Lessig: YouTube takedown shows why fair use isn't enough

Larry Lessig recounts the story of a perfect example of the inadequacy of fair use: a political (anti-Obama) parody video was taken down on the basis of a ridiculous copyright claim. Like Lessig, I don't agree with the video, but I do agree with the right of the maker to post it, and I believe that if copyright can be used to suppress political remix in election seasons, it makes us all worse off.

That it was suppressed, however, is a feature/bug of current copyright law. The video is making a powerful (if wrong, imho) argument about the source of responsibility for this financial mess. It uses text (sparsely placed, as is my own style too, though the author needs a better font), images of newspaper articles, pictures of the candidates, and clips from television, all to the end of making the political argument.

That part's relatively easy from a fair use perspective. What isn't is the music. As is increasingly the style for amateur (in the good sense of the word -- people who do what they do for the love of what they do and not for the money) remix: music is attached to parts of the video to give it a special boost in social meaning, or significance. The cultural reference enhances the political. It becomes part of the story.

So, for example. when describing how Fannie and Freddie gave low interest and no interest loans, the music is Dire Straits "Money for Nothing." And when talking about the speculation, Talking Head's "Burning down the house." When talking about the influence of money inside the campaigns, AcDc "Money Talks." And when talking about how "it ends now" if (as the author but not this author hopes) Obama is defeated, the music is "Survivor - Eye of the Tiger." In each case, the music amplifies the message in powerfully and socially relevant way.

A lesson in the failures of "fair use"

• [grimc]

  So were Heart and Jackson Browne wrong to demand that the McCain campaign stop using “Barracuda” and “Running on Empty”, respectively?

• [Teresa Nielsen Hayden / Moderator]

  GrimC, I’m sorry, but you’re off topic. We’re not discussing the subject of the video. We’re talking about the Fair Use doctrine as applied to the video’s appropriation of copyrighted music.

  If you want to talk about subprime mortgages, there are plenty of still-open threads on that subject.

• [Dead Elvis]

  I work for a Musicians Union and copyright is copyright. That is why the McCain/Palin camp can’t use Hearts “barracuda” any more. Most Musicians barley make a living from their music, If the big acts lose their copy rights then there just isn’t any chance for the regular Joe musician.

• [WarEagle]

  To shift things in another direction..

  http://k.ytb.cm/wtch?v=fXwZ_YqHY

  i’d love to hear responses to the video..

  • [Antinous]

    WarEagle,

    That was way off-topic.

• [wobinidan]

  As an artist who puts everything he makes (so far) under a creative commons license, I have a vested interest in this comment. Why is Lessig defending the rights of people to violate copyright laws, when he himself helped to set up a whole system under which people would have thousands of tracks to use legally? These artists whose songs are being used don’t want to be used in random videos (at least their record companies don’t want them to be) and there are thousands of artists out there releasing their music under CC licenses who DO want their music to be used.

  Why isn’t Lessig helping undiscovered artists to get exposure, rather than suggesting that people should be allowed to play the same old crap that’s been overplayed since year zero? I’m a bit disappointed in this logic, I must admit.

• [grimc]

  Here’s my response:

  Blaming the CRA is right wingers blaming minorites and poor people. Simple as that.

  The fact is, the CRA only covers banks and thrifts–not mortgage lenders, investment houses, etc. (and look at who’s doing all the failing–aside from WaMu, it ain’t Wells Fargo, B of A, etc.) Additionally, CRA default rates are LOWER than those outside of it.

  You want a piece of legislation to blame, look at the Gramm-Leach-Bliley Act. This legislation’s degregulation made it possible for financial companies like Lehman Bros., Merrill Lynch, AIG, etc. to create and trade in the subprime mortgage securities.

  Funny how some are trying to forward the nonsense that big, bad poor people forced innocent Wall Streeters into giving them loans.

• [j5ive]

  Oh and as for the “horror” of having one’s music heard by millions- in the wrong context, yes. What if someone had released torture videos, edited to imply how awesome torture is (think it can’t be done? well good. You’re immune. Others aren’t) with your happy- party- time song in the background, and you begin to see Stanfrombrooklyn’s point.

  While in some sense I agree, this approaches Godwin-esque hyperbole.

  The point the author makes is not that anyone can use anyone elses’ copyrighted material for anything as long as they’re not getting paid, it’s that once something becomes part of the cultural canon, the creator can no longer unilaterally dictate its significance/meaning. This would exclude most small artists by definition, and make your scenario less than likely.

