This panel discussion took place in the Copyright in the Creative Industries (David Herlihy) and Introduction to Film Production (David Tamés) classes in the College of Arts, Media and Design, Northeastern University on March 4, 2022, and was organized by David Herlihy and David Tamés.
The First Amendment of the United States Constitution protects our right to freedom of speech and expression, stating that “Congress shall make no law … abridging the freedom of speech, or of the press.” Copyright is also rooted in the U.S. Constitution, which authorizes Congress “to promote the Progress of the Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries”. Copyright is a balance of exclusive rights and exceptions to those rights. This balance is intended to promote the public good, support private property rights, and stimulate innovation. There is a tension between freedom of speech and copyright. The fair use doctrine, codified in §107 of the Copyright Act, serves two vital functions: (1) Balancing the interests of pioneering authors and those who use their work as an input for cumulative creativity; and (2) Acting as a safety valve for freedom of expression. This panel will demystify the widely misunderstood doctrine of fair use and discuss important matters of concern for media makers who need to incorporate the copyrighted work of others into their creative works.
Annie Berman is a media artist living and working in New York City whose most recent film is The Faithful: The King, The Pope, The Princess. Annie’s work has been shown internationally in cinemas, festivals, galleries, and universities including MoMA, Spring/Break Art Show, and the Rome Independent Film Festival where she was awarded the Best Experimental Film Prize. She earned her MFA in Integrated Media Arts at Hunter College and currently teaches film at City College.
Abby North is a music rights administrator who regularly advises estates on catalog management and strategic growth concepts. She is the principal of North Music Group LLC and a founder of Unchained Melody Publishing LLC. Abby earned a BA in Sociology from the University of California, Los Angeles. Abby is on the Board of the Los Angeles chapter of the AIMP, of IAFAR US and on the Advisory Board of SONA.
David Herlihy is a Teaching Professor and Coordinator of the Music Industry Program. Since 1993, David has maintained an intellectual property/new media/entertainment law practice in Newton, Massachusetts. He received a BA in Political Science from Boston College and a Juris Doctor from Boston College Law School.
David Tamés, the Moderator, is an Associate Teaching Professor in Art + Design who recently completed bookartbookshop, a short documentary, and Farm and Red Moon, a feature-length documentary. David is currently a fellow at the MIT Open Documentary Lab and serves on the board of Filmmakers Collaborative. He earned an MFA from MassArt and an MS in Media Arts and Sciences from MIT.
Works that make transformative use of copyrighted materials
- The Faithful: The King, The Pope, The Princess, Annie Berman’s film, a significant fair-use test case
- Ozzy Osbourne’s emotional “reaction” to Elvis Presley Unchained Melody, a transformative reaction video
- A Fair(y) Use Tale, Eric Faden’s Disney parody explaining Copyright Law and Fair Use
Publications mentioned during the discussion
- Textual Poachers: Television Fans and Participatory Culture, book by Henry Jenkins
- The Future of Ideas: The Fate of the Commons in a Connected World, book by Lawrence Lessig
- Policing Elvis: Legal Action and the Shaping of Post-Mortem Celebrity Culture as Contested Space, article by David Wall
- Elvis Culture: Fans, Faith, and Image, book by Erika Doss
- Elvis Inc: The Fall and Rise of the Presley Empire, book by Sean O’Neal
- The Gift, book by Lewis Hyde
Notable fair use cases
- Eldred v. Ashcroft, Wikipedia article on a landmark fair use case
- In Copyright Case, Judge Evaluates Use of 9/11 Footage in 16 Films, article by Eriq Gardner addressing the Fioranelli Opinion
Fair use resources
- Fair Use Library, Center for Media and Social Impact (CSMI), School of Communication, American University, the guides from CMSI provides the gold standard of best practices for creators
- Copyright, Legal Information Institute, Cornell Law School
- First Amendment, Legal Information Institute, Cornell Law School
- Fair Use, Legal Information Institute, Cornell Law School
- Rights of Publicity, Right of Publicity, Legal Information Institute, Cornell Law School