of their favorite movies and make new trailers for them.  (Trust me, you haven’t truly lived until you’ve seen the romantic-comedy version of “The Shining.”)

But do these goofy little time wasters really violate the terms of fair use?  Not necessarily.  

Fair use permits people “to quote copyrighted material without asking permission or paying the owners.”  

It also states that works should be “transformative,” in other words, created for a purpose different from the original work. So when makers mash up several works to make a satire, parody, negative or positive commentary, illustration, diary, archive, pastiche or collage, 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.

That’s how the makers of Family Guy got away with the full-length feature film Blue Harvest, (and why I don’t have to accredit the photo on the right) and why South Park’s Cartman character can sing Lady Gaga songs without paying royalties.

Speaking of Lady Gaga, have you heard that she “totally looks like” Slim Jim?  That’s protected by fair use as well. 

So what exactly is NOT protected by fair use?

Using things in their original context.  

For example, an author known as “JD California” was prohibited from publishing an unauthorized sequel to JD Salinger’s Catcher in the Rye in which a 76-year-old Holden Caulfield wakes up in a nursing home in New York.  

Since the book was not a parody, satire, commentary, etc. on the original, but rather an attempt to take another author’s character for one’s own use, it violated U.S. copyright law and even forced the reclusive Salinger out of hiding to defend his work.

But don’t think the world of books and the internet have different rules.  A big debate on fair use is coming straight from one of the internet’s biggest powerhouses — Google.

Media mogul Rupert Murdoch has declared an “e-war” with the company.  He says he’s “fed up with Google’s search engine serving up the journalistic content of his news outlets without any compensation.”  

He states that after his media companies go behind a pay wall, he will block Google searches from providing his company’s material for free.  (Read more about it here.)

It could be the bravest thing anyone has ever done to fight copyright infringement on the internet.  

It could also be Murdoch’s own kiss of death.

(To be continued…)