How I Talk About Fair Use – Intro & “Breathing Space”

When & why I Talk About Fair Use

“How do we/I know what we/I can and cannot do with other people’s stuff?” is one of the primary things I’m asked to talk about in trainings and other outreach and education efforts. Often, what people think they really want to know is  “What is and isn’t fair use?” They also often ask me to address this (and quite frequently other copyright concepts as well) in less than an hour.

The details of fair use are pretty… detailed – and there really are no exact boundaries that you can point to! In my experience, to do anything other than scare people away from ever reusing any copyright-protected materials again, I need at least an hour (preferably more) to address all those details, and a bunch of other concepts besides. The workshops I lead here on campus for faculty members are usually scheduled for two hours, often run over, and I quite frequently get feedback suggesting that they be longer. (I don’t make them longer, because how many faculty members do you know who would voluntarily sign up for a three hour workshop in anything?)

So how to productively discuss fair use in 30 minutes? 15? 10? Rather than trying to talk about the details in high-level, glossed over detail, I try instead to talk about fair use as a concept, and about why it’s important to scholarship, culture, and even our daily communications with each other! In the next few posts, I’ll feature some of the slides and images I use in my talks, along with brief examples of how I talk about them.

Breathing Space

A number of court opinions make reference to fair use as “breathing space” in copyright law. Talking about fair use as breathing space is a good way to introduce some of the more complex issues (flexibility/uncertainty, and 1st amendment concerns) discussed below. But it’s also a good overall summary of the doctrine, and one that makes sense for a lot of people on a gut level. I usually illustrate the “breathing space” concept with this image by Stéfan.

This image is a good teaching tool for a number of reasons. First, it’s funny and pop-cultural, which is almost always a good thing. (It’s also an opportunity to bond with the Star Wars fans in the audience over an in-joke – so far, I’ve never not had at least one person in the audience who gets it.) Second, it’s a well-executed photo, technically and conceptually – it’s just an appealing image.

But most importantly for my purposes, it provides great opportunities to talk about how fair use exists in large part to deal with new and unanticipated uses, and to provide an outlet for commentary and cultural dialogue. There’s a lot going on in this image – it’s a silly joke, using characters from very popular movies – but it’s also a witty juxtaposition of the two movies. And is there also an element of commentary on a totalitarian regime brutally oppressing a disenfranchised and abandoned manual worker? It also provides an opportunity to briefly address some elements of each of the fair use factors: is there market harm? To movie sales/licensing? To action figure sales? How “much” of the movies are being used? How central are those pieces used to the original work? And so on, and so on.

Sometimes I also use videos (usually short pieces thereof) from the inimitable PS 22 Chorus to illustrate the “breathing space” concept.

The copyright issues raised by their videos are quite densely layered, so more often we will view part of one of their videos to spark a general discussion about what kinds of uses should be tolerated in terms of cultural dialogue and participation. There are way too many great videos from the Chorus to choose just one – this one is my current favorite.