5 posts tagged “fair use”
UPDATE: Lessig was apparently successful in this suit.
And another big win today for the Stanford CIS project
...a New York Supreme Court (that's the lower court in NY; the highest Court is the Court of Appeals) has denied Yoko Ono an injunction to stop the distribution of a film that uses a clip of Lennon's Imagine. Wonderfully, the Court explicitly refuses to follow the 6th Circuit's "no de minimus" rule sound recordings, and holds that there is fair use under New York's common law copyright regime...
I respect and admire both the individuals named here; I'm not a lawyer or biologist.
I did however leave a comment disagreeing with PZ on Lessig's defense of the Fair Use (of Lennon's "Imagine") claim made by the makers of "Expelled."
I had mixed feelings about Yoko Ono's lawsuit against Expelled — fair use is a desirable goal, but I don't think Premise Media was exercising fair use, since their movie wasn't about Lennon's music or ideas — so I can't say that I'm at all surprised or upset that the lawsuit is likely to go down in flames. I'm also not appreciative of the fact that Lessig thinks this is a "great success"; it is at best a mixed result, because while it may support Lessig's principled defense of fair use, it is also a case where he's supporting people who are promoting lies and ignorance.
It really doesn't matter much now, though. The propaganda movie is a dead issue, a complete flop, and it is not going to come back from the dead after a court decision that had no effect on its declining popularity is reversed.
Thank you #1 and #5, I agree, and mildly disagree with PZ.
Questions asking "is this a Fair Use" are complicated enough WITHOUT attempting to make a value judgment on the work in question.
I too would like to see Fair Use expanded, but my reason for that position is that Copyright law has in my opinion been completely corrupted and made into a vehicle for monopolies, corporations and excessive profiteering.
Were the copyright term restored to the original 15 years then we would have a lot more time to argue whether this or that is really "Fair Use." But of course, you would rarely have a survivor inheriting "rights of authorship" and attempting to "protect" something they did not create (Yoko)
Another example is the owners of the rights to "Gone With the Wind" attempting to suppress publication of "The Wind Done Gone" a re-telling of the story from the slaves' perspective. (They failed to suppress, thankfully)
So, broadly, Intellectual Property Law is so completely broken, you almost have to become a lawyer to completely grok how perverted it really is in relation to its intent.
The Mouse is In Control. Disney is Dead. Hannah Montana is Fake.
This comment is (c) copyrighted (tm) trademarked and (r) registered.
Lessig Response:
nicely put. thanks.
You're welcome
a cultural appropriation by Richard Walker
Update: May 2008
From the Lessig Blog:Deadline is June 2, 2008TotalRecut has launched a remix contest: "What is Remix Culture?" I'm a judge (as close as I'll ever get to that title, but now twice -- just finished judging the Obama in :30 contest). Cool prizes. Great question. Get busy.
Update: Feb 2008
- Lawrence Lessig has retired from his role as Free Culture advocate, and will be focusing on how money corrupts politics. A moment of silence, please!
- Steal This Film II is a very good shareware film that explain some Intellectual Property issues and history, without requiring you be a lawyer.
- The new book (and blog) "The Pirate's Dilemma" introduces a new name in the Copyfight wars: Matt Mason.
See Unread Book: The Pirate's Dilemma - Jenny Toomey has left the Future of Music Coalition.
- Nine Inch Nails released the source material to a work in the form of Garage Band Tracks. This was done specifically to allow remixing of the work.
- Nine Inch Nails in collaboration with Saul Williams offered a release with alternative payment options
- Radiohead stirred up a big controversy by releasing their last album In Rainbows with alternative payment options, including "zero money" pricing.
Cory Doctorow EFF graduate, Sci Fi writer, copyfighter, technologist, Canadian, CC-er
US Rep Mike Doyle Defends Mixtapes and Mashups on Floor of Congress
by Marshall Kirkpatrick
The Ecstasy of Influence (on radio program "Open Source", Christopher Lydon, PRI) Feb 2007
The "Ecstasy of Influence" with novelist Jonathan Lethem, who asks: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling -- without influences great and small, in other words -- is "creating" even possible?
Open Source » Blog Archive » The Ecstasy of Influence
Click to Listen to the Show (24 MB MP3)
Click to listen to my "Back to School Edit" of the Show (30 MB MP3)
(includes illustrative audio under hosler interview)Jonathan Lethem
- Author, The Ecstasy of Influence (Harpers.org), Motherless Brooklyn, The Fortress of Solitude, and the forthcoming You Don’t Love Me Yet, among many others
Siva Vaidhyanathan
- Associate Professor of Culture and Communication, New York University
Blogger, SIVACRACY.NET
Author, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens CreativityMark Hosler - Founding member, Negativland
Mike Doughty - Solo musician, Former guitarist and lead singer, Soul Coughing
- Extra Credit Reading - You can find Greta’s Mother of All Reading Lists here. She spent all day on it. It will make her very happy if you go check it out.
