In my latest for the Guardian, I take a look at the increasingly contentious issue of aggregation, and at what constitutes good and bad linking practices.
In my latest for the Guardian, I consider the implications of an idea put forth recently by influential U.S. Court of Appeals Judge Richard Posner: making it illegal to link to copyrighted content without permission. Not only would Posner’s proposal do enormous damage to the Internet, but it would destroy the doctrine of “fair use” as well.
As one of my students, Marc Larocque, puts it, “Shepard Fairey is a hypocritical scumbag.” That’s really the only proper reaction you can have upon learning that Fairey, who’s fighting a copyright complaint lodged by the Associated Press, has himself charged an Austin artist with copyright violation for doing exactly the same thing.
The artist, Baxter Orr, took Fairey’s iconic image of Andre the Giant and put a respiratory mask on it — precisely the sort of “transformative” use that Fairey is relying on in his own repurposing of the AP’s Barack Obama photo to make his Obama “Hope” poster. Boston Globe cartoonist Dan Wasserman has all the details.
Fairey is up to his neck in it at the moment, filing a pre-emptive lawsuit against the AP and defending himself against vandalism charges brought by the Boston police. I still think his Obama poster is protected under the fair-use exception, as I wrote last week. But so is Orr’s Andre the Giant image. These are nearly identical cases, and it’s amazing that Fairey doesn’t see it that way.
Update: Gee, Fairey’s problem with Orr couldn’t have anything to do with the fact that Orr seems less enamored of Obama than Fairey does. Could it?
You can’t judge a copyright case ahead of time. But based on the facts, I’d say the Associated Press’s copyright complaint regarding the Barack Obama “Hope” poster is a loser. The AP is seeking compensation because the artist, Shepard Fairey, used a photo taken by the AP’s Mannie Garcia.
“Fair use” — the doctrine under which you can use a copyright-holder’s work without permission and without paying for it — specifically allows for works that are “transformative.” That is, if you build upon someone else’s work rather than simply passing it along unaltered, there’s a good chance the copyright police aren’t going to bust you.
That was the principle in Campbell v. Acuff-Rose Music Inc., a 1994 case in which the U.S. Supreme Court ruled that 2 Live Crew were in the clear with its parody version of Roy Orbison’s “Oh Pretty Woman.”
In 2001, the California Supreme Court ruled that an artist who made “Three Stooges” T-shirts was not protected by fair use specifically because they were not transformative — they simply used images of Moe, Larry and Curly without any alteration. It seemed clear from the court’s ruling that if the artist had had, say, printed “Bush, Cheney and Rumsfeld” (or “Clinton, Gore and Rubin”) on the T-shirts below Moe, Larry and Curly’s pictures, then he’d have been covered by fair use.
In the recent dust-up between GateHouse Media and the New York Times Co., GateHouse officials said they wouldn’t have minded if the Boston Globe’s Your Town hyperlocal sites included blogs that linked to GateHouse content. What GateHouse objected to was the Globe’s automated lifting of verbatim headlines and ledes — again, no transformative element.
The AP says it hopes its case Fairey can be settled without a lawsuit. I’m sure that’s true. The AP’s lawyers may be counting on Fairey’s paying money to make this go away rather than be subjected to negative publicity.
But if this goes to court, my money’s on Fairey.
A radio station needn’t obtain advance permission before playing a particular song by a particular musician. Same with a nightclub. Under copyright law, you’re free to play copyrighted music as long as you pay a fee.
That goes for politicians, too. In today’s Washington Post, Christopher Sprigman and Siva Vaidhyanathan explain why musicians such as Ann and Nancy Wilson of Heart, the Foo Fighters and others have no legal basis in objecting to the McCain campaign’s use of their songs. The campaign, they note, has paid its licensing fees, and that should be the end of it. (Via Altercation.)
It’s a free-speech issue, and, as such, we should be just as vigilant against Jackson Browne’s attempt to censor the Republicans as we are about, say, Sarah Palin’s redefinition of freedom of the press as a “privilege.”
The man who wrote the book on how to respond to an unwanted political embrace was Bruce Springsteen. In 1984, Ronald Reagan, running for re-election, gave a shoutout to Springsteen, whose “Born in the U.S.A.” had set off a boomlet of patriotic fervor. Though in actuality it was a bitter antiwar anthem, the upbeat music had confused more than a few conservatives into thinking Bruce had cast his lot with the “Morning in America” crowd.
Shortly thereafter, Springsteen, at a concert in Pittsburgh, introduced his song “Johnny 99” — about an unemployed auto worker-turned-murderer — with this:
The president was mentioning my name the other day, and I kinda got to wondering what his favorite album musta been. I don’t think it was the ‘Nebraska’ album. I don’t think he’s been listening to this one.
And that was the end of that. (Wikipedia reference verified by my steel-trap memory.)
I’ve re-uploaded my fair-use video to fix the whopper of a typo that Donna Halper found. Unfortunately, despite the best efforts of Steve Garfield and John Farrell, the quality is the same.
I did apply some custom settings when creating a QuickTime file, and it looked terrific on my MacBook. But YouTube didn’t like the file, playing the audio without any trouble but presenting the video as a series of stills.
Check out my first news video — a discussion of the copyright dispute between the Associated Press and the Drudge Retort, featuring Robert Cox, president of the Media Bloggers Association, and Rob Bertsche, a First Amendment lawyer with the Boston firm of Prince, Lobel, Glovsky & Tye. Cox’s blog post on the subject is very different from what you may have read elsewhere. As he was a close participant in the dust-up, you should read it.
Cox and Bertsche engaged in a wide-ranging overview at Saturday’s New England News Forum “Sharing the News” symposium at UMass Lowell, but I thought it would be interesting to try to boil their talking points down to a video. Cox and Bertsche are both well worth listening to, so I’ll leave it at that. My purpose here is to offer some technical observations with an eye toward improving.
1. In case you were wondering, I took this with my new Canon PowerShot SD890 IS Digital Elph. I’ve had it for a few weeks, and I’m pretty happy with it so far. It was overcast, so the lighting is exceptionally good in this particular video.
2. Yes, yes, I know I need to pay closer attention to background noise. I probably should have started over when the Laconia-style motorcycle rally (actually, it was one guy) nearly drowned out Cox. What I hadn’t anticipated were the bird noises sounding like something out of Alfred Hitchcock.
3. I edited the video with Apple’s iMovie 6. I’d like to try iMovie 7, but it keeps quitting out on me — even after I installed an update yesterday. In poking around the Web, I see that I’m not even close to being alone in finding iMovie 7 impossible to work with. Has anyone else had acceptable results? (And are iMovie 7 and iMovie ’08 one and the same? I think they are.)
4. I don’t like the titling options provided in iMovie, so I did the title slides in Photoshop Elements and saved them as JPEGs. I couldn’t figure out how to do them in color, so, as you’ll see, they’re in vivid black and white — or, as they translate to YouTube, vivid dark gray and light gray.
5. Steve Garfield tried to offer me some pointers on how best to export it for uploading to YouTube, but the dialogue box I got was different from what he showed me. The video looks really nice in iMovie. It degrades a lot when I save it as a CD-quality QuickTime .mov file. The title screens, in particular, look really bad.
Thoughts, comments and suggestions are welcome.