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Who wants to participate in my third paper?
Hi everyone,
Going along with my semester-long quest to understand copyright law, I've decided to examine our own conceptions of "fair use" in copyright law. I want to open these questions to all of you on Serendip. Responses would be much appreciated!
According to the US Constitution, the purpose of copyright law is to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Article I, Section 8). Over time, copyright protection has been extended to virtually all forms of the media, including musical works, computer software, and visual works. However, as copyright law encompassed more works the question of violation arose: what is copyright infringement and where is the line drawn between appropriate and inappropriate use of copyrighted works? To answer this question, the concept of ‘fair use’ was introduced. Fair use was supposed to grant a “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without . . . consent” (Duke University School of Law).Fair use was designed to encourage the dissemination of ideas through new and novel mediums. But what constitutes “fair” use and “unfair” use was never properly delineated and has remained subject to the interpretations of various courts.
In light of this information, I ask:
Are audio tracks that use similar musical patterns “fair”? (cf. Soft Cell’s Tainted Love with pop singer, Rhianna’s, S.O.S)
Are unquoted passages in books “fair”? (cf. The Sand Child by Ben Jelloun and “The Wasteland” by T.S. Eliot)
Are films that feature elements (characters, plots, etc.) of other films “fair”? (cf. the Scary Movie series)
Are paradoies “fair”?
Where do you think the line between “fair” and “unfair” use lies? Further, what do you think should be done to the current concept of “fair use” to make it more effective in achieving the goals of copyright law as stated by the Constitution?
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Comments
I'm unsure as to why Rihanna
I'm unsure as to why Rihanna chose to use Soft Cell's musical patterns from "Tainted Love." Was it because she wanted to ensure that her song would be a hit due Soft Cell's former success or was it because Rihanna was incapable of coming up with something new and fresh to go along with her lyrics? Her use of the song was fair in the sense that the exchange was legal. She did not infringe any of the copyright laws and sought permission to use the musical patterns. The artists agreed to the terms and even made some extra money because they shared their musical patterns with Rihanna. The artists do not seem to mind that this use was unfair; however to listeners and fans, it may be upsetting to hear that Rihanna used someone else's music to enrich her own lyrics. The lack of total originality is what seems to be unfair to outsiders, but not to the actual artists involved because there was a compensation for sharing ideas. Not much in the media is "new" because some ideas arise from those that already exist. It happens in all forms of media, such as novels and movies. If there is compensation for the original artist's work, it is completely fair and legal.
I do not like the terms
I do not like the terms "fair" and "unfair". They are polarizing words that make copyright debates a zero-sum-game-if someone benefits then it is "fair", if someone does not get the credit that they think is due them it is "unfair". I do not think that everything in our culture has an owner. Individuals should be compensated for their time and ideas, but to some point it becomes excessive. I know some of the best parodies that I have seen have been of political figures, i.e. Tina Fey and Amy Poehler as Sarah Palin and Hilary Clinton respectively. I felt that these parodies did not infringe copyright laws, and I think that it is interesting that both of the above parties appeared with their parodied cohort.
Sometimes I wonder what the signers of the U.S. Constitution would think about society using the Constitution as a tool to moderate monetary compensation in pop culture.
I found myself wanting to
I found myself wanting to answer that all those uses were "fair" above, although I'm not sure if that's because I really think it's fair or if I'm aware of how problematic it is/would be if they aren't. For some reason also, I feel much more comfortable with a parody (say, Tina Fey on Sarah Palin) than I do with un-cited literary works (hello, David Shields). I imagine though that that is just about my WIERD upbringing (that WIERD was for you, Anne!) and not really reflective of my legal views. For me, I think "fair" and "fair use" are achieved by using or borrowing another's work, with credit, in a way that complicates or furthers your own work. Obviously most times this is not the case. I dunno if they had to contact Soft Cell for the sampling of his song but in my opinion they should, especially because it is a profitable venture. I contradict myself though, because I happened to love Shields, and he didn't really acknowledge everyone properly, and it was at his own profit. I suppose my real issue with 'fair' is that it feels like it ought to be respectful... and yet that is another ridiculous term that would need definition and I'm sure each court would treat differently. I think we are following pretty closely the prescription of the Constitution, and to it more closely would require a loss of our freedoms...something else the constitution might have something to say about.
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