Before getting into this post I need to clarify two things:
- I am beginning this blog with a look at fair use because I assert that everything I cover or choose to include in my posts closely follow the guidelines of fair use.
- Despite the name of this blog, fair use should never be confused with Media Piracy. Fair use, however disputed in the legal landscape, is a completely legal way to use copyrighted works without permission. My hope is that looking into fair use will offer a foundation to investigate the burgeoning "permissions culture" which makes intellectual property issues (like Media Piracy) so controversial.
Fair use is an often-misunderstood ingredient in our cultural gumbo. Our painfully litigious society reminds us that every form of expression is owned and comes with a (sometimes crippling) price tag, so we tend to forget about fair use and the service it offers to the global community. Scores of authors, lawyers, and academics have written about fair use, with a wide range of opinions on its definition and application. In the interest of sticking with an academic viewpoint, I will be referencing the
Duke Center for the Study of the Public Domain, specifically the 2006 graphic novel
Bound by Law? produced by Keith Aoki, James Boyle, and Jennifer Jenkins, which helps to establish what fair use is and when it is applicable for another work. A PDF of
Bound by Law? can be found
here.
In
Bound by Law?, the main character is Akiko, a documentary filmmaker who is working on a film about New York. Because there are so many incidental or fleeting inclusions of other people's copyrighted work in her footage, she worries that her film can't even be made. Luckily, two figures appear to help guide Akiko through the minefield of copyright law and help her understand what she can and can't use in her film.
The two guides begin by establishing what is a copyrighted work. There are 8 basic forms of copyrighted work protected by US copyright (once they are "fixed in any tangible form of expression"):
- Literary works
- Musical works
- Dramatic works
- Pantomimes and choreography
- Pictorial, graphic, and sculptural works
- Motion pictures
- Sound recordings
- Architectural works
Since 1978, a staunch "permissions culture" has mutated the purpose of copyright law, and works like these have been automatically copyrighted as soon as the expression became fixed in a tangible form. If another artist comes along, like a documentary filmmaker, and happens to capture another person's copyrighted work in their footage, it is up to the filmmaker to hunt down the copyright holder and get permission to include their footage in the final film. This goes for all work that isn't in the public domain, which mostly applies to works created either by the federal government or published before 1923. This leaves much of the creative culture as off-limits for use in subsequent forms of expression.
The two guides give Akiko examples of when copyright infringement has hindered an artist's ability to express themselves freely. In Jon Else's documentary
Sing Faster, he filmed a scene of stagehands playing checkers backstage of an opera. In the background, a television was on and 4 1/2 seconds of
The Simpsons could be seen in the shot. Fox threatened to sue Else, unless he replaced it, which he eventually did. In Marilyn Agrelo and Amy Sewell's documentary
Mad Hot Ballroom, one scene featured a ringtone that happened to be the theme song from
Rocky and in another scene a kid playing foosball yelled out "Everybody dance now," a line from a song by C&C Music Factory. EMI, who owns the rights to the
Rocky theme, demanded $10,000 for the rights to use the snippet of the song in the film, and Warner Chappell demanded $5,000 for the line from the C&C Music Factory song. In the end, the filmmakers decided to cut the scene at the foosball table and got a better deal for the
Rocky theme, but still had to pay. Davis Guggenheim, director of the PBS documentary
The First Year, had to cut a poignant scene illustrating the generational gap between a teacher and his students when the Led Zeppelin song "Stairway to Heaven" came on the radio, because he couldn't clear the song.
In each of these cases, the filmmakers had a sound argument for claiming that the copyrighted works in question fell under the protection of fair use. However, in a culture lousy with copyright lawyers sending threats of lawsuits or "cease and desist" letters, most of the filmmakers caved in without putting up a fight. The point that the two guides are trying to make is that with the emergence of this "permissions" or "rights culture," the traditional feeling that a copyright didn't give the copyright holder control over every use of a given work is being replaced by a feeling that a copyright grants absolute control.
