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
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.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- 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?