Copyright Laws and Fair Use By Dan The radio and recording industries should push to revise copyright laws. In today’s ever-increasingly media-saturated society, the idea of original artistry is constantly in question. But where does one draw the line between artistry and- for lack of a better word- stealing? Certainly in the film industry, one director’s style begets another dozen down the road and those new students of film are never hesitant in citing Person X as the source inspiration or influence behind their own work. As Negativland, an experimental group of media critics/artists, states in their revisionist copyright document, Fair Use, “In the realm of ideas, techniques, styles, etc. most artists know that stealing (or call it ‘being influenced by’ if you want to sound legitimate) is not only OK, but desirable and even crucial to the creative process.” While even they note the distinct difference between the stealing of actual material and the stealing of ideas, which are not easily copyrighted, their argument rests that theft in some part has been and continues to be a time-honored tradition in the arts. Copyright laws, while understandable for their direct use in protecting the works of artists and the ability of artists to profit from their work, are nonetheless impeding upon those aforementioned traditions, which give rise to a free cultural commentary through the use of appropriated media. “Appropriation in the arts has now spanned the entire Century, crossing mediumistic boundaries, and constantly expanding in emotional relevance from beginning to end regardless of the rise and fall of ‘style fronts.’” Essentially as they state the inherent hindrance of copyright laws, Negativland queries, “Has it ever occurred to anyone that the private ownership of mass culture is a bit of a contradiction in terms?” Perhaps it is time for a change. Negativland’s personal gripe with the copyright laws is their legal problem in creating albums, whose tracks are made up of as many as one hundred or more media captures each. They explain, “Appropriation sees media, itself, as a telling source and subject, to be captured…and injected back into the barrage by those who are subjected to it. Appropriators claim the right to create with mirrors.” However, with current copyright laws in place, they constantly run afoul of these legalities. “In order to appropriate or sample even a few seconds of almost anything out there, you are supposed to…get permission and pay clearance fees.” While they argue that getting permission is unavoidable, it is nonetheless difficult because of the obvious lack of desire on the part of an artist to have their work used for reproduction in an unflattering context. The clearance fee, though, is their largest problem. “Clearance fees are set, of course, for the lucrative intercorporate trade.” They state that even if they were able to put up the funds, that the slowing, bureaucratic red tape would ultimately cause their “budget and release schedule [to] be completely out of [their] own hands…In effect, any attempt to be legal would shut [them] down.” What changes need be made, then? Well, the bending of any social constriction is always limited in some small way. This is because laws are not usually made for nothing, there is some inherent good served to someone through its passage in the first place. For someone else to go back and reverse all of that good to the individual for whom it was originally written is truly counterproductive to any sort of argument one might make about the need for change in specific laws. (In this particular paper, by the way, know it is clearly communications laws being discussed. Certainly the changing of civil rights legislation, for example, was in every way a positive step, despite abolishing many laws entirely in the process.) Negativland cuts through to the problem, “Art is not defined as a business! Is it a healthy state of affairs when business attorneys get to lock in the boundaries of experimentation for artists, or is this a recipe for cultural stagnation?” As one might expect, Negativland does have a proposal to offer for positive change that even retains the integrity of the original copyright law’s purposes. “In general, we support the broad intent of copyright law. But we would have the protections and payments to artists and their administrators restricted to the straight-across usage of entire works by others.” Commercial advertisers, they say, would continue to pay in full for any use of works. While it seems clear that this proposal indeed serves specifically their own needs to a tee, it may not be such an outlandish idea. Currently, there is some legislation built into the copyright laws about the free reusing of materials. Called the “Fair Use” doctrine, it allows for free appropriation of materials for use in parody or commentary. As it stands, this does take some of the load off of Negativland already with respect to their previous concerns about getting permission from authors/creators of media items. If indeed they are creating aural commentary from found sound and media, then the “Fair Use” doctrine should protect them from having to fight for that permission. However, as they state in their paper, Fair Use, “these provisions are conservatively interpreted and withheld from many ‘infringers’.” Again, they restate, “A huge improvement would occur if the Fair Use section of existing law was expanded or liberalized to allow any partial usage for any reason. If this occurred, the rest of the copyright law might stay pretty much as it is.” This revision, too, hits on a basic key problem with these copyright laws in the first place: they take the art from the artists and put it into the hands of lawmakers. Negativland writes, “Our dense, international web of copyright restrictions was initiated and lobbied through the Congresses of the world, not by anyone who makes art, but by the parasitic middle men of culture.” They illustrate the idea of the artist removed from the legalities by referring to “the lawyers behind the administrators, behind the agents, behind the artists.” Going back to their argument that appropriation is and has been a long standing tradition in the arts, Negativland discuss how now, true American folk music with its reliance on the incorporation of “previous melodies and lyrics” to create “constantly evolving songs is impossible when melodies and lyrics are privately owned…the very idea of mass culture is now primarily propelled by economic gain and the rewards of ownership.” Whether or not legislation adopts Negativland’s proposal for the expansion of the Fair Use doctrine, certainly changes need to be made and the recording industry should push to revise the copyright laws. The art needs to also be put back into the hands of artists, whether they are creators of wholly original work or creators of original work that incorporates and is legally influenced by the works of other creators. If it is the job of the artist to comment and express, then he should be able to do so without any hassles from the government. While there is much credence to be given to the idea of subsidizing the original artists for use of their work, one must still consider those whose existence as artists relies solely on the use of those works, but whose incomes cannot expect to compete with those of major production conglomerates when paying for rights. In giving Negativland the last word, they write, “Until some such adjustments occur, modern societies will continue to find the corporate stranglehold on cultural ‘properties’ in a stubborn battle with the common sense and natural inclinations of their user populations.” |
| Forward: Ok, I know this has nothing directly to do with the cinema. However, like my previous music-related Eminem piece, I feel this essay speaks largely to issues of free speech and ownership in artistry. The concept of artists stealing from artists is especially under fire right now amongst the Napster hearings and whatnot and needs to be brought to public attention in a more neutral, if not favorable, light. Those not familiar with Negativland may find themselves pleasantly surprised or possibly offended by their progressive ideals. The fact remains, however, there are artists out there- like Negativland- whose medium is collage and who can no longer suffer under the tyranny of bureaucratic, expensive red tape. Theirs is a strange, but not unique trouble. I do not profess to agree 100% with their ideas or beliefs, but their call for change must be heard. I hope in reading this perhaps these issues will be given a more public forum for discussion and progression. Please feel free to email me any opinions you have in response to this essay- positive or negative- or any further questions you may have on the subject of copyright laws and the rights of artists. Thank you and enjoy. |
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