Clinical Programs

I. Introduction
a. P4s Story
The Performance Poetry Preservation Project is a nonprofit organization dedicated to
collecting and reserving material from the poetry slam movement to provide access to
this material to poets, academics, librarians, the slam community, and the public
generally. The Performance Poetry Preservation Project, also known as P4, began a few
years ago when a group of slam enthusiasts realized there was no archive of slam
poetry performances and that the history and growth of this important art form might
be lost. P4 was founded for the purpose of preserving the past twenty-five years of slam
poetry. Beyond this initial retrospective focus, P4 remains open to collecting new
recordings to eventually cultivate an ongoing database.
P4 is a nonprofit organization incorporated in Massachusetts funded exclusively by
donations. Though a volunteer Board of Directors dedicated to the organizations
mission and devoted to the slam community runs P4, the Board regularly seeks advice
from major players in slam, such as scholars, poets, and venue organizers, to remain in
touch with the communitys beliefs and needs.
The need for an organization like P4 is great. Slam poetry is a competitive art of
performance poetry that began in Chicago in the mid-1980s. The movement has since
spread across the world. Poetry slams are held in a wide variety of venues from ongoing
competitions at clubs and restaurants to a yearly competition know as National Poetry
Slam. Aside from these structured competitions, slam has found its way across the
world in various forms, from basements to poetry clubs. Though marked by its
competitive nature, audience participation and the nature of the ever-changing art form
have helped create a vibrant slam poetry community.
P4s mission is to collect and preserve this rich history of performance art so that
creators, educators, and the public as a whole understand and appreciate the
importance of slam.

WASHINGTON COLLEGE OF LAW

4801 MASSACHUSETTS AVENUE, NW WASHINGTON, DC 20016-8181 202-274-4000 FAX: 202-2744130

b. P4s Plan
To complete this mission, P4 will manage a repository of these poetry recordings
and associated materials. In its initial stages, P4 has already acquired thousands of
recordings in all types of media, from tapes and mini disks to digital files, through
donations from venues and organizers and is now working to digitize all recordings
using a standard format. P4 will maintain the digitized recordings in a repository either
on its own or in conjunction with a university or library partner. The repository will
maintain the recordings in a way that will be easily searchable by users. Through the
development and application of metadata to the recordings archived, performances will
be searchable and sortable across such fields as date, venue, subject matter, and poet.
As the slam communitys support is vital to P4s success, the recordings will be
made available at different levels of access to users based on the poets preference.
Within the repository, P4 will allow for individuals to create user accounts with varying
levels of access to the materials based on their status as scholars, poets, or members of
the public. These accounts allow poets to manage their own poetry by restricting or
expanding access to a work. The interface will allow poets to move their recordings from
this scholarly level to either a more open public user levels, or a hidden dark-archive
level where no outside user has access. Academic users will receive expanded access to
works not made available to the public. By default works will first be made available for
scholarly purposes and access limited to academic users, but poets will be able to move
their works to other levels of access. Initially, all digitized recordings and materials will
only be accessible at this scholarly level when they are first added to the repository
because performers and poets identities are often unknown and it is likely impossible to
track down and obtain all permissions for the recordings. With recordings initially in the
scholarly level, P4 will maintain its purpose of allowing access to the rich history of slam
while remaining mindful of poets concerns about controlling their work.
When undertaking a project such as this there are two tools in copyright law that are
used to shield organizations like P4 from liability: fair use and 512 of the Copyright Act.
While fair use will provide substantial protection, 512 seems to be unavailable to P4

presently, for reasons discussed below.

