Visual communication is a dense and saturated medium as a result of the internet.
As visual artists, designers, musicians and screen media professionals work through the current climate they must be diligent in understanding the restrictions and legal ramifications associated with copyright and fair use laws.
Screen media creators need to understand the architecture of copyright law and how it interacts with digital technologies and digital platforms like YouTube.
In the case of Hoss v Klein, a copyright infringement incident was argued on the basis of fair use. The case presents an evaluation of existing copyright law and its limitations in the digital sphere. Navigating the concept of ‘fair dealing’ in Australia compared to ‘fair use’ in the United States the case promotes content creators right to build on existing content to create something unique.
Creators in the digital age need to have an understanding of the possibilities and limitations of referencing and reusing others work in these ever-changing arenas.
What is Copyright?
Copyright refers to the rights of property that prevent the reproduction of material without permission. The Oxford Dictionary of Journalism states “copyright resides in the form in which information or ideas are presented rather than in the information or ideas themselves.” (Harcup, 2014 p.126)
Copyright belongs to the original creators of material, giving them the exclusive right to authorise the reuse, reproduction and communication of their work.
Australian Copyright law
Australian copyright law is found in the Copyright Act 1968. Copyright does not protect an idea but rather the material expression of an idea. In section 31 the Act defines copyright as the exclusive right to reproduce literary, dramatic, musical and artistic works along with audio-visual items such as films, sound recordings, published editions and broadcasts.
Under Australian law, copyright protection is automatically assigned to works upon creation. Generally copyright lasts for 70 years after the creator’s death, upon expiry the work enters the ‘public domain’ in which permissions are no longer necessary for use.
What is Fair Dealing and Fair Use?
Fair Dealing
Copying without permissions from the creator is acceptable in the correct legal circumstances. These are known as ‘Fair Dealing’ exceptions allowing creators to use unauthorised copyrighted material for these purposes:
The courts review defences using fair dealing on a case-by-case basis bringing into question what and how much is being used and the importance and purpose of the content.
The Australian Copyright Council reminds video content creators to get permissions to use a “substantial part” of third-party materials in their project. “Substantial part” is not measured by the qualitative amount of material but rather a quantitative review of the distinctive or original elements being reproduced.
Fair Use
The United States practice ‘Fair Use’ exceptions under the Copyright Act 1976 which are broader and more flexible (Pearson, and Polden, 2019 p. 407) than fair dealing which is “limited to a set of prescribed purposes”. (ALRC, 2014, 4.8) Fair Use follows broad categories of illustrative purposes to define what is fair; allowing flexibility for fairness factors to be explored and weighed together on case-by-case basis. This includes the purpose and character of the material copied, the proportion used and overall context of the work, and the commercial implications of the work and future worth.
YouTube Policy
With over 2 billion users and one billion hours of content watched daily YouTube has become a place for creators to engage with audiences around the world. From company news channels to independent journalists, commentators, tutorials and filmmakers YouTube has revolutionised the profession of screen media into the palm of everyone’s hand. Users must be aware of the YouTube Copyright policy as content creators need to be aware of the legal particularities when drawing upon someone else’s work. Different countries carry different copyright legislation regarding what is defined and how it can be protected. Australia practices Fair Dealing exemptions in case law while the USA holds the favouring concept of Fair Use. YouTube uses DMCA (Digital Millennium Copyright Act) webform for copyright owners to submit take down notifications against content that may be infringing. The infringing video is removed and a copyright strike is applied to the channel, three strikes within 90 days results in termination of all accounts and channels.
The copyright strike policy can be incredibly damaging for creators, users can resolve copyright strikes by requesting a retraction, or submitting a counter notification. Creators must be thoughtful when referring to existing content while also being aware of their rights to fair use.
Producer Adi Shankar’s ‘Bootleg Universe’, a personal entertainment company on YouTube and Vimeo is dedicated to creating series of unauthorised pop culture satires such as Power/Rangers. These short films are often targeted with copyright claims resulting in take down notices yet are ultimately reversed retaining creative freedom on these social video sharing platforms under the fair use legislation in the US.
