Fair Use was designed more to abide by the freedom of the press so that someone writing a commentary on a piece of work could reproduce the work as a citation, and for educators so that they could reproduce the work for the purpose of cultural education – both without having to go through the hassle of tracking down the owner and asking for permissions and having to pay untold monies in doing so.

Fair Use does not cover “borrowing” or “hot linking” images for use on personal websites, digital manipulations, inclusions, or distortions of an original work to be distributed as a secondary work, or anything outside the scope of informative critiques and educational analysis.

At the same time, copyrights do not give the creator the ability to sue a person who exercises fair use correctly for untold amounts of money, or another artist who had a similar idea and executed it in their own fashion.

The advent of digital technology has not changed fair use, only increased the number of uninformed individuals on the playing field who think they know the rules and like to make as much noise to have the attention on them.

I believe one problem is that there is a fundamental laziness that arises from a misunderstanding of what art is.

Let’s face it: most artists never rise above mediocrity (due to laziness, lack of ability, or misapplied persistence), and appropriation art [parody, homage, fan fiction, etc] is their chance to easily get some recognition in lieu of actual creation. To further complicate the issue, they now can receive peer recognition (the internet’s true purpose) which, lacking before, now makes them believe they are liked or cool. This is addicting.

The burst of creativity that comes in youth and causes a boy or girl to endlessly copy the things they love is wonderful. In Junior High and High School, I did that with comic strips and cartoons and my favorite movies. But such copying is make-believe, a natural and good extension of playing with action figures or dolls. I stopped copying because it held no interest to my circle of friends and girls found it interesting only in so far as it related directly to them. I stopped copying because my own ideas began to muscle out the ideas of other men and women. I am grateful for the time spent doing this: youthful copying developed my skills in areas that have led me to an interesting professional career.

Luckily, I had no internet. When the internet says “yes,” there is no need to go beyond the first junior high levels of awe. The masses will win out and they get what they want: the work of adolescents, liberated from the gadfly of conscience.

Thanks for many many interesting posts.
Sincerely,
~Brian

copyright © 2008 Brian R. Hischier

dun feed the hand that bites you …

All in the name of merchandising of course.

Regarding the appeal above to think about copyright outside of thinking of money, I don’t think you can do it. Copyright is money, without money there is no reason (aside from what, ego, bragging rights perhaps?) for copyright.

For instance, copyright applies in the USA from the instant of creation but most folks assume you have to register your photos with the government to gain copyright. What registration does is allow you to obtain punitive damages beyond recovery of lost revenue due to a copyright violation.

Can you have a copyright violation without demonstrating lost revenue? I suppose so but who beside a major corporation would bother?

@34 above: Rob you already have filmmakers giving away their works, just check out youtube, you’ll find dozens of clips uploaded in the hopes of recognition, perhaps in the hope that some band will recognize the brilliance and hire the creator for their next video? Who knows.

How about the content creation of “America’s Funniest Videos” or whatever it’s called? Surely that show doesn’t pay for all those home movies? If they’re given in hopes of a reward for most popular or something like that, I would bet the prizes don’t amount to what you’d pay a production company for a half hour of content.

Sure, difficulty of production ensures rarity, if not quality, and thus the chance for more cash per sale. Few photographs means more money per sale. But are quality and quantity inversely related?

Go to a sports analogy, what about a sport program that concentrates on a few potential athletes. Spend massive amounts of money on a few athletes and does that provide more gold medals than programs that rely on selecting out of massive grassroots participation? How did/does Brazil produce so many top soccer players while East Germany went lacking? Of course the opposite was true of swimming or biathlon I guess.

Maybe the same with the creative arts? More kids with cameras may just mean more great photographers in 20 years time?

Few people in highly technical things = best quality?, large numbers in low technical things = best quality? Simpler cameras means highly technical becomes point and shoot at all levels and so mass numbers is the best way to get quality at the top?

