Lines Between Fair Use And Copyright Theft Blurry Hollywood studios and the recording industry have railed against copyright infringement, but fair use advocates say intellectual property can be widely shared — legally. As long as people are creating something new out of copyrighted work, it's fair game.
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Lines Between Fair Use And Copyright Theft Blurry

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Lines Between Fair Use And Copyright Theft Blurry


Lines Between Fair Use And Copyright Theft Blurry

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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This is WEEKEND EDITION from NPR News. I'm Scott Simon.

Coming up: country superstar Josh Turner.

But first, every time you listen to your iPod, every time you use your TiVo, every time you watch "The Daily Show," youre participating in something called fair use. It's what makes documentary films and news programs, including this one, a lot easier to produce. But unless youre an intellectual property lawyer, you probably don't spend much time thinking about fair use. That's why advocates in Washington, D.C., organized the somewhat grandly titled World's Fair Use Day.

Joel Rose was there and does his best to explain fair use.

JOEL ROSE: While Hollywood studios and the recording industry have spent millions of dollars making their position on copyright infringement abundantly clear, fair-use advocates have a tougher time getting their message across.

Ms. GIGI SOHN (President, Public Knowledge): When you say I'm a supporter of fair use, 99 percent of the people that I'm trying to influence dont know what I'm talking about.

Mr. ROSE: Gigi Sohn is president of Public Knowledge, a Washington, D.C., nonprofit group that advocates for an open Internet. She brought about 100 lawyers, filmmakers and other stakeholders together for World Fair Use Day.

People like Jonathan McIntosh, a self-described pop culture hacker who created a video mash-up of the "Twilight" vampire franchise and "Buffy the Vampire Slayer."

(Soundbite video, "Buffy vs. Edward")

Mr. ROBERT PATTINSON (Actor): (As Edward Cullen) Im sorry, I'm just - just trying to figure you out. Youre very difficult to...

Mr. SARAH MICHELLE GELLAR (Actress): (As Buffy) I'm the slayer.

Mr. PATTINSON: (As Edward) Um.

Ms. GELLAR: (As Buffy) Slayer, chosen one. Look it up.

Mr. ROSE: Sure, it's cute, but McIntosh says his remix is also a pro-feminist critique of "Twilight." McIntosh says that's why its a fair use, because he's using excerpts to comment on the original works.

Mr. JONATHAN MCINTOSH (Creator, "Buffy vs. Edward"): Our culture is moving more and more into an audio-visual language. And so the question is: Do we get to speak in that audio-visual language or not? Are we allowed to use audio-video to comment on what was on TV last night or what we saw in the paper yesterday?

Mr. ROSE: Artists, filmmakers, reporters and commentators have the right to take copyrighted materials without permission or payment, says McIntosh, as long as they're using those materials to make something new. It's the same principle that the producers of "The Daily Show" on Comedy Central employ every night.

(Soundbite of TV show, "The Daily Show"):

Representative SCOTT BROWN (Republican, Massachusetts): My name is Scott Brown and I'm running for the United States Senate. This is my truck.

(Soundbite of laughter)

Unidentified Woman #1: Brown's wife, Gail Huff, a veteran Boston TV reporter...

Unidentified Man: He is also a member of the Massachusetts National Guard.

Unidentified Woman #2: One of their daughters did very well on "American Idol" a couple of years ago.

Unidentified Man #2: (Unintelligible)

Unidentified Woman #3: This 1982 nude photo layout resurfaced.

(Soundbite of laughter)

Mr. ROSE: Even fair-use advocates admit the concept can be, quote, mushy - to use Gigi Sohn's words. It's up to the courts to decide what is and isn't fair use on a case-by-case basis. But Sohn says that flexibility is exactly what makes the doctrine work.

Ms. SOHN: I really think we're talking about balance. You want strong enforcement when people are breaking the law, but you also want strong limitations and exceptions so people can create and innovate.

Mr. ROSE: That applies not just to content but to the devices that deliver it. Sohn says fair use is what gives you the right to record TV shows and watch them later, thanks to the Supreme Court's ruling in the so-called Betamax case.

Ms. SOHN: Imagine if in 1984, after the Sony-Betamax decision had come out, we had said, OK, we're going to stop there. You can record things for home use, and that's the limit of personal fair use. You wouldnt have MP3 players like the iPod; you know, we probably wouldn't have TiVos that could send things to your computers.

Mr. ROSE: In other words, fair use is what allows you to make your own copies of songs and TV shows for your personal use. But it's the high-profile copyright infringement claims that tend to get more attention, including a 2008 case involving presidential candidate John McCain.

(Soundbite of song, "Running on Empty")

Mr. JACKSON BROWNE (Singer-songwriter): (Singing) Running on empty. Running blind...

Mr. ROSE: The Ohio Republican Party used a few seconds of the Jackson Browne song "Running on Empty" in a campaign ad about Barack Obama's energy policy. Browne sued and McCain's lawyer, Lincoln Bandlow, tried to mount a fair- use defense.

Mr. LINCOLN BANDLOW (Attorney): They didn't really take from Jackson Bowne. They didnt deprive him of a sale of the song. No one who heard a blip of nine seconds of Jackson Browne was going to say, Oh good, I dont need to go buy "Running on Empty" anymore.

Mr. ROSE: That case settled out of court, which happens a lot with fair-use disputes. The lack of rulings, while making the law flexible, also adds to the confusion. That's why Pat Aufderheide, at American University's Center for Social Media, says more exposure for fair use is critical.

Professor PAT AUFDERHEIDE (American University): To help educate people at both ends of the spectrum. The kids who are coming up who often, erroneously, are being told that all copying is plagiarism, and our bosses and our librarians and our gatekeepers who haven't gotten the memo yet.

Mr. ROSE: The fair-use lobby doesnt have the marketing muscle or the Beltway clout of Hollywood studios, but one thing they're not is scared.

(Soundbite video, "Buffy vs. Edward")

Mr. PATTINSON: (as Edward Cullen) I wanted to kill you. I've never wanted a human's blood so much in my life. Are you afraid?

Ms. GELLAR: No. You know what I feel? Bored.

ROSE: For NPR News, Im Joel Rose.

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