Interview with Heidi Tandy: Fair use, copyright, and what it means
I've mentioned my friend Heidi Tandy before, she who makes very adorable Supernatural fanvids and owns more pink clothing than anyone I know. What I haven't mentioned is that Heidi works as an intellectual property lawyer and has been involved in the administrative side of one of the largest Harry Potter fan sites on the web, FictionAlley.org, for many years. Recently, Heidi posted in her blog her happiness in the ruling of Lenz vs. Universal Music, which states that the Fair Use doctrine "permits limited use of copyright materials without the owner's permission."
Why does this matter to librarians? Because in this field, we get asked a lot of questions about what constitutes copyright and fair use, especially in school libraries. With the fandom presentation that Liz Burns and I are giving at the upcoming YALSA YA Lit Symposium in Nashville, we're talking about an entire set of activities that revolves around fair use and transformative works (works derived from the creations of another person). Because I don't even pretend to speak Lawyerese, I interviewed Heidi, who is very good at translating Lawyerese into English, via email about what this ruling means for fandomers and transformative works everywhere.
Carlie Webber: Tell us what constitutes "fair use" and why it matters to librarians?
Heidi Tandy: Fair use is a lawful use of copyright, as the Northern District of California said in Lenz v. Universal Music. Basically, fair use allows someone who is not the copyright owner, and who is not licensed by the copyright owner, to reproduce a copyrighted work. Generally, fair use exists when a portion of the first work is incorporated into a second work, perhaps in a review, or in educational materials, or in fanfic, or in a parody, or in a transformative work.
CW: How has this ruling changed what we can and cannot do with original works?
HT:That's the nifty thing - it didn't change anything. It clarified things. There was no case that said that it was copyright infringement to upload a video to YouTube that featured a video of a toddler dancing to a Prince song - and the new case affirmatively stated that it may be fair use.
CW: What do teachers, librarians, fan writers, etc. still have to be careful of in terms of how we use another's work for teaching or transformation?
HT:You need to look to the four factors that the US Copyright Office has stated need to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
For example, f you're teaching writing or literature or history and have students write a story based on another work, and the student is instructed not to copy extensively from the first story, it's likely that the student's story will be fair use.
CW: Give us some examples of things that are thought to be fair use, but really aren't.
HT: Oh, that's a difficult one. Anything transformative may be fair use, so something isn't fair use if there's nothing transformative about it. Splitting an episode of a TV show into five parts so you can upload it onto YouTube isn't transformative, but using five minutes of clips from a tv show to create a fanvid about that episode may be fair use, because you have taken a small portion of the work, there's no
commercial purpose, and the effect on the potential market is minimal. Photocopying a textbook and sharing it with a class isn't transformative and under the Kinko's case it isn't fair use, either. But putting a quotation from that book on a mural on the wall is probably fair use.
CW: Twitter just suspended account of people who were Twittering as characters from Mad Men. If the author or creator of an original work states that he or she does not want derivative works created from his books/films/TV shows but a fan creates it anyway, does the creator of the original work have any recourse? In the past, writers like Anne Rice and Nora Roberts have requested that people not write fanfic about their characters.
HT: It depends on what's created, but generally, the wishes of the original creator won't impact a court's analysis under copyright or trademark law, although it might make it more likely that the creator
will send his or her fans a cease and desist letter, or even take them to court. The original creator can always take fanwork creators to court - the real question is whether the original creator can win. The court would use the fair use analysis to determine if the fanwork is fair use, because if it is, it is a lawful use of copyright.
It's going to be more difficult for copyright owners to claim that a fan creation should be taken down via a Digital Millennium Copyright Act notice now, at least in California, because of the recent ruling. A copyright holder now has to at least examine whether something is fair use before sending the DMCA notice, and a claim of fair use can be used to fight back against the copyright holder's assertion that something is fair use.
CW: I know there are always questions in the library world about what copyright covers and how long it lasts. Can you give us a crash course in copyright?
HT:The copyright office has an excellent collection of information at http://www.copyright.gov/circs/circ1.pdf - but it primarily talks about works that are created now. For works that were created before the 1970s, the situation can be a little different. If you need to find out whether a work is still protected by copyright, check out the Public Domain Sherpa.
Basically, copyright gives the creator of a work a bundle of rights - including the rights of duplication and distribution. The creator can give those rights away temporarily - that's a license - or permanently
- that's an assignment.
this interview also appears at Librarilly Blonde