Fair Use/Abuse -- Copyrights and Wrongs

As someone who produces and distributes his own comics, David Lasky is more in touch with the business side of art than are most artists. "I think after R. Crumb's copyright problems, cartoonists got sharper," he says, referring to works that earned thousands for entrepreneurs who paid the artist next to nothing.Lasky's comics are copyrighted, as are any artistic creations, when he makes them. To ensure this, he puts a circled c followed by the year and his name on each work, but to fight for a claim in court, his best evidence is to have registered the work with the federal copyright office. Short of filling out forms and paying a fee for this service, an effective way to protect himself is to publish the piece in a copyrighted periodical where, following publication, all rights revert to him.Or so it seems. Months ago Lasky learned by accident that a cover he drew for The Stranger (a Seattle-based publication) had been appropriated by Pearl Jam to illustrate some lyrics on their new CD."I was pretty upset when I heard. I couldn't trust anyone," he says. He learned that someone at the paper had given what someone with the band took to be permission to use his work. Then he called the band's management company."When I first talked to them, they wanted it for free," he says. They told him an expensive sort of eco packaging would severely cut profits. Lasky didn't buy it. If his art was going to be part of a major commercial enterprise, he expected to be paid fairly. Or, they couldn't use the drawing. Negotiations turned urgent."'We'll come over right now with $1000 in cash if we can have your signature on a release,' they said. I didn't know they had already printed the liner notes and were ready to release the CD," Lasky says. "I was more happy that it resolved than I was with the $1000," although when first asked to name a figure he had said $4000, the amount of his credit card balance.Hectic as this was for Lasky and the band management company, their resolution stands as a model of civility in what has become a property rights wilderness. The land may be used up and traditional manufacturing industries may be worn out, but intellectual property opens a new marketplace frontier, where the smallest disputes aren't taken for granted because the rights to everything, from newspaper cover art to the DNA of indigenous peoples, offer potential ways to wealth. Patents, trademarks, and copyrights grant monopolies to those who hold them, allowing the holders to develop products based on their ideas. This freedom from competition is supposed to foster creativity and reward creators. In reality, laws that restrict the free flow of ideas have a way of killing creativity and rewarding those who have bought or simply taken the rights from the creators. Intellectual property laws grounded in 18th Century concepts of land ownership make much of originality in establishing a creator's right to profit from his creation, but this recognition of originality is more useful as legal expedient than acceptable as aesthetic concept. The Romantic idea of an artist who creates unique, original works purely from inspiration has been well thrashed by theorists, if not by the culture industries. All art borrows or steals, indirectly or directly from earlier works. The influences of culture are inescapable. Many artists consciously appropriate entire plots from earlier stories for their plays, riddle their poems with lengthy allusions, sample someone else's recording when they make records, and build movies from collages and previously set-up shots; many more artists unconsciously repeat what has been done. If a rare few seem to break free of the patterns set by all that anyone can know, their originality is a wonderful illusion.Borges plays off this idea in his story "Pierre Menard, Author of the Quixote," where a modern writer re-creates parts of Don Quixote word-for-word by controlling his environment so as to admit just what Cervantes could have known. Because Menard's book is inspired by what surrounded Cervantes and not in the least influenced by Cervantes's book, Menard's is an "original" work.A less theoretical treatment of this theme occurred recently, when The Primary Colors by Alexander Theroux reproduced passages from Song Of The Sky by Guy Murchie, which appeared in 1954. Theroux's explanation that poor note-taking had inadvertently confused what he had conceived with what he had read shows the real power of influence: not the names on file cards touring authors peek at when asked to say who influenced them, but the grip of an idea, a line or passage to seize mind and soul must be repeated.Stories of artists getting ripped off inform true legend and grim reality. Whether the "borrowing" is inadvertent or deliberate, for speculative profit or the greater glory of art, few creators are so enlightened as to be able to appreciate having others use their work without permission, pay, or at least, credit. The recent and