The Hollywood studios always claim to be "pro-fair-use" but when the US Trade Representative made a move to put fair use into the Trans Pacific Partnership, the MPAA sent a scathing, furious letter to the Obama administration condemning "the inclusion of fair use' in free trade agreements" as "extremely controversial and divisive." Read the rest
Art from New Media Rights writes, "We spend our time working with online video creators on fair use, so we created The Fair Use App. We filtered down our experiences working with video creators to create an app that can help them better understand:" Read the rest
Pat from American University's Center for Media and Social Impact writes, "Can an artist use images from Facebook in her collage? Can an art teacher show pictures he took at an exhibition in class? Can a museum put a collection online?" Read the rest
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Dave Kellett and Fred Schroeder created the movie Stripped about the past, present, and future of comic strips and their creators. Dave is the creator and cartoonist of two webcomics titles, Sheldon and Drive, and the co-author of How To Make Webcomics. He is one of a small but growing group of webcomics artists who are self-sufficient. Fred is a veteran cinemographer, nominated for Best Cinematography at Sundance for his work on Four Sheets to the Wind. He has been shooting commercials for much of his career.
Together, they matched Fred's filmmaking skills with Dave's personal knowledge of the field and his contacts to create the first feature-length documentary on the topic, funded in part through two Kickstarter campaigns. They don't pull punches about the difficulties of being a comic-strip artist, but they show all the joy and love that goes into the work along with many potential bright lights already illuminating parts of the field and shining on the horizon.
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The Beastie Boys have apparently published an open letter to GoldieBlox (the letter is mentioned in this NYT post, but not linked to, and does not appear on the Beastie Boys' official website) arguing that GoldieBlox misunderstood their earlier communications questioning parodying their song "Girls" in a viral video ad.
In last week's filing with the Northern District Court of California, GoldieBlox's lawyers stated that they had been "threatened" by the Beastie Boys' lawyers, who had claimed that the video was "a copyright infringement, not fair use" (for detailed fair use analysis, see this EFF post) and a "big problem."
According to the NYT story, the open letter in response to the suit claims that the earlier communication from the Beastie Boys' lawyers was intended as an information query ("When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, YOU sued US") and not a threat.
It's not clear if the initial communication from the Beasties' lawyers to GoldieBlox was written or verbal, and if it was written, it has yet to be published. Update: Here's the text of the Beasties' open letter to GoldieBlox:
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Like many of the millions of people who have seen your toy commercial "GoldieBlox, Rube Goldberg & the Beastie Boys," we were very impressed by the creativity and the message behind your ad.
We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.
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."
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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.
A Ninth Circuit Appeals Court has ruled that the producers of the musical "Jersey Boys" did not violate copyright law by using a clip from the Ed Sullivan Show in their production. They'd been sued by SOFA Entertainment, who holds the Sullivan Show rights. The judges awarded costs to the Jersey Boys production company, so SOFA will have to pay $155,000 in attorneys' fees and costs -- an award that the judges specifically stated was intended to "deter future lawsuits that might chill the creative endeavors of others."
Appellant SOFA Entertainment, Inc. claimed Dodger infringed its copyright in the clip and could not justify its unlicensed use of the clip as "fair use."
"SOFA is mistaken," said Circuit Judge Stephen S. Trott. "The defendants used the clip in Jersey Boys, their musical about the Four Seasons, to mark a historical point in the band's career. The panel held that this was a fair use because by using the clip for its historical significance, the defendants had imbued it with new meaning and had done so without usurping whatever demand there was for the original clip."
The district court viewed SOFA's infringement claim as "objectively unreasonable and determined that awarding fees would deter future lawsuits that might chill the creative endeavors of others."
