Category: Copyright

Jonathan Band Flogs Fair Use

Recently, on the CCIA’s Project DISCO blog, Jonathan Band wrote a post that could make a person spit out the ol’ ball gag, if you know what I mean. He tells readers that the best-selling, S&M trilogy Fifty Shades of Grey, with film adaptation opening this weekend, exists thanks to the principle of fair use, a component of U.S. copyright law.  While one must submit to the truth that Fifty Shades’s started as a work of fan fiction, derived from the source material for Stephanie Meyers’s Twilight series, one must also bristle at the manner in which Band is trying to insert fair use where it doesn’t belong.  Specifically, there cannot be a question of a fair use if there is no use in the first place; and author E.L. James (Erika Mitchell) did not use any works protected under copyrights belonging to Stephanie Meyers. To the contrary, James specifically revised her original fanfic into what became Fifty Shades in order to avoid any content that might infringe, and this stands to reason because publishers aren’t that stupid.  So why is Jonathan Band fetishizing the principle of fair use here?  And is there a safety word one can utter that will get him to stop?

In fact, now that I’ve gone there, perhaps this is the central point of this rebuttal:  fair use is not a safety word. It is not a term one can just incant in order to stop all potential claims of copyright infringement.  Even a use that is allowed by a rights holder does not become “fair” by virtue of that permission.  Fair use doctrine is a very important, but very specific, aspect of copyright law, and it’s worth noting that the United States has the most liberal application of the principle among nations that maintain strong copyrights.

In simple examples, fair use wants to protect the right of one speaker who may use a work in order to criticize, comment upon, or parody that work.  These are not the only applications of fair use, and there are four criteria applied by judges when hearing a fair use claim as a defense against an infringement claim. But absent an actual dispute over infringement, fair use is often patently obvious or utterly irrelevant. And the case of Fifty Shades of Grey, the fact that there is no conflict between Meyers and James has nothing to do with the doctrine. These authors, and authors everywhere, professional or amateur, are free to remix the beauty and the beast theme to their hearts’ content. The elements which can be copyrighted in the individual expressions are easy enough to avoid plagiarizing, which is why James can begin with a derivative fanfic of Twilight and then revise to create an original work that does not infringe.

But fair use is just one concept that the dungeon masters of the tech industry like to dress up and parade around the blogosphere in order to seduce the public to believe that certain popular works only exist in spite of copyright. Interestingly, Band’s omission of the central fact that E.L. James did not use any protected works by Stephanie Meyers means that he isn’t actually writing a defense of fair use doctrine at all. Like so many blogs and articles of its kind, this seems to be another attempt to broaden one of copyright’s exceptions into some all-purpose answer to all manner of uses where the doctrine may not apply. This can be effective based on the safe assumption that most of us are not attorneys and don’t really know how the law functions.  Hence, as a PR move, Band’s editorial aligns with the tech industry’s interest in selling the idea that all fanfic should ultimately be defined as fair use so that the activity can more easily be monetized without permission of any original authors.

To be clear, this reply to Band’s assertion about fair use is in no way an indictment of fan fiction itself. Many authors welcome the trend and even personally curate sites hosting fan fiction.  It can be a great way to interact with avid readers and fans, particularly of popular series that contain many characters and complex plots and subplots.  But fanfic enthusiasts should not be enslaved to the tech industry’s interests.  Fanfic can and does coexist with copyright law without rewriting the meaning of core doctrine.

There are plenty of great examples of fair use doctrine available, and readers should be at least a bit skeptical when the tech industry picks a particularly weak example like this one to highlight. But I get it. This story wears stiletto heels, has a whip in one hand, and a multimillion-dollar franchise in the other. It’s flashy and alluring.  But editorials like Band’s continue to overuse this false role play in which creativity is blindfolded, bound, and gagged by copyrights.  Quite the contrary.  In fact, copyright is a bit like S&M in this one regard:  if the person being “used” doesn’t grant permission and can’t set limits, it’s called aggravated rape.

ADDENDUM:  I cannot say that I am surprised Twitter lit up a bit because some readers were offended by this final paragraph in which I appear literally to be comparing copyright infringement to rape.  I would never belittle a violent and disturbing crime by equating it with a non-violent one, and I hope readers understand that the S&M theme of this story is what sparked this reference to permission.  I will add that, throughout literature, movies, TV, and journalism, authors have used the word rape metaphorically, including some months ago when Madonna actually said that piracy of her works was “like being raped.” I didn’t even agree with that simile as I thought it was making too direct a comparison.  Take that all for what it’s worth.

More © critics who don’t get the creative process.

