To all you intellectual property/fair use/copyright law geeks, this one’s for you….

This is wildly OT, like I sometimes tend to be on this website, but here’s a pretty nifty comic by some law professors at Duke that portrays some of the perils faced by documentary filmmakers while navigating the thickets of fair usage under copyright law: Tales From the Public Domain: Bound By Law

For a bossy little bitch, I tend to favor somewhat anarchistic systems of organization, and my thoughts and feelings on copyright law are informed by this bent. On one hand, copyright protects important rights for artists and creators, and I certainly don’t think abolishing all forms of copyright law is a viable answer; on the other hand, certain aspects of copyright law as it stands now and the way in which it’s being (ab)used by some copyright holders seems, well, ethically suspect, even if it’s legally kosher. Keeping to the letter of the law but violating its spirit, if you will.

We’ve had some interesting discussions on copyright before right here at Smart Bitches, like in the comments to this entry about e-books. I’d like to hear more opinions about this issue, especially after you’ve read the comic.

Comments are Closed

  1. This was fascinating.  I gave it a quick once over, but I want to read it again.  It’s been 30 years since I studied Law of Mass Communications, and I’ve forgotten some of it. 

    OK, much of it.  But it’s still fascinating.

  2. Anne says:

    They dodge a key point, I think — if I get sued, I am screwed, period. I don’t have the money to hire a hotshot lawyer, or any lawyer, to defend me, even if I am so unbelievably lucky as to be awarded court costs (do you think the bank will lend me tens of thousands of dollars on that assumption?).

    Worse, the wonderful benefits of fair use that they describe do not apply to me. In Canada, we have a totally different system called “fair dealing”, which I don’t understand.

    They make some good points, but they understate the problem.

    What can we do?  Publish things under a Creative Commons license.  I notice this blog is not. Why is that?

  3. Candy says:

    “Publish things under a Creative Commons license.  I notice this blog is not. Why is that?”

    I didn’t know that blogs required copyright/copyleft notices. However, my Stupid-Ass Serial Story is licensed under a Creative Commons License (an Attribution-NonCommercial-ShareAlike license, to be exact).

    And actually, the law profs did cover the issue re: court costs, and note at least two or three times in the comic that a lot of people give up the fight prematurely because they don’t have the time or money to challenge big companies. I do agree that they may be understating the problem a little, but I tend to skew very, very left in these issues, and I’m also not well-versed in this particular area of law, either in its theory or its application, so I’m not sure I even have an idea of the scope.

  4. We had a lot of these kind of things happen. An author in our mainstream line wanted to use a couple of lines from a song as an intro. Did the right thing and contacted the artist. $450 for two lines of text. Needless to say, the book was published without it.

    I understand the need to protect your property only too well. I’m an ebook publisher. Seems like every other day I have to contact a hosting site and turn in someone selling or giving away my ebooks. But I think some people go a bit too far. Especially when it’s free advertising, since credit is given.

  5. Anne says:

    Everything is copyrighted, to a first approximation (for example, technically, I own the copyright to this posting and you can’t copy it to a new server without my explicit permission — brilliant, eh?). As they say in the video — no notice: you can’t use it for anything, ever, without contacting the original author. Try that in fifty years…

    Of course, all this is confused by the fact that copyright controls *making copies*, and it’s impossible to read the blog without several copies being made.

    Er, you’ll notice that I’m a raving copyright nutcase, so I’ll get down from my hobbyhorse now.

  6. Candy says:

    As they say in the video — no notice: you can’t use it for anything, ever, without contacting the original author. Try that in fifty years…

    But this ignores fair use (including quoting/excerpting works for research, criticism and parody/satire), which the US courts have somewhat consistently found for. I mean, the US Supreme Court found for 2 Live Crew in Campbell v. Acuff-Rose, which sets pretty significant precedent for that sort of thing, no? (I may be talking out of my ass, since I’m by no means a lawyer and even less of an expert on copyright law.) However, I do understand that many companies can be total bitches and still drag this to court even knowing they don’t stand a chance, since court costs and lawyer’s fees have a chilling effect on small fry like us.

    This is all ultimately an indictment of the state of economic and power disparity in the country than copyright law per se, I think.

  7. Laura Kinsale says:

    I can’t agree, Candy.  Many copyright holders, including most published authors, are “small-fry” and can’t even afford to protect their own copyright from egregious violation.  So the publishers (“big companies”) do it for them, but it’s not something even publishers leap to do because it does cost money to even file a lawsuit.

    Copyright always has and always will ride on the line of what’s-fair-to-whom among competing interests.  And therefore it will always be contentious by nature.  If one side “lightens up,” and gives an inch, then believe me the other side will try to take a mile—that’s demonstrably true in both directions, copyright owner or “fair user,” little guy or big. 