ongoing gold rush in the culture Klondike has intensified rights claims, particularly as lone prospectors are displaced by multi-national corporations, and the terms "artist," "creator," and "owner" become interchangeable."You've got to realize that in the culture industry, 99% of the people that are in bands, that are writing novels, that are writing screenplays, that are writing anything are never making any money off it," says Negativland recording artist Mark Hosler. "The only money that's made is by the companies."Much of Negativland's response to this condition has been to reflect the elements of the culture back against itself, to make art out of pieces of copyrighted material from songs, radio and TV broadcasts, and other commercial productions. Their motto, 'Copyright infringement is your best entertainment value,' may seem extreme, but as Hosler says, "Every single bit of space out there is owned by someone. If I write graffiti on the side of a wall, I'll be arrested. And every day decisions are being made to make the world 'big.' It's all being run to protect the money, to keep the power, and you're going to have people reacting to that, either consciously or intuitively, throwing a paint balloon up on a billboard or whatever.""The whole idea behind copyright law, which goes back to the constitution, is, when somebody creates something that's an original artistic creation, they have the right to decide what's going to happen to it and how it's going to be used," says entertainment lawyer Neil Sussman. "And if they want to charge for that use, they're certainly entitled to it. After all, this is a free enterprise, capitalist system. It doesn't matter if you're selling cars or artwork, songs or refrigerators. That's the basis for the whole economic system."Sussman represents the Toucans, a steel drum band (as in two cans) whose federal trademark application for their band name was contested by the Kellogg Company, who has a trademark for Toucan Sam, the bird on the Froot Loops cereal box. Trademarks cost more to get than copyrights and can be more restrictive, but they have powers copyrights lack. A theater company wanting to do parodies of Star Trek may be advised that certain key elements of the show's scripts have been trademarked by Paramount and then told to cease production. The Toucans applied in the music category, not in Toucan Sam's cereal products category, which is an important distinction, especially since Toucan Sam's 1984 record where he explains the orchestra falls short of continuous use. But then, having established their mascot through years of issuing toucan paraphernalia, Kelloggs takes a wider view of the bird's domain. Moreover, in property disputes owners are expected and even required to protect their interests at the slightest provocation, or they risk losing their rights. While rights protection may be the sport of kulture kings and corporate attorneys, in which artists and their legal advisors can hardly compete, a group of sculptors in a Seattle neighborhood has become a physical and legal force to be recognized, with a work whose subject verges on the conceptual: the Freemont Troll. Camped beneath the north end of the Aurora Bridge, the hulking brute languidly fondles a Volkswagen, glaring a single steely eye at any who would make unauthorized use of him.Sculptors Steve Badanes, Will Martin, Donna Walter, and Ross Whitehead gave the piece to the neighborhood but retain the rights to it. After they won settlements from companies and publications that used its picture without permission, some wondered whether the Troll hadn't transformed into a cash cow, although Martin estimates he made about $6 an hour from the commission, and the publicized enforcement of their rights prevents people from using the Troll without asking."You're supposed to be getting the reasonable value of the loss," says their attorney Tom Hayton. "The more it shows up, the less valuable it is. We have the odd distinction of being publicly exposed and funny," he says, adding that normally sophisticated businesses seem to forget about rights, under the troll's spell. The inspiration for the artists' vigilance is Cadillac Ranch, the famous Texas sculpture of Cadillacs planted headfirst at the same angle in a row. At first unprotected, this was often taken for commercial use by others. Whitehead also mentions the influence of Picasso, who lost a case in Chicago because his sculpture didn't have the posted notice which was then required to indicate copyright. To be sure, the Troll is marked by a plaque in the skidmark of the captured car.However inspired or satisfying it can be to protect works from being plundered by commercial ravagers, artists who fight for their rights face moral as well as practical dilemmas. Given the current trend in speculative acquisition, what's to keep Volkswagen and Cadillac from suing those who conduct unauthorized product placements? Negativland does not condone unfair use of others' material, but their