c. Section 512 Takedown Issues

Many websites and webhosting providers, known as Internet service providers (ISP),
that provide public access to images, text, and sound and video recordings (e.g.
Facebook) may be protected from infringement liability. This protection, known as the
512 safe harbor, was introduced into U.S. law by the 1998 Digital Millennium Copyright
Act.1
This provision provides ISPs will not be liable to copyright holders if their systems are
used to host infringing material. Specifically 512(c)(1) provides that an ISP will not be
liable for hosting infringing material (1) at the direction of a user, if the ISP; (2) neither
knows nor has reason to know of such infringing activity; (3) quickly acts to remove it
upon having such knowledge; and (4) does not financially benefit from the infringing
activity. However, the 512 safe harbor provision likely does not apply to ISPs that
curate the sites materials, but rather is meant for websites in which users actively
upload and manage the material.2
Due to the curatorial nature of the P4 project, this safe harbor is likely not available
to P4. P4 will be collecting recordings and determining which are included in the archive
based on factors such as quality of recording and the identity of the performer. Though
users, who may have no rights in a recording, may submit the recordings, P4 will not
host the recordings at the direction of a user. Should P4 decide in the future to enable
users to upload content directly and provide a notice and takedown system, given the
fact that they will derive no income from any specific work, P4 may become eligible for
512 protection.
Regardless of whether 512 safe harbor provision applies to P4, a system by which
poets and others can raise questions about the inclusion of material and request
takedown or other action by P4 can still afford P4 certain protection. P4 can setup their
own procedures to both protect themselves from litigation and to maintain their open
relationship with the slam community. Takedown systems are common and, because
they offer a low cost alternative to lawsuits as a mechanism of enforcing copyrights, a
potential rightsholder is more likely to submit a takedown request than file suit if the
option is available. Moreover, such takedown request system can serve to yield more

1 17 U.S.C. 512.
2 See Viacom Int'l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 118-19 (S.D.N.Y. 2013) (suggesting
that content curation by an ISP may remove a site from the 512 safe harbor).

and new information about works because 512 requires that notifications provide
identifying information about the work at issue.
Therefore, although P4 cannot currently benefit from the 512 safe harbor, P4s
provision of a takedown request system will work to deter legal action, promote good
will within the slam community, deepen the wealth of information contained in the
archive, and potentially position the project to take advantage of the safe harbor in the
future.

II. Fair Use

P4s ability to collect permissions from the authors of the recordings is greatly
diminished because of the way in which both the slam community and technology have
progressed. P4 has received recordings of slam poetry from venues with little to no
information regarding the poets and performers from whom permissions might be
securedjust an abundance of recordings. Regardless, P4 recognizes and respects the
rights of poets in the slam poet community. Attached to this memorandum is: (1) an
agreement that P4 will use to obtain permissions to the recordings with known authors,
and (2) an agreement that P4 will use to obtain donated materials and secure whatever
permissions may be available from the donor.
Whenever possible, P4 will work to receive permissions for past poetry recordings
and, as the repository grows, P4 will work to acquire all permissions to future recordings.
However, because P4 is in the position of already holding thousands of recordings
without a clear way to secure their permissions, P4 must digitize and include the
recordings in its repository despite the inability to secure permissions.
The primary defense of the use of these works without permission is the fair use
doctrine. Though P4 plans to place all recordings in the scholarly level initially, the
below analysis extends to P4s placement of the recordings in the public level as this
more public use is also protected under the fair use doctrine. As the fair use doctrine
protects the more open public levels of access, the scholarly level of access is clearly
protected due to its explicitly educational purpose and thus will not be separately
analyzed.
The ultimate test of fair use is whether the copyright law's goal of promoting the
Progress of Science and useful Arts would be better served by allowing the use than by
preventing it.3
By allowing P4 to digitize and maintain thousands of recordings that may otherwise
be forever lost, and make such information available to the scholarly world through free

3 Castle Rock Entm't Inc. v. Carol Publi'g Grp., 150 F.3d 132, 141 (2d Cir.1998).

access on the Internet, P4 is serving the constitutionally rooted goals of copyright. As

