Celebrate Fair Use Week 2015

‘Kiss me, Harry,’ Ginny begged.

Harry pushed her away from him with a fist made of self-determination and Bessemered steel. His jaw was as strong and as powerful as a quarry that employs 200 men. ‘How can I kiss you,’ he said, ‘when you lack the ability to celebrate yourself as the highest culmination of your own values?’

‘I don’t care about any of that,” Ginny said. “I just want to feel your lips on mine. Please.’

Harry shook his head, like a proud animal, or the stock market. ‘I could kiss your lips,’ he said, ‘but I cannot kiss your self-esteem.’

–Ayn Rand’s version of Harry Potter and the Half-Blood Prince, as envisioned by Mallory Ortberg.

The doctrine of fair use touches upon several of the hats that I wear: as a creator of copywritten works, as a consumer of entertainment media, as a library patron, and in my work as a web designer who is frequently charged with finding, adapting, and licensing images for client sites.

As an attorney, I’ve had clients on both sides of cease and desist letters–one who was asked to take a book off the shelf because of superficial resemblance to another work, and another whose artwork was commercialized without permission, credit, or compensation.

As an author, I’ve written parodies of pop culture into my stories. I’ve also seen my own characters borrowed by others. It’s painful to see the “children of my mind” written as bad caricatures, and painful in a different way to see them written brilliantly in situations I wish I’d thought of myself.

As a forum participant, I’ve seen people who believe, mistakenly, that the doctrine of fair use allows them to take any creative expression from any source and use it however they choose.

In short, I’ve seen fair use, up close and personal, from a variety of angles, and it’s still just a big fuzzy blob of ambiguous, conflicting, and ever-changing precedent. If you’re confused by fair use, you’re in good company. And if you’re not confused, you’re delusional.

To bring much-needed attention to this topic, February 23rd through 27th of this year has been designated as Fair Use Week, as coordinated by the Association of Research Libraries.

You can follow @FairUseWeek and use #FairUseWeek2015 on Twitter. You can read the Fair Use Week blog on Tumblr. You can participate in any number of panels and events, including a free webcast on the topic.

But to really celebrate Fair Use Week to the fullest extent, I suggest finding some bit of intellectual property that you admire the heck out of and using it. Fairly. Respectfully. Harmlessly. Cleverly. And preferably to the enjoyment and enrichment of your audience.

My contribution to Fair Use Week is a work of Star Trek fanfiction on a website called Skrawl. The thing I like about this site is that once a story starts, it belongs fully to the community. Anyone can write a chapter that they propose as a continuation, and anyone can vote on which of the submitted chapters will become part of the final community-sourced story.

Or you can celebrate the week by taking a moment to recognize the fair uses of intellectual property that you already take advantage of every day.

  • When you find yourself humming a song off the radio, that’s fair use.
  • When you take a selfie with identifiable works of architecture in the background, that’s fair use.
  • When you DVR a TV show to watch at a later time, that’s fair use.
  • When you take notes in the margins of a book, that’s fair use.
  • When you discuss the events of Super Bowl XLIX without the express written consent of the NFL, that’s fair use.
  • When you photocopy your mom’s old recipe for sweet and sour meatballs, that’s fair use.
  • When you hit the retweet button, that’s fair use.
  • And when you use your computer to display the words of a blog entry about fair use, that’s fair use too.

Without this common sense exception carved out of copyright law, we’d likely be dodging C&D letters and subpoenas all day, every day. Thanks, Supreme Court Justice Joseph Story!

The use of Supreme Court Justice Joseph Story and his 1841 four-factor fair use guidelines to illustrate fair use is an example of fair use.

This unauthorized adaptation of a Harvard Library Office of Scholarly Communication graphic of a Ralph Lieberman photograph of a William Wetmore Story sculpture of Supreme Court Justice Joseph Story and his 1841 four-factor fair use guidelines paired with an allusion to a World War II era US Army recruitment slogan is an unnecessarily complicated example of fair use.

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Greg R. Fishbone
Greg R. Fishbone is the author of the Galaxy Games series from Spellbound River Press. He lives in New England with his wife, two young readers, and a pair of stubbornly illiterate cats.