Copyright & Cyberlaw

Class 2: February 3rd – Fair Use & Remix Culture

• Joy Garnett, Steal this Look
• Matthew Rimmer, The Grey Album: Copyright Law and Digital Sampling
• David Bollier, Viral Spiral: Chapter 3: When Larry Lessig met Eric Eldred

Molotov – Joy Garnett

Sometimes there are topics that make your brain turn loops, fizz, and fall over.  The rights of artists to protect their work, in the form they created it, balanced against the rights of other artists to mash-up, re-invent and progress the bounds of art is one of those topics.

We discussed the Meiselas-Garnett controversy at length last year in Comm Lab.  My colleague Lee-Sean Huang wrote a thoughtful post arguing that it was in fact the subject of the art, Pablo Arauz that had really been ignored.  He wasn’t asked how his image was used.  Am not sure how far this argument can run given the number of people depicted in art works.  However, his point, its “not about you” in reference to both artists did pull the discussion up to a cloud-eye view of the rights that people have when something of them is in a piece of art – whether initial creator, subject or re-mixer.

From “Nicaragua” Susan Meiselas

How do you make sense of copyright laws?  This week’s reading bombarded us with cases, theories and real life issues.  To me its pretty clear cut.  There are two main reasons for copyright:

• to allow authors to profit from their work (and not those who didn’t do the work)
• to protect authors from having their work changed to something they didn’t intend it to be

The first one seems pretty fair, and I argued this last year in Comm Lab.  Argument as follows: “I made something, I put time and effort into producing it, I want to reap the financial rewards from my work.” Ok – that seems fair to me.  And the argument that other people do not deprive someone of the profits from  a piece of work that can be replicated, eg software, doesn’t wash with me.  Loss of profits from the nth sale of a good, will still deprive the author of income if it is replicated.

What if there’s no money?

This is the juicy issue.

The Sonny Bono Act extended copyright terms, allowing the owners of work to benefit from longer copyright ownership, the well cited example being Disney and Mickey Mouse.  But what about sweeping up works that are no longer commercially valuable, yet still copyrighted, and putting them into the public domain, just like Eldred?  This is a different issue.  This is about access to works.  Is a copyright commons the answer?

The idea of a commons as discussed in the Rimmer piece is particularly interesting now that it is 4 years out of date.  His concern that the concept of Creative Commons might not work with those outside the legal world (“non-legal actors”) will be fun to discuss in class this evening given I suspect that a roomful of non-legal actors will be sitting there, most of them with CC licenses on their Flickr photo collections.  How do we judge the success of an alternative form of copyright?  Specifically, is the key indicator of its success the number of avoided litigation suits, or is it the increase in legal remixing, or finally, can its success be measured simply by its widespread use?

An alternative to traditional copyright was sorely needed at the time Lessig met Eldred, and also when Garnett got the letter from Meiselas’ lawyers.  We’ve got one with quite a large user-base now compared to then.  But CC is currently still an opt-in system.  It is not an overhaul of the legal copyright system as a whole.  All good reforms however, begin with the adventurous few, grow to the open minded early-adopters, until the people in control start to take notice.  I think that is definitely going on now in the copyright field at the moment.  Thank you Lessig.