Wil on May 10th, 2013
I’ve always loved monsters – from Bigfoot, the Loch Ness monster to things like ghosts, vampires and werewolves. I still love monsters, but nowadays I appreciate them more as artefacts of human culture and psychology rather than for their scare factor. I was catching up on one of my favourite monster-related podcasts, MonsterTalk, over the weekend, and on this particular episode, they were talking about purported Bigfoot sightings in 2007. But more importantly, they also talked about copyright and their experiences in using third-party copyright material for criticism and review.
So, the story goes that a hunter placed trail cameras in the north western forests of Pennsylvania in September of 2007 hoping to capture some photographs of deer and other game species at night. Upon reviewing the images captured by the camera, they revealed something more controversial. Two of the photos captured a strange creature, a gangly-looking animal walking on all fours with rough, patchy fur. While some believed the images to be of a “juvenile Bigfoot”, most agreed that it was more likely to be a bear infested with mange.
Blake Smith, one of the hosts behind MonsterTalk, obtained copies of the photos with the aim of doing a sceptical analysis of the images. In the podcast, he describes how he had posted a video of his analysis on YouTube which he felt he could do so under the U.S. copyright exceptions for fair use*. He was contacted by the copyright owner – the hunter who took the photographs – and was issued with the takedown notice for unauthorised use of third-party copyright materials. Further interactions between them boiled down to Blake trying to justify his use of the photographs versus the hunter insisting that Blake could only do so if he was prepared to pay him $5000 USD for the rights to the images.
This exchange between Blake and the hunter highlights one of the important aims of copyright – that it attempts to balance the right of the copyright owner to protect and profit from their creative works, and the right of the public to use the work – and how it can be misunderstood.
As no lawsuits were ever filed in this example, we can only surmise on how US copyright law may have been applied to argue the case of each of the parties. But had such a case happened in Australia, it might have played out in a similar manner. It is important to note that in Australia we cannot rely on the fair use exception. Instead, the Copyright Act has provisions for fair dealing in specific circumstances, including criticism and review. As Blake was performing detailed analysis of the image through various techniques, and providing critical commentary on his findings, his use could be construed to fall within the bounds of what is considered criticism and review. If you are relying on fair dealing exceptions for criticism and review of copyright material, you may reproduce the material and do so without the permission of the copyright owner. However, your use must be genuine criticism of the material, and not merely for illustrative purposes. If you are ever in doubt whether your use can be considered criticism and review, contact the Copyright Office or seek independent legal advice.
*We do not have fair use exceptions in Australia. Similar exceptions exist for fair dealing, for more information on visit: http://www.unimelb.edu.au/copyright/information/fastfind/fairdealing.html