J's Indie/Rock Mayhem

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Friday, August 22, 2008

Notes From Underground - #49
Fair Use Gets Less Obtuse

I know y'all are getting tired of this, but things keep falling into my lap about copyright issues and, well, I find it fascinating. So here we go.

The Electronic Frontier Foundation reported about a decision in Lenz v. Universal, a lawsuit centering around this video. In it a toddler is shown dancing to the Prince song "Let's Go Crazy" playing on a stereo in the background. The clip is about 29 seconds long. The video maker uploaded it to YouTube and that's where the fun began. Universal Music issued a takedown notice claiming improper use of the song. But they picked the wrong person to muck with. The video maker in turn sued Universal for misrepresentation under the Digital Millennium Copyright Act (DMCA), claiming that it should have been obvious that it was a case of fair use and that their issuing of a takedown notice without taking that into consideration was not proper. And today came the decision:

"[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright...

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Universal had argued that they shouldn't have to consider fair use as it would cripple their response time to potential infractions. The judge said it was malarkey and that the DMCA already required that they "make an initial review of the potentially infringing material prior to sending a takedown notice." Score one for free speech and fair use. This case will undoubtedly be appealed, but for the time being, fair use is fair.

Now, this brings me back to last week's topic. Let's take a minute to define fair use. U.S. copyright law uses a four-tier test for considering fair use which includes:

1. the purpose and character of the use, including whether it is commercial or noncommercial;

2. the nature of the work (e.g., factual works are entitled to less protection than purely creative works);

3. the amount and substantiality of the portion of the work used;

4. the effect of the use upon the potential market for the work.

Reconsidering Sen. McCain's video that involved the Wayne's World clip, I would argue that it's only the fact that it was a political commercial that brings it into question. What about my "I'd buy that for a dollar" idea? My personal feelings say, if I'm not profiting financially, who cares? Actually, my feelings also say this: if I'm recontextualizing to create a new piece of work, I shouldn't have to have permission or have to pay to use it whether I profit or not. My ideas about that are a bit out in left field, but when I see totalitarian attempts at content control like the aforementioned court case, I don't feel so crazy anymore.

You'll see me use that term, 'recontextualize,' quite a bit when I discuss sampling. Because ultimately that's the key difference between theft and art: giving a piece of art new life by juxtaposing it with different surroundings, thus, giving it a new, different or deeper meaning. It's a tradition of folk music to reuse and recycle both lyrical and musical themes - sampling is the digital age's version of just that.



  • At 6:02 PM, August 25, 2008, Anonymous S. said…

    I think the idea that so long as you don't profit financially, it's okay, is sort of dangerous. You're running the risk of unfairly associating people with ideas they oppose or views they don't hold. Would it really be okay with you to allow the Klan use Wayne's World for tv spots they make, so long as they don't profit from it? I can prevent my likeness and name from being used in association with something like that - why shouldn't Wayne's World be allowed to be? Moreover, since you seem to be in favor of the free flow of this stuff (except that they should perhaps have to compensate the artist when there's financial gain), should Fritos have been able to use Tom Waits' song w/o his permission, so long as they compensated him? You have a right to control your image and the things you are associated with, to a certain extent. That is not unreasonable.

  • At 6:19 PM, August 25, 2008, Blogger J. Neas said…

    I would think that hate-speech related videos would be lumped in alongside commercial and political uses as something that would inherently need content approval. I do not approve of commercial usage of content without approval, so no, I agree with the Tom Waits decision.

    Although that decision in itself is an interesting deal since it wasn't a specific Waits song so much that was used as his singing style. They had wanted to use "Step Right Up," but when denied that by Waits, went with a sound alike instead.

    My argument wasn't clear on the point that I agree that the McCain campaign needed permission since it was politically motivated, but I was using it as an example of (sans the political connection) the type of appropriation I think should be acceptable.

  • At 6:30 PM, August 25, 2008, Anonymous S. said…

    I still think you're wrong. Now unpopular viewpoints have to get permission to use videos, likenesses, etc., but others don't? What if it's not hate speech (which it's already been a huge problem to define in any meaningful legal way), it's just unpopular - like it's a commercial saying date rape should not be illegal? Do they have to get permission? Who is going to decide what you have to get permission for?

  • At 6:37 PM, August 25, 2008, Blogger J. Neas said…

    Well, your example borders on the political since it involves a position on a law. And I think any video that is made advocating some organization or group or committee or position or whatever (the Klan, Townspeople Against the Reservoir, Concerned Citizens for the Repeal of Date Rape Laws) is something that is going to tread on that line and ought to involve permission.

    Where I've seen the most ridiculous use of this is in examples like the dancing baby video or any other video that is strictly non-commercial and for entertainment or artistic purposes. Which is why I advocate for broader, free access for the ability to appropriate for those purposes. It's also why, in my Utopian artistic world, commercial art would have that appropriation ability as well.

  • At 6:41 PM, August 25, 2008, Anonymous S. said…

    Well, I mean, very few things are really for a strictly non-commercial purpose. The dancing baby video is, I think, for a strictly non-commercial purpose. However, if a musician makes an album, even if they give it away, that's a commercial purpose b/c it will introduce more people to the band, who will buy their t-shirts, books, trading cards, concert tickets, and other cds. I'm just not sure who you want to put in charge of whether a purpose is an appropriate purpose to use a video for without permission. It just seems like an artist should (within reason) have the right to say no. I'm allowed to keep my likeness from being used without my permission - why should someone who has invested their creativity and resources in creating something have less rights?

  • At 6:50 PM, August 25, 2008, Blogger J. Neas said…

    We've entered an age in our culture where appropriation is an integral part. To me, the biggest arguments for allowing these things are in pieces of art like the Beastie Boys' Paul's Boutique or DJ Shadow's Endtroducing.. or the broader body of work of bands like Negativland. The Beasties' album especially would be prohibitively expensive for a band to craft today due to sampling royalties and clearance demands. Our culture is so incredibly nostalgic and meta that it's a style that speaks volumes about our own culture.

    My feelings about this whole issue are incredibly idealistic and somewhat naive - a belief that we would be able to, as you said, actually decide what is legit and what isn't - but they are rooted in our own culture. Creative Commons and the work they have done to allow artists to open up their own work is a step in the right direction, but there are still many miles to go.


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