exhaustively credited sources don't necessarily subscribe to Negativland's sense of fairness.Practical dilemmas of securing permission to use material can be solved by obscurity. Performances set for short runs, underground films, zines, and other low profile works may use without asking. After only four issues, though, Hey There Barbie Girl got discovered and then promptly threatened out of existence by Mattel when the zine hit the stands of Tower Books.Permission costs can squash a project. Filmmaker Janice Findlay solves the problem of getting the rights to music by having her husband Paul Hansen write the music for her films. When novelist Michael Upchurch wanted to quote from rights kingpin Paul McCartney's "Let Me Roll It" for his 1989 book The Flame Forest (Ballantine), the rights fees approached 10% of the advance. The publisher paid, and by going through the permissions process Upchurch fixed a line he'd remembered incorrectly."I'm definitely a supporter of the process. It's a responsibility if you care about the words," says author John Hogue whose 1994 volume The Millennium Book Of Prophecy (Harper Collins) set some kind of record by getting about 350 permissions from copyright trusts representing mystics living and dead. Stressing the need to leave a paper trail with documents, he quotes the (public domain) proverb, "Trust in Allah, but tether your camel."After all, what's the worst that can happen? Someone steals not only your work and your money, but your identity?In 1992, poet Neal Bowers learned that he was being plagiarized. Dozens of his poems were popping up in poetry journals under the name David Sumner, who turned out to be a David S. Jones. Jones made a bid, in effect, to become the poet that was Neal Bowers. When discovered by a private investigator, Jones broke down and apologized. He sent Bowers money orders to reimburse the poet for whatever the plagiarist had received from the magazines, but Bowers's perspective (New York Times 10/25/94) may best be expressed when he puts the priorities of creative property ownership in terms that at least 99% of artists can understand: "In years to come, readers may come across my poems under Sumner's name first, then read mine and conclude that I stole from him."(Authors note: The above quote comes from a copyrighted news report by William Grimes. In years to come, writers may be required to get permission before using such an excerpt. Depending on the kindness of publishers, I claim the right to use this quote under the provisions of Fair Use. Thank you.)Fair Use The Story Of The Letter U And The Numeral 2 (Seeland) by Negativland is a user's manual which also narrates through a presentation of documents. The language has a wonderfully devastating clarity, whether from a judge rendering an opinion, a PR flack controlling damage, a celebrity protecting his image, or a bunch of culture jammers rigging artful retaliations. Not only a great book, Fair Use is a definitive guide to the most sensitive part of the U.S. copyright law, section 107, which limits how much of a copyrighted work can be used. Teachers making copies from text books, reviewers citing passages from novels, and musicians taking samples from songs are a few of the instances subject to Fair Use debates.Most of Fair Use covers Negativland's struggles with U2 and Island Records, and then with their own former record company, SST. When Negativland released a parody of "I Still Haven't Found What I'm Looking For" packaged with a big U2 blocked behind a silhouette of the namesake spy plane, Island attacked and SST surrendered. Letters, newspaper and magazine articles, court papers, photos, and interview transcripts show the little band contending with the supergroup's legal task force, and with claims later made by SST. Part of this came out in a shorter book in 1992, but there's plenty of new material to do justice to SST head Greg Ginn and to DJ Casey Kasem, whose complex personalities develop as characters do in good psychological fiction.While each side presents itself to an effect which makes a case for Negativland, a cool tone underplays the absurd tedium of the proceedings. Even Kasem, creator of an obscenity-laden out-take intro of U2 for national TV which inspired the parody, comes across as a fascinating person whose motives are perfectly honorable. The story pursues, with intellectual cunning, points the CD included with the book handles with some success, but the most indispensable part of the book is the appendix, where Justice Souter's Supreme Court opinion on the 1992 2 Live Crew "Oh Pretty Woman" parody and related articles clarify how Fair Use should be determined. When you see how courts consider whether a use is commercial, how much of a work can be used, and whether the use will hurt the market value of the original, you appreciate how fragile and precarious the law must be, how decisions of momentous import are made and reversed as if by whim.

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