Society for Cinema and Media Studies Statement of Fair Use Best Practices for Media Studies Publishing

This Statement of Best Practices identifies what media scholars consider to be fair use of copyrighted works within media studies publishing in the United States. It provides a reference for media scholars to follow when considering whether or not their inclusion of media in a publication meets the standards of fair use. In 1993, the Society for Cinema and Media Studies (SCMS) (then the Society for Cinema Studies) issued a similar statement making the fair use argument for the scholarly use of film stills in publications.¹ This document updates the 1993 statement to account for changes in media publishing and in copyright fair use analysis.

The 1993 statement has been widely influential, and it has facilitated the use of film stills in publishing since its publication. A number of academic publishers, including Oxford University Press and Columbia University Press, have adopted a policy of reprinting film, television, and Internet images in books and print journals of media scholarship and in Media Studies textbooks without asking permission. Since the 1993 statement was published sixteen years ago, SCMS has not discovered any lawsuits filed against authors or publishers who have adopted this policy involving the use of film stills.

Since 1993, scholars’ methods of using copyrighted material in publications have multiplied. SCMS members use a wide range of copyrighted materials, including posters, advertisements, photographs, sound files, and video files, in addition to film stills. SCMS members also publish in a variety of venues including books, textbooks, print and online journals, videos included on DVDs, blogs, and personal Web sites, among other possible outlets. Fair use is applicable across all of these media and venues. In addition to changes in scholarly publication, the legal interpretation of fair use has evolved since 1993. Accounting for both changes in scholarly practice and in copyright law, this document updates the 1993 statement.

In addition to updating the 1993 statement, this document builds on the models of fair use best practices documents initiated by the Statement of Best Practices in Fair Use for Documentary Filmmakers² and the many similar statements that have followed, including SCMS’s own 2006 Statement of Best Practices in Fair Use for Film and Media Educators.³ Each of these statements describes what responsible professionals in each media field believe qualifies as fair use within their area of expertise. The opinions of responsible professionals are important because U.S. courts often take note of industry practices, and because creating and articulating customary industry practices helps media scholars shape the future of fair use within their own industry.⁴ Updating the 1993 statement is necessary to ensure that media scholars play an active role in shaping the field’s future.⁵

This document identifies four categories in which fair use claims may be based when using copyrighted work in publication, while noting limits on those categories. It also identifies and debunks common fair use myths. This is a declaration of what the members of SCMS believe to be fair use in their academic field. Many of the principles below are widely applicable, but the document is intended to speak for and about media scholars and scholarship. It is important to remember that this document is only a set of general principles, designed to serve as a guide to authors, editors, and publishers.

What Is Fair Use?

Fair use is an important element of U.S. copyright law that allows for the use of copyrighted work without asking permission of the copyright holder, especially when the copyrighted work is used for criticism, scholarship, and education.

Fair use is permitted because some uses of copyrighted works offer greater value to society than they do harm to the copyright holder; fair use is decided on a case-by-case basis by balancing a variety of issues. In Section 107 of the Copyright Act,⁶ four factors⁷ are listed that courts should consider when analyzing whether using a copyrighted work will be considered fair use. However, since the fair use factors were codified, judges have consistently weighted two of the factors more heavily than the others...