• [jennylens]

  The copyright laws are weak and ineffective for the majority of artists due to lack of money for legal representation and minimal recovery fees. Copyright laws need to be strengthened to protect individual artists from the predatory public — individuals and corporations who use others’ creations.

  What was that comment about copyright laws being a two way street, for the artist and the public? That the artist is SCREWING the public by limiting its usage? And the rationale for that is what? The artist has little or no control over that which the artist created out of one’s own heart, mind and soul, on the artist’s dime and time?

  Copyright laws were originally created to protect artists, to enable them to continue to create art for the public good.

  They were NOT created so the public could do whatever they want with that art! In fact, that violates the spirit of the reason for the law.

  I am STUNNED at how people distort and destroy my photos, all in the name of their “art.” The computer is a very dangerous tool in the hands of “arty” hacks. It’s MY art and I choose to share it with the world, on MY terms.

  The creator OWNS his/her creation. These words/music would not exist if not for them. If Tom Petty or others object to their music and/or lyrics being used for political or other means which contradict their beliefs, that is their right. How dare you say they have been compensated and have no voice in the matter? How much compensation is enough when an artist’s work is being used in ways that disgust the artist?

  People who think they have as many rights as the artists are heartless and selfish. They steal earnings and are the reason I don’t create more art. I am a photographer and my work has been stolen from major corporations to kids on myspace (and yes, youtube) for 32 years, People think I’m rich and famous because they see my photos everywhere. I tell them IF only I were paid for all usage!

  People simply refuse to believe that I have rights as the creator of these works. These lyricists/composers have rights. And when they give up those rights, it makes it harder for the majority of artists who don’t have the visibility, the money, the legal teams to protect our creations. They are standing up for ALL artists, all the people who enrich our lives with music, lyrics, stories, photos, paintings, movies, etc.

  People like Lessig make it harder for artists to continue to create. He should be ashamed of himself!

  I wholeheartedly agree with the musician who said he perfects his work. You have no idea how many people love my photos and are amazed when they finally see MY crop, not the butchered job that too often see in publications.

  I go head to head with MAJOR companies about cropping, stretching, putting text over my photos. I rather lose a gig than see my photos used so thoughtlessly. But when I’m broke or I assume I’m dealing with pros, I have to let go (money over morals, gotta pay the rent).

  PLUS that musician is sooo right: people DO make money. To make matters worse, they often LIE about it. You have no idea how many legit businesses LIE to people about money and terms. Or they agree to a contract and do whatever they want.

  The ONLY reason we have laws is because people won’t behave civilly. So copyright laws needs to be stronger to protect individuals. And if Lessig and others think otherwise, I have an offer.

  Spend the next 5 years living off your creations. No other income, not savings, not credit cards, nothing. Then see how you feel when you finally make some money but others make more than you do. Or use YOUR art in ways that offend you. Go ahead, walk in my shoes.

  I’ll focus on my online businesses which make more money than my art, my photos. And all the people who write to me daily, asking me to do more photo books, write about my life as a punk rock photographer, or want my photos for their projects, I’ll tell them forget about it.

  Now I really am screwing the public.

  Why don’t you think MORE people do what I do? I wasn’t the only photographer doing what I did. But you don’t become the most published of your era without taking a bruising, ALL the time, on this very issue.

  ANYONE who says differently is not an artist and does not understand the loopholes which already exist re copyright laws and practice.

• [Anonymous]

  To wobinidan >>

  I agree with you here, that would be a good thing to boost people who do want their art distributed in this way.

  To Dead Elvis, stanfrombrooklyn and Baldhead >> It sucks that people get so offended when people put their music on youtube as part of a video like this. We’re amateurs, we don’t know where to get free to use music in most cases, and we use the stuff we like. It should make you feel good as an artist to know that your stuff is out there and being enjoyed.
  I agree that under certain context it may be used in an offensive way, but press is press, it doesn’t matter if it’s good press. It’s not like the artist himself created that “torture” video, and it doesn’t imply that the artist endorses it. Maybe you should all be more like Weird Al, and embrace this century and all the things that come with it. Including crappy homemade videos. You never know when it will come back to you in a good way.

• [grimc]

  it’s that once something becomes part of the cultural canon, the creator can no longer unilaterally dictate its significance/meaning

  And who or what sets the bar? When and how can something be identified as having become part of the “cultural canon”? Are we talking popularity? Sounds like your argument is that if a piece of music is in the “cultural canon”, i.e. recognizable by most people, then the creator relinquishes control of it–but this doesn’t apply to small artists, because their work isn’t popular enough (accordingly, if their work did become popular, then the small artist would lose control).

