Utne’s own Julie Hanus recently reported on some promising and ingenious ways in which the fair use doctrine is thriving, but technicalities are still tripping up artists who should be protected by fair use.

Producers of the intelligent-design documentary Expelled have been exonerated in court after Yoko Ono and EMI Records sued the filmmakers for including a 15-second clip of John Lennon’s “Imagine”—but not without some difficulty. The film was released on DVD without the clip while the case was pending, which, Cyndy Aleo-Carreira at the Industry Standard argues, is an unfortunate side effect of what should have been an open-and-shut case. What’s more, she points out, fair use might not be enough to protect those who can’t afford to defend themselves in court: “If a film with Hollywood producers has trouble using media clips, what hope does an average citizen have of using something without worrying about huge legal expenses that could result?”

But Anthony Falzone, blogging for Stanford Law’s Center for Internet and Society, hails the case as a victory for fair use, in part due to the efforts of Media/Professional Insurance to cover the legal expenses of Expelled’s producers and others sued in fair use cases.

At Slashdot, Ian Lamont reaches the same conclusion I did: It’s a bit ironic that the song sparking the lawsuit is Lennon’s utopian manifesto “Imagine.”

Image by orsorama, licensed under Creative Commons.

A little over two years ago, Girl Talk released Night Ripper, an album of masterfully remixed samples that lifted mashups—new songs built out of existing tracks—to a gold standard. “The record’s pacing is astonishing,” burbled Pitchfork, “with more than 150 sample sources (all thanked in the liner notes), it ricochets from Top 40 hits to obscure gems and back again like a cool breeze.”

Post-Napster music fans stood still, waiting for foamy-mouthed industry lawyers to descend upon Girl Talk’s man-behind-the-curtain Gregg Gillis in a frenzy of copyright-violation suits. Gillis even had sampled the very same “Bittersweet Symphony” riff that famously embroiled the Verve and the Rolling Stones in the late 90s.

And then. . .  nothing happened.

Some speculated that the record industry wanted to avoid more negative, copyright-control-freak publicity—Gilles had thanked his samplees, for heaven’s sake. But more heartening was the hope that Night Ripper so clearly demonstrated creative transformation that no one dared question Gilles’ right to invoke fair use.

Fair use, laid out in Section 107 of U.S. copyright code, is a tricky thing, mostly because it’s (necessarily) vaguely defined, and (consequently) judged on a case-by-case basis. If you can make fair use of a copyrighted work for purposes of criticism, comment, scholarship, or teaching, why then: How do you define criticism? How do you define comment, scholarship, or teaching? If the portion used will be considered "in relation to the copyrighted work as a whole," well, then: What's a reasonable amount? Unfortunately, those definitions often seem to belong to the person with the biggest legal budget.

“Artists need to be able to earn money from their work, but by the same token, an artist needs some access to the work of others, to find things that are existing and reconfigure them into something new—the mashup is a hallmark of 21st-century artistry,” author Bill Ivey recently told Utne Reader librarian Danielle Maestretti. “The challenge is to have a conversation not about what’s good for corporations. . .  or even what is important about copyright for artists, but really how copyright serves citizens.”

Confusion about fair use impacts more people than musicians and artists. In late 2007, American University’s Center for Social Media released a report entitled “The Cost of Copyright Confusion for Media Literacy,” which showed how “poor guidance, counterproductive guidelines, and fear,” (emphasis mine) undermine teachers’ ability to “cultivate critical thinking and expression about media and its social role.” The report gives some based-on-real-life examples: A high school teacher, who produces dummy ads for his students to analyze, for fear that real ads would violate copyright restrictions in the classoom; an art teacher, who won't let students use album covers in their projects.

"Fair use is the most important tool in copyright for educators," according to the report's authors. Yet we’ve been so cowed by the specter of copyright enforcement that we toe a more conservative line than necessary.

Fast forward to the present day: Girl Talk’s recent release, Feed the Animals, samples over 300 songs, and Gilles’ unimpeded ascension to the top of the charts has some copyright scholars thinking of him as the guy who gave fair use “its mojo” back. OnTheCommons.org editor David Bollier writes:

Could Girl Talk’s brave invocation of fair use signal a turn of the tide for that beleaguered legal doctrine? Perhaps. Not only is fair use being thrown back at copyright industries with increasing frequency and success— evidenced by cases brought by fair use legal clinics at Stanford Law School and American University—Girl Talk actually has the public support of his Pennsylvania congressman, Mike Doyle.

It’s especially exciting to see scholarly momentum, even scholarly hope gathering around an artist like Girl Talk’s continued success when the general state of copyright law is so damn depressing. So depressing, in fact, that at the beginning of August, a premier U.S. intellectual on such matters threw in the towel at his personal copyright blog. Exhausted from voicing dissent, in his last post, William Party asserts:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

What do you think about the current state of copyright law? Is it broken beyond repair? Should we be hanging our hopes on artists like Girl Talk? Discuss in the Utne Salon.

(Thanks, Guernica and Soft Skull News.)

Image by  joebeone , licensed under  Creative Commons .

Fan fiction, in which DIY writers lift characters from books, films, TV shows, and other creative works and insert them into their own story lines, is booming—but its legality is murky, writes Canadian copyright lawyer Grace Westcott in the Literary Review of Canada.

U.S. law offers “significant copyright protection to distinctive fictional characters” and “derivative works,” reports Westcott, and in her view this would include most fan fiction. But she gives air time to an alternative argument put forth by Rebecca Tushnet, a Georgetown University law professor and a fanfic writer who argues that the form constitutes fair use. Tushnet founded the Organization for Transformative Works to push the view that fanfic is a “new expression of transformed ideas” and thus protected.

“It may be that [fan fiction’s] shadowy status—largely tolerated, but legally vulnerable—leaves it just where it ought to be, in a healthy state of tension between fans and authors,” Westcott concludes. “Because the fact is that fan fiction has so far been able to operate as a tolerated use, if not a fair use.”

Her lawyerly advice? Keep it out of the courts by establishing “an online code of respect that recognizes and addresses authors’ rights and legitimate concerns.”

Westcott doesn’t even consider the thornier question of fan fiction based on real and often living people, for instance, the “bandslash” or “bandfic” phenomenon (see the Utne Reader’s recent “Slasher Girls”) built around rock-star characters and often homoerotic subplots.

Her hope for some sort of handshake agreement seems at once practical and unrealistic: practical because fanfic might lose ground in court, but unrealistic because the very sort of independent creative spirit that created fanfic will bristle against any sort of conduct code. And because any day now, Sting will Google himself, find an account of himself blowing Stewart Copeland, and phone his lawyers.

Thanks, Arts & Letters Daily.