Is it Fair?

There are a few definitions and factors of fair use that cam up in in the articles for this week that I found to be quite interesting.

1) Fair use is the right to use copyrighted material without permission or payment under some

circumstances.

2) Fair use is a right, not a mere privilege

3) Fair use is flexible; it is not uncertain or unreliable.

Since fair use is a flexible right it makes it difficult to know which side of the line you fall. What I’ve gathered is that fair use is established when a creative twist is implemented. It’s almost like paraphrasing work so you don’t have to directly site it.

More directly, according to the U.S Copyright Office there are four factors in determining whether or not a particular use is fair.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

In the Hollywood Reporter article on South Park, the show was being sued for copyright infringement for their reenactment of the YouTube sensation What What (in the butt).

“The judge applied the four factor test of “fair use” and determined that a clip that lasts less than a minute in a 25-minute episode wasn’t terribly substantial and wouldn’t ruin Brownmark’s market enjoyment of its video.”

Some people said that it was stealing, but since it was a parody it was fair. Thus proving that since it was a new creative collaboration it was fine.

I’ve always known that the Disney movies were based on the Brothers Grimm, but have you ever thought that it was a problem, that Disney was stealing that content?  I haven’t. I also think that if someone had a problem with it they wouldn’t fight a monster company like Disney.

“Thus, even though the things that Disney took–or more generally, the things taken by anyone exercising Walt Disney creativity–are valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good.” So, even though it was taken, they had good intentions and their new creative thinking made it fair. If you watch a Disney and compare it the Brothers Grimm there won’t be too many similarities just because of how dark the Brothers Grimm is.

There is a continued cycle of old trends coming back as new. This goes for renditions of songs and movies. When a company/ singer is thinking about making a new version they should keep theses questions in mind:

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

2) 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?

If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.”

Do you think that Robin Thicke and Pharrell Williams should have to pay a combined amount of $7.4 million? It may be true that Blurred lines is similar to Marvin Gaye’s song, but it is partially public domain and Blurred was creatively different. Some people even say that they don’t hear any similarities, is the case fair or not?

Fair use is very important when it come to copyright infringement. It could make or break someone. Fair use is difficult since it is flexible and can be presented differently in one case to the other. Do you think fair use should have more strict guideline? What would those look like? do you think that since all of our material is automatically copyrighted someone should need permission before making a mash-up, etc.?  If there were more guideline what the consequences in media look like?

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30 thoughts on “Is it Fair?

  1. Carly Hernandez March 25, 2015 / 3:55 pm

    I really enjoyed reading your blog post because it made it easier for me to understand everything about fair use. In the case of the Blurred Lines and Marvin Gaye lawsuit, I don’t think that Robin Thicke and Pharrell Williams should’ve had to pay 7.3 million dollars for their song. I read many articles about it and even listened to the mash-up that compares the two. While it does sound a little similar, I don’t think that even the slightest musical melody in the background of a sound should constitute the artists to pay such a large amount. I also don’t think that the artists were even using Gaye’s music. And if they were, it was such a popular song that it created something that people liked. What about when artists remake a song using the same lyrics and melody? As you said, this is where fair use comes into play. I do think that there should be permanent guidelines for fair use so that in situations where they don’t know what to do they can look to these guidelines to back their reasoning. I don’t necessarily think there should be “stricter” guidelines but just ones that people can easily follow and have a definite answer to so they know what could potentially happen. We need the freedom to be creatively open but also recognize that we should give credit where credit is due. I had no idea about Disney and the Brothers Grimm but as you said, even if you watched both of them and compared, there wouldn’t be as many similarities just because of how dark Brothers Grimm is. I don’t think that this is a problem though because it followed fair use and Disney was trying to be creative and not necessarily hurting someone else in the process.

    Liked by 1 person

    • Ms.McCollum March 29, 2015 / 7:35 pm

      I completely agree that we need creative freedom. I think it’s really interesting to think about the songs that are completely the same. I’ve heard artists say that they are okay with remixes because it’s the most money they’ve made on the song. i feel like a more clear definition would be beneficial as well because even when I looked it up it was still confusing as to what was acceptable.

