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Tuesday, April 20, 2010

The Downfall of Fair Use?

Like countless others, I've enjoyed the multitude of so-called "Downfall Hitler" parodies on YouTube. Each parody superimposes amusing English subtitles over a pivotal scene from the 2004 German film Der Untergang (Downfall).

The movie is about the last days of Adolf Hitler as he waits in his bunker for the end of World War II, but dozens - perhaps hundreds - of budding editors have twisted Hitler's dialogue to comment on all manner of pop culture topics, from the fight between Clinton and Obama for the Democratic nomination to the HD-DVD vs. Blu-Ray war to Edmonton Oilers performances on the hockey rink.

Now the film's rightsholders are using technology to strip the videos off of YouTube, despite the protection these works should have as parodies or derivative works. You can see the results in the video above. The parodist may need to work on his spelling, but the point remains powerful; large media companies are stifling creativity and free expression, even when the so-called infringement does no harm to the original work. In fact, I am certain that the Downfall parodies have inspired thousands, perhaps millions, of people to seek out the original film.

As an artist - however middling - I believe that authors and creators of all kinds should be fairly compensated for their work. But not at the cost of hampering expression.

Thanks to changing copyright rules, some works that should have been in the public domain years or decades ago remain in the hands of estates or big corporations, long after the creators and their immediate family have died. Warner Brothers, it seems, will never allow Superman to fall into the public domain. Nor will Sherlock Holmes. And that's a shame, because just imagine if Kenneth Branagh or Joss Whedon or Margaret Atwood had the freedom (and the desire, of course; I'm assuming much, here) to craft new stories based on the original concepts. Imagine if Bram Stoker had written Dracula just a few years later; we may never have seen Coppola's version, or the various Hammer Draculas; for that matter, the character couldn't have appeared on Buffy the Vampire Slayer without expensive clearances. Dracua haunts the public domain, so all of us are free to write stories about him, just as Disney has been free to make movies about scores of public domain stories.

Draconian content rules threaten to freeze popular culture in the early twentieth century. Even worse, they're beginning to restrict political thought and expression.

Fair use is an important right. We shouldn't let corporations take it away.

Thanks to Mike Totman for inspiring this post.


Totty said...

Good post, though I've been ranting about this for years and most people don't care because they don't see the harm. I'm starting to tire, which is of course what THEY want.

And a small nit pick, most of Conan Doyle's stuff _is_ public domain in the U.S. as documented here:

Earl J. Woods said...

Thanks for the clarification, Mike. I mentioned Sherlock Holmes because the producers of Star Trek: The Next Generation got in trouble with the Doyle estate for using the character in a second-season episode; they went through great pains to obtain permission to do a sequel Holmes story in season six. Which is odd, since there have been many Holmes pastiches that seemed to escape such legal shenanigans...

Totty said...

Perhaps it fell under some other IP protection, like Trademark, which isn't time limited?

Then again, there's the whole "sampling" issue in music which seems like it should be fair use or something similar but now requires clearances even for small snippets confuses me.

They should just go back to the old 17 year limits (Yes, 17 years, plus 1 renewal and that's it). Those were the days. I'm told.

"The Jeffileo Seven" said...

This is an awesome topic.

We should remember that the media that provides these clip, samples, and snips is not in itself free. yes, it's "free" to sign into YouTube, but really the costs are hidden. We actually pay a fair bit to get access to these "free" sites.

Fair use issues are like anything else these days: follow the money. If the money says "let's censor YouTube", then guess what happens next. Folks with free access find out it isn't so free anymore.

One of the big issues as I see it is the growing inconsistency of the application of the rules of fair use. It's getting difficult to understand what is fair and what is not. Part of the problem is piracy, where people feel entitled through providence to rip, copy, steal and link to anything that is on the Internet, thinking that it's free. Another part is the haphazard, clumsy responses by the owners of publication rights. All of this is compounded by the swift evolution of the Internet itself.

I figure a good case in point is the artist Shepard Fairey (the Obama HOPE poster). Not only were issues of fair use addressed in Fairey vs. AP, but in lying to the courts, Mr. Fairey sabotaged any gains that a free use movement might have achieved. The result is that Mr. Fairey is an internationally-recognized artist with an impressive resume (which he wanted), but he also has to retain more lawyers than C. Montgomery Burns if he wants to continue to work as an artist.

Earl suggests that artists get paid what they are due. This has been the cry of artists since almost forever. In classical times, artists were thrown into the arena with the lions when the Romans ran out of criminals and crippled people. In the Renaissance, the only people who could afford art were the very wealthy (think Medici, or the Church). What about modern times?

How much should artists be paid? Where should the money come from? Mr. Fairey has the correct, highly unfortunate answer: the lawyers will tell us. The artist must be paid at least enough to support the legal fees, or nobody gets paid at all.

It's not that fair use is being discouraged, or that it's disappearing. Far from it. It's just that if you want use to be fair, you have to be prepared to pay for it.