This video reminded me of working in the legal arts clinic my last semester of law school.  Many of the artists that would come to the clinic were doing creative projects that included some fair use or even a lot of fair use.  I wanted to give advice that their work was likely fair use and thus protected 1st Amendment speech, the advice given was often much more pessimistic and even once painfully crushing to the artist.  These are smaller artist that want to spend their days creating, not trying to clear rights on transformative works from rights holder that will not even return their calls. As a lawyers you are trained to minimize risk, which unfortunately is interpreted as avoiding fair use all together. American’s Center for Social Media is trying to change this norm by helping communities create or document their best practices related to fair use and enable artist to use their free speech rights.

On Lessig’s blog: “As mentioned, the Fair Use Project at Stanford’s CIS is representing Shepard Fairey in his suit against the AP. To that end, we’d be grateful for some net-based knowledge. How many photos are there ‘like’ the beautiful photograph that Mannie Garcia took (the one on the left; the one on the right is a CC licensed photo taken by Steve Jurvetson)? Can you send any examples to shep_use@pobox.com?”

Crowd-sourcing a “fair use” case

BoingBoing also has 40 comments already on this request

18 of those students went out on a limb and took an active role in the trial by playing the parts ranging from the attorneys to the plaintiff and the defendant.  Every part in the trial, except the judge which was played by a current Washington State Supreme Court Justice, was acted out by the students.  Here is one of the students giving an opening statement:

More photos of the event can be found at the FLI website.

The students did a great job with the mock trial.  For many of the students this was their first time speaking in front of a large group.  They tackled the challenge with great enthusiasm. A few of the students even did better then my 2L colleges did in their oral arguments last year. I look forward to seeing some of these students practicing in a few years.

Here are some of the details about the trial:

We even created a mocked up blog post for the trial.

The basic facts:

Background on the Defendant, Susan Haskel, and her Blog

“Dance Dance Evolution by PunkGrrrl” is a moderately popular music review blog written by Susan Haskel, a sophomore in chemistry at the University of Washington.   The blog reviews Indy, Emo, Trance, Hip Hop, and Punk music. The basic content of Ms. Haskel’s posts to the blog has been consistent.  Each week she chooses two songs to review.  One song she raves about and the other she rants about.  The blog has been in operation since early 2003 and has been steadily growing in popularity.  Ms. Haskel does not charge for access to the blog, but does have Google Ad words on the site.  Ms. Haskel’s cost to host the blog is less than $150 a year.  The text ads bring in less than $10 per month.  The blog also has a “wish list” where fans can anonymously purchase music-related merchandise from Ms. Haskel.  Fans of her website have purchased two official band T-Shirts and three official band posters from her over the past 2 years.

Defendant’s Review of Plaintiffs’ Songs

On June 16, 2008, Ms. Haskel reviewed two songs: 8 Foot Hammer’s new release Apparition and Front Street Girls’ popular but older hit Twiggy.  In the June 16th blog post, Ms. Haskel added images of each artist from the band’s official website or MySpace page, along with a review of the song.  In Ms. Haskel’s post she quoted three lines (out of 24) from the song Twiggy and followed the quote with a scathing criticism of the lyrics as being “self loathing trash not worthy of a gutter punk’s scorn.”  Under the heading: “Think I am wrong?  Try the songs yourself.” Ms. Haskel also added a link that allowed each reader to download a copy of each song from her server.

The song Twiggy was released in 2001 by Front Street Girls with a copyright notice claiming “All Rights Reserved.”  The song Apparition was released in May of 2008 under a Creative Commons “BY” license and is available for free download at 8 Foot Hammer’s website.

