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Posts tagged "fair use"
Andy Baio, “The New Prohibition”
“Fair use will not save you.”
Finally got around to watching Andy’s chilling talk on copyright, remix culture, and his legal battle and $30,000 settlement with the lawyers of photographer Jay Maisel. Ugh.
I wrote a little something about fair use for the New York Times last year. Murky waters:
Of course, one man’s fair use is another’s infringement, and unfortunately, the burden of proof in a fair use case is on the defendant, who, often lacking the money to fight in court, has no choice but to cease and desist. Many artists have suffered this fate, and so I continue making the blackouts with fingers crossed for a litigation-free future.
I wrote a little something about fair use for the New York Times this morning:
There are four factors that determine whether a work can be considered fair use, and I’ve found that these legal constraints can actually be turned into artistic constraints. Rather than limiting my creativity, these constraints make the poems better.
“Fair Use,” inside back cover of Craphound #5 by Sean Tejaratchi
Sean sent this to me after we came in contact over the Banksy/plagiarism stuff:
It’s the inside back cover I did for Crap Hound No.5. It’s a summary of the idea of Fair Use, and it addresses common questions and misconceptions. Feel free to pass it along to anyone if you think it’ll help. It was made about ten years ago, so it should probably be passed along with that warning, in case any new details have changed in the law.
…the burden of proof for fair use is on the defendant. And going to court is expensive.
This is an absolute must-read account by Andy Baio, who was threatened with a lawsuit by Jay Maisel, photographer of the Miles Davis photo on Kind of Blue, which Baio had transformed into pixel art for the cover of his 8-bit tribute, Kind of Bloop. Goddamn terrifying murky waters of fair use that some of us swim in. Go read it: it’s every artist’s nightmare.
There are a lot of myths and misconceptions about “fair use” on the Internet. Everyone thinks they know what fair use is, but not even attorneys, judges, and juries can agree on a clear definition. The doctrine itself, first introduced in the 1976 Copyright Act, is frustratingly vague and continually being reinterpreted.
Four main factors come into play:
- The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?
- The nature of the copyrighted work
- The amount and substantiality of the portion taken, and
- The effect of the use upon the potential market
…In his influential paper on fair use, Judge Pierre N. Leval wrote, “Factor One is the soul of fair use.” Stanford’s Fair Use Center asks, “Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?”
Seriously, go read. Sorry this happened, Andy. Thanks for sharing with the rest of us.
Code of Best Practices in Fair Use for Poetry
This code of best practices helps poets understand when they and others have the right to excerpt, quote and use copyrighted material in poetry
Terrific resource! Download the PDF.
Ah, fair use…two beautiful works that make my work legal.
Whether the use of another’s copyrighted work is fair is a tough question because it depends on a balancing of several factors, including 1) the purpose and character of the use, 2) whether the work is fact-based or fiction, 3) the qualitative and quantitative amount of the work used and how much of your work uses the original, and 4) whether your work usurps the market for the original. If your work transforms the original, uses only so much of the original as is necessary to make your point, is for comment, criticism, satire or parody, doesn’t use the original in its entirety, and doesn’t usurp the market for the original, it’s more likely to be fair.
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The more you take of the text and images from magazines and books, etc. (quantitatively and qualitatively), the less likely your use is fair. Again, keep in mind that, if your work “transforms” the original work, your use is more likely to be fair. So scraps of a magazine photo pieced together to form an entirely new image is more likely to be a fair use than a cut-out of an entire copyrighted poem used in your new work.
