Robert Bettmann – Page 56 – Robert Bettmann

Artists Should Know About Fair Use Copyright Law

copyright2 This was originally published as “Fair Use Copyright Law for Artists” – Published on Bourgeon, May 22, 2009. I think artists need to know that Fair Use copyright law exists, cause it’s important to understand what copyright gives you control over, and what it doesn’t give you control over.

As you know if you read this blog regularly, I don’t usually write for Bourgeon. Bourgeon is a communal publishing point; a place for artists to share their words about their work. Every now and then though, I do man up and write articles that I think are relevant to the community. Bourgeon’s readership is the art-interested public, and artists themselves. If you’re reading this and you’d like to be published in Bourgeon, please don’t hesitate to contact me; I’m always interested to hear/learn more about what folks are up to.

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Creators today may assert copyright ownership of their creations, but this does not necessarily limit the publics legal access to or usage of their work. Fair Use copyright law is intended to protect usage of a copyrighted work for criticism, comment, new reporting, teaching, scholarship, and research. In application and implication, Fair Use law has significant impact on creators, scholars, and journalists.

Fair Use law is different from some other areas of the law in that legality of an action depends on several factors. Harvard Law School Professor and copyright expert Charles Nesson wrote, “Fairness is a standard, not a rule.No simple definition of fair use can be fashioned, no bright line test exists.” The U.S. Copyright Office outlines four factors in determining whether or not usage of a copyrighted work is fair (legal):

“The purpose and character of the use.the nature of the copyrighted work.the amount and substantiality of the portion used. and, the effect of the use upon the potential market for or value of the copyrighted work.”

In order to clarify some of the inherent fuzziness in the law, practice communities (such as book publishers, movie producers, and the music industry) are empowered to create Statements of Fair Use. These Statements document common allowable usages, and outline (but do not define) the ways in which a member of the public may use copyrighted material without reasonable threat of legal repercussion.

On Friday May 8th, 2009, the Dance Heritage Coalition presented the results of their multi-year project to develop a new Statement of Fair Use for Dance-related Materials. The mission of the Dance Heritage Coalition is to improve the ability of the dance community to retain and utilize materials documenting the art form. According to Project Director Libby Smigel, through developing and publicizing the new Fair Use Statement, the Dance Heritage Coalition hopes to encourage increased access to and usage of Dance-related materials. Smigel asserted that one reason archival materials remain out of sight to the public and researchers is confusion over copyright, and fear of lawsuits. The press release for the event noted, “it hasnt been clear how librarians, archivists, and curators can legally use. images and texts.” The issues addressed in the new Dance-related Materials Statement are common to other art forms. Fair Use access issues apply to images, videos, notes, copies, and recordings of any type.

In an explanation of Fair Use issues on their website, the Copyright Alliance (a trade association dedicated to tracking copyright issues) explains, “An individual does not have the right to make use of anothers copyright work. [Fair Use may apply] when someone already has a copy of a copyrighted work and makes copies, distributes, performs, alters, or displays that work and the copyright owner subsequently challenges that use of the work as being an infringement. In that case, the person could raise a defense of fair use.” Fair Use law is not intended as a defense for people who are simply too lazy to seek copyright permission.

nixon-leaving-white-house The impact on the financial value of a copyrighted material is a central issue in settlement of Fair Use-defended law suits. Writing on his website, journalist Brad Templeton reported, “Famously, copying just 300 words from Gerald Fords 200,000 word memoir for a magazine article was ruled as not fair use, in spite of it being very newsworthy, because it was the most important 300 words – why he pardoned Nixon.” Artists would be well-served to empower their own usage and the usage of others by considering how fair use law applies to their work.

The best way to be certain of the legality of ones usage of a copyrighted material is to seek copyright permission. In the event that copyright permission is not secured, Statements of Fair Use articulated by practice communities provide guidelines for usage, and defense in case of prosecution. To receive a copy of the new Fair Use Statement in Dance-Related Materials produced by the Dance Heritage Coalition, or to learn more about the document, visit www.danceheritage.org.

