Rife, Martine Courant. “Ideas Toward a Fair Use Heuristic: Visual Rhetoric and Composition.”

Rife, Martine Courant. “Ideas Toward a Fair Use Heuristic: Visual Rhetoric and Composition.” Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use. Ed. by Steve Westbrook. Albany: SUNY Press, 2009. 141-153.

Summary:

Rife examines four recent court cases that approach copyright claims via the four factors of the fair use doctrine, as in an “inartistic proof” in the heuristic interpretation of Aristotle by Enos and Lauer. Building on the inartistic proof/topoi of fair use doctrine (section 107 of copyright law), Rife builds an “artistic proof” heuristic to use with our students in the confluence of copyright law, intellectual property, and visual rhetoric in the classroom. They are worth quoting at length here:

Fair Use Heuristic for Use of the Visual by Martine Courant Rife:

1. As to individuals or organizations who insist you ask permission every time: this is simply not required under the fair use doctrine (with the caveat that if you are working with a publisher who insists on permissions, you may have little room for negotiation.)

2. If you are going to use another’s copyrighted image, use as little as possible (either in size, amount, or pixels) in order to accomplish your own writerly goals, but do not be afraid to use what you need to make your point.

3. Always work to synthesize. Remixing another’s materials with bits and pieces you have created yourself, as well as more than one outside
author’s work, will make your use more likely to be a fair use.

4. If you, yourself, are making something purely “creative” (a digital
poem, movie, art), and using another’s material that is also “creative,”
your use is less likely to be considered fair. But if you are taking a position on an issue, or creating a history or documentary meant to comment and criticize an issue or events, your use may be more likely to be fair, even if the copyrighted materials you remix are creative.
5. Remember the old adage: Make sure what you create is “your own” work. This means shaping and fashioning your fi nal piece, so that you take ownership of it and make a statement different than the copyright holder.
6. If you move your work from educational, nonprofit contexts into commercial environments, you will certainly have to reevaluate the fairness of your use. There is some evidence that the tipping point in court decisions is three out of four factors. If your use changes such that the scales tip against you, you could end up in an uncomfortable position.
7. Don’t underestimate the power of good faith. The court found for Arriba Soft. Remember, the company took down the images when asked to do so but was sued anyway. Arriba Soft was “good.” In contrast, Video Pipeline could be deemed a “bad” party because it instituted the litigation by requesting declaratory relief that it was not infringing—a dangerous and tricky move. Unless you are a political trailblazer, like Forsythe (who also had the financial backing of the ACLU), you might want to heed warnings to cease and desist, or risk an expensive lawsuit. Careful balancing of the costs and benefits here is important. (148-149)

She reviews each case to describe how the court found in each factor of fair use doctrine:

1. Mattel v. Walking Mountain:

Tom Forsythe's political Barbie parody...image from B.L. Ochman's blog

Found for fair use in the Barbie Parody because, in the first case, it is a parody. In the second instance, they weighed slightly against fair use because Barbie is a creative work already. In the third case, they ruled for Forsythe because of the radical change to content, despite his using whole dolls. In the 4th case, they ruled that Forsythe’s highly sexualized critical depictions aren’t blocking a market opportunity for Mattel, and that criticism should be allowed to flourish.

Case 2: Kelly v. Arriba Soft

Leslie Kelly is a photographer who didn’t like web-search company Arriba Soft’s use of his images (albeit at lower pixel) as thumbnails in their spider-generated web-searches. They removed them after his complaint, but their spiders sometimes picked them up again through 3rd party sites.

1. Because Arriba is a commercial outfit, they weighed slightly against fair use here, but only slightly because they changed the pictures into lower resolution images

2. Since the images were creative work, the court ruled slightly against fair use.

3. Didn’t weigh against fair use on “amount of use” because it was necessary for correctly guiding users to the right site.

4. Ruled for fair use since such lower res images wouldn’t hurt his market (and–though court didn’t say so–might help it, since they direct users to his site that thrives on ad revenue).

Case 3: Video Pipeline vs. Buena Vista

In a case where a previous Disney business partner who distributes video trailer clips, the court found slightly against their fair use claims and order that they take down trailers that include Disney content.

Case 4: Bill Graham Archives v. Dorling Kindersley

Court ruled for fair use of 7 concert posters in a biography of the Grateful Dead without the Bill Graham Archives permission. 1. Transformative because they’re used as timeline material, not for concert promotion. 2. Though slightly against fair use bc the posters were creative, they were used in historical context. 3. Once again, slightly against, since full posters were used. 4. Ruled against any market harm for Bill Graham archives, especially because book wasn’t even that commercially successful…

Other thoughts: Rife displays a virtuosic command of the brief-lit review for book chapters genre. She crushes it, winnowing the previous lit right down to the opening that she’s building from (133-134).
Quotations:

“Instead [following Weil, due to the inadequacy of describing image in text], one who is critiquing, explaining, or using a visual for research/educational purposes is all but compelled to use the whole visual, thus mitigating a finding under the third factor in favor of fair use. Another reason traditional fair use analyses seem inadequate for the visual is because visual works, unlike alphabetic text, have traditionally incorporated other visual works in their entirety—it is at the essence of the medium to do this.” (138)

“But since the relatively new technology of the Web and our disciplinary
interest in visual rhetoric have not yet caused legal restrictions on use to
solidify, we still have a space to shape law by practice. Understanding these issues along with our students is a good starting point. I think the more we learn about fair use and its application to visual rhetoric, especially through our very clever rhetorical lenses, the less likely fear of infringement will silence any of us.” (150)

~ by timrdoc on April 29, 2011.