Reaction by Plaintiffs

In the two days following Ms. Haskel’s June 16th post, her blog received five thousand hits.  Ms. Haskel’s Internet Service Provider (ISP) received a takedown request under the Digital Millennium Copyright (DMCA), asking that the music file Twiggy be taken down.  The takedown request came from Artists International Collective (AIC), the rights holders for Front Street Girls’ song Twiggy.  AIC does concert promotion for both Front Street Girls and 8 Foot Hammer. AIC regularly hires a private investigative service to search the web for illegal use of AIC’s songs, and was notified by the private investigator about this posting of Twiggy.  Ms. Haskel’s ISP removed the audio file for Twiggy, but left her blog up.

Copyright Infringement Suits Filed

On July 5, 2008, AIC filed a civil suit in the Western District of Washington claiming copyright infringement of the Front Street Girl’s song Twiggy.  AIC is the owner of the sound recording rights in the copy of Twiggy posted on Ms. Haskel’s website. AIC is asking for statutory damages of $150,000 for copying and distributing the song Twiggy. The Front Street Girls joined the law suit and are claiming infringement of their copyrighted lyrics.
8 Foot Hammer is not part of the law suit.  8 Foot Hammer’s Apparition song is posted under a Creative Commons “BY” license, which allows for anyone to distribute their work for free.  8 Foot Hammer claims that the free distribution helps their popularity and concert attendance.

Huge thank you to all the volunteer legal processionals that helped make this happen:
Megan McCloskey, Genevieve Tietjen, Karen Murray, Rita Amer, Emily Gant, Wilberforce Agyekum, David Estudillo, Manny Borde, Michael Yoder, Mary K. Henderson, AllenBaden, Allen Bruggeman, Jason Naiden, Jennifer Krebs

With Special Thanks to:
Carla C. Lee – Who had the great idea to run an IP mock trial and did an amazing job recruiting people.
Sandy Brown – For doing an amazing job organizing the conference.
Robert Cumbow – For giving the intro the copyright talk and helping with the mock trial.

Here are the source materials from the trial:
FLI 2008 Mock Trial volunteer-packet

FLI 2008 Mock Trial student-role-packet

FLI 2008 Mock Trial all-students-packet

FLI 2008 Mock Trial complaint

FLI 2008 Mock Trial fli_mock_trial_parts

FLI 2008 Mock Trial glossary of terms

FLI 2008 Mock Trial answer

Please feel free to remix, reuse or modify the mock trial materials. They are under a CC-BY license.

FLI Mock Trial 2008 by Future of the Law Institue is licensed under a Creative Commons Attribution 3.0 United States License.
Based on a work at freedomforip.org/2008/12/09/fli-fair-use-mock-trial/.

Is this policy good for student orgs? No, it makes it tougher for orgs to share information or rally students around a cause.  Is this good for film makers?  No less students see their work and less people will hear their message. Is this good for the rights holder? No, rights holders are not likely make any money off student org that have an annual budget of $200. Simply put the blanket policy is not good for anyone.

I am not one to complain, unless I am willing to change things.  The school should consider implementing a fair use policy related to student orgs use of films.  Fair use is the part of the copyright act that protects users from infringement claims. Another way to look at fair use is the codification of the first amendment in the copyright act. The use of a film for educational, noncommercial purposes in a way that promotes a public interest cause is very likely considered fair use. Here is a first draft of a suggested policy:

Student orgs may show films as long as they meet the following criteria:
1.  The film showing must be noncommercial in nature: no charging admission, taking donations or exchanging money in any way.
2.  The film showing must be for an educational purposes that is directly related the the student orgs mission.
3.  The film showing must not take place if the film are currently being shown in a commercial venue within 20 miles of Seattle.
4.  The film showing should be accompanied by other educational activities, such as a discussion of the films subject mater and how it relates the the student orgs mission.

If you have interest in learning more about how copyright creates problems Students for Free Culture’s showing of:

GOOD COPY BAD COPY - a documentary about the current state of copyright and culture.
The documentary features interviews with many people with various perspectives on copyright, including copyright lawyers, producers, artists and even the MPAA.  The point of the documentary is the thesis that “creativity itself is on the line” and that a balance needs to be struck, or that there is a conflict, between protecting the right of those who own intellectual property and the rights of future generations to create. The showing is Tuesday October 28th at 7:30pm in Room: C7.

