Machinima Artists Guild

Moderators: Cisko, Larkworthy Antfarm, Celestial Elf, Asil, Natascha Randt

One of the challenges we face as machinimatographers is incorporating other people's work into our own.  As soon as someone makes something, fixing it in a tangible form, they own the copyright for it ...under international and United States copyright law, they are not required to register it with anyone in order for their copyright to come into being.  However, copyright is not absolute. Something called "Fair Use" allows scholars to reference works, reporters to keep the news cycles active and supports those who would do parody or commentary or comparison of the work. It can be tricky, knowing when the content you're using falls within the Fair Use doctrine. With that need in view, the scholars at Columbia University developed the "Fair Use" checklist. This content is licensed under a Creative Commons license, so I'm copying it below and attaching a PDF for your use.

I encourage everyone in the Guild to start using the Fair Use Checklist for your own work; its a great tool.
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[Source: Columbia University Website]

Fair Use Checklist

Introduction to the Checklist: The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).  Fair use is determined by a balanced application of four factors set forth in the statute:
(1) the purpose of the use;
(2) the nature of the work used;
(3) the amount and substantiality of the work used; and
(4) the effect of the use upon the potential market for or value of the work used. 

Those factors form the structure of this checklist.  Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist: A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap: As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Further Information: You can learn more about fair use from many sources, including the website of the Copyright Advisory Office of Columbia University: www.copyright.columbia.edu.

Attribution: The Checklist has a “Creative Commons Attribution Only” (http://creativecommons.org/licenses/) license and was created by Kenneth D. Crews (Columbia University) and Dwayne K. Buttler (University of Louisville).

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THE CHECKLIST

Purpose

Favoring Fair Use

Opposing Fair Use

 

Teaching (including copies for class use)

 

Commercial activity

 

Research

 

Profiting from the use

 

Scholarship

 

Entertainment

 

Nonprofit educational institution

 

Bad-faith behavior

 

Criticism

 

Denying credit to original author

 

Comment

 

 

 

News reporting

 

 

 

Transformative or productive use (changes the work for new utility)

 

 

 

Restricted access (to students or other appropriate group)

 

 

 

Parody

 

 

Nature

 

Favoring Fair Use

 

Opposing Fair Use

 

Published work

 

Unpublished work

 

Factual or nonfiction based

 

Highly creative work (art, music, novels, films, plays)

 

Important to favored educational objectives

 

Fiction

Amount

 

Favoring Fair Use

 

Opposing Fair Use

 

Small quantity

 

Large portion or whole work used

 

Portion used is not central or significant to entire work

 

Portion used is central to or “heart of the work”

 

Amount is appropriate for favored educational purpose

 

 

Effect

 

Favoring Fair Use

 

Opposing Fair Use

 

User owns lawfully purchased or acquired copy of original work

 

Could replace sale of copyrighted work

 

One or few copies made

 

Significantly impairs market or potential market for copyrighted work or derivative

 

No significant effect on the market or potential market for copyrighted work

 

Reasonably available licensing mechanism for use of the copyrighted work

 

No similar product marketed by the copyright holder

 

Affordable permission available for using work

 

Lack of licensing mechanism

 

Numerous copies made

 

 

 

You made it accessible on the Web or in other public forum

 

 

 

Repeated or long-term use

 

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Loved Tikaf's list. I mean really? 

Even when I taught college classes the "Fair Use" rule was closely watched. We could copy a page or two  but not many from a book, etc. I can't see how any machinima use would be covered under Fair Use. Maybe if we were teaching classes or making a machinima "about" machinima and showing very small clips. But from what I see here on the site, that isn't really what most of us are doing.

I see people that shouldn't be quoting the Fair Use rule when they are making commercial products etc. etc. So it IS very good to understand what it actually means. A nice resource for those questioning.

@ All Readers. The idea behind the checklist is to help the person making a new work determine if the use of content they did not create infringes on its copy-right holder.  The purpose of this discussion is to share a resource identified by its creators under a "Creative Commons" usage as suitable for republishing. 

@ Chic.  You advise you "can't see how any machinima use would be covered under Fair Use."  Please consider parody and commentary.  Fair Use is what allows an artist like Weird Al Yankovic to use melodies he did not write to parody the work of other artists and its what allows humor shows like "The Daily Show" to use clips from television, movies and the internet without having to pay their makers or seek the approval of those makers. In both of these examples we have commercial artists using the works of others to make money.  Within the United States, all artists (including machinimatographers) are covered by the same umbrella of protections. 

@ All Readers. The platform that hosts this site is called NING, its a corporate entity incorporated in the United States (California) and is owned by Glam Media, which is an international company located in the U.K.  As users, when we register on this site, we bind ourselves to its ToS, which advises we will not use the service "to facilitate the unlawful distribution of copyrighted content."  If, as a user of this site, you believe you have identified items posted here which you think break the NING ToS or our site rules, email the site administrators so we may investigate your concerns.  Please, bear in mind this site is not a commercial endeavor (it is paid for by Lowe Runo as an act of community giving) and all of its administrators are volunteers who give freely of their time to help support this growing artform.  As a moderator of this site, I can advise that none of us make any money from our engagement with the M.A.G. and we do our best to administer it fairly.  That said, sometimes we miss things, so the help of the community is always appreciated!

Chic Aeon said:

Loved Tikaf's list. I mean really? 

Even when I taught college classes the "Fair Use" rule was closely watched. We could copy a page or two  but not many from a book, etc. I can't see how any machinima use would be covered under Fair Use. Maybe if we were teaching classes or making a machinima "about" machinima and showing very small clips. But from what I see here on the site, that isn't really what most of us are doing.

I see people that shouldn't be quoting the Fair Use rule when they are making commercial products etc. etc. So it IS very good to understand what it actually means. A nice resource for those questioning.

Thanks, Asil, for that clarification.  

"Fair use" sounds pretty cool, but just only for anglo-americans. In Germany there's no fair use. Try it and they will kick you with their biggest boots. Damn!

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