What’s Fair Use and What’s Not Fair Use in a Digital World
Fair use for the 21st century: if it adds value, it's fair; if it substitutes, it's not – Boing Boing Cory Doctorow over at Boing Boing points us to a debate between Tim Wu and NBC’s chief general counsel about the need to redefine what constitutes fair use for a new digital world.
“That’s why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brook’s Spaceballs as a substitute for Star Wars; a book review is no substitute for reading The Naked and the Dead. They are complements to the original work, not substitutes, and that makes all the difference.”
Which is all very true and all.
As a photographer, producer and publisher of content I probably, pretty much, technically, in a round about way violate copyright every single day.
I’ve got a set of images called Starbucky where I publish images of Starbucks (Starbuck’s doesn’t allow photographers to shoot in their stores by the way). I’ve also got a set of images up of paintings (go ahead and click through, I’ve got a great painting of a naked woman by artist Mel Ramos) — someday there will be over 20,000 photographs in this set alone. Are some of these paintings over 75 years old and in the public domain? Probably. Are others less than 75 years old and under some kind of obscure, tucked away, undermined secret copyright. Probably.
Sometimes the world calls for permission based photography. It’s mostly sort of a whim on a case by case basis. Like this woman in New York. I asked her if I could take her portrait and she said yes (just kidding, I didn’t really ask her for permission, I ask some people though). Most of the time permission from Coca Cola and Chuck Close and the estate of Andy Warhol and some painter whose image captured your attention a few years ago and whose name you’ve long since forgotten is unnecessary duplication of effort. Redistribution. Retribution. Reincarnation.
I shoot billboards. I shoot the Coca Cola sign. I shoot mannequins and dogs and squirrels and security guards and angels and iPod ads. I shoot architecture and night scenes and rain and silhouettes. I shoot stamps and album covers and neon signs and car shows and Donald Trump with paint splattered all over his face and the Jack Kerouac On the Road scroll (even when I’m not allowed to). I have a set of images up containing photographs of Santa Claus and Jesus Christ. Sets can be powerful, very powerful.
Sometimes I’ll publish a photograph of a copyrighted painting (like this painting by a cat named Pablo) and somebody else will come along and offer their own interpretation. Thank you the marquise de sade, you’re the best — love your shot of Big Pussy.
Sometimes I violate copyright. Sometimes I don’t. Sometimes I publish these shots to Flickr and Zooomr and Pownce and my blog — where I make money selling ads — and sometimes I don’t. There’s a photograph on Bloomberg.com this morning of Ben Bernanke. He’s rubbing his closed eyes with a look of doom. He could be about to cry. There’s a little button next to it that says enlarge/details. Maybe we should blow this image up big and publish it on a billboard on Hollywood Boulevard.
As the waves of light find my eye and find my Canon 5D, I snap. Crackle. Pop. Bamm. Bamm again. Bamm a third time.
Fair use? Who the hell cares. The images need to be captured. And they need to be presented to the world in new and exciting and fun ways. Certainly a culture that gave us a talking Pontiac Firebird named Kitt could understand that. Whatcha selling this week? Ron Paul?
Andy Warhol probably would have thought it was more important to be famous than rich even though he was both. Andy ripped off Campbell’s soup — may he rest in peace. Richard Prince rips off people all the time. God bless the devil that is Richard Prince. Do unto others as you’d have them do unto you. Art is more important than commerce. Your camera is your friend, not your enemy. Never apologize for your art. Power to the people. The best photographs in the world have yet to be taken.