By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: fair use

Copyright hypocrisy at the New York Times

Last Saturday the New York Times posted a PDF of a 1976 article by the legendary Boston sports journalist Clark Booth that appeared in the Real Paper, an alternative weekly that was published for several years in the 1970s. The article accompanied a column by Joe Nocera on football injuries, about which Booth wrote perceptively some 36 years ago.

I have to confess I didn’t think twice about copyright, figuring Booth, whom Nocera interviewed, had given him permission to reproduce his words. But now Boston Phoenix editor Carly Carioli has pointed out — rightly, in my view — that, in fact, the Times has violated the Real Paper’s copyright and that of the photographer(s) whose work was reproduced. And since the Phoenix acquired the Real Paper’s assets when the paper went out of business, the Times must answer to the Phoenix.

The Times’ reproduction clearly fails the fair-use test, most obviously on the grounds that it reposted the Real Paper article not for the purpose of commentary and criticism, but so that its readers could enjoy reading it. I imagine the Times could also get whacked for taking too much of the article (i.e., the whole thing). Even though it would be tough to argue that anyone lost any money as a result of the Times’ actions, another important fair-use test, I’d guess a judge would favor the Phoenix if it ever came to that.

But Carioli is not concerned with the negligible harm the Times has done to the Phoenix so much as he is with the behemoth’s rank hypocrisy. Former executive editor Bill Keller, now a Times columnist, has been obsessed with the nefarious forces whom he believes have been improperly profiting from Times content. And, Carioli notes, the Times reached out and killed a pretty cool iPad app called Pulse merely because it reproduced headlines without permission.

Writing that “copyright in this country is a goddamn mess,” Carioli continues: “We want an internet and an intellectual-property regime that rewards discovery and innovation. We won’t get it with copyright construed the way it is now.”

And we won’t get it with the Times saying one thing and doing another.

Addenda: (1) I had the privilege of copy-editing Clark Booth’s weekly sports column for a short time in 1990, when I was working at the Pilot, for whom he still writes; (2) you can also read Booth in the Dorchester Reporter.

Disclosure: I’m a contributor to the Phoenix, and was a staff member from 1991 to 2005. I have a standing disclosure here, but sometimes it doesn’t hurt to remind people.

Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

The hypocritical Shepard Fairey

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?

AP’s copyright complaint a likely loser

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.

Fair use: The video (II)

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.

Fair use: The video

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.

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