Another "fair use" video and some thoughts

I saw this video posted on the copyright litigation blog and thought I'd share it:

I know I've posted about copyright before, but I think that the erosion of fair use is even more of a problem today than copyright violation.

Photographers worry a lot about people stealing their photos, and of course, that does happen all the time. Back when I was naïve enough to give clients unencrypted proof CDs (with low-res jpegs) it didn't take long for me to realize that people were printing out the crappy low-res unretouched files instead of ordering nice prints. More recently, I've moved toward a "free downloads" policy (and a price increase is coming soon) on weddings/portraits, but only print orders get full retouching. For commercial work, I let the people who represent me worry about it (they have more of a financial stake in it than I do).

As someone who loves street photography, I worry that the erosion of fair use makes daily life a legal minefield. Sure, it may be fair game (for now) to photograph people in public spaces, but what about logos, statues, art, etc.? Court cases are constantly redefining what you can and can't do. I can't keep up with all those cases, but I have noticed that fair use is under attack. Even libraries are being treated like enemies (read: "file sharers"). The common argument against fair use is the "copycat" attack, that is, people will be forced to be more creative if they can't copy. I think the above video makes a good case for fair use copying as an important part of cultural production.

How the entertainment industry is threatening the internet

If Plato were alive...

  

Plato: copy (copy!) of portrait bust by Silanion via Wikipedia

...he would have a thing or two to say about the discussion over at Tech Dirt about a judge dismissing a copyright lawsuit as bogus. In the lawsuit, one photographer (Janine Gordon) sued another (Ryan McGinley), claiming that he had violated copyright law because they both had photos of people jumping in the air with their arms spread out, or kissing, or other such nonsense. Thank heavens, the judge saw through the claim and let common sense prevail. I mean, look at my last post. Are we going to say that everyone that ever took a photo of someone standing in the middle of a road or sidewalk with a neutral expression looking at the camera is infringing on, um, Sander's pose?

I'm no lawyer, but from what I have read in books about photography law I had always heard that you can't copyright ideas, only the actual products that come from those ideas. In other words, I couldn't stop someone from replicating all of my ABC Paris photos (cue shameless self-promotional plug). They could go and take the exact same photos (or so I thought) and it would not be my product, therefore, not protected. And none of that ever bothered me. I mean, good luck tracking down all those things.

But then I read what the judge said about Gordon's frivolous case. There was a lot of explanation about how the photos were not all that similar once you really looked at them. Wait! So if they were more similar, Gordon could have won? This didn't coincide with my understanding.

This led me to start reading the comments after techdirt's post. It wasn't exactly like reading Plato's Sophist ("lawyers suck!" is hardly great philosophy), but it's a pretty fascinating, and for the most part, civil, read. In my mind, commenter "Dandon TRJ" (a law student) is the interlocutor who gets to be Socrates. Not that his are the only smart comments. Go read the comments if you are interest in copyright issues. Toward the end, the discussion starts to stray into questions of whether photography itself if art. "Bnesaladur" imagines a world in which you have to watch how you stand lest you be infringing copyright and then makes the provocative assertion that "photography is not art" because "all you have is a near exact representation of the world." I don't think it's too difficult to cut through that argument, but I just may ask my students to do it and see what they come up with. Since I was just making up a syllabus for the critical theory class I'm teaching this semester, I couldn't help but think about all the hullabaloo (can't think of when I last used that word) over Plato's idea of the simulacrum (as in "similarity"). At the mercy of post-structuralist theorists, the idea became as complicated as copyright law. If you feel like putting on your black turtleneck, smoking a gauloise, and getting a hot cup of coffee at your local pretentious coffee house, you have months of mind-bending reading ahead of you. Non? Then check out the comments at techdirt.

A quick word about copyright law

I'm typing this on my iPad from Cincinnati. I'll be back to real posts next week. For now, can I just point you to this article about that irritating French guy featured in "Exit through the giftshop" known as Mr Brainwash...

As much as I hate to be on his side, I think the judge's ruling against him in a copyright infringement lawsuit is another disturbing sign of how copyright law is going in the wrong direction.

The judge examines the four factors of the fair use test, including (1) the purpose and character of use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work, and determines that Guetta can't satisfy his burden in establishing this defense.

(read the whole article and see if you think it was the right decision)

Here's the thing: the guy was not simply selling posters or photos of the original, and if anything, his installation (made with 1,000 records) might have renewed a potential market for the original work. It seems to me that there are a lot of corporate wolves clothed in the "protection of the artist" sheepskin.

The article asks if Andy Warhol would have survived the current legal ruling. Probably not, but things are even worse for street photographers. Between all of the people, the businesses, the car license plates, the advertising, etc ,etc--- we are always walking in a legal minefield. Pretty soon we will just stay inside taking photos of flowers or bowls of fruit instead. But not without carefully removing the "Dole" stickers first.