PS: I did not have clear rights on Good Copy Bad Copy the film was released under a Creative Commons Attribution-NonCommercial license which encourages public use.  To read more about fair use and creative commons follow my blog at FreedomforIP.org/blog/ and join Student for Free Culture.  If we do not use our rights they are lost.

Attribution: The description of the documentary was remixed from Wikipedia and the image was taken from the intro screen of the film.

Anthony Falzone – Stanford Fair Use Project

Fair use 101 and sampling. The most important fair use case is Campbell v. Acuff-Rose Music .  Transformative, creative, new meaning new expression. Does sampling = Infringement?  This question is wide open to the right action!  The claim that sampling is illegal is a myth!  The Biz Markie case, over the song alone again, in this case the issue of fair use was never reaised!  100 Miles and Running, NWA case, no fair use raisedNotorious BIG, ready to die, three notes used fair use was never raised!  In almost every major sampling case fair use has not been litigated.

AMAZING talk,  well worth watching and activist in nature!

Here is Anthony’s favorite case:  Jeff Koons won a summary judgment in a case he took on when commercial photographer Andrea Blanch sued him for copyright infringement; Blanch appealed, and has lost.

Download and read the decision: http://caselaw.lp.findlaw.com/data2/circs/2nd/056433p.pdf
Blanch v. Koons, No. 05-6433 (2nd Circuit, October 26, 2006)
Summary judgment for defendants, a visual artist and institutions that commissioned and exhibited one of his paintings, is affirmed where an artist’s appropriation of a copyrighted image in a collage painting constitutes a protected “fair use” under copyright law.

Read more about this case at NEWSgrist

Larisa Mann – DJ Ripley, Berkeley Law – Modern history of remix.

This presentation was almost all clips of music.  It was a good presentation but tought to talk about the music.  I will post more on her talk if I can get some of the clips.

Baltimore club music – referred to as just club music.

Marc Perlman – Professor of Musicology, Brown -Remixthrough the ages

Reasons for remix – Humor, Homage, Ridicule, virtuosic/ Competitive emulation, Aesthetic (“improvement”), religious.  The law fails to recognize many of the reasons for remixing.  Comments from Brian:  Fair use might be an avenue for recognizing more of the these puorpses for remixing.
Here is one example from our history – the original song the Star Spangled Banner is based on:

To ANACREON in Heav’n, where he sat in full Glee,
A few Sons of Harmony sent a Petition,
That He their Inspirer and Patron wou’d be;
When this Answer arriv’d from the JOLLY OLD GRECIAN
“Voice, Fiddle, and Flute,
“No longer be mute,
“I’ll lend you my Name and inspire you to boot,
“And, besides, I’ll instruct you like me, to intwine
“The Myrtle of VENUS with BACCHUS’s Vine.

David Evan Harris – Global Lives Project

Very interesting video project pased on documenting 10 peoples lives for 24 hours each.  All the videos are under CC.  The project is using dotsub to translate all the videos.

Q: is GirlTalk legal?
A: depends on if he wins. Note Brian: we have a responsibility to to make sure he wins if sued!

The main negative on the panels, was not enough time for Q&A

Basically the court found that the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.”

My favorite and possibly most backward line from the opinion is:

“While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”

If you want to encourage these works then why rule against it… ?  Well the answer is not a legal one it is an economic and emotional one.  Once you get beyond the basics of the legal claims in this opinion you will notice something very disturbing.  The court simply accepted many of Rowling’s bogus economic arguments and fell for her argument that the Lexicon is hurting charity.  This court simply fails to grasp two things:

1.   Answer speech you do not like, including commercial speech, with more speech not less

2.  Monopolies are bad for the public interest – in this case they discourage the creation of new works, and expand copyright control beyond the work for purely anti-competitive reasons.

