Fair use? Fair Dealing? Fair Enough!

click here for an audio reading of this post!

One of the largest concerns I faced while working through this latest collage project, and really it’s a concern I’ve had whenever I’ve worked with collage. What are the moral implications of using images that I didn’t create? I didn’t make the images I cut out, and I don’t have any copyright to them, so how can I justify using them?

I’ve listened to a lot of discussion surrounding this over the years, but mostly in the context of YouTube’s fair use policy, and it’s effect on creators. Specifically there was a fairly public dispute between Matt Hosseinzadeh (Matt Hoss), and Ethan and Hila Klien [1]. The Klien’s ran a popular YouTube channel, called H3H3, which produced satirical content, poking fun at others on the YouTube platform. After a releasing a few videos on Hoss, who ran his own channel producing short films, with himself as the lead, he filed a lawsuit against the Kliens. This was a lengthy saga, and stirred up a lot of conversation on what exactly constitutes fair use, and how exactly parody and satire function.

I should mention this all happened in America, where the law governing copyright is called “fair use”, which is a different system to what we have in place in Australia.

Ultimately the Kliens won the lawsuit, but it was a long and arduous journey, which clearly took it’s tole on the two of them. They won the case after the courts applied a four step analysis, this is the process used to determine if a work that contains the work of another is appropriate. [2]

Factor 1: The conditions of use
This step identifies how the material is being presented in this new work

  • In the context of someone criticizing or commenting on the original work
  • For the purpose of reporting, researching, teaching or in the context of a scholarship

If any of these factors are satisfied, It bodes well for fair use to be found. Often courts will use the term “transformative,” which asks if the work takes on new life, instead of being merely a reproduction of the original material.

Factor 2: Nature of the work
As best I could determine, this step aims to identify the nature of the original material, in order to determine how the fair use rules apply. So typically, creative works are often given heavier weighting towards the copyright holder, as opposed to non fiction materials.

Factor 3: Amount of original material used
This factor loops back to the idea of a work being transformative. Generally speaking, the less of the original material you use, the better the case for fair use. But context is also important, such as in the Klien case, this factor ruled in the Klien’s favor, as the court found they only used enough material as to accurately criticize the original material. Time is not the only factor, but also resolution of image, or any factor regarding how recognizable it is.

Factor 4: Does the new work diminish the value of the original material
This is the most complex of the factors, as what determines value can be hard to determine. In cases where the new work is commercial in nature, this can be made simpler, as value can be deemed as income gained. But if it has a different purpose than the original material, or operates in a different market, things again become unclear.

So that’s fair use, and It was, up until writing this very post, what I thought my works would be judged against. But it turns out we operate under a different law in Australia, called Fair Dealing.

Fair Dealing works in a similar way to fair use, but is considered to be more restrictive on what is an acceptable use of copyrighted works. Even if you’re work falls under the categories defined above, there are often extra conditions that muse be satisfied. In the case of criticism, where you must site the original authors and the name of their work. While using literary texts, even for research and scholarship purposes, there are limits on how much you can use before it falls outside of fair dealing. [3]

The Australian Society of Authors actually thinks very highly of Fair Dealing, and is worried about the Australian governments apparent desire to import Fair Use. Fair dealing gives greater protection to the original copyright holders, and as the laws are more restrictive, results in lower legal fees when it comes to protecting your own works [4]. I can completely understand this perspective, and it would feel dishonest arguing against it, solely because fair use would benefit me in my practice. Though I don’t think anyone could argue, that in a modern world of YouTubes and TikToks, that a legal code written in 1968 really cuts it anymore.

So what does this all mean for me and my work?

I have no idea

the end.

Nah, but actually this system seems so complicated, it feels like some insurmountable obstacle to sort through what is appropriate and what isn’t. But as a jumping off point, from what I’ve read, my collage work is most likely to fall under the satire / parody provision of fair dealing. Though this does in it’s own way present problems. For starters, satire is not the central driving point of my work, though it is a part of it. Does this mean I have to play up the satirical element? Can I only use these images in my art if I’m making fun of or criticizing them? Can’t I make work as a love letter to the printed image?

Not to mention my complete lack of book keeping when it comes to image sourcing!

For the moment, and probably foreseeable future, I’m just going to keep expanding my practice, and following my own moral compass for what seems appropriate. I very much like to think my work is transformative! But a jury of my peers may not agree.

References

  1. Matt Hosseinzadeh v. Ethan Klein and Hila Klein
  2. “Fair Use”, Columbia University Libraries
  3. “Fair Dealing and Fair Use: How Australian Copyright Differs from the USA”, Lawpath.com.au
  4. “Fair Use”, Australian Society of Authors

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