As an attorney, I appreciate the underlying principles and protections of the Copyright Law to insure that authors are the exclusive exploiters of their work for financial gain. But the underlying basis of the Act is not to put money in authors’ pockets, but to give them a limited monopoly so as to encourage others to also create independent works for the same monopolistic benefits. The end result of this master plan is more works and, more importantly, a knowledgeable and educated public. So, copyright exists primarily to promote more authorship of works (and the proliferation of ideas) and public knowledge, not author compensation.
As it stands now, copyright lasts for the life of the author plus 70 years (the protection was extended to make sure the relatives of the author cash in too (a perversion of the law IMO)– the protection was originally only 56 years, with extension). The fact that copyright is limited in and of itself should make it clear that works ought not be controlled by the author/creator for too long.
So, while we give the author his monopoly, we don’t do so at all cost to the public good and higher rights. Thus, there are exceptions to the copyright protection, which permit use of copyrighted images for educational, scientific or noncommercial purposes. Again, the idea is to allow knowledge to be built upon prior knowledge, ultimately for the public good. In applying the exceptions, the legal eagles apply a balancing test to determine if the benefit of the use may be sufficiently superior to an author’s monopoly.
The most popular exception is the Fair Use Doctrine, which examines these 4 factors:
1. the purpose and character of the use, including whether such use is of 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.
But there is another, more powerful, limitation on the copyright law– it’s the First Amendment. The First Amendment is usually understood to protect the rights of the speaker. But it is more powerful than that— it also protects the recipient’s (public’s) right to know. This right to know is the lynch pin of freedom of the press.
And the First Amendment has a sense of humor. It protects parody. Parody is a form of criticism that often relies on using copyrighted works. Since the person who owns the copyright to the work being parodied will not usually give permission, (except to “Weird Al” Yankovic), the law makes the exception.
This long winded introduction was meant to bring you (finally, my dear oppressed reader) to this video by Matt Hempey. It is a parody. It was removed by YouTube because a photographer objected to the brief display of one of her photos in it. The photo was not particularly artistic– it need not be under the law, which protects all photographs. And it was merely one of many, many other photos. Now, my point is not that the parody excuses the use of the image– it does not, since the image was not parodied (a basic legal requirement). My point is that fair use should allow it based on the balancing test. And further, that perhaps one author’s ability to suppress a larger work seems to me somewhat unfair. Had most of the other authors objected, well then sorry Matt.
Your ability, and mine, to appreciate the parody is through its life (for the time being) on Daily Motion. You be the judge.
Comic Image: Air Pirates Funnies, Vol. 1 No 1 (1971). Published by Hell Comics, San Francisco. The comic was the subject of a famous parody case wherein Disney sued the publishers for copyright infringement (plus they didn’t particularly care for cartoons of Mickey and Minnie dealing drugs and having sex between the pages). The defense argued parody and the First Amendment. They lost. Their fatal error– the images looked too much like the real Mickey and Minnie. Although the case dragged on for years (with the underground comic artists continuing to create more Disney parodies), there was never a trial– the judge granted summary judgment for Disney in1978. The appeal was turned down.
Further Reading:
Copyright Claim Erases Parody Video from YouTube (Wired)
Steal my content, please! (Scobleizer)
Related Posts:
Linking Law and the Rabbit Holes of the Web
Technorati Tags: YouTube, parody, fair use, copyright, First Amendment, Matt Hempey
