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Copyright Attorneys Debate Rules of Fair Use

Jan 27, 2009  •  Post A Comment

Don’t take too much and give too little. That’s the rule of thumb to keep in mind for content producers who are concerned about fair use of content, said copyright attorneys speaking on a panel at NATPE about how to keep one’s content out of the courts.

The fair-use doctrine in United States copyright law allows for limited use of copyrighted material without permission from rights holders.
But copyright has become a sticky issue on the Web, and video sites have been tied up in court over both fair use and rights of usage under the Digital Millennium Copyright Act. Viacom, for instance, is suing Google for $1 billion over videos that appeared on Google-owned YouTube.
While that case involves larger issues of clips running in their entirety on other sites, a gray area remains with fair use. The doctrine is important for journalists, documentarians and content producers when creating programming for the Web and other mediums.
Content producers can apply a three-pronged test to their works, said Michael Donaldson, entertainment attorney with Donaldson & Callif. Producers should ask themselves: Do you need to use the clip to make your point, did you use only as much as you need, and is the connection between the idea and the work clear? If a producer can answer yes to these questions, then the work is likely in the fair-use safe harbor.
Fair use boils down to whether the new work added something new, creative or transformative to the world and added to our store of information, said Lincoln Bandlow, a partner with Lathrop & Gage. “The more you can answer yes, you have a better case of fair use,” he said.

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