Fair Use Now

I attended Public Knowledge's World's Fair Use Day last week - an entertaining and informative day-long exploration of the state of fair use and how technology is pushing people to invoke it for new purposes.

Fair use is a principle of copyright law that entitles the public to freely use copyrighted work for commentary or criticism without needing permission from the copyright owner - full definition with examples here and here. In order to determine whether a work is fair use, a judge weighs four factors: 1) the purpose and character of the work, i.e. is the use of the work transformative or educational; 2) the nature of the work, i.e. is it fiction or non-fiction, published or not; 3) how much of the copyrighted word is used and is it the heart of the work; and 4) what does the use do to the value of the original work.

Stay with me here, because I know it sounds like a pretty opaque concept at first, but it's used easily and without mishap often. Basically, a song parody or a book review that includes a quote takes advantage of the fair use principle to use the original song or the quoted material, respectively. (Notable exception: Weird Al Yankovic gets permission from recording artists and licenses every song he parodies rather than claiming his songs as fair uses. Check out artist reactions to Weird Al's requests to parody. Kurt Cobain's reaction is priceless.)

What I find so compelling about fair use is that it sits exactly at the place where the law and popular culture and digital culture are colliding. As has been noted umpteen times in the last few years, we live in a remix culture, and remixed work relies upon source material, and source material requires money to create. So the law struggles to untangle the need for creators to make a living from the need for the rest of the public to inform, criticize, comment, and mashup. And that's what fair use deals with.

Most of the programming I saw at World's Fair Use Day dealt with multimedia uses of copyrighted work that were critiques/commentaries that were clearly transformative to me. For example, Jonathan McIntosh's So You Think You Can Be President is an overt critique of the political process but it's an even more inciseful commentary once you read about what he's trying to accomplish below the comedic surface. The same holds true for his Buffy vs. Edward from Twilight (accompanying explanation here).

Fair use in multimedia can be a murky proposition, but seems to be an easier case to make once guidelines are established. That may be wishful thinking on my part, but it's still a far easier argument to make than fair use in music.

After all, practically speaking, how do you recognize a critique or commentary of a song that's being sampled? How do you delineate a non-transformative use of a sample from one that is transformative? I consider Girl Talk, for example, to be transformative in how he juxtaposes and recontextualizes samples, but is that fair use? Cardozo Law Review writes two fictitious opposing opinions, Idolator stands firm, and the New York Times even weighs in.

The existence of that gray area is exactly why I find the topic of fair use so fascinating: sampling in music today creates art that's valid, valued, and culturally relevant but the law has no standardized way to recognize it - imagine it as music in its own private Guantanamo Bay.

All that's not to say there aren't ways to deal with sampling in music. There are, but unfortunately, they're clunky and expensive and not conducive to the creative process. There are also creative remedies to improve the current sample clearance process. But those remedies are almost beside the point if musicians have to circumvent fair use - the system set in place by copyright law for precisely this purpose - to create music that doesn't flout copyright law and and allows them a chance to make a living from their art.

Overhaul

I have a problem. The problem is that I get stuck in the land of indie rock unless I make an effort to take another direction. So, I'm overhauling my ipod.

Shuffling is cool most of the time and gets me listening to the random corners of my collection, but it's not enough. So, my plan at this point is to get rid of all the single tracks and everything that falls into the category of indie rock. Exceptions: the indie rock I haven't listened to and the running playlist, because I can't just go running to whatever.

Of course, the new Girltalk album is like listening to a couple hundred different albums all by itself. There are so many samples, it's like playing "where's waldo?". It's a not-commercially-available-because-he-didn't-and-couldn't-have-cleared-the-samples, pay-what-you-like dealie available here.

Anyway, what's left on my ipod? Not a whole lot since I can't afford to legally buy a new music collection.

David Bowie - he talks here about writing the songs he still doesn't tire of playing live

She & Him's Volume 1 - an odd little summer album, but the deconstructed, off-kilter Smokey Robinson cover won me over

Goldfrapp - both 2003's Black Cherry and this year's Seventh Tree

My Morning Jacket's Evil Urges - Are they really the second coming of rock music?

The Meters' Fiyo at the Filmore Volume 1

Common Market's Black Patch War

RJD2's Deadringer

Air's Moon Safari - loved Talkie Walkie, just never quite made to this classic

The National's Boxer

Tom Waits' Orphans: Brawlers, Bawlers, and Bastards

Public Enemy's It Takes a Nation of Millions to Hold Us Back - it'd be nice to know what they're talking about

Etta James boxset

Girltalk's aforementioned Feed the Animals

Ratatat's LP3

The Campbell Brothers with John Medeski on Can You Feel It?

Yup, I could go dig up the links to all those albums, but you're smart and I'm lazy and you can google them yourself. Next dispatch from Chicago's Pitchfork Music Festival next week.