What happened to Waxy was terrible, but fair use works better than he thinks it does

Earlier this week, I blogged Andy "Waxy" Baio's speech on fair use, called "The New Prohibition." Andy got hit with a legal threat for making a limited edition 8-bit remix of a famous photo and ended up paying $35,000 to settle the claim, even though he thought he had fair use on his side. As Andy explained, he thought that winning the court case would cost so much that it was cheaper to lose for a mere $35k.

But as Pat Aufderheide from American University's Center for Social Media writes, "Andy Baio's a brilliant geek, and an artist, but I'm afraid he's inadvertantly generating a chilling effect all his own, with fair use misinformation. Ouch! Here's why."

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.” Whoa. Neither of these statements is true.

Fair use is riding high in the courts. The fair uses of "Jersey Boys," who used clips from "The Ed Sullivan Show," were forcefully vindicated just a few weeks ago, and the litigious rightsholders were ordered to pay the defendants’ costs and fees. Georgia State University successfully defended a copyright lawsuit brought by greedy publishers, and got a court order for the publishers to pay over $3 million in attorneys’ fees and costs. Fair use even saved Luther Campbell, aka Luke Skywalker from 2Live Crew, when the Supreme Court held that Campbell could sample all of Roy Orbison’s “Oh, Pretty Woman” for use in a parody song.

But mostly fair use just gets used without a darn thing happening. Virtually everything you have ever made—including Andy’s own video presentation (check out the “Harlem Shake” clips!)--employs fair use. Fair use is practiced so routinely that it’s a nearly invisible part of our daily life. Every front-page newspaper article; every student paper with a footnote in it; every newscast is laced with fair use, and nobody is suing for the millions of fair uses every day of others’ copyrighted material. Fair use lawsuits in fact are extremely rare, and vanishingly rare in comparison with the ubiquitous practice of fair use. Even cease-and-desist letters are extraordinarily rare.

Pat's piece goes on to give a lot of chapter-and-verse on the ins and outs of the current fair use landscape.

Fair Use Fearmongering, from Friends? (Thanks, Pat!)


  1. I haven’t seen the art in question, but I would say in general that an 8-bit version of a photo would qualify as a derivative work of that photo, not as fair use. It’s like translating a novel to a different language. And the law prohibits the creation of derivative works without the permission of the rights holder.

    1. Here we go:

      Imagine you hand-painted it, just as artists often draw and paint from photos. Some artists use tracing aids, like overhead projectors, because they are making images, not showing off what good drawers they are. 

      Then again, imagine someone just didn’t want to pay you, so they down-rezzed your photo to get out of paying. 

      But *how* down-rezzed? 
      (See Charlie & Adolph, etc below. You might enjoy to squinting.)

      1. Making a hand-painted transformed copy of a work isn’t generally fair use either, especially if you’re going to sell it.

  2. From what I can tell, the issue isn’t what side of the law you’ll be on once the dust settles; but can you afford to defend yourself so as to find out. Unless you have the resources of, say,  Dodger Productions, Georgia State University, or Luther Campbell, the answer is probably no. The entertainment cartels know and exploit this.  Andy Baio wasn’t speaking theoretically, but personally. Chilling Effect is what the entertainment industry specializes in. Andy Baio was just someone else on the ass end of that.

    1. Exactly – it doesn’t matter the rightness of one’s position if you can’t afford to fight it.  When I was in grad school, I worked on a project that generated a threat of a lawsuit (which was completely and obviously ridiculous in its objections).  The university lawyers looked at the situation, determined we were within our rights under fair use… and demanded we take down the project.  They were being named in the potential lawsuit and didn’t want to spend the funds fighting it.  (So the fact that we, the people who worked on it, couldn’t afford to go to court was rather a moot point.)

  3. To quote the law, USC 17, fair use is  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. 

    To further quote, “A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.”

    And a bit more, “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:… (2) to prepare derivative works based upon the copyrighted work;”

    Fair use is not “I feel like using it”.

    1. You misunderstand the nature of fair use. The first of the four fair use factors, “the purpose and character of the use”, does not just mean education. If a use of a copyrighted work is transformative in nature, that counts in its favor for a fair use analysis.

      1. I quoted the law. The listed purposes are part of the law, and they make it clear what fair use is for. Creating transformed copies and selling them is not fair use. Here are all the criteria in the law:

        “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
        (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
        (2) the nature of the copyrighted work;
        (3) the 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.”

        Given that the law lists a set of example purposes, clause 1 is going to be interpreted as meaning whether the purpose of the use is similar to one of the examples.

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