Video essayists operate on the brink of lawfulness: the material they use in their productions is, more often than not, copyrighted. Even provisions such as Fair Use (in the US) or Fair Dealing (in the UK) cannot always safeguard them from litigation. These texts address legal issues surrounding the production of video essays.
The Ecstasy of Influence (Jonatham Lethem)
Who needs originality? Author Jonathan Lethem makes a provocative but also exhilarating case against the hegemony of copyright law in this seminal essay for Harper’s Magazine. He advocates a gift economy, where ideas can move more freely than they can in a system ruled by restrictive copyrights. The form of his essay is brilliant and surprising… but for that you’ll have to read it for yourself.
The case for unfair use (Charlie Lyne)
In an online article for Sight & Sound magazine, Charlie Lyne makes an impassioned plea for a revision of Fair Use rules. To ensure that the video essay remains a vital and relevant format, he states, the limits of fair use should be redrawn “with a new set of pencil marks on an ever-changing map”.
Teaching Transformativity / Transformative Teaching - Fair Use and the Video Essay (Suzanne Scott)
This article by Suzanne Scott is framed as a series of thoughts and tips on the teaching of videographic criticism. But it focusses primarily on issues of copyright, laying out a teaching strategy in which the concept of Fair Use is stressed in any assignment the students have to complete.
Fair Use in Independent Documentary Filmmaking (Margaret Hennefeld)
A Copyright-Friendly Toolkit (Joyce Valenza)
Professor Joyce Valenza (Rutgers University) compiled an online toolbox full of information regarding both Fair Use and Creative Commons licenses. Her handy reference guide also contains links to sites that offer copyright-friendly images, music and footage.
Fair Use for Videographic Criticism (Jason Mittell)
Christian Keathley and Jason Mittell’s book The Videographic Essay: Criticism in Sound and Image is featured elsewhere on this website. But one of the chapters of said book was posted online; that chapter deals with copyright issues faced by video essayists.
Read this open resource text online.
When Fair is Foul (Gregory R. Kanaan)
New England-based attorney Gregory R. Kanaan runs a blog, The Legal Artist, where he regularly writes about copyright-related issues. In a guest article for MovieMaker magazine, he gives a good introduction to Fair Use and offers some rules of thumb on its use.
Bound By Law? (Keith Aoki, James Boyle, Jennifer Jenkins)
If you think there’s nothing comic about copyrights, think again. The wonderfully creative and equally clever Bound By Law? addresses issues of copyright and fair use in the form of a comic book. Its heroine is a documentary filmmaker who has frequent run-ins with intellectual property law. This remarkable book was made possible by Duke University (Durham, North Carolina) and its Center for the Study of the Public Domain.
Fair Use Too Often Goes Unused (Noah Berlatsky)
Exceptions and limitations to copyright (European Audiovisual Observatory)
The European Audiovisual Observatory is, in its own words, the “reference for market and legal information on film, television and VoD in Europe”. Their Department for Legal Information analyses and publishes reports on legal issues linked to the European audiovisual sector. One such report, an IRIS Plus document published in 2017, focuses on “Exceptions and limitations to copyright”. Amongst other things, the document provides an overview of the evolution of the exceptions and limitations to copyright, and explains the “three-step test” that is often used to judge lawful or unlawful use of copyrighted material.
SCMS Fair Use Policies
“The Society for Cinema and Media Studies (SCMS) strongly supports the attempt to define the fair use of visual and aural materials by film and videomakers, educators, programmers and curators, and other film and media practitioners. As a scholarly organization with an ongoing interest in advising its members and constituents on the considerable ambiguity regarding fair use practice and its possible ensuing consequences, SCMS supports the principle of clarifying the legal, ethical, and practical implications of the fair use of visual and aural materials.”
If you’re in doubt about fair use, then the statements SCMS has compiled are the gold standard. You can find all the SCMS Fair Use statements online.