Think you don't need Fair Use? Guess again!

A recent article by Elizabeth Nolan in AFF’s Doublethink newsletter highlights the increasingly hazy distinction between what is and is not considered to be copyright infringement among user-generated content, and draws attention to the growing need for clearly-cut guidelines for the appropriate use of copyrighted materials.

The Fair Use doctrine, which is outlined in the Copyright Act, presents provisions by which copyrighted material can be used freely, but these circumstances are very particular – the code does not cover a full spectrum of use, and the distinction between what is and isn’t Fair Use is confusing.

The article recounts the story of Darrell Day and his friend Max Groah, two filmmakers from Ohio, and their "Sad Kermit" video, a homegrown YouTube hit which features Kermit the Frog singing the Nine Inch Nails song "Hurt." "Sad Kermit" was soon garnering 100,000 hits a day, along with coverage on VH1, Entertainment Weekly and Rolling Stone. In the article, Day states that the video ‘"was just this little side project...It was just, ‘Let’s do this and throw it up on YouTube, just for fun.’" Day expresses doubt as to whether or not his content, which integrates copyrighted material, actually falls under the auspices of Fair Use.

Such "side projects" of media makers that upload to YouTube are traversing into an uncharted territory of user-generated content -- new media created by folks who are just having fun with their video equipment, but possibly at the expense of material owned by others. Is there a way to distinguish between those who create media that use copyrighted materials "that are just for fun or education, and [those] using them in videos for commercial profit,’" when in both situations, there exists the possibility of reaching a very wide audience over the Internet regardless the intent?

The Center for Social Media’s new report The Good, The Bad, and The Confusing: User-Generated Video Creators on Copyright, which is based on the results of a survey of user-generated content creators, reveals many of the misconceptions that content producers have towards what is and is not allowed. Tools like the Statement of Best Practices and Fair Use, produced by the Center and the Program on Intellectual Property and the Public Interest in the Washington College of Law at American University are essential to fully understanding the breadth of Fair Use and the rights that it grants to user-generated content producers. The helpful guide provides specific contexts in which using copyrighted material is allowed and will be key for initiating and maintaining conversations about Fair Use, particularly as user-generated content becomes an increasingly influential media outlet.