Kim Taylor

greetings,

http://www.billjayonphotography.com/Walter%20Bentley%20Woodbury%201834-1885.pdf

What if filmmakers start giving away their work for free in exchange for a credit in hopes of scoring a lucrative advertising gig?

From my limited experience in film making, I think that this is actually a huge problem for independent film makers. You can’t walk down the street with a camera without having to clear many, many copyrights.

I think this leads to a lot of stunted shots and wasted energy because a lot of the challenge of doing a shot in a city becomes avoiding the trademarks (gas stations, fast food, etc.) that pop up along the way.

Has Bound By Law, the Fair Use comic book, been brought up yet?
http://www.law.duke.edu/cspd/comics/

From my understanding, for the low budget documentary producer, clearing copyrights is a byzantine task, and is almost as much work/money as the film itself. Even in Dave Chappelle’s Block Party (a killer film btw), you see people blurred out in the background. I guess they forgot to get their signed release forms. If Michel Gondry and his crew are screwing it up, it’s going to be hard for the guy down the street who has a good idea to have any chance.

There’s no argument that people have every right to control the ways that their work is used, but I also believe (stepping up on a soapbox here) that creative work and creative freedom is an important part of having a democratic society. And low-budget documentaries, to me, are a particularly interesting and important form. I think there needs to be some middle ground here.

Photographers have it incredibly easy compared to film makers; I’ve never understood exactly why.

In this sense, the same push by corporations like Disney to keep extending copyright terms is hurting and weakening the law. And it is making people like me, who otherwise would be solidly on the side of asserting copyright, push the other way, in order to try to balance things a bit. In other words, “death to copyright” isn’t what a lot of us want. But as it is, the law has lost sight of its original intention, and *that* needs to be fixed.

‘Us’ is not homogenous though. Mainly there is a two-sided tussle between corporate IP dominions and the public as a whole. Both sides, for opposing motives, want someone else’s copyright minimised to their advantage.

Slap bang in the middle and unnoticed by either major adversary are the little guys who actually create stuff, who have not rooms full of corporate lawyers, who have little bargaining power against corporate rights grabs, who have no significant lobbyists, and who also have to deal with the public’s increasingly contemptuous attitude toward copyright.

The law seriously does need realignment in order to recognise that Disney, Monsanto and Sony vs. Free Culture is a self-serving, destructive and impoverishing dynamic that obscures a three way balancing act where creators are the weakest of all. We absolutely need copyright, but the main protagonists are set on removing fairness to authors which was the original intent for their own partisan reasons).

(more interminable ramblings about the failure of the Hutton Review of UK Copyright law to even notice this, let alone do anything are at http://tonysleep.co.uk/blog/reviewing-gowers-2 )

Incidentally, if I was on a jury regarding IPR in that Banksy piece, I’d regard it as a substantially new work. And recognition of the need of a right of fair use for parody is anyway working its way into legislation.

When thinking about copyright it may be useful to separate corporate ownership from individual ownership. Disney has been cited as an example of corporations attempting to extend copyright beyond all reasonable limits. At some point stuff should probably fall into the public domain… or should we be hunting down the decedents of the relatives of Michelangelo every time we paint or shoot a photo of his David? How about if we can’t find the proper copyright holders of the David? Can I assert the rights? Can the current owners?

Sure our living photographer ought to be compensated if his work is used in an ad, I don’t think anyone would disagree with that. So private vs corporate.

Documentary filmmakers: What about all those “re-enacted” documentaries where they dress modern actors up in WWI gear to act out scenes that could have been taken from newsreel coverage? Umm, limited term licenses from the stock agencies who now own copyright on the footage means your documentary is valid for 5 years and then you don’t have clearance any more unless you re-license.. so you shoot your own fake footage. Is this a problem? What happens to that historical footage?

A LOT of the nuclear testing film was almost lost before someone dug it all up and re-purposed it in a documentary.