About All Good Men

I’ve written a number of posts about creating my new evening lenght show. This post sort of condenses lots of the writing from those earlier posts, and adds a little more context.

From 2002-2004 I had a company called the Blackbird Dance Ensemble. I made two evening length shows in consecutive summers, and with the support of grants I was able to perform in DC, New York City, Boston, and at the American Dance Festival. People responded positively to the work, but I didnt. I didnt grow up dancing, and I realized that I needed to become a better dancer to become the choreographer I know I can be. You can only focus on so many things at once.

Ive worked very hard on my dancing over the last five years, and it has paid off. Ive had the opportunity to dance for a bunch of local companies (Jane Franklin, Alexandria Ballet, Maida Withers, etc) and even got to perform and teach in Russia – a dancers Mecca. I decided last year it was time to start choreographing again. But I didnt get any of the grants I applied for, and so wasnt able to do a show. I didnt get any grants this year either, but I realized I simply had to get the party started. I know what Ive got, and have no doubt that one makes it easier to be overlooked when youre not out there making things. In December of 2008 I finalized my plan, and began working on the project that will premiere in the Fringe Festival under the title, All Good Men.

My work for the project began with the development of a script to use as the root for the evening. I picked up a Dylan Thomas film-script in a used bookstore in the fall of 2008, and was really grabbed by it. I decided to do a dance / theater adaptation. For little while I tried to rope in a theater director to help with the adaptation, and to co-direct. That being un-successful, I settled down to doing it on my own.

You might know Dylan Thomas as the poet famous for such lines as: “Do not go gentle into that good night”, and “Wow, I finished the bottle of scotch already?!?” (Thomas was a professional writer who died from an alcoholism-related illness at age 39.) His most famous script is the radio play Under Milkwood. Im producing an adaptation of The Doctor and the Devils. After reading everything I could by Dylan (LOC, yeah you know me) I started typing up the script. The task was to take a 150+ scene film-script and translate it into something that could work on a stage, with dance.

The Doctor and the Devils is centrally concerned with the interaction between a medical professor/doctor and a group of people who dug up bodies to sell to the doctor for use in dissection in the academy. All of the characters are very complex, and the language is brilliant. I needed to simplify the plot, cut characters, and cut scene locations to make it viable on a stage. (Its now down to 20 scenes, seven characters.) Part of the process was figuring out where the dances would occur, and why. For me the core of the script is about our interaction on slippery moral slopes; how we all jostle and push each other up and down moral slopes. Dance is a very in-efficient replacement for language, but for handling the ineffable, its far more efficient than words. The dances expand and personalize the issues raised by the text in a way that simple theater couldnt.

Last month we started rehearsing the dances. Im really pleased with how its going. Ive told the cast that I think the fascia that holds the whole piece together is within the dances. While we did a read-through at the first rehearsal, since then weve only been dancing. Ill put up some rehearsal photos and perhaps some video in a future post, and perhaps talk more about what were doing with some of the specific dances, but Ive gone on long enough for now.

Gun Control, Gay Marriage, and Home Rule: Three Wrongs Make a ______

For two years now I’ve been the Chair of the DC Advocates for the Arts. The position has made me more aware of local political advocacy work.

The biggest issue in local advocacy is voting rights. It’s like the holy grail for locals involved in politics. The system right now is that DC’s budget, and legislation, have to be approved by an oversight committee in Congress. And we get no votes on national issues, because we have no votes in the House or Senate. Being a constituency of over 600,000 mid-atlantic residents, I know of no DC resident against voting rights, and, as a constitutional issue, you would think that Democrats and Republicans would see this as a no-brainer.

The catch is that DC is Democratic. VERY Democratic. If you want to get right down to it, looking at past votes, it seems there’s a decent chance we’d elect Karl Marx.

