In this introductory video, Tom Guarriello, Ph.D. explains why YouTube does not actively defend or educate users about fair use, noting that the platform merely follows the letter of the DMCA. He then presents the Association of Independent Video and Filmmakers' (AIVF) "Best Practices in Fair Use" (Dec 2007), highlighting its two fundamental questions for assessing fair use: (1) whether the unlicensed use transforms the original work, and (2) whether the amount and nature of the material used are appropriate. Guarriello outlines the AIVF’s four exemplar fair‑use cases for documentary filmmakers—(1) using copyrighted material as the object of social, political, or cultural critique; (2) quoting popular‑culture works to illustrate an argument; (3) incidentally capturing copyrighted content while filming something else; and (4) employing copyrighted material to convey a historical narrative. He relates these to a recent DMCA notice received by Renato Guarriello, suggesting the incident falls under case 3. Finally, Guarriello announces that Part 2 of the series will demonstrate a fair‑use critique (case 1) to illustrate the principles in practice.
Chapters
Well, hi, it's Tom. I didn't want to disappoint you guys and not say that. Um, still here in San Francisco. Uh, I wanted to make a two-part video, a little different for me. Um, and in part one of this video, I'm going to talk about a topic that Renato Guarriello just addressed in his latest video, which is fair use. Now, if you watched his video, he, um, was upset that he had gotten a DMCA notice on his video about the DMCA and was upset that YouTube was not defending users and was not supporting users. And, you know, I kind of chuckled because it was clear to me that YouTube has no intention of defending users. YouTube has no intention of educating users about fair use. YouTube follows the letter of the DMCA law, which is absolutely their prerogative to do so, and that's all they do. They want clearly no other involvement with users around the issue of fair use of copyrighted material. So I did a little research on my own, and what I'm going to do is in the first part of this video, I'm going to, um, read some— some sections of a piece called Best Practices in Fair Use by the Association of Independent Video and Filmmakers, a documentary filmmakers group. And they've done a good deal of work. They published this in December of '07. They've done a good deal of work in researching best practices in fair use. Have put that into a document which of course I'll link to here in the description. Now basically, their contention is that there are two questions that you always need to ask, fundamental questions about any piece of material. And those questions are: did the unlicensed use transform the material taken from the copywriting work— copyrighted work— by using it for a different purpose than the original, or did it just repeat the work for the same intent and value of the original? And secondly, was the amount and nature of the material taken appropriate in light of the nature of the copyrighted work and of the use? So if you— according to their research, if you answer yes to those two questions, that is, that it does that, the work, by by the creative person transforms the material and that it uses an amount which is appropriate in light of the nature of the copyrighted work, that that is fair use. And they have 4 specific cases that they refer to as best practices in fair use. In case number 1, The user, us, is employing— on the, the, the documentary filmmaker, us, is employing copyrighted material as the object of social, political, or cultural critique. In the description, it says this class of uses involves situations in which documentarians engage in media critique, whether of text image or sound works. In these cases, documentarians hold the specific copyrighted work up for critical analysis. That's case number 1. Case number 2: quoting pop— copyright material, works of popular culture, to illustrate an argument or point. Here the concern is with material, again of whatever kind, that is quoted not because it is in itself the object of critique, but because it aptly illustrates some argument or point that the filmmaker is developing. For example, using film clips, historical film clips, to demonstrate changing American attitudes towards race. So that would be case number 2. Case number 3, capturing copyrighted material, copyrighted media content, in the process of filming something else. So that documentarians often record sounds and images when they are filming sequences in real-life settings. Common examples are the text of a poster on a wall, music playing on the radio, and television program heard and perhaps seen in the background. Now this one is tricky because if you have staged that content to be playing in the background and capture it, no good. If it is incidental, completely incidental, then it is fair use. Now I believe that in Renetto's video the one that he said he was complaining about the DMCA notice and so on, there was music playing in the background. And he and his daughter Daisy got into a conversation about whether or not they were breaking copyright by having that music playing in the background. Seems to me that falls under case 3 here. And case 4, using copyrighted material in a historical sequence, once again using material as an effective, as the best or even only effective way to tell a particular historical story or make a historical point by selecting words that were spoken during the event in question. So, and this is one that you often see bloggers use when they are taking pieces of newscasts and so on and putting them up. All right, so those are the 4 instances. I'm now going to make a video that I believe is an example of fair use case number 1, of a— let's see, what do they call it again— copyrighted material as the object of social, political, or cultural critique. So I'm going to use a piece of copyrighted material, and I am going to hold it up for critical analysis. And that'll be part 2 of this video, so that in case that video gets taken down, at least this part won't get taken down. So, um, if you're interested, of course all the links will be here. If you're interested in seeing part 2, hang on, it will be following shortly. Thanks.