Too tight copyright ownership could mean a loss of valuable historical material. Agency A owns it, goes bankrupt, warehouse of old, poorly filed stuff gets trashed. Then again, material that isn’t copyrighted could also be lost since there’s no monetary incentive to index, archive and sell it for further use. Government agency folds into another agency and same warehouse of stuff is sent to trash. Sigh.

Richard Prince (who, if I read his bios and interviews right, started shooting news clipping photos long before he ever became the artist he is now) shot a Phillip Morris owned copyright and not the original photographer’s copyright. Has he got away with his re-photographs for that reason? A rephotograph of a corporate owned ad may just be artistically more defensible than a rephotograph of the photographer’s shot, especially if the photographer’s shot wasn’t used in a cigarette ad.

So in one case re-using copyrighted material is hindered by corporate copyright, and in the other it seems to be enabled by the same corporate ownership.

I can remember the Beatles and several other big groups getting sued because their songs seemed to have patterns of notes from other, earlier songs. The argument was that the appropriation was unconscious but in several cases money was handed over. I don’t think the laws have changed but the public perception has, since back then it was a bad thing, but now, 15 years after the hip hop revolution sampling old songs directly has gone from “get permission” to “of course you can do it”.

The ease with which we can mash-up and appropriate work means that more and more people do it, and this eventually changes the perception of the morality of doing it. When it took a lot of effort to sample music, sampling was not cool.

Appropriation in art? You can’t copyright an idea yet, although there are folks out there who figure you should (witness the complaints about shooting a scene from the same viewpoint as someone else shot it). This is a good thing, art that doesn’t comment on earlier art is very rare. But as modern life got more commercial and brands got more universally recognized, artists started to comment on them (think Warhol’s Brillo boxes or Banksey’s happy trio above) just as they would comment on any other aspect of modern life. Fair artistic use?

Copyright laws have changed for centuries and will continue to change, it’s up to us to decide who gets to benefit from the changes, and how.

Kim Taylor

Doug Keyes still managed to get an award from Santa Fe very recently, mind. But I can imagine his feelings when he first saw Idris’ work being so acclaimed.

http://www.visitcenter.org/programs.cfm?p=Project07Keyes

But then, Picasso covered this perfectly when he said, “”Good artists copy. Great artists steal.”

RX

PS – I’ll bet you have some bootleg software or music downloads don’t you? Aren’t you glad enough people paid for that slice of creativity so the originators could afford to create it?

Copyright exists to ensure a rich creative and inventive society; financial gain is important for artists, for everyone, we need to protect that. Agreed, taken too far it stifles derivative works. However, as it stands, are there any inspiring cases that anyone can offer where honest passionate creatives wanted to write, photograph, draw, sing, paint, invent, or whatever and didn’t because they would risk copyright infringement? I’d say those who stop know that what they’re creating isn’t original and those who don’t stop also know they are trying to get away with something.

Include my photos predominately in a movie scene – cool! Do it and make millions without compensation or permission – not cool. Include them as incidental props and make millions on the sale – that’s cool too. It’s not all that tough to get an intuitive feeling for what’s fair. Rob’s exactly right @ 13.

In the case of the Richard Prince’s, I’m guessing he knew he was going to be controversial, did his research, and plunged ahead all the time thinking, “all that might happen is they ask me to stop” and if they don’t the controversy will only help me sell these suckers.

Here’s an example: http://www.kernel.org plus http://www.gnu.org followed closely by wikipedia.org (tho I’m sure you’ll also claim that wikipedia is useless and that software is a magical form of copyright-protected work).

Those first two have generated *billions* of dollars.

“Documentary filmmakers don’t have to clear rights…”

Uh, sometimes they do. To some extent it’s a judgment call, whether you want to rely on fair use, but your statement is a bit too matter of fact to be accurate considering the numerous examples to the contrary.

