Stanford Center Advocates for Fair Use on Web
STEVE INSKEEP, host:
Here's a piece of copyright law that's getting a lot of work on the Internet. It's called fair use. It's an exception to copyright that sometimes allows you to use somebody else's work without their permission. That's how we can play you clips of tape from other networks. Scholars use it all the time. And then there was the guy who turned a disco tune to his own purposes.
NPR's Laura Sydell reports.
LAURA SYDELL: Picasso once said good artists copy, great artists steal. Twenty-nine-year-old Javier Prato wasn't sure which one he was doing when he entered his video into a contest in December of 2005.
Mr. JAVIER PRATO (Amateur Video Maker): Filmmakers had to shoot somebody dancing. So I came up with this idea of putting a character dressed like Jesus Christ and singing "I Will Survive" by Gloria Gaynor.
(Soundbite of song, "I Will Survive")
Ms. GLORIA GAYNOR (Singer): (Singing) At first I was afraid, I was petrified, thinking I could never live without you by my side.
SYDELL: Prato actually got in touch with Universal which owns the rights to "I Will Survive" to get permission to use the song. But they never responded. So he just sent it in to the contest. But then, some of his friends started sending it around on email.
Mr. PRATO: My fans, you know, who - people who loved the video, they just put it out there. I mean, I never - they were the ones who put it on YouTube.
SYDELL: Prato's video got extremely popular getting some 2 million hits on YouTube. He was approached by a company that wanted to attach ads to it so Prato could make some money. So he sent another letter to Universal asking permission for rights. Their response was a threatening letter.
Mr. PRATO: They told me, I had to take the video out. Take it off from all the Web sites that are out there, which, of course, I didn't have any control out of it. You know, I didn't - you know, threatened me to a lawsuit if - I have to call them back and discuss monetary losses.
SYDELL: Fortunately, Prato had heard of something called the Fair Use Project at Stanford University, a legal clinic that was founded last year specifically to help artists like Prato. The project's executive director, Anthony Falzone, says they sent out a letter on his behalf saying that Prato's work fits under an exception to copyright law.
Mr. ANTHONY FALZONE (Director, Fair Use Project): Parody is exactly the kind of thing that Fair Use protects. You get to use other people's copyrighted material if you want to parody it. And it shouldn't be taken down on YouTube or interfere with in any way.
SYDELL: Universal backed down on its threats to Prato. The Fair Use Project also recently had what it considers another victory. It was a party in a lawsuit against Viacom, which had sent a takedown notice to YouTube after a spoof of the Colbert report by Moveon.org appeared on the site.
(Soundbite of Colbert Report Spoof)
(Soundbite of bell)
Unidentified Man #1: (As Stephen Colbert) Truthiness(ph).
Unidentified Man #2: Stephen Colbert claims to be an unstoppable truth telling machine.
Unidentified Man #1: (As Stephen Colbert) I'm a steamroller of truth.
Unidentified Man #2: But what if all his talk about truth…
Unidentified Man #1: (As Stephen Colbert) Truth, truth, truth, truth, truth, truth, truth, truth.
Unidentified Man #2: …was the biggest lie of all?
SYDELL: Moveon.org dropped the suit after Viacom officials agreed that the takedown notice have been a mistake. And the company made specific commitments to be more careful in its evaluation of online videos. Falzone says increasingly, big companies, worried about losing control of their copyrighted material, are going overboard by sending out what he sees as frivolous warning letters.
Mr. FALZONE: The mere threat of a copyright lawsuit will scare the pants of your average person and very well may cause them to stop doing what they every right to do.
SYDELL: The Fair Use exception to copyright is not new. It's in part of American common law since the founding of the nation. Falzone of the Fair Use Project says it's meant for a lot more than parody.
Mr. FALZONE: Fair Use protects your right to comment on copyrighted work. Criticize it or conduct scholarly research using it.
SYDELL: So scholars can quote from a book at length, a filmmaker can take a clip from a movie to comment on it and NPR can use movie, television and other sorts of copyrighted material for journalism. The Fair Use Project at Stanford was inspired in part by a study done by two professors at American University.
Patricia Aufderheide is a professor of documentary film there and the director of the Center for Social Media.
Ms. PATRICIA AUFDERHEIDE (Professor of Documentary Film, American University; Director, Center for Social Media): Documentary filmmakers we discovered, were frequently excluding large sections of the documentary genre. They didn't want to do music films. They didn't want to do history films. They wouldn't dream of doing a film that critiqued popular music or popular movies.
SYDELL: And film distributors were weary of taking a risk on the films because insurance companies wouldn't offer legal protection. Now, Aufderheide says she and others at American University's Center for Social Media have put together a guide for filmmakers on Fair Use.
Robert Greenwald, director of the documentary, "Outfoxed," relied on guidance from the Fair Use Project when he made his movie, which was a critique of the conservative bias of Fox News.
Mr. ROBERT GREENWALD (Documentary Director): Without those clips from Fox News, what do you have? You have some experts saying Fox News is good, or Fox News is bad, total different ballgame.
SYDELL: In one segment from Greenwald's "Outfoxed," talk show host Bill O'Reilly appears to be caught in a lie when different segments from his show are shown side by side.
(Soundbite from "Outfoxed" documentary)
Mr. BILL O'REILLY (Host, "The O'Reilly Factor"): If you are so concerned about public figures being bad role models for children, please stop rudely interrupting your guests and telling them to shut up. Well, a shut up line has happened only once in six years, Ms. Evans(ph)…
Unidentified Woman: Oh, you know, I think that asking a student to stay in the closet in order to go (unintelligible)…
Mr. O'REILLY: I'm asking you to shut up about sex.
Unidentified Woman: …by asking an African-American student.
Mr. O'REILLY: No, no, no, no. Shut up.
Unidentified Man #2: Want to know what I'm doing?
Mr. O'REILLY: Shut up. Shut up.
Unidentified Man #2: Oh, please, don't tell me to shut up.
Mr. O'REILLY: If we have some respect…
Mr. GREENWALD: So without any of that guidance and the ability to utilize Fair Use, Fox, of course, would say no, you can't, and then the movie would never exist.
SYDELL: Yet, there are critiques of Stanford's Fair Use Project and the work of professors like Patricia Aufderheide. James DeLong of the Conservative Progress and Freedom Foundation thinks intellectual property is a commodity that should be more tightly protected.
Mr. JAMES DELONG (Senior Fellow, Conservative Progress and Freedom): Our concern is that there are elements, largely in the universities, which really do not favor intellectual property and would like to see it more or less undermined and destroyed. And our view is actually that Fair Use, to a certain degree, should be constricted rather than expanded.
SYDELL: DeLong would like to see some kind of online intellectual property bank where creative people could quickly pay a fee to get access to works they want to use. But video artist Javier Prato says that would hinder his creativity, especially since he does most of his videos as a way to advertise his abilities as an artist, not to make money.
Mr. PRATO: This is just fun. And YouTube and all the Web sites is giving me the chance to show my creativity. And that's great.
SYDELL: As cameras and desktop editing tools get cheaper, there are likely to be even more stories of young artists pushing the edges of creativity and copyright law.
Laura Sydell, NPR News, San Francisco.