Fair Use – Reflection and Response

“Art is what you can get away with”

-Andy Warhol

-Banksy

-Matt Geiger

To understand fair use, we have to go all the way back to the Constitutional Convention of 1787. The Committee on Postponed Parts was responsible for ironing out the details on patent and copyrights. Needless to say, a lot has changed since the late 1700s, but let’s take a look at Article 1, Section 8 of the US Constitution to see what they came up with:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

This is still pretty open-ended, but even then it was understood that all culture and scientific discovery is built upon what came before:

“The constitutional goal of the Copyright Act is to promote the making and the dissemination of culture” (1:45)

This is not an open invitation to plagiarism, but a declaration of a carefully orchestrated, and ongoing balancing act. On the one hand, we want a plurality of original works and the good faith use of existing culture to produce new works (Fair Use Doctrine), but we also want to ensure that there remains a secure and reasonable expectation for creators to receive just compensation (Copyright Law).

Like everything else in the US Constitution, this is a compromise.

You can use copyrighted material openly, and without permission from the holder of said copyright, so long as you meet three basic conditions:

  1. Your use is noncommercial: i.e., you’re not financially benefiting from the use of the copyrighted material.
  2. Your created work is transformative in nature: i.e., you are not simply reproducing an unaltered version of an original work, but are transforming it in a way that allows for new interpretation which is separate from the original work. This includes things like commentary, mash-up, remix, and critique. Here are some examples:

Commentary

Mashup

(WARNING: Links to torrenting site ThePirateBay, might be NSFW)

withbootslogo

Remix

Criticism

The third and final condition is that your use of copyrighted material must not “compete with the original or have any negative effect on its market.” A.K.A. “Parody Law”

Here’s something that pushes the limits: DUMB STARBUCKS

Intellectual Property is a complex web, and there is no guarantee that following these rules will keep you out of legal trouble, but it is still a good idea to follow rules of Fair Use Doctrine when using copyrighted material or even material that is in the public domain. The Center for Media and Social Impact has published this helpful guide of Best Practices for Fair Use in the Visual Arts, but if you want to save yourself the trouble of a single mouse-click, then scroll down for a short list:

PRINCIPLE: Artists may invoke fair use to incorporate copyrighted material into new artworks in any medium, subject to certain limitations:

LIMITATIONS

  • Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard.
  • The use of a preexisting work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.
  • Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work.
  • When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.

 

 

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