UPDATE 5/21/06: Watch Quicktime videos of the presentations at the Comedies of Fair U$e blog [now in progress].
Also, via On the Media:
Fair Use Follies
Simply put, "fair use" is a legal principle that allows copyrighted material to be used without permission from or payment to the owner. But a recent symposium on the subject at New York University demonstrated just how difficult it is to know what constitutes fair. And in the meantime, many creative types are left in the lurch. Amy Sewell, producer of the documentary "Mad Hot Ballroom", shares some war stories with Brooke.
Cloudy and Fair
Fordham University law professor Hugh Hansen is an advocate of strong copyright laws. But even he concedes that for low-budget filmmakers, copyright can be more of a burden than a blessing. Brooke speaks with him and with Duke law professor James Boyle, who thinks copyright holders have ushered in a "permission culture" that ignores the laws governing fair use.
This page will be continually updated as commentary and transcripts accumulate, and will eventually link to the NYIH site where they will post MP3 files of the entire conference, synched to Power Point slides, mash-ups, etc...
In the meantime here are some rough notes/transcripts of some of the sessions via IPTAblog, a law + creativity blog edited by Andrew Raff, a "recent law school graduate and geek based in Brooklyn, NY."; (note that these transcripts are as yet incomplete and contain many errors):
Comedies of Fair Use (via IPTAblog)
April 28, 2006, by Andrew Raff
I'm here blogging live (on tape) from the Comedies of Fair Use at NYU.
These posts are written in real time and represent notes, more than polished thoughts. But since there's no WiFi signal here, you're getting them on tape delay.
Friday, April 28
Lawrence Lessig on The Current State of Fair Use with responses by Allan Adler and Hugh Hansen; Siva Vaidhyanathan (moderator):
[Comedies of Fair Use] Lawrence Lessig
[Comedies of Fair Use] Vaidhyanathan, Adler and Hansen
Saturday April 29
Joy Garnett, Susan Mieselas, Art Spiegelman, Lebbeus Woods, Carrie McLaren, Joel Wachs; Lawrence Weschler (moderator)
[Comedies of Fair Use] Art
The Permissions Maze
Geoff Dyer, Susan Bielstein, Allan Adler; James Boyle (moderator)
[Comedies of Fair Use] The Permissions Maze
[Missing here are three sessions: Screening of Short Films; Documentary Film; and Music]
Sunday April 30
[Missing here: Now Where Are We?]
What Is To Be Done?
Judge Kozinski, Pat Aufderhide, Carrie McLaren;Lawrence Weschler (moderator)
[Comedies of Fair Use] What is to be done?
Andrew Raff's summation:
[Comedies of Fair Use] Thoughts on Fair Use
[...] A fascinating empirical study would look at the cost of the permission-based culture. It would calculate the cost of licenses obtained by publishing houses, record labels and/or film studios, compare it against the revenues obtained from granting similar licenses and then examine which of those uses might be considered a fair or de minimis use. (If anyone wants to fund this study, drop me a line!)
The Stanford Copyright & Fair Use Center has an excellent brief summary of fair use cases. One theme that recurred over the course of the conference was the need to fully litigate more fair use cases. Unfortunately, there is little business interest to litigate these cases. Since it is a matter of public interest and First Amendment free speech interests, but not in anyone's business interests, this is an area where even more public interest non-profit legal services organization would serve the public interest. The Stanford Fair Use Project (which is seeking an executive director) and the Brennan Center Free Expression Policy Project are examples of this kind of public interest organization. But with limited resources, they can only litigate a small number of important test cases each year.
A legal services organization could offer creators and copyright owners low-cost, heavily subsidized counsel in litigating a greater volume of fair use cases…
Also, here is a very lovely post by Laura Quilter about my and Susan Meiselas's joint presentation on the Art panel [some links provided by newsgrist]:
comedies & tragedies of fair use
The Comedies of Fair Use meeting wrapped up a few hours ago. Among the best presentations were the art panel Saturday morning, in which Joy Garnett and Susan Meiselas each discussed their side of the incident that became known as JoyWar. (There were other panelists in this session too; for instance, Art Spiegelman, who was hilarious.)
"JoyWar" began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy's art rapidly became a cause celebre among Internet artists and activists, who reposted Joy's art and remixed it with many new works.
Susan and Joy had never met before the conference, but they both agreed to come and tell their story in a joint session.
Joy explained that she sought images on the Internet of people exhibiting strong emotions; she found the images, and then set them aside for a time, specifically seeking to decontextualize the images so she could later focus solely on their aesthetics. She then repainted the photo, and exhibited it as part of an exhibition called "Riot". Mieselas' photograph was perfect for Joy's intended project: it showed a young man about to throw a molotov cocktail, an expression of intensity on his face.
Susan introduced herself by explaining that her goals as a photographer were precisely the opposite of Joy's: That it was critical to her to re-contextualize the photograph, to embed the image in the subject, the historical and political moment in time. The photo, she explained, was of a young man on July 16, 1979, the night that Somosa was finally driven out of Nicaragua, and the Sandinistan revolution triumphed. The photograph of this young man in fact became emblematic of the entire movement, of the revolution itself, and was stenciled and appropriated by all kinds of people. Susan felt a strong social contract with the subjects of her photographs, and went back years later to contact them. This young man, it turned out, was still deeply committed to the movement.
