Once again a SquidU forum post spun off a riff for me, this time on Copyright and fair use.
I am chaotic good, to borrow the old term from D&D: I don’t obey the rules precisely so much as try to understand why the rules are there and then do what’s best for the people impacted by them.
I am much less rigid about copyright when it comes to stills and screencaps and even fanvids of well-known movies and video games. If someone’s got a Yoda icon or a fanpage on a favorite video game, I absolutely do not get my knickers in a bunch. Everybody knows who Yoda is, and that Yoda icon is going to remind you of Star Wars and maybe even go look up the Yoda lightsabre duel video clip and maybe from there think about buying a Yoda doll or a Blu-Ray Star Wars disc (if you can stomach Lucas’ latest fiddling).
Am I being hypocritical? Why am I so picky about copyright for stock photographers, Zazzle artists, and their ilk when I will use stills to illustrate an article on the Lord of the Rings films without batting an eyelash?
Well, one can argue that stills from films fall under the “amount and substantiality” factor of fair use, the aspect of copyright law that lets you use a quote or short excerpt. Whereas a copy of a photo is not an excerpt; it IS the photo and competes with it in search results, commercially, and functionally. (Also, there’s the whole “permitted for critique/commentary” aspect of fair use: if you’re writing a fan page about a movie, then it’s commentary; if you’re using someone’s photo as a free illustration for a blog post that has nothing to do with that artist’s work, then it’s exploitation).
But that’s not really why I make the distinction between the two kinds of sources.
The Lord of the Rings films are famous and successful, instantly recognizable. Any publicity they get reminds people of the films which they already know.
As a matter of fact, this odd distinction I make is another of the Four Factors of Fair Use, one that’s not well-understood: “The Nature of the Copyrighted Work.” Fair use grants more leeway in using a published than unpublished work. I used to find this aspect of Fair Use baffling. Now my understanding is that if a work is already published, out there, successful, widely known, and making money, then your use of an excerpt is less likely to compete with it than if the artist is still trying to become known and hasn’t quite figured out how to make money from that image or creation. (Which is not to say one gets carte blanche to print up and sell T-shirts with your fanart of Sean Bean as Boromir in The Lord of the Rings. It’s just that one has slightly more leeway).
How much is too much? There’s no hard and fast rules. In a copyright lawsuit, the judge has to make a ruling based on his interpretation of the four factors of Fair Use and how they seem to apply to that particular case.
As always with fair use, the hardest part about it is that it depends on human judgment of individual circumstances rather than a fixed, rigid set of rules. The four factors are guidelines that can help us feel our way.
Update: SPEAKING OF FAIR USE, check out these utterly adorable and highly creative parodies of Star Wars crossed with Winnie the Pooh: “Wookie the Chew.” Yep, that there would fall under the “Transformative” factor of Fair Use (and parody, which is almost always Fair Use).