Court Says Jersey Boys Producers Were Free to Use Copyrighted "Ed Sullivan" Clip in Show [Kenneth Jones/Playbill]
(Thanks, Dick!) Read the rest
Michael Geist sez,
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This morning, the majority of Bill C-11, the Canadian copyright reform bill, took effect, marking the most significant changes to Canadian copyright law in decades. While there are still some further changes to come (the Internet provider notice-and-notice rules await a consultation and their own regulations, various provisions related to the WIPO Internet treaties await formal ratification of those treaties) and digital lock protections are part of the package, all the consumer oriented provisions are now active. These include:
- The addition of education, parody, and satire as fair dealing purposes. - The creation of a non-commercial user generated content provision that creates a legal safe harbour for creators of non-commercial USG (provided they meet four conditions in the law) and for sites that host such content. - The adoption of several new consumer exceptions including time shifting (recording of television shows), format shifting, and the making of backup copies.
Michael Geist sez,
The Supreme Court of Canada issued its much anticipated rulings in the five copyright cases it heard last December. It will obviously take some time to digest these decisions, but the clear takeaway is that the court has delivered an undisputed win for fair dealing that has positive implications for education and innovation, while striking a serious blow to copyright collectives such as Access Copyright.
Led by Justice Abella, the court has reaffirmed that fair dealing is a user's right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.
Scott Blake is a computer artist who created a Photoshop plug-in called th "Chuck Close Filter," which transformed images into mosaics reminiscent of the famous hand-made mosaics created by Chuck Close, whom Blake calls "the 14th richest living artist." Close objected to the filter, and threatened legal action, so Blake complied; although Blake believes that what he's made is legal under the doctrine of fair use, he can't afford to litigate against a multimillionaire adversary.
The issue has eaten at Blake since the 2010 exchange, and he's published a long, illustrated article laying out the case for his work, and placing it in the history of art, the history of computer art, and within Close's own work. He's got a (somewhat daffy) plan to republish his work long after Close and he are dead, but that's a distraction from the main point, which is a heartfelt letter from a young artist to an older artist who first inspired him and then prohibited him from making the art he was inspired to produce.
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I believe my art is fair use, but I don’t have a war chest to back up that assertion in a courtroom, so the wealthy bully wins by default. My only recourse is to publicize my defeat in order to shine a light on these types of situations. My hope is that Chuck Close develops a sense of shame and regret, realizes his mistake and offers up an apology. I want this article to serve as a point of reference for current and future artists.
The Electronic Frontier Foundation's Kurt Opsahl analyzes an important declaratory judgment from a Nevada federal court, which held that excerpting news articles in online postings was fair use.
Judge Roger Hunt’s judgment confirms that an online forum is not liable for its users’ posts, even if it was not protected by the safe harbors of the Digital Millennium Copyright Act’s notice and takedown provisions. The decision also clarifies that a common practice on the Internet – excerpting a few sentences and linking to interesting articles elsewhere – is a fair use, not an infringement of copyright.
The case is a remnant of the Righthaven copyright troll campaign, in which a newspaper owner and a lawyer formed a venture to get rich by shaking down websites. It's ended in bankruptcy, loss of investment, and an investigation from the Nevada bar.
This time, they sued a user on a sports-book message board, who pasted two complete op-eds into a sub-sub board on the system. Not only did the judge rule that this was fair use (an eye-popping precedent in its own right), but it also ruled that, as usual, Righthaven didn't have any business suing the poster because they didn't own the copyright.
Here's where it gets even sadder: Righthaven then argued that it shouldn't have to pay the defendants' attorney fees because it didn't have standing to sue, so the court didn't have standing to order it to pay. The judge laughed and laughed and laughed. And told them to cough up $34,045.50.
Defense attorney J. Malcolm DeVoy was furious. "Righthaven deserves some credit for taking this position, as it requires an amazing amount of chutzpah," he wrote to the judge. "Righthaven seeks a ruling holding that, as long as a plaintiff’s case is completely frivolous, then the court is deprived of the right to make the frivolously sued defendant whole, whereas a partially frivolous case might give rise to fee liability.Read the rest