Posted tagged ‘fair use’

Prelinger Manifesto: On the Virtues of Preexisting Material

February 23, 2010

Rick Prelinger, a force in internet archiving, is also the author of this useful manifesto On the Virtues of Preexisting Material, in which he outlines 14 Principles for using preexising works to make new work:

1 Why add to the population of orphaned works?
2 Don’t presume that new work improves on old
3 Honor our ancestors by recycling their wisdom
4 The ideology of originality is arrogant and wasteful
5 Dregs are the sweetest drink
6 And leftovers were spared for a reason
7 Actors don’t get a fair shake the first time around, let’s give them another
8 The pleasure of recognition warms us on cold nights and cools us in hot summers
9 We approach the future by typically roundabout means
10 We hope the future is listening, and the past hopes we are too
11 What’s gone is irretrievable, but might also predict the future
12 Access to what’s already happened is cheaper than access to what’s happening now
13 Archives are justified by use
14 Make a quilt not an advertisement

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When Artists Go a-Sharing…

June 14, 2009

In our recent discussions here at Enclosure, we’ve been discussing how “free rider” user-consumers – who download content without paying for it – may be making the business of selling cultural content more and more difficult, maybe unsustainable or ultimately impossible. Well, at least this is the way public discussion has been tending in the last several years.

But why blame the user? High profile artists like Radiohead and Girl Talkproducers of cultural content – have recently been offering their music online for an unspecified cost – users can choose donation-style how much they want to pay, including nothing. These artists have boldly cut the corporate middle men (or culture industry) out of the deal altogether, distributing content directly to user-consumers. This business model is most definitely not sustainable for corporate distributors (and three cheers for that!), but is it sustainable for the artists themselves? This, I think, remains to be seen; Radiohead and Girl Talk are in much the same boat as DiFranco and MacKaye, here. Though so far things look fairly affirmative.

Radiohead apparently chose to do this as part of a major sea-change for the band in 2007. Their former contract with a major label had expired, and instead of signing a new contract, they decided to go indy (see New York Times article here). They could afford the financial gamble of pay-what-you-want digital distribution because they were already a very wealthy and successful band – they made money no object in part because they didn’t need the money. But this was also a welcome gesture that they didn’t care about the money – we may say “sure, they can afford to do that,” but I suspect there’s something more highminded at work in Radiohead’s decision.

There also may have been something simply practical behind their decision. According to the NY Times article referenced above, Radiohead stood to make a good deal more profit by selling their wares directly, compared to the amount they would have made after their record label took its generous cut. What’s more, releasing the music digitally meant no lag time for producing CDs, one among several factors that often makes corporate culture distribution take longer; Radiohead could release the album themselves, the very second the final mixdown was finished. They also reduced production costs dramatically. Radiohead’s choice was as good for cold, rational-economic reasons as it was for warm, high-minded ethical reasons.

In other words, Radiohead showed that – at least under certain circumstances – going indy in the digital age could mean much more profit for artists than their major label contracts ever would have delivered. The economic reasoning is simple: cut out the middleman, and simultaneously cut out the process of manufacturing CDs. Where costs dry up, profits bloom. And here’s the kicker: they made this increased profit in spite of the fact that, according to one estimate, at least 3/5 of downloaders took the album for free. What happened to the internet “free-rider problem”?

Then, about a year ago, Girl Talk released Feed the Animals in the same pay-what-you-want, web-only format. Unlike Radiohead, though, his reasons for doing so were non-economic. His album of mash-ups was composed entirely of music sampled from other artists, and in a statement of frank copyright defiance, he made no effort to license or “clear” any of the samples. The major record companies never would have sold such a thing in any case. The compelling question about Girl Talk, according to this NY Times article, is whether this type of distribution can make Girl Talk a star and a financial success. Given his status last year one of the darlings of the underground, I think the only sensible answer in hindsight is yes.

Unlike Radiohead, who were already riding a long wave of fame thanks to almost two decades of major label promotion when they made the switch to distrubuting digital donation-based downloads, Girl Talk has never been major. If Radiohead showed that one could jump from the top of the skyscraper and fly on his own without corporate support, Girl Talk is testing whether an DIY artist (a self-contained performer,  producer and distrubutor) can get in on the ground floor, so to speak. If Girl Talk can make it economically by distributing albums on the web for free/donation/profit (and that’s really the only way to understand what he’s doing!) , maybe anyone can. Which means: maybe there is no internet free rider problem…or if there is, it would only trouble the music industry, not the artist.

