Thanks to the comments in my post on Letterman/Phoenix and Fair Use, I found this great blog post from Roger Goff in response. I wrote a pretty lengthy response in his comment section, but Blogger/Google wouldn't allow it as it was too long. It's probably too long for most people, but if you care about this at all, read on:
Roger: I am glad you’ve taken this up to debate - even if we don’t yet agree. The main reason I wrote the post was that I didn’t find much discussion of the argument, even on my favorite blogs related to copyright and culture (a few have now appeared). As I’ve stated, I’m not an attorney, but I still (think) I disagree. Would love to hear more from you and other copyright experts, and will ultimately defer to consensus (if we get that far).
First, I don’t believe that Fair Use was intended to “allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.” My layman’s understanding is that fair use is an acknowledgment that we need some leeway in the special considerations granted to creators via copyright to ensure the public good, so to speak. To allow certain creative, educational or other public goods while still respecting a creator’s general rights. I believe there have been many court cases that affirm a fair use right beyond what your above quote considers. Perhaps a small point, but I think it does matter.
Second, I don’t think that commerciality (or not) is a necessary requirement to qualify for fair use. Didn’t the Supreme Court decision in Campbell vs Acuff-Rose (aka the 2 Live Crew decision) specifically argue that it didn’t matter whether a work was commercial or not? My understanding is there are the “four tests” for fair use, but that being non-commercial is just one, and that not all of the tests must be matched to qualify. Granted, I am going by memory aided by Wikipedia, so perhaps I missed some nuance here.
Third, and going back to the 2 Live Crew decision, it seemed the Supreme Court acknowledged some special consideration for parody and some copyright folks generally extend this to social, political or cultural critique (reading here from the Fair Use Best Practices of CSM as well). If the “best practices” are correct, then I would gather that this mock/doc/whatever is pretty clearly falling in the cultural/social critique camp. Further, if these best practices are correct, then this also qualifies as a correct use of “archival material in historical sequences.”
Last, I think, I don’t see how the fact that an archival footage market exists is a problem - again, my reading of the news around the 2 Live Crew case is that the Court acknowledged that a market existed for rap samples, but still agreed that the usage was Fair Use.
I don’t honestly have a dog in this fight. Anyone who reads my blog knows that I am generally pretty “copy-left,” but I am not in favor of granting any fair use rights where they shouldn’t exist. I genuinely want to know whether many legal experts agree or disagree that this should be considered fair use - so feel free to attack these non-expert opinions. I think that one of the problems of fair use for creatives is that you have to defend it to claim it - there aren’t any clear legal guidelines, even with the good work that Pat Aufderheide, Peter Jaszi and Michael Donaldson (among many others) have been doing to try to clear this up.
Glad to continue the discussion.