Earlier this week the Center for Social Media, a project at the School of Communication at American University in Washington DC, released guidelines on fair use practices for video.

These guidelines provide valuable insight as to what is and isn't allowed under the fair use statue in Copyright Law as well as shed light on how the courts have interpreted fair use over the past 150 years.

The panel shows that while four types of considerations are mentioned in the law regarding fair use, judges have returned time and time again to two main questions:

- Did the use "transform" the material taken from the copyrighted work?

- Was the material used, in kind and amount, appropriate for the use?

The panel is careful to point the role good faith plays in answering these questions. The underlying consideration is whether the user acted in good faith, in light of general practice in his field.

The Center for Social Media issued six guidelines, complete with examples to help readers understand the way "transforming" the material is covered under fair use.

What's surprising is just how fair fair use can be.

For example, users can videotape their videogame sessions and post them online under fair use. This falls under the fair use provisions the describe in guideline #4 "reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event or a cultural phenomenon". This covers Stephen Colbert’s speech at the White House Correspondents Dinner in 2006 and all those Guitar Hero videos that I posted on YouTube.

Equally interesting is what guideline #5 articulates, "copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion". Here, the guidelines say that it is legal to post cultural content when it is specifically intended to provoke a discussion. This means that items such as music videos, controversial comedians, political speeches, etc. are all fair game for posting online. But, the purpose of the copying and posting needs to be clear. The mere fact that a site permits comments is not sufficient indication of intent.

It’s guideline #6 that addresses mashups, "quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements".

Here, the mashup is covered under fair use if the meaning of the copyrighted material has been transformed. The guidelines give two examples. The first is for the video "Bush Blair Endless Love" the second for the ubiquitous "Dramatic Chipmunk". In both instances, fair use is extended because the juxtaposition creates new meaning. The works stand as cultural pieces all on their own.

The document also discusses common fair use myths, including:

- If I'm not making any money of it, it's fair use.

- If I'm making any money off it (or trying to), it's not fair use.

- Fair use can't be entertaining.

- If I try to license material I've given up my chance to use fair use.

- I really need a lawyer to make the call on fair use.

The panel that put these fair use guidelines for video together are drawn from a distinguished panel of lawyers and scholars including professors from Harvard, USC, MIT, UC Berkeley, Georgetown University, and the Pittsburgh School of Law. They too have a good track record. They have previously released guidelines for documentary filmmakers that have greatly reduced copyright claims in that area. Additionally, Miro and several public broadcasters have already endorsed the guidelines.

Also worth a look is the rest of the Center's fair use section on their website as it contains a wealth of valuable information.