Tag: fair use

Dangerous Little Knowledge

Not surprisingly, friends contact me from time to time with copyright-related questions. I’m careful not to give definitive answers to most of these, but I can usually point them in the right direction toward a solution.  Very recently, a dear friend (let’s call her Sarah) asked my advice regarding an email she received from a photographer who demanded removal of an image from her blog as well as a substantial fee for damages.  Sarah is college educated, a Gen-Xer, an artist herself, wicked smart, talented, and very respectful of people in general, let alone other creators.  I would characterize her as among the last people who would knowingly infringe a fellow artist’s copyrights.

Sarah considers her blog educational and non-commercial, and she credited the photographer. These factors led her to assume her posting the photo was a “fair use,”  and the mistakes she made are consistent with the kind of questions and assumptions I hear all time.  Real copyright experts may have another view, but it seems to me that the non-commercial thing is among the most common mistakes made when it comes to assuming a use is fair. In reality, commercial or non-commercial use of a work is is not necessarily dispositive (as the lawyers say) when determining whether or not a use would be judged fair. Setting aside the question of the photographer’s award demand — I can’t comment on whether or not it was in line with common practices among visual artists —  I was sorry to tell Sarah that her use was almost certainly an infringement. It only took her doing a bit of research to realize that fair use is a very specific component of copyright law that requires a federal court to weigh four factors in order to reach a conclusion.

What I find interesting, though, is that while I have been associated with originators and users of creative media my entire life, until Web 2.0 came along, I don’t remember people making decisions to use works based solely on what they thought they understood about copyright.  Put another way, I am not surprised Sarah misunderstood fair use so much as I am curious as to how the misinformation got into her head in the first place to the extent that she honestly believed she was on solid ground.  Because I bet her confusion is quite common.  Moreover, I suspect that so much misunderstanding about copyright is aggravated by both the design of the Web and even by the din of the copyright debates in the blogosphere. Not only does an interface like Google image search make potential infringement just a little too easy, but it also isn’t helpful to have a constant drumbeat of headlines written by entities with an interest in weakening copyright.

Lingo is catchy. We hear a unique term, assume we know what it means, then misapply it and spread the gospel. I used to see this a lot in video post production whenever a producer got hold of a new expression he thought he understood. Similarly, I suspect there’s so much chatter about copyright issues swarming around the Internet today, that terms like fair use seep into public consciousness; and then intelligent, thoughtful people like Sarah make perfectly reasonable, yet entirely false, assumptions about what the term means or how the principle is actually applied.  A clear case of a little knowledge being a dangerous thing.

And of course, it’s not just copyright; it’s anything. The wealth of “content” out there doesn’t always make us more informed, but it can make us think we’re informed, sometimes just enough to get us into trouble.  Because it’s one thing to have an opinion about a subject like copyright, but another thing to act on the assumption that you can be your own attorney, which is no more advisable than, say, using WebMD to diagnose the presentation of some new symptom.

Let me pause and write in the imperative for a moment by way of what public service I may offer:

If you have to imagine a fair use argument, then a case for infringement by the rights holder may exist.  Unless you have really researched fair use and you are legally and/or  financially prepared to defend your use, don’t assume you know what you’re doing. Odds are you don’t. There are no bright line rules when judging fair use.  Plus, if you’re just writing a blog and need an image, there are probably better and clearly legal options like Getty Images free embed service. Having said that, there’s nothing wrong with asking the rights holder for permission. He just might say yes.

Of course, the argument from the anti-copyright crowd might be that Sarah’s experience makes a good reason to “expand” fair use in the digital age.  For instance, readers may be generally aware of the Internet industry’s proposal to  “export” U.S. fair use principles through fair trade agreements despite the fact that our trading partners have radically different legal systems, and none has our First Amendment. I bring this up to illustrate the point that I believe this industry continues to trade on the populist tactic of oversimplifying legal frameworks in order to advance its own agenda.

And this goes back to what I meant when I said that the design of the web as we know it adds to the confusion of general users as to what’s fair and what’s infringing.  After all, the image is right there on Google image search.  Why not right click, copy, and paste into a blog, etc.? Yes, that’s certainly a paradigm Google et al want to promote, but let me cut to the chase here:  if you’re an individual with mere mortal resources rather than billions of dollars and a phalanx of attorneys, taking the “infringe now, apologize and maybe pay later” approach of Silicon Valley corporations is probably a bad strategy.