  Boiled down, the argument seems to be “If you’re sucessful, you lose control. If you want to keep control, don’t be successful.” Or, alternatively: “Only artists whose work nobody likes get to have a say in the use of their stuff.”

• [Metronicity]

  What?! J5IVE writes “once something becomes part of the cultural canon, the creator can no longer unilaterally dictate its significance/meaning.” Really? So I can create any work of art – music in this case – and anyone can come along and decide what it means or what its significance is? After it’s entered your “cultural canon”. With respect, that’s laughable. What is this highfalutin “cultural canon” of which you speak anyway? And for those who don’t know what you meant by “Godwin-esque hyperbole” (I didn’t) here’s the wiki on “Godwin’s Law” – http://en.wikipedia.org/wiki/Godwin%27s_law

  As far as I can tell, no-one has brought Hitler or the Nazis into the thread yet. There’s still time.

• [j5ive]

  Boiled down, the argument seems to be “If you’re sucessful, you lose control. If you want to keep control, don’t be successful.” Or, alternatively: “Only artists whose work nobody likes get to have a say in the use of their stuff.”

  You’re misinterpreting me here by polarizing what I considered to be a pretty grey comment. Remember the context; we’re talking about “fair use”, not corporate or political cooptation, or even license abuse, I think we all agree that those do not constitute “fair use”. What we *are* talking about is Joe Averages’ Youtube video, even if it goes viral, maybe even if you and Joe disagree. I think this is a sort of collage that Joe should have the right to create. Though I would expect Joe to be considerate of artists (though not necessarily layers) requests to cease and desist.

  Also, note the words “unilaterally dictate”. Once you engage the culture on a certain level, you become part of that tapestry, which is a collaborative creation. For instance artists don’t get to retain control over what their art means to anyone else, and if you don’t want people to connect with your material, or only want “the right” people to do so, why put it out in the first place?

  Now, where the bar gets set is definitely tricky, and it seems to me, that is precisely what the article is trying to sus out, and why “fair use” is a nebulous idea and why copyright law needs some sort of overhaul. Part of why I am in some agreement with the article is that this smells like record label lawyers over reacting to something pretty innocuous.

• [TJIC]

  I’ve given Boing Boing and some of the Boing Boingers a lot of static recently over (a) the heavy pro-Obama / anti-Palin bias here; (b) what I perceive as politically based disemvowelling of comments.

  But fair is fair.

  I have strong respect for Cory’s stance on this one: he disagrees with someone’s opinion, but he will defend their right to say it.

  Bravo, Cory.

  Keep up the good work.

• [Steve Stair]

  I’d like to point out that there is no *right* or *wrong* answer here. There is no absolute truth in this issue, there is only a disagreement about what set of laws we *want* to govern us.

  Some people (artists, and others) want their output to be legally protected so that they have control over what happens to their work after it has been created. Notice that there is nothing inherent in their work that makes this control exist. In fact, the exact opposite is the case.

  It is incorrect to say that copyright was created solely to protect the rights of the artists, because if that was the case, there would be no expiration to copyright. Copyright laws were created to *balance* the desires of the artists against the desires of the public.

• [jimkirk]

  According to http://www.copyright.gov/fls/fl102.html

  There are “four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

  The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

  Sounds to me like some of the uses mentioned above fall under factor 4. Is the Heart song Barracuda diminished in value if people associate it with the McCain/Palin campaign?

  As a creator, there is always a risk that your works will be used in ways you don’t like, sometimes illegally, but sometimes in perfectly legal ways. And in the illegal cases you have to ask yourself is it worth your while (time, resources, public opinion…) to try to stop and/or punish infringers. Sometimes it is, sometimes not.

  If you really want to prevent anyone from ever misusing your artistic output, hang your paintings in your bedroom and never let anyone see them. Sing your songs in the shower and never let anyone ever hear them. It’s the only way to be sure.

  Of course the world may be all the poorer because of it.

• [Antinous]

  jennylens,

  Why are you doing something that obviously makes you utterly miserable?

• [Biscuit4]

  I want what you’re on but only after I get off work. Preferably a Saturday. TJC y’r n dt. (It takes all kinds)

• [jay_aich]

  The creator OWNS his/her creation

  That’s *one* philosophy, treating content much like you would treat land. But that philosophy has by no means been definitively established in the US courts. (Can anyone who has read Copyright’s Paradox remind me of the term the author uses for this philosophy?)