The court claims that “publication of the Lexicon would also result in harm to the charitable organization … More concretely, publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, all the elements of which are replicated in the Lexicon for a similar purpose. Readers would have no reason to purchase the companion books since the lexicon supersedes their value” (emphasis added page 64) This is flawed in many ways:

1.  People will still buy official Rowling’s works simply because they are official, the Rowling approved brand sells books.

2.  Rowling’s own companion inherently has an advantage, she can add more information or facts making it better. Competition creates a need for innovation, by killing the lexicon the court is protecting stagnation and discouraging new creativity.

3.  People will buy the Rowling companion to support charity even if it is the same as the lexicon.

4.  More products on the market create more interest and more hype for official goods.

This opinion is very disappointing.

Read the 68 page opinion for yourself:

Potter Decision Rowling v. RDR Books 9-8-08

Other posts:

WSJ coverage of HP Lexicon Case

Here is one of the more insightful comments on the video from kalaresh:

This is a really good example of why copyright laws and the organic development of art are ultimately incompatible. This is what artists have always done and are supposed to do — have a conversation with the culture by transforming existing popular art into something new. What makes this original isn’t the material but the perspective on it. You can’t really own art or an idea about it any more than you can own the ocean. It’s really a shame art like this is illegal.

This comment illustrates the tension between copyright law and creativity.  I hope the writer is ultimately wrong though, fair use should protect this type of creative remix.

PS: The audio track is downloadable at Last FM (blue download link when you get there)

Before I go into the 4 Fair Use factors Watch the clip yourself:


Online Videos by Veoh.com
Fair Use is codified in section 107 of the Copyright Act, here is the relevant portion:

…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

1. Character of use News and political commentary are very highly protected especially if the work is transformative, which the subtext is. HA 1 – WAR 0
2. The original (infringed) work Promotional political advertisement (propaganda?) is much less protected. HA 2 -WAR 0
3. Amount used Only a small portion of the work was used and only the part needed for the news article – HA 3 – WAR 0
4. Effect on market value of the work the work has little to no market value to effect, it is being given way with no intent to sell ever (there should be a no harm no infringement rule). HA 4 – WAR 0

Flawless Victory! Okay, maybe I am over simplifying the factors a little (I would not use this in a brief), if you want an in depth look at the factors is a similar case check out Savage v. CAIR, but this is still a clear case of Fair Use and a response where copyright is being used to censor speech.

Here is David Goldstein, founder of HorsesAss.org response:

I downloaded from the Washington Association of Realtors’ (WAR) website. It was by any measure of the term, “fair use,” as I couldn’t very well comment on McKenna’s statement for political purposes, without illustrating my commentary with a piece of the video itself. Still, that didn’t stop the chickenshits at WAR from seeking to violate my First Amendment rights by having YouTube pull down my clip. …

So I’ll tell you what… if you folks at WAR really believe that I’ve violated your copyright, and you’re not just playing lazy legal games attempting to prevent a broader audience from hearing McKenna’s lies and blatant suckupery… then I suggest you sue me. That’s right… prove your case in court, and sue me for everything I’ve got. I’ve only got one significant asset, the equity in my home, so go ahead and try to take that away from me in defense of your handful of crooked members who specialize in doing exactly that. You gotta at least love the irony.

Because if you don’t sue me—and win—I’m gonna continue to post constitutionally protected political commentary using video clips from your website. You know, like this one:

Online Videos by Veoh.com
On Monday, I posted a clip of Rob McKenna from a short video

Remember, Fair Use is your First Amendment right embodied in the copyright act! Be prepared to fight for those rights.
PS: I would love to see the takedown letter on this video.
PPS: I am not a practicing lawyer, and this summary does not constitute official legal analysis or advice, merely flawlessly reasoned argument by a layperson obscenely familiar with copyright law.