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On copyright and artists' rights: how fair is "fair use"?

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Some time before the middle of February, the Attorney General George Brandis will announce the Government’s response to the recommendations of the Australian Law Reform Commission’s recent review of Copyright and the Digital Economy. The ALRC has recommended, among other things, that the Copyright Act should be amended to introduce “…a flexible fair-use exception as a defence to copyright infringement”. It’s a move that should have creative types concerned.
Currently, Australia’s Copyright Act contains several narrowly defined exceptions to the general rule that a person who wants to use another person’s copyright work must obtain the consent of the copyright owner. For example, it’s not an infringement of the copyright in a book to reproduce a reasonable portion for the purposes of reporting news, or, in limited circumstances, for criticism, review, satire or parody. The proposal is that these “fair dealing” defences would be replaced by the broader “fair use” defence. This would give users of copyright material far broader rights than they currently have to use material without the consent of the copyright owner and without paying the owner for the use.
The fair use proposal is only one of a number of recommendations made by the ALRC, but it will probably be the most controversial. It is opposed by organisations representing owners and creators of copyright, but has been enthusiastically championed by groups such as the Australian Digital Alliance, which describes itself as “Australia’s peak body representing copyright users and innovators in a digital world”.
One of the Alliance’s notable contributions to the fair use debate has been its sponsorship of a group that calls itself the “Creationistas”. They have produced a series of videos arguing that in the digital world “we are all creators”, that “Australian copyright law is broken” because it makes the activities of ordinary users of digital content criminals. But, according to them, that will all be fixed if “fair use” is introduced.
I have pointed out elsewhere that some of the claims made by the Creationistas are misleading. As a “creator” myself, I’m not sure it will all be plain sailing for creative types in the brave new world of fair use.
Fair use has been part of copyright law in the United States for some time and it’s likely that an Australian fair use exception would be close to that model. This means that US cases on fair use would provide Australian courts with guidance when interpreting the law.
There have been a number of recent US cases on fair use that haven’t worked out too well for artists and authors whose works have been appropriated and used by others without consent or remuneration. In addition, the creators on the losing side have tended to be less commercially successful artists whose works have been appropriated by far more powerful artists or enterprises.
For example, in his recent judgment in the Google Books case, Judge Denny Chin found that the Google’s digitization of complete books, without the consent of, or remuneration for, the copyright owners is fair use. The main reason for the decision was Judge Chin’s view that Google’s use of the books is “highly transformative” because it “digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books”.
Though there’s incredible potential in the Google Books project, it seems troubling that unauthorised, unremunerated large-scale use of personal property by a multinational corporation could be considered “fair”.
Another recent case concerned the appropriation and re-use by the artist Richard Prince of photographs taken by the photographer Patrick Cariou. Cariou had made only $8,000 in royalties from a book containing the photographs appropriated by Prince despite having invested years in investigating the project. Prince, on the other hand, is hugely successful. His works sell for millions of dollars.
At the original trial, Prince’s contention that his use of 30 of Cariou’s original works was fair use was rejected. On appeal, the court found that his treatment of 25 of the photographs was transformative fair use and that, looking at the Prince artworks and the Cariou photographs side by side, Prince’s images “give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s”.
This case highlights the uncertainty about where fair use begins and ends, which suggests that lawyers might be among the winners if fair use is introduced in Australia. Particularly troubling is the appeal court’s statement that the concern is not “whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.”
The court pointed to another case in which an unofficial book of Seinfeld trivia usurped the show’s market, and therefore was not fair use, because the trivia book was something “…that a television program copyright owner would in general develop or license others to develop”. This suggests that a creator or copyright owner is at risk of unremunerated appropriation if they don’t actively pursue uses of works, even if the creator or owner might find them objectionable.
Dereck Seltzer was a street artist who, in 2010 sued the band Green Day alleging that the band had infringed the copyright in his 2002 drawing of a screaming, contorted face, called “Scream Icon”. During Green Day’s 2009 tour, a photograph of that drawing was used as a central feature of a video backdrop throughout an entire song (pictured above). No consent was sought from Seltzer and he received no payment.
At trial, Green Day’s use of the Scream Icon was found to be fair use because it was transformative – it was modified to some extent and was a component of a broader video.  After the initial trial, Green Day (a band that has sold more than 70 million albums) sued Seltzer for payment of attorneys’ fees and he was ordered to pay them costs of more than $200,000. That order was overturned on the appeal.
Appropriation has a long and honourable tradition in western music, literature and art. In music, appropriation techniques have been used as far back as the middle ages. In art, the pop art movement of the 60s was notable for its appropriation and re-use of iconic images.
These examples serve as a counterpoint to the cheery and simplistic platitudes of the Creationistas, and suggest that the introduction of fair use will have clear winners and losers.
Many would argue that the fair use debate is a distraction from what the owners and many creators of copyright see as the really pressing issue with copyright in the digital economy – the continued unauthorised downloading and distribution of content. Many of them would argue that this is the aspect of copyright that is broken and lament the fact that it was barely addressed by the ALRC enquiry because of its limited terms of reference.