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  2. rmpaulk March 26, 2015 / 8:33 pm

    I don’t think fair use should have stricter guidelines. I think that when it comes to fair use it is always going to be a gray area, because there are so many different factors to consider, and I feel that is how it should be. It may be a little more complicated to know when you are in the right or wrong in terms of fair use, but I think each case needs to be evaluated instead of having stricter guidelines. I think it might help if there was a clearer definition, but I don’t think it should get stricter in terms of how you can use it or what you can use. When it comes to making a mash-up I think, again, it is a gray area. What are they doing with that mash-up? Are they using it to make money? How close is it to my original work? Did they credit me at all? If they are using it for entertainment purposes I would probably say that they don’t need my permission, because they are just doing something creative that I made and are giving me free publicity. If they are making money off of it and they didn’t credit to original back to me in any way then I would probably have a problem with it. Especially if it is really close to my original work. The law can never be black and white. It has to be gray in order for there to be interpretation.

    Liked by 1 person

    • cseejay March 29, 2015 / 3:38 am

      I tend to agree with your point that fair use should not have stricter guidelines. There are so many things that factor in and when we’re talking about music and DJs who like to remix and sample songs I think it’s really up in the air. There hasn’t been as many issue with fair use among DJs because I think they all tend to understand that to some degree once a creator makes something and releases it to the public the people are free to do whatever with the music. Everyone samples music and it help with creation and build what might have been an average song into an iconic one. When remixing songs, I do agree that’s it’s important that the original artist is given credit, but there does need to be that area of grey. Part of me feels like this (mixing) is a generational issue as well. I don’t personally see a problem with mixing a song as long as the artist is credited, whereas I know a lot of older people that see a problem with touching someone else’s work.

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    • Ms.McCollum March 29, 2015 / 7:40 pm

      I feel like there are more fair use issues than we hear about, but to me it doesn’t seem like a large problem. The blurred lines song is such a big deal because of the people that are involved. I haven’t looked into it but I wonder if the terms of fair use are going to be altered at all because of the situation. It might help people in the future.

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  3. Brandon Coulter March 26, 2015 / 8:55 pm

    When I attempt to analyze and interpret the guidelines for Fair Use in copyright law, the rules and regulations are relatively straight forward. Two basic overarching factors that come into play will always be this: does your product manipulate the original for a genuinely novel and initially unintended medium of entertainment, and is it intended to stress the importance of a separate agenda or purpose? If your product follows these two guidelines, it is more than likely within the realm of Fair Use (obviously I did not create the guidelines for Fair Use, but this is the general interpretation I get from understanding the topic). The issue with South Park violating the “What What (In the Butt)” YouTube video is a prime example of a misunderstanding of what exactly is and is not covered by Fair Use, with Trey Parker and Matt Stone (the creators of South Park) remaining completely in the legal aspect of copyright law. While the portrayal in the episode uses the video in its entirety, the intent and purpose were completely distanced from the original. South Park is widely known as the prevailing King of satirical and parody television. This is stressed within their use, as one of the lead characters, Leopold “Butters” Stotch, is showcased in the video performing the same actions, an illustration intended on showcasing America’s infatuation with idiotic and irrelevant videos on YouTube (although, I do think this one is quite funny). The aspects of parody are obvious, as is the case in the majority of the episodes of South Park. The manipulation of agenda aspect may appear to be somewhat fuzzy; however, to analyze this segment within the bigger picture of the entire episode will show the true intention, one of satirical interpretation of the craze of low-brow YouTube videos.

    Liked by 1 person

    • eakoonter March 28, 2015 / 9:27 pm

      I had a similar reply in my head after reading this post. South Park is a parody in itself. The writers take current media sensations, turn it vulgar and make money off of it. I’m not a huge fan of South Park. In fact, I don’t like what their writers write about, but that aside…I feel that they follow fair use correctly. They revamp it in a way to make it their own and therefore they are violating any laws. Since I do not watch South Park except on a rare basis, I don’t ever notice if they give credit where it is due. Personally, I think that even if you’re making a parody you should at least say where your inspiration is coming from.

