Category: Politics

Artists Should Know About Fair Use Copyright Law

copyright2This 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-houseThe 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.

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

I Don’t Want to Paint the Fence: why big media should pipe down and get back to work

Writing April 27th, 2009 in the online magazine Slate, Gary Kamiya argued, “If reporting vanishes, the world will get darker and uglier. Subsidizing newspapers may be the only answer.” Kamiya’s article – titled “The Death of the News” – is just one in a recent onslaught of articles considering print medias’ current troubles. In a commentary published last week by the New York Times, Maureen Dowd asserted, “my profession is in a meltdown.”

The facts of the issue are dramatic. The website Newspaper death watch.com reports that since the creation of the site in March, 2007, 10 daily papers have ceased print publication. (The Rocky Mountain News; Baltimore Examiner; Kentucky Post; Cincinnati Post; King Couty Journal; Union-City Register-Tribune; Halifax Daily News; Albuquerque Tribune; South Idaho Press; and San Juan Star.) Declining revenue is to blame for these failures. Writing on Slate in 2006, Jack Shafer reported, “Everywhere, newspapers are chucking stock tables, eliminating such once-venerable features as horse-racing coverage and their own editorial cartoonists, and consolidating or killing sections” to reduce expenses.

There are many opinions regarding how this crisis happened, and what the effects will eventually be. Dowd’s commentary blames the search engine google for transforming formerly monetized products into free products. Shafer’s piece notes that, “To be fair, the seeds of the great newspaper decline were planted more than 80 years ago… The emergence of every new media technology-the car radio, television, the portable radio, FM, cable, the VCR, the Internet, the cell phone, satellite radio and TV, the podcast, et al.-has delivered another kick to newspapers.”

The internet has increased the efficiency and decreased the cost of basic news reporting. Writing on the Technology blog for the LA Times, David Sarno cited the downing of a plane in the Hudson river as an example of the new reporting cycle. In that instance, a bystander broke the news long before major outlets were anywhere near the scene. Sarno wrote, “This may be among the most striking instances yet of instant citizen reporting, a trend that was visible in the Mumbai terrorist attacks.”

The impact of the print media crisis on investigative reporting is uncertain. The editors of Techdirt.com, writing on March 18th, 2009, argue that the major media outlets are propagating two myths regarding their service: “Myth 1: Newspapers put tons of money and resources into investigative journalism. They don’t. And never have. Myth 2: Only newspapers can do investigative journalism.”  The Huffington Post, one of the leading new news resources, recently created the Huff Post investigative journalism fund. As reported on their site, the Fund has, “an initial budget of $1.75 million. That should be enough for 10 staff journalists who will primarily coordinate stories with freelancers.” The Huff Post initiative resonates with the statement by Google CEO Eric Schmidt (as quoted by Maureen Dowd) that, “Incumbents very seldom invent the future.”

The wealth of reporting regarding the decline of print publications is influenced by the fact that those impacted are also the ones holding the megaphones. Jack Shafer’s article remarked, “That high-pitched squealing you hear in the background is the sound of the American newspaper shrinking.”

Looking from my perch as editor of an online arts magazine, I see the pain caused by the loss of staff journalist positions. The situation reminds me of an article written by Terry Teachout for the Wall Street Journal in November of 2006, sub-titled, “The decline and near-disappearance of dance in America.” The article highlighted the National Endowment for the Arts 2002 Survey of Public Participation in the Arts, which showed that “…the percentage of Americans between the ages of 18 and 35 who attended one or more ballet performances a year fell from 5.0% in 1992 to 3.1% in 2002.”

Teachout argued that “Anyone who seeks to launch a new company, or revitalize an old one, must start by figuring out how to make large numbers of Americans want to see something about which they no longer know anything–save that Emmitt Smith does it.” Like Dance, print newspapers are falling off of our radar screen. While the talent of the print economy adapts to a new marketplace, we can rest assured that the market still values reporting, and journalism.

There is no evidence that the interest of consumers has dramatically changed; the marketplace is evolving. New models are developing within a newer economy to support the interests of news consumers and providers. The situation is quite reminiscent of Mark Twain’s experience with the New York Journal (a daily that ceased publication in 1966.) Following publication of his obituary in the Journal, Twain quipped, “The reports of my death have been greatly exaggerated.”