Akiko feels downtrodden by all of this, but then the guides counter these examples of artistic stifling with examples of artists using copyrighted works under the protection of fair use. In Chris Hegedus and D.A. Pennebaker's film
The War Room, Ross Perot walks away from the presidential race as Patsy Cline's "Crazy" plays in the background on a TV. The filmmakers did not ask permission and they weren't sued, because this was fair use. Robert Greenwald's documentary
Outfoxed, which heavily criticized the journalistic validity of Fox News, featured mostly clips taken from the Fox News network. This use was not challenged. Michael Moore used dozens of uncleared clips from newscasts warning about "Black Male Suspects" to illustrate racism in the media in his film
Bowling for Columbine. Again, this use was not challenged, because it is protected under fair use.
The 1976 Copyright Act specifies in statute 107 that there are limitations on a copyright holder's exclusive rights to a work. Basically, anyone can use a copyrighted work for the purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and it does not infringe upon copyright law. There are four factors that are considered to establish if a use of material is fair use:
- The purpose of the character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors.
The two guides then walk us through a series of court cases that establish some precedent with fair use. In 1984, in the case of Sony v. Universal Studios, the Supreme Court found that "time-shifting" or videotaping television shows to watch them later was an example of fair use. Universal Studios was asked to prove market harm by people taping shows for their own private, noncommercial use, which they could not do. in 1994, in the case of Campbell v. Acuff-Rose, the Supreme Court decided that 2 Live Crew's use of Roy Orbison's song "Oh, Pretty Woman" for their song "Pretty Woman" was fair use, because 2 Live Crew's version was a parody of the original. In the 2001 case of Suntrust v. Houghton Mifflin, it was decided that author Alice Randall's novel
The Wind Done Gone, which was a parody of
Gone with the Wind from a slave's point of view, constituted fair use. The court of appeals noted, "It is hard to imagine that Randall could have specifically criticized
Gone with the Wind without depending heavily upon copyrighted elements of that book. A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original..."
The guides then explain how copyright term limits have changed through the years. At first, a copyright lasted for 14 years. Up to 1977, a copyright term was 28 years with the option to renew that copyright for another 28 years. Now, however, the copyright term lasts 70 years past the death of an author and 95 years for corporate authors. They explain that this means so much of 20th century culture is considered off limits for use, and this constantly extending copyright term puts more pressure on fair use. This next series of comic panes perfectly illustrate what this change in copyright law means:
By the end, Akiko is asked to consider all that the guides have explained to her and imagine what kind of copyright system she as an artist and filmmaker would be comfortable with. She imagines a world (shockingly, not too unlike our current conditions) in which every single piece of artistic expression is owned and controlled strictly. Akiko doesn't care for this and feels that it would be tough for creativity to thrive when raw materials are so closely guarded, but she still understands the need for artists (including her) to be paid for their work. She is then asked to consider a world in which some things are owned and controlled, but there were far more areas that are open for public use. The guides take this vision a step further and use the metaphor of this second system as a type of an "Ecologically Sound Cultural Landscape" or "Cultural Environmentalism." Much like developments need to be carefully balanced with wild, open spaces in order to have a healthy natural environment, copyright needs to be balanced carefully with fair use and the public domain in order to have a healthy cultural environment.
This final realization is what the whole fair use/public domain/copyright argument comes down to. Copyright is intended to protect the rights of content creators, ensuring that no one takes credit for their work or makes a profit off of their toils. These early intentions have been blurred with the advent of corporate media giants. Now, it isn't necessarily an artist that is defending the use of his or her work, but a copyright owner, which could be a movie studio, a distribution company, a record label, or a publishing house. None of these groups can assume responsibility for the brilliance of an artist's work, they can only claim that legally they have the right to make every copyright they hold make as much money for them as possible. This is not the point of copyright, and it needs to be changed.
I think this look into bogus copyright cases and fair use really comes back to media piracy because it is this culture of highly litigious copyright holders that fuel an opposing culture of media pirates. I believe strongly that people, most people, really want to support an artist for their work. However, there is so much confusion over who owns what and where the $15 a consumer pays for an album or a DVD goes that people can't be sure that their money helps support an artist, other than adding to reports of gross sales and possibly encouraging a studio or record label to work with that artist again.
This horrible mutation of what copyright should be is ultimately hurting the artists it is supposed to protect. We need to reconsider the original intention of copyright, the way copyright is being used now, and how copyright should change in order to benefit everyone. Like Akiko, we should become "Cultural Environmentalists" and try to repair our cultural landscape, for the good of the history and future of artistic expression.
