Every few months I get an email like the one I recently received from Gunnar, a film student in our program at Quinnipiac. He was unsure as to whether he could use a short clip of music in a documentary he was working on, and how he would determine whether or not it counted as fair use. He wanted to know whether the fact that it was recorded as part of the environment made a difference, and if not, what the least expensive way of licensing the clip might be. I pointed him toward Creative Commons and Archive.org’s audio offerings, and told him the story of Mad Hot Ballroom’s deletion of a scene because they couldn’t license the short phrase “everybody dance now” sung by the children spontaneously.
Luckily, all that was before the Fair Use Foundation came into being. Fair use provides people the right, under certian circumstances, to make use of a copyrighted work as part of their own creation. A lot of misinformation exists about this (e.g., if it’s less than 30 seconds, you are fine), but that is partially because it is difficult to know exactly what counts as fair use. The problem of this fuzzy line is that the music and movie industries are willing to put a large amount of money into litigating potential infringements of their copyrights, and you don’t have to be right to sue–you just have to be able to pay the lawyers.
When even a relatively large independent producer is faced with the risk of litigation, they often choose to pony up exorbitant licensing fees, or cut the scene entirely, in order to reduce the risk of being sued, even when their use may very obviously fall under fair use. In other words, while fair use may exist in theory, it is almost never tested because the mere threat of litigation scares people off. Since few of these cases ever get into court, the line remains very unclear, which is just the way many monopolizers of copyright like it.
What is needed in such a situation is not necessarily a large campaign, or heavy lobbying, so much as an “economic counterweight.” Larger productions routinely take out insurance against various forms of litigation, and other forms of infringement insurance have existed for some time. The Fair Use Foundation is a bit different, in that they only accept claims based in explicit fair use. Their aim is to encourage producers to exercise their fair use rights in order to make sure not only a thriving creative environment, but that the right of fair use does not atrophy.
How does it work? At present, FUF only accepts applications from documentary film makers and academic publishers. Applications are accepted on a rolling basis, at no charge to the artist. The FUF has volunteer media lawyers review each case and rate it for the likelihood of a successful fair use defense. Those that are considered to be good risks are underwritten for $2 million in legal fees if the creator is sues for copyright violation. Also, each year the FUF provides small cash prizes for the best fair use of copyrighted materials.
Two million dollars may not seem a lot in terms of a large legal battle, but it provides just enough to dissuade copyright owners from pursuing frivolous law suits aiming at intimidating those who exercise their free speech rights. With financial backing from the MacArthur and Rockefeller foundations, as well as substantial private donors, the FUF provides a bit of weight in the corner of artists, documentarians, and academic writers. Who knows, it might even allow for branching off into similar efforts. The downside? The FUF, of course, does not actually exist.