Meanwhile certain experts may convince users that they’re on solid ground.  For instance, fair use scholar Peter Jaszi, in his testimony before Congress in January 2014, stated the following:

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

I don’t presume to criticize Jaszi’s scholarship; I’m not remotely qualified to do so. But to the ears of fellow laymen, statements like this can be interpreted as permission to push the boundaries of fair use, which may be particularly hazardous if one has not at least researched the basic principles in the first place. High-level theory, debate, testimony, and discussion in the halls of academia do not necessarily provide an accurate picture of the law as it is currently applied.

Add to all that the massive volume of un-scholarly blogs, editorials, and PR messages aimed at weakening one facet of copyright or another, and confusion is likely to be the rule rather than the exception.  Each individual should do the research and decide for herself which among the many proposals on copyright seem thoughtful and innovative and which are serving vested interests. In the meantime, confusion leads to infringement claims, which can lead to damages, which pisses people off who otherwise respect copyrights. And in this sense, all the Sarahs out there become a bit like cannon fodder in a larger battle being waged by billion-dollar corporations.

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.

Westboro Baptists Infringe to Offend

In at least a few posts advocating for the right of the copyright holder to control the use of works for reasons other than money, I have raised hypothetical scenarios in which particularly odious entities make use of works in ways that are uniquely offensive to the soul of the original.  Most recently, I employed such hypotheticals on the subject of compulsory licenses, which would compel music rights holders, for instance, to allow any use of their works as long as the use is compensated.  I argued that this strips the creator of one of the most basic rights of copyright, which is the right to choose the manner in which his/her expression is used, except for of the types of uses typically protected by the doctrine of Fair Use.  So, along comes a real-life example of the dark side of remix culture and the kind of cultural gaffes we might get in a world where all works are fair game.

It looks like members of the Westboro Baptist Church cobbled together the six functioning brain cells in the group and scrawled out some clever new lyrics to accompany Paul McCartney’s famous melody “Hey Jude.”  For your listening and viewing pleasure (or nausea), I offer  “Hey Jews,” sung by the men, women and, yes, children of what I assume to be the Westboro Baptist Church choir.  Drawing upon the favorite theme of killing their savior, the Wesboro Baptist version of this song, originally composed as a ballad of avuncular tenderness for young Julian Lennon, is an anti-semitic screed I suspect most people would ignore, except of course that guys like me will call attention to it.  So, why am I doing that?

Because the video in all its ignorant glory serves up some interesting gefilte fish for thought, if you will.  First, I have no idea whether or not Sony/ATV will take any action against the WBC for infringement, although they could; and if they did, I don’t think a judge would rule this video to be a fair use.  This has nothing to do with its offensiveness but rather with the fact that the revised version does not lampoon the original work itself.  Simply taking a known song and changing the words does not make the new work a parody of the original.  For instance, Weird Al’s “Word Crimes,” which is a fantastic new hit based on Robin Thicke’s “Blurred Lines” is not a parody of that song.  So, why does Al get to use it?  Because he got permission and paid for the use, the permission being the more socially important of those two steps.

Sony/ATV may not sue simply because the Wesboro Baptist Church is so universally reviled and ignored that they may just let the infringement go rather than make a case out of it. But alter the situation just a bit, and the scenario might look very different.  Imagine the rights holder is still the author of the music and not as galacticly famous as Sir Paul, and the offensive derivative is made and promoted by a more prominent group.  Does that skew your idea as to how much power the rights holder should retain to prevent such a use?  Some will call this song/video free speech, but I say free speech gives the Wesboro Baptists the right to write, record, and publish their own offensive idiot song, but not a right to use someone else’s work as they see fit.  Because in a sense these neanderthals are speaking with just a little bit of Paul McCartney’s voice, never mind desecrating the very personal reason he created the work in the first place.

I understand this song’s influence in the world will be zero.  Likewise, neither the original work nor its author will be harmed by this association such that anyone is going to assume McCartney endorses the Westboro Baptists.  But change the players in an otherwise similar story, and harm is possible.  Hence, preserving the copyright holder’s choice to sanction, prevent, or ignore certain uses is actually more important in the digital age than it ever was.  Because now any idiot can broadcast, and any idiot will.