  An opposing philosophy is that “appropriation is at the heart expression”. For example Alice Randall’s “The Wind Done Gone” in which her message about life in the south would have been deeply weakened if she had not been able to use Mitchell’s setting and characters. And because her message serves the greater good, a court ruled that Mitchell’s estate could not silence her.

  As is true with so many things in life, copyright does not have a black or white answer.

  And I suggest anyone interested in the topic read “Copyright’s Paradox”

• [jay_aich]

  “… at the heart of expression”, I meant to write.

• [MrSquirrel]

  I’m still trying to figure out how folks can expect to control forever these sound waves, once they have sent them out into the world at large.

• [lionelbrits]

  I disagree with Biscuit4′s opinion, but I will defend his or her right to say it.

• [Anonymous]

  I’m pro-Obama, and I agree that we should all have a lot of respect for Larry Lessig and for Cory Doctorow for standing up for their principles and not for their ideology on this one.

• [bukuman]

  Lessig is contending that “This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions.”. His view is that copyright law has to be changed to accommodate uses like the video in question.

  I think the reasoning is that these kinds of expressions are ‘the same’ as us retelling movie plots or quoting dialogue. We have always been free (in practice if not in law) to sing Happy Birthday without a license, we can say ‘go ahead, make my day’ without making a payment.

  Internet tech ‘just’ amplifies our social contacts (to every one) and increases the verisimilitude of the re-telling (to a perfect copy).

• [Rob]

  At #41/Metronicity

  Again, what you’re talking about is the legally agreed upon determination of what is appropriate. But that doesn’t change the fact of what someone “can” do.

  And your example, is, to me personally, a far less objectionable situation than the example that was posted about/kicked off this thread.

  Does your example seem “wrong” or egregious to me? Sure. But that’s just me.

  Doesn’t change the fact that someone can “take” your ideas.

  Just personally, I think “intellectual property” is nonsense. IMHO.

  If your interpretation of a concept or an idea is worthwhile, I think you’ll rewarded appropriately, one way or another. But maybe I’m just naively optimistic.

• [kc0bbq]

  It’s so nice to see political expediency taking a back seat to principles. Actually, it’s nice to see principles.

• [stanfrombrooklyn]

  I disagree completely. As a musician, I’ve spent months writing and rewriting a song according to my standards. For someone to take my song and then use it as a backing track to some homemade video is wrong. Particularly if they haven’t asked my permission and are even using it to promote a message that I may oppose. And, if the poster creates a successful video with my music as a backing track, that video may be seen millions of times. The poster and YouTube may even make money off this video which solely uses my music as the backing track.

• [Clumpy]

  I love how every post like this has to have the “Now I don’t agree with the video, but. . .” disclaimer, which sounds suspiciously to me like “Now I’m not gay, but. . .”.

• [Clumpy]

  Stanfrombrooklyn, copyright law doesn’t exist to let you (the creator of a work) achieve every heart’s desire. It grants rights to creators AND the general public. It’s wrong to screw over everybody because you think creation should be a one-way street.

• [j5ive]

  @21

  I don’t know if believe you didn’t know what I meant by “cultural canon” (and how is something “respectfully” “laughable”). You can take it to mean “Pop Culture”. Also the Godwin reference was meant as an analogy for an “extreme” slippery slope type argument.

  I guess I lose since i brought it up first. :-P

  Anyway, to answer your question. Yes. I said this earlier but you don’t get to dictate how people interpret your music or what it means to them. If you don’t want people interpreting (perhaps wrongly) your art, why are you making it in the first place, and secondly, why are you then releasing it into the public sphere?

  @23 and Bukuman: well said.

• [j5ive]

  oops, i meant @24 Steve Stair, not @23, ie my own comment…

• [grimc]

  @23

  What we *are* talking about is Joe Averages’ Youtube video

  But what makes Joe’s YouTube vid different from a candidate using a piece of copyrighted music at the end of a speech? Fundamentally, they both use music without permission to adorn a political viewpoint.

  I should say that my view is creators should be able to reserve the right to dictate their creation’s use–and just as importantly, allowing its use in some instances without official approval doesn’t mean that the creator relinquishes any rights. The second part is key, because I think a good chunk of IP lawsuits is due to rights holders being forced to defend those rights consistently or lose them completely, where normally they wouldn’t give a crap.

