fair use

fair use

If you’ve never seen Melissa Hunter’s character, “Adult Wednesday Addams,” it’s worth a look, not just to get a laugh, but also to learn more about a legal term that’s become essential in our internet age: the concept of fair use.

If you are familiar with the original Addams Family series or the film remakes, then you probably remember Wednesday – the dour, deadpan daughter. Ms. Hunter plays an adult version of Wednesday Addams in a number of short videos. In these skits, she perfectly portrays Wednesday’s attitude of gothic darkness as she does modern-day things, like applying for a job or going on a first date.

Recently, her videos were removed from YouTube. The reason? The Tee & Charles Addams Foundation charged her with copyright infringement. As legal junkies, we wonder – are Melissa Hunter’s videos truly infringing on copyright? Or should the legal concept of fair use protect them?

Fair Use Allows Innovators to Use Originally Copyrighted Material

Fair use is a legal practice that allows limited use of copyrighted material. Designed to balance the interests of the public with the interests of the copyright holder, this doctrine allows the use of certain creative material without permission from the original creator or owner.

Why does this legal concept matter so much? Well, for one thing, it’s worth big money. It benefits software developers and search engine companies as they build on the accomplishments of others. It also allows artists to reimagine texts and images in new ways, and educators to demonstrate the importance of history and critical thinking to their students.

Today, examples of fair use include works of parody, criticism, commentary, news reporting, scholarship, and more. In the age of sampling and non-stop news, it’s important to have an idea of just how important the concept of fair use – and the factors legal experts consider as they determine whether fair use is appropriate.

The First Factor Legal Experts Consider is the Purpose and Character of the Use

Judges and legal scholars first think about the purpose and character of the use. They look at whether the use is for a nonprofit educational purpose or a commercial purpose. To be considered fair use, an attorney must show that use of the work either advances knowledge or adds something new to create an entirely different work of art.

As an example, consider the artist Jeff Koons. In 2006, he used a photograph in a collage painting. Although the photograph was originally used as part of an advertisement, Koons was able to repurpose the image. Koons used the image legally because his transformative use of the image contributed to a new work of art.

The Second Factor: The Nature of the Copyrighted Work

Fair use analysis also considers relevant aspects of the work, such as whether the work is fictional or not. While the unique expression of ideas are protected, facts and ideas in general are not protected by copyright. That’s why you’ll see common themes explored again and again in art and literature. For example, an artist and a writer can both produce original works having to do with the theme of jealousy and revenge.

In addition to relevant aspects of the work in question, legal experts also consider the social usefulness of the information. Consider the infamous Zapruder film. This film, which recorded the assassination of President Kennedy, was originally purchased and copyrighted by Time magazine. However, because it was such a seminal record of history, its copyright was not upheld. The film is accessible to artists, filmmakers, journalists, and educators.

Factor Number Three: Amount and Sustainability

The third factor considers how much of the copyrighted work has been used in the creation of a new work. If it has been used substantially, it’s less likely to pass the fair use test. If it has been used artfully and sparingly, however, its use is generally accepted as fair. Consider sampling. In the early nineties, rap artists sampled large chunks of recorded music – that is, until they got slapped with copyright infringement. Now, musicians generally only sample limited bits and beats.

Finally, Experts Consider the Effect Upon The Original Work’s Marketplace Value

Judges consider the effect that a user’s actions has on the original work. For instance, they will evaluate the copyright owner’s ability to continue presenting the original work to the public. If the altered use of the original work has harmed the copyright owner’s market in some way, then a copyright may be upheld. In this case, burden of proof really rests on the owner of the copyright. He or she must demonstrate that there is lasting financial impact on commercial use of the original.

So, back to Wednesday Addams. The jury is still out on this case (pun intended), since it seems to some legal experts that Melissa Hunter’s skits may meet some of the above criteria for fair use.

What do you think?

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