The Chronicle of Higher Education featured an article about a new report that addresses the use of copyrighted materials in student multimedia projects.

From the report:

"The following is the four-pronged fair use rubric from U.S. copyright law. The existence of a fair use of protected material may generally be deduced by evaluating and balancing the following four dicta in the use of transformed work:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work. (U.S. Copyright Office, 2009, §107)....

Several principles must be applied in thinking about the transformative quality of a work based upon another. The Code of Best Practices in Fair Use for Online Video (Center for Social Media, 2008b), for example, argued that those principles involve whether a work:

  • Comments on, or critiques copyright-protected material;
  • Uses protected material for “illustration or example”;
  • Uses copyrighted material either “incidentally or accidentally”;
  • Reproduces copyright-protected material in order to “memorialize, preserve, or rescue an experience, an event or a cultural phenomenon”;
  • Copies a protected work in order to “launch a discussion”;
  • Quotes certain works in order to combine them to make a new oeuvre that depends for its meaning on unique semantics or meaning between or among the elements.

The judicious and conservative employment of these principles preserves a condition of robust free speech and restores the balance that copyright must share with important public policy considerations (Committee on Intellectual Property Rights in the Emerging Information Infrastructure, 2000). Perhaps the most important of these considerations is a burgeoning and free intellectual culture.

The first and second principles privilege free commentary when brief citation is inadequate to show either one’s thoughts on, pleasure in, or distaste for a work or aspects of it.

The third may well be the most commonly encountered. This is a situation in which, for example, a protected work happens to be playing in the background on a television or radio or is otherwise apparent in the recording of the action of an extraneous event. The previously copyrighted work’s removal may either mar the end work or be excessively burdensome to remove. Its use ought to be protected, according to the Code of Best Practices in Fair Use for Online Video (Center for Social Media, 2008b).

The fourth principle preserves the ability to record for posterity material that may be protected but has become culturally enshrined in some way, as with, for example, the broadcast of Stephen Colbert’s 2006 speech pillorying President Bush (see YouTube video at http://www.youtube.com/watch?v=qa-4E8ZDj9s).

The fifth principle regards the effort to begin a cultural conversation, as with a film, advertisement, or comedy performance. Consider, for example, a tobacco company’s ad that may contain material that a viewer regards as untruthful or manipulative; should a person be held liable for reproducing it so others may see and comment upon it? The fifth principle holds that a person should not.

The sixth principle is perhaps the most creative one. If students take preexisting elements, say a music score from one film, dialogue from another, and visual action from a third, and create a “mash-up” of these elements, they have obviously rendered a completely transformative use of these elements. What they have created at the end, while it may consist of protected material, has been transformed into an entirely new work. Such new work seems worthy of protection on its own, provided the work remixer properly cites the creators of the contributing elements.

Radical transformativeness may well be a student’s best friend in these analyses..."