"Fair use is a part of the law that belongs to everyone," according to the recently published Code of Best Practices in Fair Use for Online Video (July 2008), written by American University professors Pat Aufderheide and Peter Jaszi (and a panel of experts). It's a bit academic and dry at times, but there are some very lucid passages, great examples and some busted myths at the end of the document. This is especially relevant today "...because [until now] broad distribution of nonprofessional video was relatively rare."

The authors note two very clear and simple ideas "that judges return again and again" when deciding Fair Use cases:

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

Here are the six Best Practices:

1. Commenting on or Critiquing of Copyrighted Material
2. Using Copyrighted Material for Illustrating or Example
3. Capturing Copyrighted Material Incidentally or Accidentally
4. Reproducing, Reposting, or Quoting in Order to Memorialize, Preserve, or Rescue and Experience, an Event, or a Cultural Phenomenon
5. Copying, Reposting, and Recirculating a Work or Part of a Work for Purposes of Launching a Discussion
6. Quoting in Order to Recombine Elements to Make a New Work that Depends for its Meaning on (Often Unlikely) Relationships between the Elements

The document directly addresses adding copyrighted songs to your own videos in #6 by explaining that "...fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood."

The Code is rather broad and suggests that all sorts of copying and reposting is covered by Fair Use, including creating video remixes/mashups (#6) and even just for the purpose of starting a discussion (#5). Citing popular, specific examples, like "Dramatic Chipmunk," it's a good read and highly recommended.

References:

• Code of Best Practices in Fair Use for Online Video
• "Yes, you can!" Where you don't even need ˜fair use
• Recut, Reframe, Recycle
• Documentary Filmmakers’ Statement of Best Practices in Fair Use
• Copyright Term and the Public Domain in the United States

{mxc}