Transformative Use

I am in the midst of producing a dance theater production titled All Good Men. All Good Men began its life as a dance theater adaptation of a Dylan Thomas filmscript (The Doctor and the Devils – originally published 1953.) I have not sought permission to adapt and perform the script.

Completely unrelated: Michael Jackson passed recently. I was never a teenage girl, and we didn’t have cable when I was growing up, so while I appreciate his music, MJ never meant much to me. But a lot of my friends are in full Triple M swing (Michael Memorial Mode), and one of them recently posted the following on facebook. It’s a bunch of clips from Fred Astaire movies, set to MJ’s song Smooth Criminal.

While enjoying the cool of the video, I couldn’t help wondering how long this will stay up; there is no way the music has been licensed (or it would have a permission granted credit), and I’m quite certain that the movies haven’t be licensed either. To see a longer post on copyright, click here. In case you don’t want to read that:

If someone makes something, they own its copyright. The term of copyright can expire, but in the case of both MJ music and Astaire movies, I’m certain that’s not the case. Copyright permission is – therefore – required. There’s a lot of legal work happening now about transformative use. Transformative Use is using part of something copyrighted to make something new – that you then own the copyright of. The famous Barack Obama picture by Shepard Fairey is a fine example.

Obama_Poster_ColfYou can see stuff about that here, here, and here. Fairey talks about it here and here. This video of Fairey talking about his work is also worth a view.

With Transformative Use one is re-working an existing piece to create something totally new. Tansformative use is one of the concepts that exists within Fair Use law. A Fair Use – Transformative Use defense of a usage does not mean that a usage is legal. But judgments in Fair Use defended lawsuits usually hinge around impact on the value of the previously existing copyrighted product. Does the value of the AP photograph decline because of Fairey’s use? Does the video bring down the value of MJ’s or MGM’s catalog? Does my production bring down the value of Thomas’s work? With Fairey’s pic his usage certainly didn’t devalue the original photograph. With the MJ video – if a song or video is available for free, people won’t buy it (as much.) With my production, I’m pretty sure I’m not harming the value of Thomas’s product. But that is not something I get to decide. The copyright holder gets to decide that.

Aside from the impact on the value of a prior work, there is the issue of credit. I am crediting Thomas, and the video credits Jackson and the film participants. The Ap is suing Fairey to get credit for the photograph (as you can see in one of the links.) If whomever posted that video doesn’t have permission -even though the usage is transformative- I wouldn’t be surprised to see it get pulled.

Author: Robert Bettmann

Founder of Day Eight, and the DC Arts Writing Fellowship.