It often seems as though each time an artist, let alone a legend, pays homage to the past, some pundit with an axe to grind on copyright seizes the moment to declare the contemporary law restrictive to creative development.  Variations on the theme of “artists could never do that today” have been trotted out in essays, some thoughtful, others not so much.  In this latter category, Ed Krayewski, writing for reason.com, picked up a few themes from Bob Dylan’s 20-minute Grammy Award acceptance speech when he was named Person of the Year by the Recording Academy’s philanthropic program MusicCares.

Dylan pays homage to his well-known roots in folk music and offers tribute to artists who performed his work in the early days. Dylan says, “I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked.”  Krayewski offers this quote referring to Peter, Paul, & Mary as evidence that having other artists play a songwriter’s music has value, as though this some sort of revelation.  Not only does this come under the professional column labeled “No Shit,” but Dylan isn’t even saying what Krayewski seems to think he’s saying.  “Early artists…recorded….without having to be asked” means Dylan didn’t ask them to play his songs, but he was delighted they did.  And nothing in copyright law today prevents this from happening artist-to-artist in the same nascent environment Dylan is describing about his early career and that of Peter, Paul and Mary. In fact, once a song is published, the songwriter cannot prevent a cover from being recorded, even if he wants to, as long as the performing artist pays a fee.  But this licensing process hardly “locks up cultural heritage,” as IT policy consultant Steve Worona tweeted and was quoted in the article by Krayewski.

Dylan has spoken and written so much about his process, his inspirations and derivations, that his words have frequently been served up as proof that copyright kills creativity.  The problem is the argument is so often based on an assumption that the exception proves the rule.  For instance, there is this quote pulled by Krayewski from Dylan’s speech:

I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.

Ah, ha!  There we have it!  Proof from the master’s mouth himself that work is derivative and, therefore, we can conclude that copyright stands in the way of the creative process!  Except, no.  Again, for an author of, well,…anything this quote also kinda sits in the “No shit” column.  Woody Guthrie or Pete Seeger might say essentially the same thing; certainly they’ve said similar things, but can you tell these artists apart?  Can you tell the differences among Dylan and Guthrie and Seeger and Guthrie the Younger?  In those differences is the work that becomes copyrightable, yet none stifles one another or anyone who has come since to break out of those famous shadows.  Krayewski suggests Dylan’s generation is more litigious than its predecessors, which implies that the present generation of musicians has been left gnawing on musical table scraps because all the damn boomers locked away the prime cuts under copyright.  How then, did that generation produce so much music without spending their lives in court? And where the hell did some wonderfully innovative works I just heard by The Punch Brothers come from?  For that matter, where did all of Dylan’s post 1976 works come from (except the Christmas album), if the “copyright environment” is so toxic? Because there are infinite variations, and artists know this.

The only thing that’s really changed about the copyright environment is that there are tech-industry interests aligned against it.  As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures on contemporary artists as a threat to culture rather than copyrights.  But most especially, they should stop presuming to know anything about the creative process and the ways in which artists draw from one another and still manage to create their own works.  There’s a reason the ability to do this is called a gift.  It’s special, it’s rare, and not everybody gets it.

Groups Send Pro-IP Letter to Congress

An open letter supporting intellectual property was sent today to the 114th Congress.  The majority of its signatories are conservative political organizations, which is reflective of the now-Republican majority in both houses; but the letter is also signed by several left-leaning organizations as well as academics representing non-partisan study groups and think tanks.  Titled Intellectual Property Guidelines, the letter briefly outlines a rationale for the new congress to support and maintain strong IP protections, emphasizing the following eight premises:

  • IP Rights Are Grounded in the Constitution
  • IP Rights Are a Fundamental Property Right Deserving the Same Respect as Physical Property
  • IP Rights Promote Free Speech and Expression
  • IP Rights Are Vital to Economic Competitiveness
  • IP Rights Must Be Protected Internationally Through Effective IP Provisions in Trade Agreements
  • IP Rights Are Integral to Consumer Protection and National Security
  • IP Rights Must Be Respected and Protected on the Internet
  • Voluntary Initiatives to Address IP Theft Are Positive

It’s too short a letter to warrant a summary, but I will quote one statement about the Internet, which reads, “A truly free Internet, like any truly free community, is one where people can engage in legitimate activities safely, and where bad actors are held accountable.”  This is consistent with the post I just wrote about accountability, arguing that if we too eagerly embrace the anarchy of digital life, this only leads to mob rule, and mob rule only leads to some form of tyranny.

There isn’t a lot of bi-partisan support for much these days, but over the few years since I have been paying attention to these issues, the fundamental principles of Intellectual Property rights appear to maintain support among most Americans across the political spectrum.  The basic concept that any individual may own the fruit of his or her intellectual labor, that it does not belong to the mob regardless of changes in technology, still seems to resonate with conservatives and liberals alike.  And that is certainly encouraging.