      Liked by 1 person

    • Ms.McCollum March 29, 2015 / 7:45 pm

      While I agree that the two guidelines lay out a clear format, the thing that is each person can interpret their work in many ways. I may think that a new rendition of my work is copied while the new creator does not. Fair use will just always be a gray area, I believe.

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  4. adrianhormsby March 28, 2015 / 11:56 pm

    Hi Rachel, after doing Project 3, I have come to the conclusion that Fair Use is not as free and easy in it’s interpretation as some may think. The guidelines in the Project 3 Best Practices in Fair Use reading were quite clearcut and should provide newbie mashup artists a much better idea of what is deemed Fair Use. I feel that kids and budding artists go through a lot of anxiety and worry about what they are allowed to copy for a mashup, thinking that somehow they’re going to be hunted down (or more commonly taken down) for copyright infringement. The Margaret Stewart YouTube video, however, scared the heck out of me when she showed the technology they use to detect a copy posted on YouTube. Literally nothing that anyone posts escapes their scrutiny. Reality is, things can get taken down either by the technological screening software or just because some YouTube executive thinks it just should be taken down to suit their own interests. So much for free speech and discussion in a democracy. Thank heaven then for Fair Use. Without it we’d be like many countries where free speech about social and political issues are banned. Just in this week’s Twitter, Carly posted an interesting Washington Post article talking about exemptions for documentary and film makers to use copyrighted material and Becky put a post up on a new law in India that could result in arrest of those who make political slurs on social media. Yes punish the pirates but don’t punish artists and social/political commentators who can make a real contribution to discussion of important issues affecting all of us.

    Liked by 2 people

    • Ms.McCollum March 29, 2015 / 7:49 pm

      Wow, I really like how you say the pirates should be punished but not the artists. It makes me think of the work differently in that aspect. I’ll be eager to see more of fair use with this next project.

      Liked by 1 person

  5. mvzang March 29, 2015 / 5:07 am

    Hello MsMCollum, First, I want to talk about the Blurred Lines song, which is an excellent example of our topic. I heard the arguments made against Thicke and Williams, and quite frankly I didn’t hear the similarities between their song and Gaye’s song. People were acting like it was such an outrage, which irritated me a little bit. To pay out over seven million for something that just wasn’t there is absurd. With that in mind, these laws are in place to protect the artist and in the eyes of the Gaye family, it worked well.

    For me the most important topic is whether or not the person using someone else’s art is making profit off of it. If the music for instance is being used in a school play, or “mashed up” in a digital editing class for a high school product, then asking the artist for permission is ridiculous. So to answer your question, no, I don’t think fair use standards need to be more strict. If an artist truly feels like their product is being ripped off, they have plenty of laws that protect them, and evidently a pretty low standard when it comes to deciding whether or not they were actually ripped off.

    Liked by 1 person

    • Ms.McCollum March 29, 2015 / 7:54 pm

      You are one of many that have said the song does not sound similar. In that case I feel like they could have settled on different terms. Personally I don’t think it was that big of a deal. I can see how if the guidelines were more strict is may cause problems for people such as students.

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  6. spgregor March 29, 2015 / 10:17 am

    I don’t think the fair use guidelines should be any stricter. I think the two basic questions asked when determining if something falls within fair use are pretty straightforward. While the code of practices does a good job providing examples of common situations one must understand that every situation will be a little different. Whether someone should need permission to do a mash-up should depend on the extent they are using the other artists work. If it is a condensed, modified version then I feel they shouldn’t have to.

    Regarding Blurred Lines, I disagree with the ruling against Thicke and Williams. I saw Marvin Gaye III in an interview saying it wasn’t about the money but about not having respect to ask to use his father’s music. I cant help wonder to myself why the huge 7 million dollar settlement then and why are they not satisfied without continuing to pursue T.I. and the label? I am a Marvin Gaye fan myself and must admit that when I heard Blurred Lines I didn’t think of him. For the sake of argument, lets say the beat is a little similar to Gaye’s – Thicke certainly transformed and modernized the beat to fit todays culture.