As example: in the Bush/Gore election the District went 91% for Gore (the largest margin in the nation.) Because a vote for DC would mean a vote for Democrats, Republicans oppose home rule, as it’s called, for the District.

Now that there’s a Democratic majority you might think we’d get this done. But in terms of priorities, non-District representatives (and that’s the only kind there are) don’t really care about this issue. And, advocacy organizations on other issues are squeezing their issues into Congressional consideration of home rule. The two biggest issues being squeezed in are Gun Control, and Gay Marriage.

Until recently, the District had a very sensible, 21st Century, urban gun policy: handguns were illegal. This did not stop gun crime, but it did reduce it. It meant that any district resident with a gun was breaking the law. This was a good thing. But not to the NRA. After the courts struck down the law (a few months ago), the City Council passed a series of efforts that is opposed – of course – by NRA-backed representatives in Congress. And remember: all our legislation has to be approved by a congressional committee.

For some years the District has had a very sensible set of domestic partnership laws, which provide most of the State marriage benefits. Last week the Council passed legislation acknowledging same-sex marriages from other states. This too must be passed by Congress.

There is currently discussion of introduction of a Gay Marriage bill in the City Council. In deciding whether or not to take up a gay marriage bill, it seems the concern is over the connection between the forwarding of this issue, and its impact on voting rights for the District. Writing on a U.S. News and World Report blog recently, Robert Schlesinger argued just that. He wrote,

“If the City Council moves on gay marriage before the D.C. voting bill is brought back up, one can expect social conservatives to try to attach legislation rolling back that law as well. They may not succeed in banning gay marriages in the district, but they could well sink voting rights in the process.”

Aside from the problems with the writing (I think there are one too many they’s in there, no?) Schlesinger implies that politics has nothing to do with momentum, or judgment. Gay Marriage is a civil rights issue. It used to be illegal in this country for a black man to marry a white woman, or vice versa. It wasn’t until 1967 that the U.S. Supreme Court struck down miscegination laws in, as one blogger put it, “the most aptly named case in all of American constitutional history: Loving v. Commonwealth of Virginia.”

I don’t imagine that conservatives wanted to give the right to vote to blacks, or women. And I don’t imagine that they want to give it to the District. And, as happened with those fights, I’m certain that lots of un-related issues were thrown at the people who wanted to simply do the right thing on those issues. (I realize I’m mixing legislative and judicial decisions here, but it’s clear from the 200 year history of this country that that’s simply the way it goes.)

As long as the government is legislating our relationships, it’s absurd that some adult relationships are being afforded benefits that others are denied. And, gun control saves lives. And, the District should have voting rights. And, as long as I’m a citizen of this country: you don’t get to tell me that I don’t get to vote, you don’t get to tell me who to love, and you don’t get to tell me what to vote for.

So here’s the quiz for local folks working in the political realm, inside or outside of government: three wrongs make a ________. I know that in the political world it’s easy to get very involved in how this is all going to work, and to err on the side of caution. But as District residents can we please not pretend to be something we’re not? We’re liberal. They know it, and we know it. We should be who we are. Three wrongs don’t make a right.

As far as the politics of it all, I like this scenario: There’s no movement on voting rights, cause no one really cares. We pass Gay Marriage. The Representatives from the committee that oversee the District overturn it. There is mobilization and awareness raised around the country for home rule and gay marriage. We end up getting both. Democrats gain a seat, or two or three, in the House.

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Editor’s Note: I made a mistake in my assertions about the Congressional oversight process, and have been corrected. All legislation does not have to be approved by Congress. Here’s the deal on Congressional oversight:

All D.C. legislation must undergo a congressional review period, but Congress does not have to approve it for it to become law. Congress can vote to disapprove it, and if both houses of Congress do so it then goes to the President for his signature just lilke any other bill. But Congress does not have to take any action. Congress does have to pass D.C.’s annual appropriations bill–not just the federally funded portion, but the whole thing, including how we spend our own local tax revenue.

My thanks to RR for correcting my error. 5/15/09