Update, 2007/02/07 (Christopher Lydon)
Mark Hosler of Negativland was kind enough to send me a few MP3s from their latest album, No Business. I asked him if he’d mind if we posted them on site. His reply: “I don’t give a s**t what you do with them!” Well, this is what we’re doing: No Business Downloading Favorite Things
Urban Slang: Gank: n. to steal or take something that does not belong to you.
An episode of Center for Internet and Society published on February 2, 2007
The Stanford Law & Policy Review and Stanford Law School welcomed Congressman Rick Boucher (D., Va.) to deliver a speech entitled "Congress Must Balance its Copyright Agenda".
Jonathan Coulton's charming "Code Monkey" is a song about a programmer. At the end of 2006, Jonathan and Quick Stop Entertainment held the "Code Monkey Remix Contest" [which provides links to tools to help get you started at remixing]
Here are the winners; I particularly like what Kristen Shirts did with it.
There many code monkey videos and video remixes on YouTube. Click here to search.
Thanks to Amber MacArthur and Leo Laporte for covering this on their podcast Net@Nite, ep14Future of Music Coalition
I've been a supporter and fan of Jenny Toomey's efforts for years now. She and her cohorts are working hard to make a better future for artists.
Lawrence Lessig (his blog)You may have heard of Creative Commons or the Electronic Frontier Foundation, two critical efforts he champions, both conceived "for the good of the people."
He welcomes artistic appropriation of his book "Free Culture," just click the link below...
"The Creative Remix" (October 2004) an hour-long broadcast special from
Here are Track one and Track two
A very enjoyable, lawyer-free, in-depth examination into the nature of creativity and "originality" from antiquity to the present day. Grey Album. Ancient pornographic literary theft. East Coast relics are given new life during an installation. Curmudgeonly antiques dealers are contrasted with young art school graduates. What is this thing? Less than five hundred bucks, the trafficker in dead things mutters.
Matt Mason began his career as a pirate radio and club DJ in London, going on to become founding Editor-in-Chief of the seminal magazine RWD. In 2004, he was selected as one of the faces of Gordon Brown’s Start Talking Ideas campaign, and was presented the Prince’s Trust London Business of the Year Award by HRH Prince Charles.
He has written and produced TV series, comic strips, viral videos and records, and his journalism has appeared in The Observer Music Monthly, VICE, Complex and other publications in more than 12 countries around the world. He recently founded the non-profit media company Wedia with his wife Emily. He lives in New York City.
Article by Matt Mason on TorrentFreak
Pirates are innovators, they signal market problems and lead the way to new business models. Nevertheless, they are tagged as thieves by many. We invited Matt Mason to write an article on the pirate’s dilemma for TorrentFreak.
Mason discusses why piracy can be an opportunity as well as a threat, how pirates
innovate outside of the marketplace and how legitimate businesses can respond.
Current TV just put up an interview I did a few months back with Brooklyn producers John Carluccio and Mark Kotlinkski - They dug up some cool slides I haven’t seen before. Mark also has a production outfit called 88 Hip Hop which does some great stuff - look for his film The Mural Kings about legendary graffiti artists TATS CRU - which is well worth checking out.
Related post: Lane Hartwell & The Richter Scales
Related link: Thomas Hawk: More Crappy Censorship From Your Friends at Yahoo!
Dear Mr. Lessig,
Thank you for your reply a long while ago regarding my frustration over wikipedia photos! Now, let me try another tack in light of recent events. Apologies for the length.
Could it be made legal to... expand and merge clear fair use, quotation, transformative use, allowable "under the limit" use with "damaged" use:
- lo-fi audio (unpleasant, noisy, covered by other sound, tinny, bassy)
- lo-fi speech (almost or partly incomprehensible)
- lo-fi image (important detail missing, no color, no color fidelity, small part of image)
- lo-fi text (tiny, unreadable)
- lo-fi video (fuzzy, tiny, misshapen, jerky, lower frame rates)
If the use is clearly not fair use, or not agreed to:
the
less "fair" the use is, the more you have to degrade the thing you are
using, so it is absolutely undeniable that you are using the work
because you must, but not stealing the thing.
In Hartwell v. Richter, let's assume there is only one photo of the subject, and no permission (but at least some sort of access.) Then, you have a painter or illustrator work from the photo, creating a new independent work. That may not always be possible, affordable, practical, scalable.
But, let's assume you are willing to torture the thing you want to use without permission.
Why
can I not take the photo, print it on poor paper, get it wet, step on
it, leave it in the sun, then scan it at poor fidelity, so that I have
an indisputably inferior derivative "copy." Can I not use that,
without permission?
My point here is that I think it would be a huge help if we could say that there is always more abuse, more squashing, more scratches, more dust, more noise, more distance, you can apply until you reach the point where a claim of infringement is so ridiculous as to make even the most aggressive lawyers blush. It becomes "fair use" because it's no longer aesthetically intact.