analyzed below, because of the highly transformative nature of P4s nonprofit and
scholarly work, the use of the recordings without permissions in the public level of
access in the repository is likely to be a fair use. Fair use is the limitation of the
exclusive rights of copyright for purposes such as criticism, comment, news reporting,
teaching, scholarship or research.4 In order to analyze whether a use is considered a
fair use, the statute outlines the following non-exclusive factors:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.5
Though these factors are weighed together, certain factors weigh more heavily in
the analysis than others, and additional non-listed factors may be considered as the
listed factors are non-exclusive. For example, courts sometimes consider good faith and
public interest in the fair use analysis.6 It is therefore important to consider how P4 is
pursuing their mission as well as what they are doing in determining the protections fair
use affords them. The following analysis outlines how and why P4s use of the past
recordings in the public level of access in the repository without permissions carries
minimal risk as it is likely to be considered a fair use.
For the first factor of the fair use analysis, the purpose and character of the use, courts look to whether the
use serves a transformative purpose, meaning whether the user provides a new expression, meaning or
message.7 Further, when looking at the purpose and character of the use, the statute instructs the court to
review whether the use is for commercial purposes or for nonprofit educational purposes.
P4s purpose and character of using recordings and materials of slam poetry is highly transformative. A
transformative use adds something new to provide social benefit, by shedding new light on an earlier work,

4 17 U.S.C. 107
5 17 U.S.C. 107
6 Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282, 293 (S.D.N.Y. 2013).
7 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 560, 579 (1994).

and in the process, creating a new one.8 P4 gathers and digitizes creative works placing them in a searchable,
metadata enriched database transforming them collectively into a tool to explore, understand, and appreciate
the history of slam poetry. Moreover, the database will transform each work individually by contextualizing
each performance within the slam movement. For example, an hour-long slam competition recording may be
broken down into individual performances, further organized by author and topic. The recordings may also be
accompanied by materials such as programs, agendas, or post-slam critiques, or connected to other recordings
with similar content. P4 is truly transforming an abundance of recordings into an archival database organized
to fulfill its mission of sharing the history of slam to educate the public and preserve this form of artistic
expression.
P4 has the support of the slam community in these endeavors as the community too understands and sees
the need for such a database. P4s repository will serve to maintain such recordings and materials that would
otherwise be lost if not digitized and catalogued on the Internet. There is no other database for slam poetry like
it.
P4 is a nonprofit organization aiming to preserve the slam poetry movement in order to educate others on
slam, whether the public or academia, and to provide scholars and researchers with a much needed database
that holds all of this information. Ideally, P4 would gain an institutional partner, such as a library or university,
which shares P4s mission and values for education of the arts. Therefore, because of the nonprofit, educational
character P4s work, along with its highly transformative nature, the first factor heavily favors fair use.
As P4s use of the recordings is transformative and non-commercial, the remaining
factors carry less weight.9The second factor of the fair use analysis, the nature of the
copyrighted work, is generally simplified only to the extent the original work is creative
and whether it was published, though the factor is more complex. 10 If an original work is
creative, this factor weighs, however lightly, against fair use. There is no question that
the works are creative and thus tips this factor against fair use. However, given that
many poems are derivative of earlier works, their degree of creativity may be less than
a wholly original work. Regardless, because of the transformative nature of P4s use of
the recordings, less weight is given to this factor in the fair use analysis.
The third factor is the amount and substantiality of the portion used in relation to the
copyrighted work as a whole. If the use is transformative, the question turns to whether
the user copied more of the original work than is appropriate to fulfill their
transformative purpose.11 The quality and importance of the portions used are also to be

8 Id. at 579.
9 Campbell, 569 (The more transformative the new work, the less will be the significance of the other factors, like
commercialism, that may weigh against a finding of fair use.)

10 See generally Robert Kasunic, Is That All There Is? Reflections on the Nature of the Second Fair Use
Factor, 31 Colum. J.L. & Arts 529 (2008).

