from the fair-use-matters dept
As for the book for May, it is the excellent Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi, two of the most recognized scholars on fair use issue. It's really a great book if you're trying to understand fair use and why it's important. As always, the book is available in lots of places -- with Amazon being a popular one. While I recognize the ebook pricing is still somewhat higher than some folks here think is reasonable, it is at least lower than the last few books. Also, Patricia has granted us permission to re-publish a fair bit of content, which we'll be doing over the coming weeks. Today, we'll kick it off with part of chapter one on The Culture Of Fear And Doubt, and How To Leave It. So with that, we'll jump right into the excerpt from that chapter:
Gordon Quinn, for forty years a professional filmmaker including as executive producer on the award-winning film Hoop Dreams, was working on a public television program in 2001. New Americans is about the lives of new immigrants to the U.S. In one scene, Israel Nwidor, a Nigerian immigrant trained as a chemical engineer and now working as a cab driver, is listening to a George Strait song in his car when a white guy on a motorcycle pulls alongside and gives him the evil eye. It's one of those little moments that reveal a lot.
Twenty years before, Gordon wouldn't have given the song playing on the speakers another thought. But over the last two decades, he had become hyper-conscious of the copyrighted material in documentaries. Broadcasters and insurers had become hyper-vigilant, demanding assurances that he had licensed every stray bit of copyrighted material. Did the reunited family sing “Happy birthday”? License it. Were the middle-school girls on a sleepover listening to pop songs? License them. Did the little autistic boy love “Puff the Magic Dragon” as a comfort song? License it. And what about those posters on the walls? The books on the shelf?
As a result, Gordon didn't doubt that he would need to license the George Strait song that Israel was nodding along to. Only he knew from experience that he probably wouldn't get an answer to an email sent to the music company. The amount of money involved would be so trivial that the music company's licensing executives wouldn't even respond.
So Gordon cut out the scene. Nobody watching it even knew they were missing anything. It was one of a thousand little cuts that nobody knew they were missing, each one of them a silent erasure of a piece of reality.
Cyndy Scheibe, a psychology professor at Ithaca College and director of Project Look Sharp, a media literacy initiative, uses comic strips from newspapers and other pieces of popular culture— clips from documentaries, popular films, and print advertisements--in her classes to teach about point of view and representation. Her team at Project Look Sharp has created online curriculum materials about the media’s representation of the Middle East, featuring among other things a clip from the Disney film Aladdin.
Could Cyndy's teaching materials safely be shared with other teachers? Did she dare to put it on an open website? The Ithaca College legal experts and administrators were divided, and finally demanded that both Cyndy and her colleague Chris Sperry personally pledge their willingness to go to court to defend themselves should their use of unlicensed copyrighted material be litigated. Cyndy and Chris gambled, and let the site go up. They erred on the side of caution where they could. For one exercise that involved comparisons of covers of the magazine Newsweek, they tried to license the covers from the news corporation. But the company would not license them for an appropriate fee, and furthermore, the company told them, Cyndy and Chris would also have had to negotiate with the subjects of the covers. The company spokesperson was actually talking about two kinds of rights: the company’s copyright, and the celebrities’ right of publicity. Cyndy and Chris believed, correctly, that they did not need to get permission from the likes of Osama bin Laden, since they had a First Amendment right that overrode any publicity claims he could make. As for the copyright claims, they decided to use the magazine covers under fair use; they and their university counsel believed there was no question.
Even when they were sure they were within the law, though, Cyndy and Chris were given pause by what they’d heard in the rumor mill. That little clip from Aladdin—did that put them in jeopardy from the Disney Corporation? They’d heard that Disney was wildly litigious. They finally added that clip to the website, and held their breaths.
They were relieved to see Project Look Sharp be widely used, and even more relieved as the threat of litigation failed to emerge. They had pledged if necessary to loot their 401(k)’s for legal funds to defend their rights to reference their own culture, and--for now--they thought they didn't have to.