Take the Richter video into an editor, identify the Hartwell content, apply some censorware to the video, so that you see it strobe, or reverse, visually, so you see the censor marks but also sort of see underneath. Anyway, Ms. Hartwell might welcome a reversal of the take-down, and perhaps they could try to discuss compromise. Perhaps everyone wants to see it now. Perhaps its not as good as all that. But, a single challenge should not mean sudden death and amnesia (take down and forget.)
Maybe people will realize satire and parody have the easy legal argument, and in fact have to be very close to the original to have that protection.
Disney, Warner Bros., now with many decades of paid-for mythology that we'll be paying to see again on the screen or in the park. And, don't use Mickey or Bugs, or they will sue you, but they will use them promiscuously and greedily.
Perhaps social pressure will make people stop enforcing copyright when the real goal is to silence others and maintain a monopoly. A runaway success in remix culture may get clout and cash and permit creation of hi-fi derivative works.
Or, we can do nothing and wait for the corporate singularity (I'm trademarking that right now) to occur. That's when for obvious reasons different conglomerates merge geographically, so that entire states are serviced by one phone company multi-monopoly, one content provider, one retailer, et cetera.
We need to prevent the "owners name their own prices, at the last possible moment" bargaining, and try to force a uniform sane fee for a tortured derivative work, so you can retreat enough to be safe, then go forward. Each case should not be another fight to the finish over claims of infringement that call for death and amnesia. (and never offer reasonable licensing terms)
Their properties are not hated, people hate the way they are used like a bludgeon... And if they could just relinquish some control and see what develops.
Am I living in a fantasy to think this could be possible?
The kind Mr. Lessig responded:
From a practical perspective, it is a great solution. From a legal perspective, it is weaker, since copyright protects a "work" and not any particular copy of it. In some contexts, I agree this would be a great solution.
Civil war has been declared and is being waged on YouTube and in the blogocube
- Let's assume: high-resolution digital media should be licensed, "paid for" and not pirated.
- For lo-fi photos, lo-fi audio, etc. we could make use and re-use "free", "low flat fee" or "attribution only".
There have been successes making things free or very cheap, letting crowds and time do their magic. Then later you make money in sheer volume, in the tell-all book, the director's cut, the audio re-master, or the glossy magazine cover.
Ms. Hartwell should not have needed to yank all her photos; perhaps she could have replaced them with lo-fi versions, her name inside the image frame, and never made public her hi-res collections.
Most people should still use lo-res public galleries so people know where to go if they do want the "good stuff". Unless, of course, you have all the fancy rich clients you need, and don't care whether new people discover you.
The music industry has missed this exact opportunity as well:
(thanks to Alex Lindsay of PixelCorps.tv for providing a crucial piece long ago)
- Very-lo-fi DRM-free audio tracks everywhere
- Two levels of paid-for service: normal (limited hi-fi), or premium all-you-can-eat
- Playlists then make sense, because playlists should always "just work", and be portable
- Missing track is a thing of the past
- Lo-fi track is what happens when you are cheap or are trying before buying.
- General Solution: Make lo-fi versions of most every photo and audio track available, for free or very low cost, and make it easy for "creatives" to pay to license hi-res media, be it one photo, ten seconds of music, etc.
- Benefit: things don't have to be "taken down", just replaced with lo-fi versions where people haven't paid creators or gotten permission.
This could enable a whole bunch of non-commercial activity, and should the Richter Scales start becoming commercial, they'd license the work or get permission, maybe share royalty. If they used the photo out of laziness, and don't care about the fidelity, I think the argument leans toward their side. Maybe there weren't other recent photos of the "new media d***-bag" (Owen Thomas).
One shouldn't find the hi-res media by searching. One shouldn't find lo-res either if one is going to be sued or taken down after the fact. Perhaps this is Wired's fault? The implication is that Ms. Hartwell's snapshot is worth more than the final music video, which I refute. How can we let a lot of hard work and talent go down the (you) tubes because the rules favor accusers, corporations and lawyers and provide no clarity, no recourse, no compromise, no simple legal guidelines for simple artistic goals.
(I should mention here that Ms. Hartwell was very aware of the large number of views they were getting. She may feel robbed, but others may feel extorted)
I think what angers some is that briefly showing a likeness, photo and subject not unusual or artistic, requires a pre-negotiated license. I do not think it reasonable to make a career of selling licenses to use ordinary (in this case) pictures of people that you have access to and others don't.
That would put you half-way toward becoming a paparazzo, wouldn't it? A paparazzo who doesn't have to compete and has the cooperation of the "celebrities." These are big celebrities only in their small insular world.
We aren't talking Princess Di and Dodi, fer cryin' out loud!
Nalts Fans the Flames of Online Civil War
A flashconf on fair use?
