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Fair Use Q&A

Posted By Pat Aufderheide, American U, Friday, September 1, 2017
Dear ICA,

My paper, on representations of race through the images and video young adults share on social media platforms, was accepted for an online journal. I’m planning to include some examples, including videos. I’m pretty sure I can reproduce images without getting permission, but not sure if I can use an entire video as an example. Some of these videos are Vines, so that’s less than 30 seconds. So can I get away with it?


Dear Worried,

Your peers strongly agree that you do not need permission to reproduce work you are analyzing, or using to illustrate an argument in scholarly writing, as you can see from ICA’s Code of Best Practices in Fair Use for Scholarly Research in Communication. Look especially at Section One, “Analysis, Criticism, and Commentary of Copyrighted Material” and Section Two, “Quoting Copyrighted Material For Illustration.” As the document explains, a transformative purpose is key to your employment of the fair use doctrine, and so is using an appropriate amount. There are no hard and fast rules anywhere in fair use law. So 30 seconds, 400 words, seven changes, 10 percent and many other pieces of folklore are just that. The Code explains the logic of fair use, which will help you with the reasoning to decide not only whether to employ fair use, but how much to use. Sometimes the appropriate amount is 100 percent; a meme that only had the top half would be pointless, for example. If you have to watch the entire video to understand the point being made in the article, then you may need the whole video. But you need to decide this, on the basis of the principles and limitations in Section One or Section Two of the Code, whichever best applies to your situation.
Patricia Aufderheide for ICA

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