Monday, September 27, 2010

More on Fair Use and Letterman

Thanks to the comments in my post on Letterman/Phoenix and Fair Use, I found this great blog post from Roger Goff in response. I wrote a pretty lengthy response in his comment section, but Blogger/Google wouldn't allow it as it was too long. It's probably too long for most people, but if you care about this at all, read on:

Roger: I am glad you’ve taken this up to debate - even if we don’t yet agree. The main reason I wrote the post was that I didn’t find much discussion of the argument, even on my favorite blogs related to copyright and culture (a few have now appeared). As I’ve stated, I’m not an attorney, but I still (think) I disagree. Would love to hear more from you and other copyright experts, and will ultimately defer to consensus (if we get that far).

First, I don’t believe that Fair Use was intended to “allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.”  My layman’s understanding is that fair use is an acknowledgment that we need some leeway in the special considerations granted to creators via copyright to ensure the public good, so to speak. To allow certain creative, educational or other public goods while still respecting a creator’s general rights. I believe there have been many court cases that affirm a fair use right beyond what your above quote considers. Perhaps a small point, but I think it does matter.

Second, I don’t think that commerciality (or not) is a necessary requirement to qualify for fair use. Didn’t the Supreme Court decision in Campbell vs Acuff-Rose (aka the 2 Live Crew decision) specifically argue that it didn’t matter whether a work was commercial or not? My understanding is there are the “four tests” for fair use, but that being non-commercial is just one, and that not all of the tests must be matched to qualify. Granted, I am going by memory aided by Wikipedia, so perhaps I missed some nuance here.

Third, and going back to the 2 Live Crew decision, it seemed the Supreme Court acknowledged some special consideration for parody and some copyright folks generally extend this to social, political or cultural critique (reading here from the Fair Use Best Practices of CSM as well). If the “best practices” are correct, then I would gather that this mock/doc/whatever is pretty clearly falling in the cultural/social critique camp. Further, if these best practices are correct, then this also qualifies as a correct use of “archival material in historical sequences.”

Last, I think, I don’t see how the fact that an archival footage market exists is a problem - again, my reading of the news around the 2 Live Crew case is that the Court acknowledged that a market existed for rap samples, but still agreed that the usage was Fair Use.

I don’t honestly have a dog in this fight. Anyone who reads my blog knows that I am generally pretty “copy-left,” but I am not in favor of granting any fair use rights where they shouldn’t exist. I genuinely want to know whether many legal experts agree or disagree that this should be considered fair use - so feel free to attack these non-expert opinions. I think that one of the problems of fair use for creatives is that you have to defend it to claim it - there aren’t any clear legal guidelines, even with the good work that Pat Aufderheide, Peter Jaszi and Michael Donaldson (among many others) have been doing to try to clear this up.

Glad to continue the discussion.


Sheri Candler said...

I asked my attorney friend Roger Goff to make a comment on this, and he did, on his blog. Here's the link

BNewmanSBoard said...

Uh, yeah, that's what this article is about....

Roger Goff said...

Brian, this is a great response. I'm going to go read the Campbell decision again (which I haven't done since it came out in 1994), and try to look at more recent materials too.

Again, I don't want to get too deep into legal interpretations. I can make some points about the applicability of the parody defense, and I probably still have a little different take on how the 4-point test should be applied. But really I think this issue might be more interesting from the perspective of what the law should be at this point. Certainly a lot has happened since 1994; no reason to get stuck with old law in a new world.

I'll take your lead and look not only at what a court might say, but also what Fair Use should be in 2010 and beyond. In truth, it is probably time for a new test (or at least an update of the old one). Let's see if we can contribute to advancing that discussion.

We might still disagree, or perhaps not, but I look forward to continuing the exchange of ideas with you. You are a super bright guy. I'll be back with you on this within a few days.


Tom Quinn said...

Great discussion, guys! This is in response to Roger's comment on the previous post, but who reads old posts : )

See, I think that Borat can be considered a documentary (depending on what parts have been faked and controlled). It is not a documentary of a guy named Borat, but rather a documentary of how average Americans relate to "otherness." Here, the mock-doc element is that Joaquin had a meltdown, yet it is still potentially a document of how media, the public, etc react to celebrity and celebrity crisis (I cannot say for certain as I have not seen the film). If if either film actually has a point of view about what it is document, I think there is a strong argument that they are in fact documentaries, or at the very least, social commentaries. If the film is commenting on the nature of celebrity and media my very limited knowledge of fair use is included to think there is a case.

Roger Goff said...

This is indeed a great discussion. Tom, I think you're raising another really interesting point regarding documentaries. I've actually been frustrated by the loose applications of the term in recent years. As on old news guy, I still think of documentaries as primarily journalistic - the reporting of facts. But that too may be an outdated viewpoint.

You both are giving me plenty to think about. Thanks!

Roger Goff said...

I was too intrigued by your post to let it go. I did my research and posted a reply back on my blog.

Thanks for the chat, Brian. It was a lot of fun.


Tom Quinn said...

Hi Roger, I get frustrated as well! I like Michael Moore's films, but when he reshapes a moment I think that breaks doc ethics, and the same if Borat were doing it. However, if the character is fake, but all of the reactions were real and edited without interference, I think that could fall into the doc category. But I agree it's a fine line and an important one to draw.

BNewmanSBoard said...

Roger makes some good observations on the blog post he links to above. Some of my thoughts are confirmed by a closer analysis and some aren't - but we end up in agreement on this one, I think. Thanks