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cc-eyebeam - Re: [cc-eyebeam] Fair Use and the Copyright

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Subject: Creative Commons-Eyebeam Forum 2003 November 12-19

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  • From: Sal Randolph <sal AT opsound.org>
  • To: cc-eyebeam AT lists.ibiblio.org
  • Subject: Re: [cc-eyebeam] Fair Use and the Copyright
  • Date: Thu, 13 Nov 2003 19:22:41 -0500


On Nov 13, 2003, at 11:14 AM, garvinpr AT fastmail.fm wrote:

I think that the Fair Use clause allows individuals with
non-commercial intents to use copyrighted material. If they have
commercial intent, then the Fair Use clause would be less likely to apply.
Most people that are playing around in their studio, or at art fairs, or
teaching courses can feel comfortable using copyrighted material. It's when
profiting off of someone else's work that licenses like Creative Commons' become
relevant. Thoughts?

I'm not sure that artists in their studios or writers wanting to quote a poem or a song feel all that comfortable. Certainly musicians feel uncomfortable. It's very hard to know, when you're fooling around in your studio with bits of things from here and there what, exactly, will be the fate of what you're producing. I'm in a band, and during rehearsals, and in our live performances, we do very altered and deconstructed cover songs. It's always a question which ones are altered enough to be unrecognizable, which ones we can or should put on our (cc licensed) website. At this point our work is very noncommercial indeed, but what if that's not always the case?

Or to take another kind of situation, some of the artists in the Illegal Art show ( http://www.illegal-art.org/ ), among them Tom Forsythe who photographs Barbie dolls (dolls which, of course, he owns) and Diana Thorneycroft who draws stuffed dolls of famous cartoon characters have been sued or had their work suppressed by galleries. It's not always because of the commercial intent of the work, but sometime simply because it depicts valuable products in unauthorized ways. Canadian law, for instance, doesn't allow parody as a legitimate form of free use.

Here's what the Illegal Art website says about artist Keiron Dwyer:

"In 2000, a year after Kieron Dwyer made comic books, t-shirts, and stickers with his version of the Starbucks logo, the company sued him, obtaining an injunction that prevented Dwyer from using the parody until the case was scheduled to go to court over a year later. When the case was finally settled, Dwyer was allowed to continue displaying his logo but only in extremely limited circumstances. No more comic books, t-shirts, or stickers: he may post the image on the web but not on his own website -- nor may he link from his website to any other sites that show the parody. In short, Dwyer is permitted to use the logo as long as Starbucks can be confident that no one will see it. "
http://www.illegal-art.org/print/index.html#consumer

When something becomes a ubiquitous part of your landscape, in this case your media landscape, it also becomes part of your imagination. Images, symbols, characters, snippets of song, cartoons, commercials, movie stars, games. These are the elements we combine and recombine as we think about the world around us. -- these are the bits of culture we think *with*. Artists/writers/musicians are permitted to think aloud in terms of Snow White, say, but not in terms of Mickey Mouse. It is as if our collective conversation is missing key vocabulary words. (we can talk *about* Mickey of course, but we can't talk *using* Mickey). And, as the copyright terms extend and extend, the situation is growing worse.

So I do think that the problem we've created for ourselves is much deeper than just regulating the ways people can profit from each others' work. There is a chilling effect on our collective consciousness which we should be very concerned about.





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