18 responses to “On copyright and artists' rights: how fair is "fair use"?

  1. The real ‘distraction’ is copyright law itself. The “fair use’ provisions go only some of the way towards redressing the massive imbalance in favour of copyright owners.
    The very concept of copyright is an anachronism in the digital age. It is an 18th century construct designed to protect publishers, not creators. It still protects these middlemen, usually now in the form of large corporations, and is rarely of any help to artists. The stratification between ‘stars’ over equally talented commercial failures is but one unfortunate consequence of the current system.
    The argument that copyright is necessary to protect artist’s rights and income is a compete furphy. Shakespeare, Bach, Michelangelo etc had no copyright protection. Even with current laws, very few people make money from creative endeavours, and the system is heavily skewed towards those few.
    The world would be a lot better off without copyright and other intellectual property laws like patents. Those who currently rely on the false constraints of these outmoded laws need to find new business models. They do exist – technology has enabled them …
    … just as it destroying copyright. Fortunately, those defending intellectual property (a weird concept, when you really think about it) are on the losing side of history. They will continue to fight their rearguard action, but technology is fast rendering their views, and whole rotten edifice they support, irrelevant.
    Films will still be made, music will still be composed and performed, books will still be written. People are naturally creative. Copyright is not about creativity, it is about money. Its inevitable demise will benefit many more people than it will disadvantage.

    1. What an absurd comment.What is “whole rotten edifice they support” supposed to mean? Peoples livelihood, food on the table? Obviously Graham is one of those types that steals movies. Ignorant and shows a complete lack of understanding of creative work.

    2. Couldn’t agree with you more. Copyright is the problem, we’ve given it a go and copyright has been shown to do far more damage than good. As Newton said “If I have seen a little further it is by standing on the shoulders of Giants.” Newton would have to pay those giants today, and if he couldn’t? Copyright laws as they stand serve only to protect profits, whilst silencing the majority.
      @Madison – I make my living as an artist. It may never have occurred to you that there is a strong argument against copyright that does not involve pirating movies. Just because you don’t agree with anti-copyright arguements doesn’t mean they are invalid invalid. You have not made a counter argument, just ad hominem insinuation.

  2. Interesting and concerning article. It appears many notions of ‘a fair go’ and equity are being trampled at a great rate currently. The TPP being worked on in secret by the current govt. will just add to this problem.

  3. What nonsense – this is the old “property is theft” line. How would we better off without copyright? How is it desireable for those who have the talent to create something, be it words, music, images or whatever, to be deprived of the right to profit from that talent? The reason we have music, literature, art, movies (even video games) is that someone earns a return for their talents and efforts. And your assertion that films, music, etc will still be produced is the biggest nonsense.

    1. I’ve been programming and designing games since I can recall. Until my early 20’s they were all freeware, I did it for the love and complements of fans back in the geocities days of the web 🙂
      I released my first commercial game’s source code a couple years after it’s release, because as a kid surfing BBS boards and finding the programming section at a library, that’s how I learnt to make games.
      My first iPhone game did terrible in sales, $600 in a few months, but after releasing it for free it was downloaded over 100,000 times in under a week and the highest leaderboard to this date meant the person had to have played for 48 days all up.
      After my brief time trying to make a living from my games I’ve come full circle knowing that I make games because I have an intrinsic motivation to make them. I love the fact I can touch the lives of other people! I had a number of fans at my job and in my personal life who were addicted to my game, playing for so long their eyes would hurt from the lack of blinking. Not at all encouraged by me 😉
      That was and still is worth more than money. I love the idea that others can take my ideas and evolved them. If they get success, I get success by being able to experience their artistic efforts, to get a peek into their neural network of emotions and beliefs.
      Maybe I’m biased because my ideal was to earn millions of doll-hairs from my games and invest heavily in charity and research groups. One of those change the world type dreamers, you all know one of them..
      I never began learning to make games as a small boy because of the money, I haven’t stopped making games because of the lack of money, I do it because it’s an unshakeable part of me. I want to tell my stories on the cave wall too!

