Thursday, December 29, 2011

Is fair use moot in the Internet era?

Today's New York Times has an excellent article on a case in which the court ruled that artist Richard Prince had broken the law by using photographs from a book about Rastafarians in a collage without permission.

The article (and its enlightening comments) goes well beyond this case. It examines the notion of "fair use" of copyrighted material, in which the result transforms the thing used, adding value to the original and culturally enriching society.

But, cultural enrichment is in the eye of the beholder.

Do you think Stephanie Lenz should pay the musician Prince a royalty because his song "Let's Go Crazy" is playing in the background of this video of her baby?

U.S. Federal District Court Judge Jeremy Fogel answered "no" and the video was restored to YouTube.

That case is pretty blatant -- it did not cost Prince sales and was not intended for the same audience as his recording. But, how about this case -- do you think 2 Live Crew should reimburse Roy Orbison for their sampling of his song "Oh Pretty Woman?"

The Supreme Court decided in favor of 2 Live Crew, ruling that their recording was a parody of Orbison's and was aimed at a different audience.

Regardless of your viewpoint on any of these cases, it is clear that there can be no definition of "fair use" that will satisfy everyone. Indeed, the whole thing may be moot in the Internet era. Do you really expect me to contact the copyright holder and get permission before I use an image I find using Bing or Google to illustrate a blog post?