    Liked by 1 person

    • Ms.McCollum March 29, 2015 / 7:58 pm

      The two questions are basic, but I fee like so many people try to find loop holes. It’s because of that if it was more strict those situations couldn’t happen. But overall I agree. I never knew that he had said the money wasn’t an issue. It makes the case much more interesting since they have to pay so much.

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  7. galaradi March 29, 2015 / 1:22 pm

    I like that your post was clear and easy to understand. Regarding Blurred Lines, I don’t think Robin Thicke and Pharell Williams have to pay 7 million dollars when the two songs weren’t exactly the same. Even if the beat is a bit similar, the fact that he changed it and made it his own work means it should be fair use.

    Nowadays, there are so many parodies of songs online that are more entertaining than the actual song. MirandaSings, a character on YouTube, creates these parodies and her own lyrics to popular songs, and it’s a huge hit. Technically, it is fair use because she is creating her own work. She “transforms” the songs and makes it into something she can call her own. I think it’s important for anyone getting into creative fields to know the foundations of fair use and copyright so they can get an idea of what they can and cannot do as artists.

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  8. blcarr March 29, 2015 / 5:52 pm

    Is it fair that these major companies profit off of the little man when it comes to musicians? Nobody cares if their music is sampled. They only care when the sampled song becomes a major hit. In music, artist have been stealing beats and drums from older musicians since the 80s. for instance, I can bet nobody in this class has ever heard of the funky drummer! But we all groove and dance to his sound. His drums have been sampled by hundreds of artist since the 80s and he hasn’t received a penny for it. Due to the fact that, artist had no ideas about copyright and or copyrighting their material during those times. I see numerous fans complain about Marvin Gaye’s estate suing Robin Thicke and Pharrell for 7 million dollars for their use of Gaye’s smash hit “got to give it up” in their smash hit “blurred lines.” The price maybe a little over the top, but like my father use to say, “son, you’ve got to pay to play” instead of Thicke and Pharrell contacting the family about sampling the song, they just stole it and now they are paying the consequences.

    Liked by 1 person

  9. kevinpayton1 March 29, 2015 / 7:38 pm

    For Robin Thicke and Pharrell, their use of marvin Gaye’s “Got to Give it Up” is more than egregious use for “Blurred Lines”. Those who don’t hear the similarity in that may not be old enough to remember Marvin Gaye. It’s the exact same cords, transitions and all. What made it bad for Thicke and Pharrell is that they refused to even pay homage to the legendary singer or family when asked about the song. I can’t see that being a case of Fair Use because they didn’t repurpose the content that they took. The work still has the same purpose to entertain people, and enjoy the music such as the purpose of the original. It then becomes a competitor of the original using the originals framework. They had a better chance saying it was a parody of some sort than claiming originality. Fair Use is a tricky game to play because it appears to me that it is all up to interpretation. I agree there needs to be more structurally sound legislation, leaving less to interpretation. I would suggest a simple 4 to 5 prong test to interpret rather an infringement has been made.This would make it simple for a artist to understand where the line is for creativity and fair use unlike the Blurred Line of RobinThicke.

    Liked by 1 person

  10. sneff16 March 29, 2015 / 7:39 pm

    I think 7 million dollars is a lot to pay out for a song that doesn’t sound exactly like Marvin Gaye’s song. This also happened with Sam Smith’s song “Stay with me” and Tom Petty’s “Won’t back Down”. Tom Petty is now listed as a collaborator for Sam Smith’s song “Stay with me.” I don’t think the songs sound the same at all. I listened to them several times. Tom Petty’s team said if you slow down his song, “Won’t Back Down” it is very similar. While, this may be true, it is still different. Sam Smith’s song is faster and about something entirely different. I doubt Sam Smith intentionally copied Petty’s song or even thought about it when writing his song. I feel it is just a way for musicians to make extra money. If the beat sounded exactly the same, I think it would be okay to sue, but when it has a different tempo and isn’t exactly the same, it is murky water. I don’t think I would feel good about suing another artist for ripping off my song unless it was eerily similar. In both cases, Thicke/Gaye and Smith/Petty, I don’t think the new songs sound enough like the songs they are claiming they ripped off to be considered a copyright infringement.

