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June 6, 2005

Fair use and grassroots media

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Posted by JD Lasica

Last month I spoke at BlogNashville, a conclave of folks who got together to discuss the state of blogging and the issues confronting emerging media such as podcasting and videoblogging.

At Dan Gillmor's session on grassroots media, I spouted off a bit (as I'm prone to do at these things) about fair use in the digital age. If the thousands of works that Ourmedia's 21,000 members have uploaded in the past two months are any indication, a majority of grassroots video and audio can be published and shared and remixed (if the owner allows it) by using Creative Commons licenses assigned by the creator to each work.

But there's another category of works that fall into the grey zone of fair use. And I said that it's important that we assert our fair use rights in this emerging landscape and not let the entertainment companies and their allies on Capitol Hill clamp down on this astonishing grassroots mediasphere before it has a chance to flourish.

A couple of sessions later, Gigi Sohn, the executive director of PublicKnowledge (and one of the heroes of my book), moderated a session about Copyright and the New World of Syndication. (The mp3 is here.

Gigi took the same position as Larry Lessig does -- that fair use is the right to hire a lawyer after you get sued.

That is perhaps true, given that fair use is not nearly as robust as many of us would prefer, and far less a bulwark against lawsuits than the public generally believes.

But the point I make about fair use in my book is far different: Use it or lose it.

So, what's your view on this matter, Copyfight readers?

I don't want to engage in a legal skirmish here, particularly because I'll be at a layman's disadvantage. But I'd love to hear some thoughts about high-level strategies for bulking up our fair use or digital rights as millions of us will want to borrow from and comment on our visual culture, just as 10 million blogs already do in the text world.

Here's some food for thought:

- A few minutes ago I just posted a set of fair use guidelines written for Ourmedia, on a pro bono basis (bless you!), by the remarkable IP team at Fenwick-West in San Francisco. They've reduced a monstrously complex thicket of laws into some easy-to-understand rules for the digital age (albeit rules with a lot of greys at the edges).

- Since Ourmedia launched in March, with the offer of providing free storage and bandwidth to anyone, anywhere, who wants to post works of personal media, we're naturally been dealing with issues of copyright infringement. You can find plenty of muddy greys on the site, as well as works we felt went over the line. (Not sure what the entertainment companies think about all this, but they should be pleased; we're giving our members a crash course in copyright law.)

- In my latest entry from the book on, I excerpt a section about a fellow who spent $700 to create a DVD to annotate his favorite TV show. I found it fascinating that Siva Vaidhyanathan and Ernest Miller gave different views of fair use for such visual works. I suspect both are correct, though they chose different parts of the legal tradition to emphasize.

- This morning I came across this video by Josh Wolf (see the 21MB QuickTime movie). He took a music video by a band and inserted news clips of people protesting U.S. foreign policy. Infringement? Creative reuse? Or muddy grey?

Comments (4) + TrackBacks (0) | Category: Laws and Regulations


1. Dr. wex on June 7, 2005 10:09 AM writes...

Great video, but still massive infringement. Fair use covers using small excerpts, which this is not. I also wouldn't call it a "mashup" as Wolf does. A mashup overlays two distinct tracks. This is an intercutting, not overlay. That's partly a hairsplitting distinction but also quite serious,a s I think mashup and bricollage are different art forms, albeit related.

I'm further disturbed by what Wolf has done in that it's using the NiN video for political messaging purposes. If someone took a vid of one of my talks and cut it up to appear to promote, say, an anti-abortion viewpoint, I'd be upset and would not only regard it as a copyright issue but an attack on my free speech. If I wanted to support a political or social point of view that's one thing. But for a third party to put words in my mouth in that fashion is pretty far over the line. (This is a very gray area for me in that we regard public figures differently than private citizens and protect the public figure's words differently; I'm not sure where a popular rock band falls on this spectrum.)

Like you, I'm a layman. These are just my reactions, not legal advice of any sort. I don't promise I won't change my mind after more discussion :)

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2. Crosbie Fitch on June 7, 2005 11:23 AM writes...

Rather than an attack on free-speech, it's a violation of an author's moral right not to have speech attributed to them that is not their own.

However, as long as the 'masher' is abundantly clear that the speech is theirs and not yours, and that only the feeble-minded could mistake his speech for yours, then they should be free to incorporate your work in producing their message.

It's all about a duty of care one has to one's fellow man, to be careful to avoid misrepresentation.

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3. JD Lasica on June 7, 2005 2:46 PM writes...

Dr. wex, excellent points. We should keep in mind the distinction between these different remix forms.

Josh, the creator/remixer, has approached the band (after the fact) for permission to post the video, which is the fastest way to defuse any potential legal difficulties. He knows the band's members, and so it was not so much putting words in their mouths as reworking their music into a political statement they agree with (as far as I know). Had he not known them or their political sensibilities, it would be another story indeed, as you and Crosbie point out.

At Ourmedia, we come across this kind of emerging media form every so often and ask the member to acknowledge (on his or her media page) the names or sources of all the copyrighted works in the piece. I make that argument in Darknet: If you're going to borrow snippets of someone else's work, the least you can do is give credit where credit is due.

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4. Josh Wolf on June 9, 2005 4:36 PM writes...

JD, I don't know quite what I said that conveyed the impression that I personally know Trent Reznor or anyone else that could be considered to be a part of his band. I don't, and I'm sorry if anything I said gave you that impression.

I do know that Trent Reznor had wanted to perform the song I used in the mash-up (collage), with a photograph of George Bush as a backdrop at the MTV Movie Awards and refused to perform after MTV wouldn't allow the backdrop.

I realized from the inception of the video that I was not legally within the bounds of Fair Use according to how copyright law has been interpreted.

At the same time, although I totally forgot to update the page with links for *all* my video sources -- which I'll be doing in the next hour or so, I feel that it is clear in the video where the original music video came from and that it is a modification of that work.

Dr. Wex, I'm intrigued that my video mash-up (or a bricollage as you'd prefer) "further disturbed" you because I did so for political messaging. Either you think I've got a much greater sphere of influence than I do - or you've just got a such a rigid definition of intellectual property that copyright violations cause you unrest.

I'm curious what you think of the work of RX. Check out George Bush singing Imagine, should that be Fair Use? Should Bush sue? Should Yoko? Tell me...


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