    Parody and satire have been routinely allowed as fair use, as you mentioned.  In a different area, now we have this suit regarding The Da Vinci Code and the non-fiction book Dan Brown used for research and even credited (the copyright complaint strikes me personally as fairly unfounded) where the “little guy” is going after the “big guy.” 

    So I don’t think it’s possible now, or ever will be, to view copyright and fair use battles as an indictment of power disparity.

    This isn’t to say that I don’t agree with you that economic and power disparities exist, but in the case of copyright I don’t think that kind of issue is nearly as clear-cut as it’s sometimes made out to be.

    LK, another copyright geek

  8. Candy says:

    Laura: I certainly don’t think that ALL copyright holders are lawsuit-happy fatcats. I just wanted to note that when it comes to getting their shit stomped on, the little guy will more often than not come out the loser, if only because that’s the way the world works. A lot of times, this doesn’t even come down to court battles. The people who made Mad Hot Ballroom didn’t even try to legally contest the absurd demands made by the various music publishers (I mean, c’mon, a few thousand smackeroos because some ball player yelled out “EVERYBODY DANCE NOW”?). I have a feeling a lot more of this sort of thing goes on than is documented, whereas frivolous lawsuits by small fry against the big players tend to get press. Who gives a crap that some civil rights documentary can no longer be distributed because they can’t afford to renew the licenses? Dan Brown, on the other hand, or that author who was sued by that fanfic writer (Lackey? McCaffrey? Marion Zimmer Bradley?)—those are public figures with a big fan base and name recognition.

    So, not at all trying to say copyright holders, even copyright holders with plenty of dosh, don’t get some grief. But collectively, I think people like the documentary filmmaker trying to get a freakin’ ring tone cleared or a guy getting cease-and-desist letters because he parodies a billboard on his blog receive a disproportionate share.

  9. celeste says:

    Thanks for that link, Candy. I’ve forwarded it on to a few friends who are fellow copyright geeks. Insisting on payment for the incidental appearance of a ringtone in a documentary is an abuse of the law, IMO. If they’d used the song as the theme music for the movie, sure, they should pay for it, but not in this case.

    I wish someone would take a case like this all the way to the Supreme Court to establish some clearer case law. Oh, and so that overly litigious music companies (and others) who reach so far beyond their legitimate rights can be exposed and ridiculed. 😉

  10. CindyS says:

    I wrote a reply and something ate it but just wanted to let you know that I think I may have learned something from the comic.  Hard on the eyes but, I learned.  Then I learned from Anne E that it’s different in Canada.  Bloody Hell!

    I liked the part about private use and asked my husband about music downloads on the internet.  Wouldn’t that be for private use.  He said, no, because you are linked to the internet and you are allowing others to download the music from you so it’s not for private use.  So now I understand the music problem more.

    I was always pissed about the music because I wanted to know what the difference was from taping music from the radio (was allowed and they sold tapes and recorders) and downloading it from the internet.  It just means, I don’t have to wait for my favorite song to play, I can go out and get it.

    I understand it a bit more with this copyright thing but still, ow, the brain rebels.

    I think I would be one of those people who would just become overwhelmed by everything coming at me.  What baffled was how the guy yelling ‘everybody dance now’ and the ringtone wouldn’t be considered fair use.  Not only that, if the ringtone is playing, hasn’t someone somewhere allowed for that to happen?

    It’s like inheritance tax.  They tax money that has already been taxed once.  Pisses me off.

    Oh, do you ever wonder if Marilyn Monroe had to pay for the Happy Birthday song she sang to the president?

    Another thing, something that really chaps is the notion of history being owned.  Not having seen some of the documentaries mentioned, I would now love to see them.  Discovering one is no longer available because they couldn’t afford the licensing is painful.

    CindyS – not sure I’m following the dots but I’m in there somewhere!

  11. fiveandfour says:

    I recently watched The Corporation which touches on this issue from a slightly different angle: patenting of processes or scientific discoveries.  Michael Crichton (not one of my favorite people, but when he’s right, he’s right) sums up that portion of the movie somewhat well here.

    It frightens me no end that things are so unbalanced right now that it’s literally possible under current U.S. law for someone to claim a “patent” to human DNA.  Personally, I believe some things are beyond ownership by one person or a group of people – they belong to all men, universally and equally – and DNA is one of those things.  So I agree with the lawyers who made the comic when they say that the system is unbalanced.  I absolutely believe people should be able to get fair recognition and payment for their creative (or scientific) works, but “fair”, to me, does not encompass laying claim to brief moments of works occurring in the background of a scene from everyday life, nor does it include claiming a right to a portion of my genomes.

    I think the “ownership” of outer space is probably a good example for backing what Candy was saying earlier about the power disparity.  Does anyone really think space is owned by any one person or country?  Yet there are some countries that behave as if this is so and they get away with it because they can, not necessarily because they should.

Comments are closed.

By posting a comment, you consent to have your personally identifiable information collected and used in accordance with our privacy policy.

↑ Back to Top