Best Practices In Fair Use for Online Video

American University's Center for Social Media today released a white paper that details guidelines for using copyrighted material in online video. Fair use is often misunderstood as there are complex laws that govern fair use.  A set of clear guidelines was absolutely needed.

The first of their kind, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law. The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

  • Commenting or critiquing of copyrighted material
  • Use for illustration or example
  • Incidental or accidental capture of copyrighted material
  • Memorializing or rescuing of an experience or event
  • Use to launch a discussion
  • Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works

For instance, a blogger's critique of mainstream news is commentary. The toddler dancing to the song "Let's Go Crazy" is an example of incidental capture of copyrighted material. Many variations on the popular online video "Dramatic Chipmunk" may be considered fair use, because they recombine existing work to create new meaning.

Until now, anyone uploading a video has run the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the Internet. As online providers have begun to negotiate with media companies, everyone has agreed that fair use should be protected. Before the code's release, there was no clear statement about what constitutes fair use in online video.

"This code of best practices will protect an emerging creative zone—online video—from de-facto censorship," said Aufderheide. "Creators, online video providers and copyright holders will be able to know when copying is stealing and when it's legal.”

"The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment," said Jaszi. "Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution.”

Some public broadcasting organizations and Internet video sharing platforms will recommend the code to their users on the day of its release. They are PBS's P.O.V., the Independent Television Service, the Corporation for Public Broadcasting's National Minority Consortia, Miro, RemixAmerica, Rocketboom, and Witness/The Hub.

"For anyone who has wondered, 'Will I be sued for creating and posting this video online?,' the code of best practices in fair use is an invaluable guide," said Dean Jansen, outreach director for the Participatory Culture Foundation, the organization behind Miro.

The committee that compiled the code is made up of individuals affiliated with Harvard University; Georgetown University; Massachusetts Institute of Technology; Stanford Law School; University of California, Berkeley; University of Pittsburgh School of Law; and University of Southern California. A complete list of committee members is available at the end of the release.

The code is part of a larger participatory media project (, funded by the Ford Foundation as part of the Center for Social Media's Future of Public Media Project. The project has already generated a convening and a study on common copyright practices in remix culture, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (

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Posted in Video & The Law
About the Author -
Mark Robertson is the Founder and Publisher of ReelSEO, an online information resource dedicated to the fusion of video, technology, social media, search, and internet marketing. He is a YouTube Certified, video marketing consultant and video marketing expert, popular speaker, and considered to be a passionate leader within the online video and search marketing industries. View All Posts By -

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