    Liked by 1 person

    • kevinpayton1 March 29, 2015 / 8:09 pm

      I beg to differ on Blurred Lines. Thats the same beat.

      Liked by 1 person

  11. nebior March 29, 2015 / 8:29 pm

    I do not feel that fair use rules should be made any stricter. Fair use seems like such a gray area to begin with and to make the gray area into a strict gray area could get a lot of people in trouble that do not really deserve it. I feel that if people partake in fair use to make money that they should owe money to the people that made the original, but if it is just done for fun and achieves no monetary gain then the people should be left alone. As long as people follow the two main rules of fair use that you mentioned then there really is not much of a reason for any more rules. The Blurred Lines example that you mentioned seemed a bit ridiculous to me. I see where the accusations were coming from, but I did not agree with the outcome at all. I feel like YouTube is a great place that shows how being stricter with fair use could hurt many people. A lot of funny, harmless material is on YouTube which could be removed if fair use rules were to be enforced.

    –Ben Walker

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  12. doniecew March 29, 2015 / 9:21 pm

    I don’t think that there should be more limitations on fair use because it’s already confusing as is. Its hard to determine the true intentions of a mash up or recreated video because we’re not the ones creating it. Who’s to say that it’s not being interpreted the right way? However I do believe if there was more guidelines for fair use people would be forced to be more creative!

    Liked by 1 person

  13. asibo March 29, 2015 / 9:26 pm

    My biggest problem with fair use is not that it is too strict, ambiguous, or permissive, but that it seems to only be selectively enforced and is typically only upheld for those who have the means to file and endure lengthy legal battles. Brownmark vs. Comedy Partners and the many lawsuits and C&D’s filed by Disney would appear to prove this out, as Comedy Partners were granted fair use for the South Park parody, and Disney has been successful in litigating daycare centers with images of Mickey Mouse, meanwhile the character was originally ripped off from live-action movie. Thus, it seems that the wealthy and well-established media entities are always on the winning end of fair use disputes (good luck winning one on YouTube when your content can be removed by the copyright owner alleging copyright violation without due process).

    Liked by 1 person

  14. bjuhasz10 March 29, 2015 / 9:39 pm

    The first thing this I thought of from reading about fair use and sampling other peoples songs was Eminem’s song “Sing for the Moment”. I am not sure how many of you are familiar with it, but it uses samples from the song “Dream On” by Aerosmith, one of the most famous rock songs. In turn, “Sing for the Moment” has become one of the most well known and influential rap songs of all time. If you have not heard one or either of the songs, I suggest checking them out, they are both amazing in their own respects. If Aerosmith doesn’t let Eminem use the sample for his chorus, we as listeners and fans could have missed out on an amazing musical experience.

    Thus, I believe that fair use should allow any artist or musician to use parts of other people’s songs to create theirs. However, I do believe that if someone uses a chorus, sample, or part of someone else’s song, they should pay that person a small percentage of their profits. Eminem’s album, “The Eminem Show”, which contained the song, sold more than 30 million copies worldwide. In my opinion, paying a small percentage of his earnings to Aerosmith allows both of them to profit, and allows us, the fans to experience great music.

    Liked by 1 person

  15. bubbastinx March 29, 2015 / 10:20 pm

    I don’t know. Fair Use is cool. I wish more people were educated on it, but unfortunately I could only wish.

    I do, however, believe that many things gets repurposed after enough time has gone by. Much of its driven by profits, which isn’t a bad thing. It’s just that the lines that defines whats to much, or not enough gets blurred, and novice fair use users like myself always worry about ramifications.

    I can’t think of any artist who invented something that has never been done. I truly believe that everyone stands on the the shoulders of those gone before them. Inversely, I believe that someone can attempt to replicate something, and see it completely and dramatically different then the original artist.

    This I believe could never be replicated. Our unique perspective on particular work of art.

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  16. mstor763 March 29, 2015 / 11:21 pm

    In regards to the fair use guidelines I am not sure I would change much. I feel it is pretty basic and thats probaby why they kept it so cut and dry. I however though am not that familiar with every case that has been applied using it so in regards to the south park situation I would agree its not a big issue. I agree with how it was just a spin off/spoof of the original and in my opinion it probably made people more aware of the original.

