Fair use abuse

This Chronicle clip talks about the academic/pop culture remix uses of copyrighted video on the web. The American University profs in the interview claim that the sorts of uses they sample for the reporter are fair, and contribute to a new kind of dialog among people. I’m not inclined to agree. I think most of those things are opportunistic misuses of creativity… because they build a creative product on someone else’s investment.

The fact that they’re funny and creative in their own right doesn’t matter to me as an artist. The law is designed to protect artists from having their work reproduced and distributed by others, because the duplication of images I created cheapens the resale value of those images for me, as the artist.

I’ve done many parodies of other creative works over the years. No problem with that. But I’ve done so the right way, by recreating, with a twist, the original idea in a way that serves my client’s communication objective.

Fair use? Sure, a couple seconds of a news event, a very brief clip from a concert at a college, to show the audience that the event occurred. That’s fair use. But if I were to repurpose the entire chorus of an artist’s song as part of the sound track, letting the words or music set the mood for that segment of the video — that would NOT be fair use, but would instead be benefitting from the other artist’s work without paying him. So in those cases I always contact the artist and explain the desire to use his work for that purpose, and tell him what the college can afford (usually from a few hundred to a few thousand dollars, depending on artist, purpose, and how it will be distributed). Usually, along with credit they’re happy for the exposure at a nominal rate.

In the movie I Am Sam, the screenwriter wanted to use Beatles songs because that was part of the title character’s shorthand way of communicating with his daughter. They didn’t have the king’s ransom it would take to use 10 seconds here or 30 seconds there of real Beatles songs. This seemed like a setback … but instead they went to relatively unknown bands who cover Beatles tunes and hired them to recreate the songs. Then, they only had to buy less expensive performing rights and the much less expensive song usage license for the movie. Was this a noble purpose, a new audience, a creative recontexting of Beatles music? Yes. Would it have been fair use? No, and if they had tried it they would have risked facing the punitive damages and criminal penalties that the copyright law has been given to enforce it.

I once violated the copyright law myself, and it still gives me the creeps to think about it. I was doing a motivational show for a sales meeting in Phoenix… a one-time feel good meeting for a bunch of guys who had been through a rough time in their struggling division of a Fortune 100 company. I took 20 second to 1 minute clips from a bunch of different movies and added a narration by a voice that sounded like the country philosopher. The theme was “great beginnings”, and every clip was either funny or inspiring. Did I get away with it? Yes, because it was under the radar in 1989 or so. Was it fair use? Not on your life. It was an abuse of the fair use laws and I’m glad no one ever caught me.

Let’s end this on a light note by breaking the law together… 🙂

PS. The report you can read yourself is by Pat Afderheide and Peter Jaszi, co-director of the American University Law School’s Program on Information Justice and Intellectual Property.

I just interviewed an attorney who is an expert in intellectual property a few months ago. I’ll contact him and report back to you what he says about it.