Fair Use, Media Responsibility, and Digital Citizenship

Reflection

1. Consider this statement: “Fair use is not a get out of jail free card. Use work and transform it, but understand the law.” In what ways does this adequately sum up fair use?

   At 01:10:44 of the film, the speaker makes this statement. From their perspective, it doesn't mean you have the right to use everything but means you have the right to understand the law. Then, use work in transformative ways. It is not a "get out of jail free" card, as the speaker references the idea of Fair Use being a "shield". A transformative work may still be challenged in court but the artist has the right to defend themselves using the Fair Use exception in the statutory law, which has been building presidents supporting Fair Use over the last 10+ years.

2. Why is fair use important as an artistic tool?

   In the film at 01:12:04, the speaker references Fair Use as an artistic tool, creating space allowing artists to present their work in an engaging and meaningful way. It's a way to bring important issues to the people. They continue stating it is a viable part of the law, protecting expressive rights, to the degree it is being used and it should continue to be regarded as normal. I can't help but read into this speaker's thoughts and think that at some point creative expression might move too far since they said in its current degree of use.

3. How is it liberating or threatening to the filmmaker?

   The film makes explicit reference to liberating, twice. Once at 00:54:42 and again at 01:12:22. In both instances, the speakers bounce back to the idea of "risk". Even when Fair Use is "rock solid" pushback may come in many forms - threatening. Corporate interests, advertising, or institutions of power may stop the "rock-solid" work from ever being released. Lawsuits may be brought against the "rock-solid" works in frivolous legal challenges. Many artists consider this while determining if they should include other's original works in a transformative nature. On the flip side, large corporations and media conglomerates also use Fair Use but have a larger pool of resources at their disposal to protect them. One filmmaker spoke out against Fair Use because they did not like the idea that their media can be used in a context that they had not intended or the portrayals of subjects may change. They argued that it makes it difficult to protect the interests of those in the original works. This argument was discredited since this is the exact reason Fair Use exists, to allow for new expressions, purpose, and meanings to emerge.

4. Using examples of films explored in Other People’s Footage: Copyright & Fair Use, as well as other films, list the ways fair use has been an incredible source of creativity for documentary filmmakers.

   This entire film is based on the idea of Fair Use, demonstrating the "rock-solid" questions phrased as the Safe Harbor zone - legal speak in my mind. In the majority, if not all, the selected works in the film demonstrated the transformative nature required, reinforcing the filmmaker's point: is the use deemed appropriate, and does it convey a new message. When filmmakers move out of the "safe harbor" zone they are still "shielded" by the Fair Use exception but legal challenges become more likely. It would appear that this happens when the original work's message is transformed in a way that is disagreed upon. The film skips over ethical questions around creative expressions but the film "Blackwater" raised this question. That film used original audio and film that when combined - transformed - created a false narrative of events, a misrepresentation of what took place. The events happened, just not with that visual material (dramatic recreation). It was noted that the use was in the "safe harbor" zone creating new compelling audio and visual that supported the filmmaker's purpose and message. However, another filmmaker, at 00:47:20, stresses the point, just because we can use Fair Use in this way, should this type of transformation be allowed. This type of Fair Use is very well where we are at in the US media landscape surrounding "fake news", misinformation, and disinformation - as in who's narrative is the correct one - which expressions are valuable. Especially true when everyone is transforming the same original media into different narratives.

5. "Fair use is like a muscle; it gets bigger if you use it.” Explain this statement.

   In the film, the speaker makes this statement at 01:12:48. This is about question 2 - Fair Use as an artistic tool. The speaker states that as long as people continue to regard this practice as "normal" then the collection of works open to transformative expressions will only continue to grow. Hence the analogy to building muscles.

6. “The worst censors in the world are the scissors in the mind.” Why does self-censorship happen and how can this negatively impact filmmakers?

   Many filmmakers were asked about "self-censorship" and my answer references back to question 3, how is Fair Use liberating and/or threatening. When a filmmaker or artist is determining the works to transform, it was voiced they need to step back and consider if corporate or media conglomerate interests will stifle their work from being seen. Will it be worth the legal challenges that may ensue? Even when the work is "rock solid" in the "safe harbor" zone private interests may prevail. However, the quote itself is from a copyright lawyer - consultant - Michael Donaldson at 01:13:49 and is summing up that the Fair Use exception has limitless - expansive - possibilities if the people utilizing the exception truly understand their rights in this area. Easier said when you're not having to defend the work under legal challenges. Standing up for your rights is challenging in the media world.

7. Why is it important to teach students about copyright law and fair use? Explain your response.

   In a media dense culture and with creative expression at an all-time high, students need to understand their rights under US law. This in itself is difficult since we live in a global digital world and copyright law is not uniform from country to country. However, in the US, we teach US citizenship (US Civics), and this citizenship is now being explicitly extended to include digital citizenship. Online technologies allow a free exchange of copyrighted materials at lightning-fast speeds, and we have tools available to remix and transform materials in seconds. Students, and everyone, should be aware of how intellectual property laws may impact how they share forms of expression digitally. As brought up in questions 3, 4, and 6, Fair Use can be a liberating form of expression, however, it can also be threatening in how others may transform forms of expression or challenge their expressions. Students should be aware of both sides of the law to be better-informed citizens.

8. Describe the term “intellectual property” with reference to copyright laws and the principles of fair use. Why do you think it’s important to protect an individual’s intellectual property? What challenges to fair use does this present?

   Intellectual property is the umbrella term that protects trademarks, copyrights, and patents. In my opinion, the law itself is antiquated and abused by institutions that hold power. For example, an individual may inadvertently sign away their intellectual property when employed, when using online technologies, or through academic scholarship. This often shows up in Noncompete Clauses, Terms of Service, or other Agreements. Time will tell if the legal interpretations of intellectual property will lean to protect individuals or private interests. Currently, individuals may be asking if it is worth the legal battle or having to consider these private interests before moving forward. At this juncture, the media landscape is expanding rapidly and the intellectual property law will be a challenge more and more, with new precedents setting the tone moving forward. Individual rights must prevail as it is foundational to democracy to be able to freely express oneself - even if it is in opposition to one's own beliefs. But the question here is, where do one person right end and another begin. Should all narratives be protected by Fair Use and who decides? I think this question is currently up for debate.

9. There are some common misconceptions about circumstances permitting a particular usage to be considered fair use. Explain how the following characteristics do not automatically confer fair use: Age of the work; Out of print; Religious Use; Non-profit Use; and Personal Use.

   I did not see these misconceptions represented in the film, but I would suppose it falls in line with the film's premise, that nobody is above the intellectual (copyright) law. Knowing the law, and correct applications of Fair Use, is the only way to "shield" one's creative expressions from legal challenges - this point was mentioned repeatedly in the film. Just because you are creating creative works in one of the listed fields in the question, doesn't exempt an individual from this Federal law. Educational use was also not explicitly addressed in this film, however implicitly implied that documentary filmmakers are bringing new educational materials. Example is a critique of Stanley Kubrick's film at 00:08:53.