  4. What Graeme said. His comment is a far more interesting and accurate contribution than this tripe.
    Also, for god’s sake, copyright material is not ‘personal property’. Calling it such is a blatant untruth.
    Finally, don’t believe the self serving examples where a poor creator lost out to the wealthy. Sure, it happens (though none of these examples strike me as particularly egregious), but the author ignores that the existing copyright laws are constantly used by the wealthy against the poor: to rort, to threaten, to litigate, and most of all: to crush new creativity.

  5. Dan: you honestly believe that nothing will be created without copyright? What happened prior to the Statute of Anne? Are we imagining all the cave paintings?

  6. Copyright is too restrictive. It does need to be loosened and the idea of ‘Fair Use’ is a good one but not at the expense of artists in favour of corporations – the middlemen.
    To comment on Graeme Philipson comment: Sure people will create without copyright but with adequate renumeration they will create better works. Good art takes time, concentrated time, and an artists need to be able live adequately to have that time.

  7. Hi all, Paul Noonan here. Dan, thanks for your constructive comment. You might want to check section 196(1) of the Copyright Act before you start suggesting that other people don’t know what they’re talking about. Its first 4 words are “Copyright is personal property…”. Graeme Philippson’s argument is one that is often made and I don’t have time to respond properly here, but I think it’s worth noting that the social and economic structures in which creators work today are entirely different from those in the time of Shakespeare, Bach and Michelangelo. Back to work.

    1. Trish here – from the ADA (the organisation who are pleased to have been able to fund Dan Ilic’s work).
      Agree that social and economic structures were different for Bach, and they were different for Shakespeare, as they are currently different for Universal Studios and Jennifer Maiden. While the practical effects of copyright reform on existing business structures are a relevant consideration, copyright law should not be banned from necessary reform in order to prop-up legacy business models (happy to explore this further if you want to post further examples where you think it’s particularly relevant).
      Secondly, I find the implication that ‘fair use favours the big guy against the little guy’ that runs through the piece interesting. I’d be curious if you had any research looking at whether fair use defences are predominantly used in the USA by the party with more resources? If Prince had been a world famous National Geographic photographer and Cariou a struggling appropriation artist, the result would presumably have been the same.

      1. Trish, it’s not an accurate reading of the piece to say that it suggests that fair use inevitably favours the “big guy” or that copyright reform should be banned. It’s just that the idea that fair use will inevitably benefit all “creators”, as the creationistas and some of their supporters suggest it will, is simplistic and, as I suggest in the more detailed blog post that has a link in the article above, there are other options to address current problems with the Copyright Act.

  8. Just out of interest -did you get permission from both Green Day and Derek Seltzer for use of the image above? Also, it seems to be missing its attribution….

  9. Personal property is what it says personal, when sharing this property it should be the creators choice ‘to copy right or not to copy right’ and laws should be there to protect this right.
    It appears to me that our modern world is driving us down a road called the ‘impersonal freeway’ with Facebook twitter Instagram etc,. With this modern oxymoron view to ‘personal’, we certainly require the appropriate laws in place.
    However, when rendering of the said property, does occurs. Surely these new creators require an environment in which they can freely continue to mould, adjust, and investigate new realms and views of this property, without ending up in court. Or we could all end up likening and tweeting the same.

  10. Rock music lyrics are an interesting example.
    Because the official music-publishing industry just completely refuses to make them available on any sort of fair and reasonable basis, a large informal industry of rock-lyric websites has sprung up, some good and some terrible, but the composers get nix.
    But I for one would be happy to pay a reasonable fee to access the correct lyrics.

  11. Re “unauthorised, unremunerated large-scale use of personal property by a multinational corporation.”
    Justice Chins ruling only allows the indexing of books and ‘snip-it’ views of quite small portions of in copyright books that is all. It also clarifies the potion of many US public libraries re the scanning of books. Would suggest that you have a read of, at least some, of this extensive archive of articles about the ‘Google books’ case(s)-

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