user can give of how and why the material was borrowed, the more likely the use is
to be considered transformative.9
A final consideration influencing judges’ decisions historically has been whether the
user acted reasonably and in good faith in light of standards of accepted practice
in his or her particular field. Among the eight other communities of practice that
established codes of best practices in fair use for themselves between 2005 and 2012,
all have benefited from establishing a community understanding of how to employ
their fair use rights. Documentary filmmakers, for example, changed business
practice in their field errors-and-omissions insurers, whose insurance is essential to
distribution, now accept fair use claims routinely, as a direct result of the creation
of such a code. Groups that followed in creating codes include K-12 teachers, open
educational resources providers, dance archivists, film and communications scholars,
and poets. No community has suffered a legal challenge for creating a code of best
practices in fair use. Nor have members of any community with a code been sued
successfully for actions taken within its scope.10
Exercising fair use is a right, not an obligation. There will always be situations in
which those entitled to employ fair use may forgo use or obtain permission instead
people may, for instance, choose easy licensing or a continued low-friction business
relationship over employing their fair use rights. Seeking selected permissions
from known, reasonable, and responsive rights holders may be an appropriate risk
management strategy for large-scale digitization or web archiving projects, for
example, even when the fair use analysis seems favorable. But the choice to seek a
license or ask permission should be an informed one.
9. Courts also have applied and will continue to apply the fair use doctrine to uses that do not fall
neatly into the “transformative” rubric, but are nevertheless important aspects of users’ rights. Examples
include the transient digital copies that are incidental to valid uses, as well as time- and space-shifting
for personal uses.
10. Documentary filmmakers won a high-profile dispute with Yoko Ono and EMI records over a
parodic use of John Lennon’s “Imagine.” Fair use experts collaborated with the filmmakers to vet the
film, and ultimately prevailed in a precedent-setting order that held the filmmakers had made a fair use
of the song. Ono and EMI dropped their suit in light of the court’s findings on fair use. See Lennon v.
Premise Media, 2008 U.S. Dist. LEXIS 42489 (S.D.N.Y. June 2, 2008).
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