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Fair Use and Short Form Media

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What happens when it's necessary to post an entire short-form work such as an ad or music video for the purposes of commentary or critique?

Questions sometimes arise about the fairness of a given use on Critical Commons. Although we cannot give specific advice (and we are unqualified to give legal advice of any kind!), it is worth thinking through some of these questions in light of this site's desire to inform and empower individuals to make their own determinations about fair use. For example, a user recently asked whether the uploading of a complete short-form work might not run afoul of fair use.

The first stop, when thinking through any question of fair use is to consult the Center for Social Media's excellent series of Best Practices in Fair Use Guides, one of which is specifically devoted to online video. In this guide, titled Recut, Reframe, Recycle, we find the following discussion of complete works that are posted for purposes of eliciting discussion:

"So creators who copy work occasionally to start discussion still may be able to claim that their use is transformative, and therefore fair. To do so effectively, they need a reason why it is important to post the work in question as a whole, rather than just a quotation from it." (11)

According to the standard logic of the four-factors test, posting a complete work weakens a fair use claim, relative to posting only a fragment (Factor #3). This comes up often with short-form works such as ads and music videos, both of which are frequently and productively posted on Critical Commons.

It is arguably true that fair use is deliberately elastic in order to accommodate exactly these cases. The core rhetoric among proponents of fair use is that there is no categorical problem with complete works if using the entire work is necessary for your argument. This is a judgment call, which places a greater responsibility on the poster, but it is arguably still vastly preferable to the kinds of guidelines issued in the past by CONFU and others that are based on arbitrary time limits or percentages. The rule of thumb these days says to use as much of a given work as is necessary, but avoid using more if it doesn't help your argument, which seems like pedagogically sound advice as much as fair use advice.

The other thing that weighs in favor of fair use with regard to ads and music videos is that the original purpose of these works is promotional in nature, thus there is little or no "market value of the original work" to damage (Factor #4).

But really the key issue here is Factor #1, which places this and most of the work done by users of Critical Commons on very solid ground that is close to the heart of fair use. If a use is non-profit, educational, value-adding, culturally enriching, and significantly transformative through the juxtaposition of the clip and commentary, this weighs heavily in favor of a use being regarded as "fair" even if it requires the posting of an entire short work. All of that said, please remember that the decision to post or not post a work under the protections of fair use lies entirely with the users of this site and we encourage you to approach this responsibility seriously.