    I do believe that everything should be copyrighted, but the form it is in is a bit strict. I understand that one’s photo is one’s work, I firmly believe in that, but when someone shares it online I feel they are openly stating that you may use this how you please. I would apply the same form when talking about mash ups. The key thing with mash ups though is that most videos state copyright laws within the description. An individual “should” respect it, but we all know thats not how it goes down.

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  17. akuelbs March 29, 2015 / 11:29 pm

    Fair use is in place so people dont have to go through all the unnecessary work of trying to get the rights from people. I do not think we should have more strict fair use rules or guideline because that would make it even more difficult for people to create material. By creating more guidelines it will deter people from creating more material because there will be even more work to create what they want. By having to talk to a bunch of people and get the rights from them will make it more of a hassle and people wont want to have to go through that to create something. I know that copyright is there for a reason and fair use helps with that, but lets look at the fact of creating more guidelines for something such as a compilation that people create. If you want there to be more rules with this, you are making it where the creator would have to talk to every single artist they used a song by and that would just be an insane amount of work and hassle. No one person wants to go through all of that. Fair use is fine the way it is now in my opinion as it works well with the copyright laws that we have in place now.

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  18. thegradytrain March 29, 2015 / 11:36 pm

    I think the fair use guidelines are well…fair, just the way they are now. This gray area, allows just enough creative development without hurting the original creator’s market value. If the guidelines were strict we would see a lot less creative content on all media outlets like YouTube, TV, Video Games photos, etc. I almost feel like it would also be a near creative censorship if they were stricter. What I mean by this is that you would see less parodies like what we see on South Park, YouTube, and Reddit. We honestly would see and hear a lot less of everything. We would hear less remixes of favorite songs, less memes on the internet. Another industry that I think would be devastated by stricter fair use laws is the movie industry. This might be drifting more into copyright more so than fair use, but if there was more guidelines to fair use, there would no parody films made and definitely no remakes. If there was one good thing that stricter guidelines would bring, its that it would enforce stronger creative thinking when coming up with original content, this is something that I think a lot of industries could use right now. I think if the the guidelines that dictate fair use were more strict and defined, I think the world in general would not be as a happy and creative place that it is now.

    Liked by 1 person

  19. elrader2015 March 29, 2015 / 11:41 pm

    As technology advances along with everything else, I feel it becomes harder and harder to police copyrights as time goes on. While I see the issue of taking someone else’s intellectual property, I recently read an article about all the Disney films in comparison to the Brother’s Grimm and saw little threat in the copyright department. Brothers Grimm were tales produced in a very different time… For example, the Disney film Cinderella has a happy ending with magical fairy godmothers, but in the Brothers Grimm version the step mother cut part of her foot off to fit the shoe (blood & gore) and then while I don’t remember how, Cinderella made that same sister perform at her wedding for entertainment. Before reading this article, I had no idea about this, leading me to believe that since Disney used Cinderella in a different fashion, the copyright issue is not as grave. What do you guys think about this?

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  20. smkiraco March 29, 2015 / 11:47 pm

    I definitely do not think that fair use should have more rigid guidelines. While that would make the line much more clear to see it would also encourage avoiding the bare minimum to break fair use. In other words, just enough copying to get away with it. With the way fair use is currently it has a greater influence on the intent of the work sourcing another.

    Being a student in college for about 6 years now encourages me to say yes. Damn you unintentional plagiarism! Anyway, for the most part, yes. However, I think you should only have to source what you know you sampled. As you have said, almost all of our material is copyrighted so sourcing all of it would be overly tedious for everyone. But this does bring up the problem of feigned ignorance.

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  21. hessaj March 29, 2015 / 11:56 pm

    Fair use shouldn’t be any more strict than it already is. A lot of material is used for others’ purposes today. YouTube videos can be found on multiple accounts for reviews, entertainment, critique, etc. People depend on the work of others to use as a basis to keep up with their own content. If anything, people should embrace fair use, it gains more exposure when something of theirs is used, as long as its used for something without claiming the product as their own, or profiting off of others’ work, like art.

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