Media & Entertainment: Copyright, Fair Use and the New Media Artist

It was once the case that the only way for a film-maker to have his or her work viewed by a large audience was to have it picked up by a film or television distribution company. With the advent of online video hosting services like YouTube, artists, professional and amateur alike, are now able to circumvent this process by posting their content on the Internet. The posting of online videos has changed the way people communicate their ideas and express themselves. However, with this explosion in free expression comes a growing debate on the doctrine of Fair Use.

Copyright law protects authors by prohibiting the verbatim copying of their work. It also protects authors from infringement by distribution, display, public performance, derivative works and similar unauthorized use of the work. However, the law recognizes that there is a delicate balance between the rights of the author of the original work and the rights of others to use portions of the work to create new content. The doctrine of Fair Use permits the use of portions of original work, provided the new creation transforms, comments on, critiques, parodies or is a satire of the original. The challenge of the doctrine lies in drawing the line between prohibited derivative work and acceptable transformative work. That is, how much transformation or commentary is enough to be deemed “Fair Use?”

As a rule, this determination is made by judges on a case-by-case basis. If you intend to post a video or film that has clips from copyrighted works, and particularly if you intend to market your own work for profit, it is important to make sure that you understand and adhere to the best practices of Fair Use.

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