What’s Fair Use and What’s Not Fair Use in a Digital World

Walk the TalkChristmas CoorsStarbucksAngelyne

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.

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13 Comments

  1. Long time reader, first time poster says:

    …you’ve finally gone off the deep end. Intellectual Property is real. Writing, music, software, inventions, etc. Even paintings and photography. Ripping off somebody’s ideas, then profiting from it is just wrong.

    “Art is more important than commerce.” Yeah? So that makes it OK, because you make ….”art”? You’ve got like a million images in your flickr/Zoomer streams. Some are decent. If somebody sold matted prints of your shots, would that be OK? Of course, using your images would be wrong. But it’s OK to take photographs of them and sell those, right? According to you, that’s “art”.

    Sheesh….

    I liked you better when you told me “what to think” about hot new technology. You know, the stuff I was working with, before you were born.

    Seriously Andrew, I don’t think even you believe what you’re saying.

    “Long time reader, first time poster.”

  2. ojbyrne2 says:

    The big pussy site is right off hbo.com:
    http://www.hbo.com/sopranos/cast/character/big_pussy.shtml

    Is that the point?

  3. Thomas Hawk says:

    If somebody sold matted prints of your shots, would that be OK? Of course, using your images would be wrong. But it’s OK to take photographs of them and sell those, right? According to you, that’s “art”.

    Depends on their artist statement mostly.

  4. Thomas Hawk says:

    The big pussy site is right off hbo.com:
    http://www.hbo.com/sopranos/cast/character/big_pussy.shtml

    Is that the point?

    Yes.

  5. TranceMist says:

    I’ve always thought that the idea of IP and “Fair Use” is an unnatural concept forced upon the masses by the few in power.

    After all, if I have an idea and share it with you, have I lost something? I tend to think I’ve gained something, in many intangible ways.

    The most successful new companies are finding ways to make money in a way that doesn’t involve control of the content itself.

  6. garygranada says:

    hi, im an indie musician from Manila and i’d like to include the guitar town image on my album, whom should i credit it to? thanks! my email address garygranada@yahoo.com

    by the way i have a little webpage, garygranada.com where i upload my music for free downloading. they’re mostly in Pilipino though (the main language in the Philippines).


  7. “If somebody sold matted prints of your shots, would that be OK? Of course, using your images would be wrong. But it’s OK to take photographs of them and sell those, right? According to you, that’s “art”.

    “Depends on their artist statement mostly.”

    Those who object to you photographing their creations must disagree with your artistic statement though.
    Maybe you have more in common with them that you initially perceived.

  8. Anonymous says:

    “The images need to be captured. And they need to be presented to the world in new and exciting and fun ways.”

    Images don’t “need” anything. You’re just projecting your own wishes onto inanimate objects to rationalize what you’re doing.

    I think your money needs to be stolen, and used in new and exciting and fun ways. Please post your charge-card numbers so the rest of us can benefit from your interpretation of “fair use.”

  9. Paul says:

    I think your money needs to be stolen, and used in new and exciting and fun ways. Please post your charge-card numbers so the rest of us can benefit from your interpretation of “fair use.”
    That doesn’t even make sense.

    Now, I don’t think a blatant rip-off of an image (such as the big pussy one) adds any value, therefore doesn’t constitute fair use. however, if what someone does to a copyrighted work adds value, then they’re more than welcome to make money off of it. they’re making money off of the value they added, not the copyrighted work itself. My website, if you care to check it out. Nowhere near as nice as this one though.

  10. jstacat says:

    a new POV must be devised;
    if you leave a 5$ bill on the street someone will pick it up. that is nt wrong, its natural.
    its unnatural to complain about what happened.

    If you throw a tune or pic or text out into the streets of the internet….
    if you want copy right then you must put your stuff behind ‘glass’ on a copyright site
    copy/paste can be disabled for the site… etc.

    stolen from there would be like a pickpocket…

  11. Bill says:

    As a photographer it is sad to see so many people that do not respect other people’s ideas and property.
    What I create is mine and mine alone. Unless a third party uses the creation within the tight bounds of fair use (as detailed by law) they have violated my rights.
    Why is that so hard to understand?
    It does not matter if YOU think it increases the “value” of the creation, it is only matters what I think. I am the creator of the original work thus I have the right determine if it gets used in other ways (that do not fall in the legal definition of fair use).

  12. Anonymous says:

    “IP” is Imaginary Property, not Intellectual Property. Just ask the Chinese.