11
Music, Inc., 510 U.S. 560, 588 (1994).

considered.12
As P4s use of the slam recordings and affiliated materials is transformative, the
question is whether P4 used more of the work than appropriate to fulfill such purpose.
Here, P4 would be unable to achieve their purpose without using entire recordings of
slam poetry performances. Even though P4 is using the whole recording, this factor can
still weigh in favor of fair use. In a case where an entire photograph was copied, the
federal circuit court found the use to be fair as to copy any less than [the entire
picture] would have made the picture useless to the story. 13
Similarly here, using only a portion of a slam reading will make the recording
useless. A slam performance is a single work of arta performancethat cannot be
broken into smaller pieces without degradation. Thus, it will not serve the purpose of
educating the public and preserving the rich history of this art if only portions of
readings could be used. Further, the associated materials, such as slam competition
programs or advertisements, will only help to further P4s purpose by contextualizing
associated performances. P4s repository will serve as a place where scholars, poets,
and the public can view the evolutions of single poems, poets, and the broader slam
poetry movement. P4s purpose of maintaining and displaying the untold story of slam
cannot be achieved without reproducing a slam poetry performance in its entirety.
The fourth factor, the effect of the use upon the potential market for or value of the
copyrighted work, favors P4s position as well. With the highly transformative nature of
P4s repository, the market harm factor also loses weight, and there is a question if such
a market even exists.14 Market harm is gauged by potential adverse impact of copying
and whether the copying usurps the demand for the original authors work. The analysis
balances the benefit the public will derive if the use is permitted and the personal gain
the copyright owner will receive if the use is denied. 15
P4 is gathering recordings and materials, transforming them into a curated archival
repository, which would otherwise be lost without such a project. Given that these
performances are ephemeral and rarely given for a fee, no such market likely ever
existed for the vast majority of these recordings. If anything, P4s activities create a
market for poets who may never otherwise be heard.16 As an important factor in the

12
Campbell, 586.

13
Nuez v. Caribbean Int'l. News Corp., 235 F.3d 18, 24 (1st Cir. 2000).

14
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F. 3d 605, 615 (2d Cir. 2006) (Since defendants] use of [plaintiffs]
images falls within a transformative market, [plaintiff] does not uffer market harm due to the loss of license fees.).

15
MCA Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981).

16

success of an individual [work] is whether it is discovered,17 P4s repository may serve

as a vehicle for slam poets to be discovered for their work. Further, P4s repository will
not usurp such a market as one of its main uses of the repository will be to allow poetusers to create accounts and control access to their own poetry. If a poet finds their own
works in the archive and P4 has not already identified the poet, P4 will credit them to
this work, and the poet can control and leverage their exposure through the website to
create a market for their work.

III. Conclusion
P4s mission of preserving the rich history of slam requires the nonprofit organization
to use recordings of poets performances. P4 will make reasonable effort to receive
permissions from poets when they are able to do so through the attached agreements.
However, due to the unknown nature of the collected recordings, it is impossible for P4
to track down all of the past performers, but will make efforts to receive permissions as
it extends the database to future recordings.
Because of this, P4 will place collected recordings in the scholarly level of their
database and allow poets to find their own recordings and manage the level of access.
Further, P4 will take steps to ensure that if a rightsholder asks for certain works to be
removed from view on the database, P4 will do so. Though the databases curatorial
nature likely hinders the organization from the 512 safe harbor provision, P4 can
develop a takedown system on its own to remove information when requested to be
removed.
Regardless, as P4s digitization and placement of past slam poetry recordings and
associated materials is a transformative use of slam recordings, the organization uses
the amount of the works as appropriate for their purpose, and the nonprofit organization
is using the works for an educational purpose that does not usurp the market for these
works, P4s use falls within the fair use doctrine. Aside from the main fair use factors,
P4s work is serving a important public interest by creating a database that will preserve
a young and growing American art form as completely as possible from its inception.
P4s work preserves these recordings, which would otherwise be lost.
The attached agreements show P4s sensitivity to the slam communitys concerns
while minimizing any risks associated with authors that are known. Using these
agreements, as the project moves forward and the repository becomes open for
scholarly uses, P4 will seek permissions from authors who can be identified.
Authors Guild, Inc. v. Google Inc., 05 CIV. 8136 DC, 2013 WL 6017130, at *12-13 (S.D.N.Y. Nov. 14, 2013).

17
Id. at *10.

Further, P4 will work to ensure that the poets themselves control the level of access
users have to the works in the repository. After accomplishing its initial, though heavy,
task of creating the repository with the rich history of slam, P4 is positioned to continue
its mission of collecting and preserving slam poetry in a way that will protect both the
organization and the authors of the poems.
P4 will work with poets themselves, allowing them to control the works that are
known to be theirs while enabling the world to have access to these primary records of
the rich history of the slam poetry community. With an inherent societal benefit and
scholarly, nonprofit purpose, P4s mission and work will preserve for study and posterity
a style of poetry that is, by its nature, ephemeral and, would otherwise have been lost
to time.