Fair Use Part II

A right codified in section 107 of the Copyright Act, fair use allows anyone to use copyrighted materials in a justifiable way. Fair use protects everyone from movie-makers who capture a small portion of a copyrighted song to reviewers quoting a book. This use, according to Gordon Quinn, the founder of a prominent documentary film company and proponent of fair use, can be either commercial or noncommercial in nature.

In many ways, Mr. Quinn is on the forefront of the battle over fair use. By purpose, documentaries capture the real world and, more than ever before, that world is one of copyrighted material. The automatic copyright of all creative works means documentary makers have to cautiously avoid filming material owned by litigious firms.

In Free Culture, Lessig chronicles Davis Guggenheim, another documentary film maker, who reveals that a decade ago, only clearly recognizable content needed to be cleared for use. Now, unless one is willing to chance a lawsuit, any and all material must be cleared with the rights owners. Put simply by Guggenheim, “The cost for me is creativity."

The cost for others can be much more tangible. Quinn once paid $5,000 to use a scene in which “Happy Birthday” was being sung. Now, after years of experience and further legal understandings, he says he would “claim fair use” and use the song without paying for permission. But for many, the mere threat of a lawsuit by wealthy content owners like Disney or News Corp. would be enough to stop creation.

If the current copyright system is inhibiting the ability of producers to make new content, as these examples demonstrate, it calls for a serious reevaluation of the law. Few would suppose that artists would be as numerous and prolific without an opportunity to receive a financial gain that copyright assures; copyright is a good thing, but it does not hold that more of a good thing is necessarily better. A balance must be reached between allowing producers to market their goods and culture to evolve.

[See Part I on Fair Use or click the label below to see all relevant posts.]