• [Metronicity]

  J5IVE
  Is taking a lyric line and melody from my song and putting it to your video without permission “interpreting” or “stealing”? I’m saying it’s “stealing” – I don’t think it “fair use” at all. I don’t buy the “cultural canon” argument. And I’m quite happy to have copyright for my lifetime plus 70 years.

• [pauldrye]

  The poster and YouTube may even make money off this video which solely uses my music as the backing track

  And? What is being taken away from you when this happens?

  It’s “wrong”? No, you think it’s wrong. Other people think differently. Back away from the absolute and express the actual problem, or be part of that problem.

• [five]

  yes Stanfrombrooklyn, it’s horrible for your music to get free exposure to outlets that may contain future consumers of said music. you tell ‘em, champ.

• [Anonymous]

  Why the need to include both Cory and Mr. Lessig’s opinions of the video and it’s contents? Are you (and he) searching for a special “pat on the back” for defending something you don’t agree with?

  I thought that is what you (the royal “you”, not specifically Cory or Mr. Lessig) are supposed to do – that is the price of free speech, as I understand it…

• [Dead Elvis]

  to anonymous regarding your posting #21 – Wierd Al gets Permission to parody songs from the artist or his agents. He does everything “by the Book” and if you need free music, do a search for cc licensed music or free music or non copyrighted music. Stuff comes up that you can use. Sure it might take you ten minutes longer but what the hey. Your post follows below.

  “#21 posted by Anonymous , October 2, 2008 12:01 PM

  To wobinidan >>

  I agree with you here, that would be a good thing to boost people who do want their art distributed in this way.

  To Dead Elvis, stanfrombrooklyn and Baldhead >> It sucks that people get so offended when people put their music on youtube as part of a video like this. We’re amateurs, we don’t know where to get free to use music in most cases, and we use the stuff we like. It should make you feel good as an artist to know that your stuff is out there and being enjoyed.
  I agree that under certain context it may be used in an offensive way, but press is press, it doesn’t matter if it’s good press. It’s not like the artist himself created that “torture” video, and it doesn’t imply that the artist endorses it. Maybe you should all be more like Weird Al, and embrace this century and all the things that come with it. Including crappy homemade videos. You never know when it will come back to you in a good way.

  http://www.boingboing.net/2008/10/02/lessig-youtube-taked.html

  http://snipurl.com/41xx4

• [ericmonse]

  “Free Exposure”? I suppose it would be okay then if Nike took the music and used it to sell shoes without the owner’s permission?

• [Avram]

  Biscuit4 @2, please don’t gratuitously insult the other commenters. (Preferably don’t insult them at all, but especially not gratuitously.)

• [Baldhead]

  Okay, even under old copyright this would have been illegal. As an example, if it had been made by the McCain camp instead of an independent, it would never have been aired in the first place.

  All ads, including political ones, are subject to the same rules, and always have been. This would be different, I feel from a home movie montage or something like that.

  Oh and as for the “horror” of having one’s music heard by millions- in the wrong context, yes. What if someone had released torture videos, edited to imply how awesome torture is (think it can’t be done? well good. You’re immune. Others aren’t) with your happy- party- time song in the background, and you begin to see Stanfrombrooklyn’s point.

  All uses of art are not equal.

• [Rob]

  Concur unreservedly with #25. If you demand control over of your art, or are concerned over the “integrity” of it, to the extent of, say, #19, then never show, sell or share it with anyone.

  Once something is out in the world, be it art, ideas or even a a conversation, you don’t have control over it anymore. You just don’t. Copyright is an interesting, mutually agreed upon way [in many cases] to try and ignore that reality, but there it is.

• [Keneke]

  Another kudos for separating personal views from a topic.

• [Metronicity]

  Yep…under the Act that’s NOT deemed “fair use” of copyrighted music even though its pretty innocuous. And I’m not sure YouTube was “using copyright to suppress political remix in election seasons” as you claim. They seem to be pretty arbitrary in what they act on. Meanwhile their site is awash in copyrighted material. Complete joke.

• [Metronicity]

  @ Rob,
  you can’t copyright ideas – such as the idea for a movie. But you can copyright a treatment or a script of that idea. Wouldn’t you want that if you came up with the idea for a blockbuster movie and went on to write the script? Or are you happy for me to take your script, perhaps make a few small changes and claim it as my own? Same goes for music. If you write the lyrics and the melody for a song and I come along and claim it as my own, will you be happy with that? Especially if it goes on to be a hit?