Who Owns Woody Allen?

May 18, 2009
Woody Allen visits his own likeness in Spain

Woody Allen visits his own likeness in Spain

The New York Times reported today that American Apparel has settled a lawsuit with Woody Allen (to the tune of a cool $5,000,000) over the use of a still of Allen in traditional Hassidic dress from Annie Hall (1977).

Two things interest me about this:

(1) What exactly was wrong with using the still from the movie? Is the idea that Woody Allen owns his face, his film, or something else? Allen himself was quoted as saying that use of the image was “sleazy” and “infantile.” Was there something antisemitic, here, perhaps? The moral charges from the prosecution aren’t clear, especially as reported by the Times.

(2) Dov Charney, CEO of American Apparel, claims he only settled because his insurance company told him it would be best, and that he doesn’t regret using the image at all: “I’m not sorry for expressing myself.” His defense appealed notably to principles of free speech and fair use.

So whose side should we take, the corporate CEO who sticks up for the right to recycle existing images to produce innovative advertisements, or the crotchety old actor-director playing the copyright cop? Charney’s defense sounds fairly self-interested, as if he’s exploiting free speech and fair use. Allen, on the other hand, made a flabby yet tight-fisted defense based on a rather conservative interpretation of property law. How does this compare with, say, the episode in 2005 when Nike pirated the iconic cover of the Minor Threat discography?

Finally, it’s worth noting that this settlement put an end to a media circus which has been going on for a while, already. The Times wrote:

“The settlement brought to an end an episode that pitted controversial figures from the fields of film and fashion against each other in a highly public fashion.”

Including: Charney being slapped with sexual harrassement charges that frankly smack a bit of Allen’s own career, Charney’s defense calling a number of Allen’s past lovers as character witnesses to smear him, and an uncomfortable statement from Charney saying that he identified with Allen because they “had both been the subject of unfair media-driven scandals.”

Amidst all the sleaze, Charney makes a good point, and that puts me in a strange bind intellectually. On the one hand, I feel compelled to defend the value of free speech and fair use. But if corporations can appropriate culture as simply as individuals can, then we should probably judge each particular case of appropriation on its own. In the end, this farcical lawsuit reveals a key question: who appropriates what, for what reasons, in what contexts?

Is Allen just being an oportunist, evoking property law only when he dislikes the appropriation and not – as with the statue above – when he likes it? Is this a fair weather property defense? Is Charney abusing high-minded ideals in order to defend a more base quest for profit? What do we make of this mess?

Best Practices for Fair Use

May 18, 2009

American University’s Center for Social Media has released a Code of Best Practices in Fair Use for Online Video [PDF]. This is one in an extensive series of fair use guidelines documents.

There were a few of interesting things I noted about these guidelines. One of them was that the panel generally broke with mythical notions of isolated auteurship and instead recognized the unbroken tradition of appropriation in the production of culture. For another, these guidelines specifically recognize recombinance and juxtaposition as a valid form of expression in itself. The authors note that appropriation should be covered by fair use standards in cases where, “QUOTING [is employed] IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS.”

Finally, and perhaps most importantly, is a notion stated explicitly in the video accompanying the written guide: that determining the boundaries of fair use is more an issue of determining community standards than it is a question of interpreting the letter of the law.

Much like the question posed in our last post about where we can locate the lower horizon for proprietary concepts (as distinct from the non-ownable background of fundamental processes and tools), we trying here to find the upper horizon for how much of officially proprietary cultural content can be appropriated without restriction for the purposes of cultural expression and dialogue.

The argument here is that the process for locating these horizons must incorporate an investigation into the changing standards of the multiple, overlapping communities (geographical, virtual, artistic, economic, etc.) where the appropriation is happening. And these investigations should not simply be conducted by corporate content owners and legislative bodies for the purposes of “knowing thy enemy”, but rather for the purpose of determing whether the legal horizons for fair use are being applied appropriately in relation to the horizons established by these communities.