The striking thing was the obvious pain that both women felt at the conflict. Though their artistic goals and methods clashed, bptj Susan and Joy were thoughtful and sincere. Susan, for instance, really seemed to feel that she was possibly "old-fashioned"; that she just didn't get the new methods of appropriation. Joy, for her part, seemed to really appreciate Susan's goals and interests; but stood firm on her own principles. It really seemed in some respects a tragic conflict of interests, because, yes, Susan had real interests at stake. You couldn't but respect Susan's interests and the respect that she herself had for the subject of her work. I'm certain it took tremendous courage for Joy and Susan to come together in a public forum, after such a well-publicized conflict. And it's a testament in particular to Susan's courage and honesty that she presented her beliefs and reasons so articulately and passionately in the face of a potentially hostile audience.
The problem is that the interests Susan was seeking to uphold, through the tool of copyright, are not traditional copyright interests. Susan wasn't particularly interested solely (or possibly at all) in trying to protect her licensing revenue. She was interested, rather, in protecting her right to be custodian of the image: an interest that really isn’t even captured in moral rights as defined in Europe.
At the end of the day, Hank Shocklee, of Public Enemy, gave a "times they are a'changing" / "to the barricades, comrades" speech: He basically said that the old models of control are dead. It was a great moment, and I hope it’s true. There’s no question that we are paying too high a cost right now from excessive control over information. We are losing works, we are losing consumer rights, we are losing new forms of artistic expression.
But with every change, there are costs. Those who control information sometimes do it for the right reason. The hypertrophic growth of copyright law (as Jamie Boyle put it) has harmed the essential purpose of copyright law, the encouragement of creativity. But that same hypertrophic, harmful growth, nevertheless allowed Susan to pursue other interests not well protected in any other way: privacy, dignity, trust, political context and memory. I hope we find other ways — human, person-to-person ways — to protect those interests; they were never well served by copyright anyway. But it’s important to count the costs as well as the benefits for every change. I'm incredibly grateful I had the opportunity to see Susan and Joy speaking together so that I could see and hear the messy human values and reasons behind the legal conflict.
via madisonian.net, A blog about law, society, and technology:
[...] There is a sense in which we might draw the conclusion that the costs of "progress" have real faces, and because copyright gives us fair use the interests of the original "author" have to give way in the end. Too bad, so sad, as one of my colleagues sometimes puts it. And I think that would be an insufficiently nuanced lesson here; while Joy's legal claim may be defensible, the ethical claims of the two artists — and of the other interests that each represents — are in equipoise. Storytelling — individualized, personalized storytelling — is among the most powerful forms of argument that we possess, and evidence of personal courage is another, and this conversation blends them eloquently and persuasively. For now, I resolve the dilemma by not resolving it, except to suggest that copyright is simply the wrong language to speak — even, as Laura points out, in copyright's more expanded "moral rights" forms. [read full post]
Comedies of Fair Use, Thesis (A Paper), Lessig. Ruvym's Rant, 5/3/06
[...]There's a bit of a debate in the comments section going on over at Laura Quilter's blog; I put in my 3 cents:
Cynthia et al.,
It is important that you understand this: Susan and photographers like her exercise fair use when shooting photographs of other people's intellectual property, of people and places without ever having to ask their permission. Documentary photographers would not be able to function if it weren't for fair use. What she experienced when she saw my painting (whether it’s "derivative" as you put it I would be willing to mud wrestle over: I think not!) has been politely termed (by Siva V.) as "author anxiety." It's something we may all experience from time to time, and it does not signify infringement, but rather an emotional attachment to one’s original and to one's intentions, an attachment that is perhaps, as Susan herself humbly described, "old fashioned." But "originals", especially if they are documentarian in nature, such as journalistic photographs, are and must remain open to quotation, critique and artistic transformation by others without the permission of the original's author. And that's where fair use comes in again: it is a limit imposed upon authors' copyright control. Fair use is a good idea, it is written into the Constitution, it's part of the Copyright Act, and it's been there for a while. It would be kind of absurd, wouldn't it, for an author to be able to exert absolute control over who gets to quote or reference or critique their work, and how? Where would dissent be? Or criticism? As I mentioned above, if that work is informational in nature, it is vital that it be subjected to as many interpretations and generative processes as possible. How might it be considered good for one single individual to control the framing and context of something as complex, as multi-faceted as, say, a revolution?? That is where the argument of total control would eventually lead us, to a pure fascism of representation. I do not use that word lightly. And as Judge Kozinski was quick to point out at the conference, once you put a work out there it becomes part of our common cultural experience, it belongs to some extent to all of us (otherwise why put it out there?); it is something that will be built upon regardless of the author's wishes – it is something that we as artists have a responsibility to respond to and yes, create new contexts for.