'Why Did Adi Shankar Bootleg The Power Rangers?' explainer video by Adi Shankar
Case Study: Matt Hosseinzadeh v. Ethan Klein and Hila Klein
In the case of Matt Hosseinzadeh v. Ethan Klein and Hila Klein; plaintiff created an original scripted video about a character named "Bold Guy". The defendants, Ethan and Hila Klein later made a commentary video which included segments of the original work. The plaintiff sent a takedown notice and YouTube removed the video. The defendants sent a counter notification challenging their video was "fair use and non-commercial". Plaintiff then took the case to court suing for alleged copyright infringement, seeking damages for misrepresentation. The defendants posted another video discussing the lawsuit, then then plaintiff modified his complaint to include a defamation claim.
Ultimately the court held that the defendant's use was fair as their video was “quintessential criticism and comment.” The court dismissed the claim for damages and favoured the defendant’s argument “was true and not a misrepresentation”.
This written comment in addition to the victory of the case indicates the value and flexibility of fair use exceptions. This illustrates that fair use legislation has the ability to adapt and evolve with digital platforms and their content.
'The Big, the BOLD, the Beautiful' Re-upload of the original video H3H3 Productions was sued for
How is Australian copyright law is limiting creativity?
The World Intellectual Property Organisation outlines serval limitations of current copyright legislation particularly surrounding digital content creation. Digital technologies easily manipulate existing content such as text, sound, images and video. This has generated discussion about the balance of the rights of the author and the rights of users to create new works from parts of existing works. Australian law protects creations within fair dealing exceptions yet is restrictive to creativity for artistic purposes that reuse existing copyrighted material such as filmmakers and collage artists.
Creators need to seek permissions from copyright holders to reference existing works, in Australia this can be a lengthy and difficult process. The Conversation article from 2018 addresses the 2017 study on the reuse practices of Australian creators discovering how copyright law is holding back creativity. Licensing fees can be expensive and obtaining permissions is a lengthy process resulting in many delays and rejections.
Pushing Boundaries: Soda_Jerk
Currently video artists such as Soda_Jerk who routinely satirise Australian politics and culture by sampling copyrighted material have not faced legal trouble, as they follow the correct permissions procedure and licensing agreements. Furthermore, they have noted the difficulties in producing such content. On the eve of the ‘Terror Nullius’ film premiere in 2018, the Ian Potter Cultural Trust withdrew its association and promotional support publishing a statement describing the film as “a very controversial work of art”. Soda_Jerk responded with an impassioned Facebook post fearing that this kind of censorship “will have a chilling effect on what Australian artists might dare to imagine and produce, in and for the future.”
Copyright laws have a tight grip on Australian content creators, spreading a distasteful representation of artists and creators that sample original works for social and cultural engagement.
Terror Nullius (2018) Trailer, Dir. Soda_Jerk
Key Takeaways
Content creators need to be aware of the reuse and misuse of content to avoid infringing copyright laws. It is necessary that media practitioners understand the legal obligations to avoid violations.
The Hoss V Klein case is an example of the flexible fair use legislation in the US, indicating a hopeful future for the loosening of Australia’s fair dealing exceptions. This is a landmark case to strengthen fair use for YouTube users as well as creators across all digital platforms, setting a precedent to protect independent creators on social sharing platforms and their work.
Favourably, In the future more copyright instances like that the Hoss v Klein case will lead the way for a fair use evolution. Uplifting user generated content in the remix culture of the zeitgeist.
References
Full lawsuit < https://www.courtlistener.com/docket/4356997/hosseinzadeh-v-klein/ >
Harcup, T, 2014, copyright In A Dictionary of Journalism, Oxford University Press, p .126. Accessed 1 Apr 2021, from <https://www-oxfordreference-com.ezproxy.uow.edu.au/view/10.1093/acref/9780199646241.001.0001/acref-9780199646241-e-315.>
Pearson, M and Polden M, 2019, The Journalist’s Guide to Media Law 6th edition, Allen and Unwin, Sydney, Australia pp 1-560