Course blog for CSP 11 (Fall 2012) @ Occidental College

Tag Archives: fair use

From fellow Oxy instructor Edmond Johnson on Facebook (where I stumbled across this link):

Paul Zukofsky is a violinist, conductor, and former UCLA professor whose father (Louis Zukofsky, 1904-1978) was a semi-obscure objectivist poet. The son inherited his fathers copyrights and is now openly hostile toward any grad student or scholar who dares to write about his father’s works. Check out the extraordinary copyright notice he’s posted on his website…

You can read Zukofsky’s post here.  It’s especially interesting, after all of our talk about the copyright industries, to consider the case of an individual rights owner who is taking this stance, and one that is especially hostile towards academics doing scholarly work.  I wonder what Aufderheide and Jaszi would have to say about this, especially an excerpt like this:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth. You will be far more appreciated working on some author whose copyright holder(s) will actually cherish you, and/or your work. I do not, and no one should work under those conditions. However, if you have no choice in the matter, here are the procedures that I insist upon, and what you must do if you wish to spare yourself as much grief as possible.

1– people who want to do their dissertation on LZ, or want to quote from him in their diss., must, if only as a common courtesy, inform me of their desire to use this material, and obtain my permission to do so. If you do that, and if I agree, the permission will be only for the purposes of the diss. and there will be no charge for limited use within the diss. You will not be allowed to distribute the diss. publicly. Distribution via on-line publication is not allowed. I urge you to keep quotation to a minimum, as the more quotation, the less likely I am to grant permission.

2– people who quote Louis Zukofsky in their dissertations without having had the courtesy to request my permission, and who do so without having obtained my permission to quote LZ, do not have permission to use LZ quotations, and will, in the future, be refused all permission to quote any and all LZ in their future publications, and I promise to do my utmost to hamper, hinder, and preferably prevent all such quotation.

And, finally, here is an interesting analysis of the post.


Below, you’ll find some images documenting the questions/concerns/situations we collectively generated in class last week, working towards the goal of collectively writing a code of best practices in fair use in preparation for our upcoming remix assignment.

In lieu of class this Friday and writing your weekly blog post, I expect you to spend that time contributing to our class’ code of best practices.  I have added in and added comments on some pre-existing situations from the Code of Best Practices in Fair Use for Online Video to serve as a foundation/inspiration, along with suggesting some broad “situations” for you to consider.  Some questions to think about, as you consider our specific “community of practice,” and the collective decisions we will make about how to access and use copyrighted materials in our remixes:

  • What best practices can we mutually agree upon in terms of extracting, using, disposing, and attributing copyrighted works?
  • How can we assure that what we create is transformative?
  • What kind of pre-production steps should we take to assess which audio and visual files will function as compelling “evidence” for our arguments?
  • Do we want to put our finished products under creative commons licenses?
  • How might we frame our finished projects to make a clear fair use claim?

You’ve all been invited to edit the googledoc via your Oxy email address, so you should be able to access it either through your google drive, or via this link.  Let me know if you’re having any issues accessing it. You can edit the content of the code itself, and pose questions as “comments” if you think a point warrants further discussion or analysis.


Actor Charlie Sheen gained significant publicity during his notoriously strange interviews which preceded several run-ins with the law and the fall of the TV show he starred on, “Two and a Half Men.” Excerpts and full-versions of Sheen’s interviews became readily available on the internet and went viral. Amidst the Charlie Sheen mania, YouTube user “schmoyo” remixed video clips of said interviews and appearances and “songified” the content to create the video “Songify This: Winning – a Song by Charlie Sheen” which itself went viral with currently 45,376,081 views on YouTube. After perusing at profile page for “schmoyo,” I learned that the videos are created by the group “The Gregory Brothers” which has gained popularly for creative remixing of regular video into song.  The video remix of Charlie Sheen is clearly a hit, but is it under fair use doctrine in copyright law?

Fair use is a case-by-case decision and the four factors considered in a fair use case are as follows:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Three questions considered when determining fair use in court are, according to Aufderheide and Jaszi:

  • Was the use of the copyrighted material for a different purpose, rather than just reuse for the original purpose and for the same audience? (If so, it probably adds something new to the cultural pool.)
  • Was the amount of material taken appropriate to the purpose of the use? (Can the purpose be clearly articulated? Was the amount taken proportional? Or was it too much?
  • Was it reasonable within the field or discipline it was made in?

Let’s consider the following video:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  • The purpose and character of the use of the video clips is for entertainment purposes – not commercial use.

(2) the nature of the copyrighted work;

  • The nature of the work is transformative. The remix took clips from several different original video interviews and mashed audio together to create a “song.” The copyrighted work went from being a recording of an interview to becoming lyrics to a song, “sung” by Charlie Sheen.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  • Almost all of the video is from an interview Sheen had with an ABC news interview, however, there is no longer than 12 seconds of one part of video being used. There is also a part in which “schmoyo” features a member of the group rapping over the background music.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

  • There is no direct effect of the use upon the potential market. The “song” is not available for sale and there is no attempt to sell merchandise related to the remix song.

Three questions considered when determining fair use in court are:

Was the use of the copyrighted material for a different purpose, rather than just reuse for the original purpose and for the same audience? (If so, it probably adds something new to the cultural pool.

  • The material is remixed for entertainment purposes. The audience which interested in the original video of the interview may be interested in the remix, but for separate reasons.

Was the amount of material taken appropriate to the purpose of the use? (Can the purpose be clearly articulated? Was the amount taken proportional? Or was it too much?

  • Almost all of the material is derived from video interviews of Sheen with the exception of the rapping bridge. There are at most approximately 12 seconds of continuous video used in the remix.

Was it reasonable within the field or discipline it was made in?

  • The use appears to be quite reasonable.

An additional note is that in the description of the YouTube video, there is proper attribution to the video that was remixed.

After reviewing the four factors of fair use and questions considered in the courtroom, it appears that the remix video is under fair use in US copyright law. Also, after watching/listening to the remix several times, it proves quite catchy.

Works Cited

“17 USC § 107 – Limitations on Exclusive Rights: Fair Use.” Cornell University Law School. Legal Information Institute, n.d. Web. 29 Sept. 2012. <http://www.law.cornell.edu/uscode/text/17/107&gt;.

Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. Chicago: University of Chicago, 2011. Print.

Songify This – Winning – a Song by Charlie Sheen. By Schmoyoho. YouTube. YouTube, 07 Mar. 2011. Web. 30 Sept. 2012. <http://www.youtube.com/watch?v=9QS0q3mGPGg&gt;.


This blog prompt will serve as a bridge between our week on fair use and next week’s topic: remix.  You will select a remix video, and make a case for why the video does or doesn’t fall under fair use, drawing on specific sections of Patricia Aufderheide and Peter Jaszi’s Reclaiming Fair Use.  

This should not be a simple yes because/no because response, but rather you should engage with the nuances and ambiguities of fair use exemptions, and analyze how the video is decontextualizing or recontextualizing copyrighted content.  Choose your video thoughtfully, because some of them will become our case studies for next week’s class discussions, but you can select any video you want, provided that it meets two criteria:

  • Many/most of the visual or aural elements used in the video are copyrighted materials.
  • You’re able to embed it in your post for the blog (see below).

For most youtube videos, this will be as simple as copying and pasting the link into the body of your post (see the red square below.  For other sites, you might need to C/P the embed code (see the circle/arrow below) into the “text” tab in WordPress (look to the top right corner of the frame you’re typing in) when composing your post:

Leave any questions you might have in the comments…