Fair use is the facet of intellectual property law that allows portions of copyrighted material to be used for criticism and parody and it is a hot button issue in the online content world. For instance, major fair use issues that have popped up at YouTube in the last few months include permanently disabling the account of a prolific video film critic
and using its ContentID
system to remove Warner content after a dispute between the two companies
And in another high profile fair use clash, the AP is suing artist Shepard Fairey
over his iconic Barack Obama prints which the AP claims were based on a photo of Obama owned by the AP. According to Fairey and Obama for America, the original print was based on an AP image but when Fairey began to work with the campaign in an official capacity they provided Fairey with a campaign owned photo of Obama to work from. So if two people own similar photos of the President and an artist makes a print from one of them, how do you decide what photo was the inspiration?
I want to highlight a couple helpful resources on fair use law, the Electronic Frontier Foundation's fair use guide
and the Stanford University Copyright and Fair Use Center
. The most frustrating aspect of fair use is that the burden of proof is on the user. Furthermore, there is no clear criteria for what qualifies as fair use. This allows large conglomerates to easily push around individual artists and critics who do not have the money to fight costly legal battles even if the individual is clearly using copyrighted material in good faith. As the EFF's FAQ points out, it is also unclear if fair use is a right or just an acceptable defense against copyright infringement.
What is clear is that the law is not adequately protecting the average citizen's right to expression, as well as stifling the sharing of art and criticism. What is most frustrating about the current situation is that the legalities do not appear to be in anyone's best interests. Artistic derivative works and criticism do not serve as adequate substitutes for original works so they are not actual threats to original rights holders, in fact they often serve to spark interest in the original works. Legal battles with critics and artists are not in the long term interest of large conglomerate rights holders. However, legal departments feel like they are serving the short term interests of these conglomerates by bullying and possibly winning settlements. Reform of intellectual property law to catch up with modern technology is going to be a long arduous process. I am curious and excited to see what direction the Obama administration takes us in. Sadly I expect we will have to wait a while given the number of higher priority crises in President Obama's docket.