Here’s a well known recent example from Mad Hot Ballroom where six seconds of a Rocky ring tone in a scene created problems for the filmmakers:

http://www.nytimes.com/2005/10/16/movies/16rams.html

Maybe Rob could interview my favorite Intellectual Property attorney – Mary Luria at Davis and Gilbert (mluria at dglaw dot com)

Rob’s very wise to point out that fair use doctrine does come down to interpretation – it’s the same as obscenity laws where jurisdiction and community standards affect the legal outcomes – and as such, copyright holders really must be more vocal and diligent in protecting their works.

And may I add that protecting copyright is not only in registering your work but also in reading and negotiating the contract that comes with the assignment.

Also – derived work to look at – Sherrie Levine, Thomas Ruff’s jpgs, Richard Prince, Idris Khan – good post here at Jim Danziger’s site:
http://pictureyear.blogspot.com/2007/11/idris-khan.html

Who was it that said “money tends to bleach out all other values”?
Then, how do we remove the bleach? I don’t think it possible, we live in capitalist market lead world and the fine art world is the icing on the cake.

Hopefully mostly on-topic.

You’re also right to point out that even if stuff is illegal people will still do it. I personally don’t find that ideal, though. If people know that what they do is illegal, that’s a different way to work than if they know they can do it.

We’ll have to figure this out – and I personally think that the debate needs to move away from solely thinking about money first as shocking as that might sound for some people.

This is a copyright corner case. It’s hard to draw the lines on this one so that it’s possible to do this or even encourage other people to go forth and do likewise without doing other damage to rights holders. Huge chunks of songs are sampled and recombined.

We’ve been trying to educate people on that point for decades.

Recently I met a woman selling purses with the front page of major newspapers découpaged on each side. I asked her if she had received permission or was paying a license fee to the papers and/or the photographers for reusing their work. She said no, it was fair use and the photographer’s credits could be seen because she used the paper “as the paper” and she hadn’t changed the format or scanned the images, etc.

I argued for some time until she ignored me…

.

Years ago an old friend was doing some work experience for a company that was producing channel 4 idents specifically for what must have been the 1988 Olympics – she had to call up and ask for clearance and a price to use a few bars of the music by Vangelis from Chariots of Fire. She was quoted something like £2,000 which was a huge amount of money back then. The director laughed and told her to call back specifying that it was not a product ad, and see if she could get a requote, which she did, and the price dropped to around £50.

As for re-use that adds value – there was a pretty good campaign about 15 years ago by NICORETTE PATCH which were pretty much exact copies of the MARLBORO cowboy ads (even with the same cowboy) with the headline “WELCOME TO NICORETTE PATCH COUNTRY”.

MARLBORO don’t seem too worried by their copyrigt here though, as Richard Prince has found out, much to the delight of Sothebys.

RP

This in no way prevents aspiring filmmakers from making movies. It prevents them from making a blockbuster with out paying all the contributors a fair share of the take, that’s all.

There are plenty of laws on the books that are ignored by the courts, law enforcement and the citizens. That’s an acceptable approach to handling stuff like this. It’s not about creating the perfectly worded law it’s about adjusting it as we go.

Your other examples of commenting on a photographers work and banksy reusing the parts of several photographs are all covered under fair use as it stands now.

And, it actually is up to us as citizens to decide how copyright law works and what types of things are covered and if we think certain types of artwork should be allowed or not. That’s why I use my blog to voice my opinion about such matters.

I think there are two sides to how people think copyright should be figured out. Those who want the law to change to better reflect how copyrighted works are currently being used and those who are comfortable with the gray areas being defined by courts who will ultimately draw much of their decision from what the public finds acceptable and artists currently tolerate.

That’s why I think it’s important for people who care to voice their opinion about it. The future laws and court decisions will be based on what we all find acceptable.

A Sudden Gust of Wind
http://www.tate.org.uk/modern/exhibitions/jeffwall/infocus/section3/img2.shtm

Hokusai
http://www.man-pai.com/Grandes_series/Hokusai_Fuji36/FHH135.htm