More Comment Work…
I get passionate about the issues surrounding Bubblegate. I saw the SF Weekly Column and had to comment:
For more legal analysis of Bubblegate see:
“Is the momentary use of Hartwell’s photo an unfair substitute for something she should have had the right to license, or a fair use the law should license irrespective of the copyright holder’s wishes? I’d be inclined to find the use fair, as transformative commentary, but I couldn’t guarantee that a court would agree with me.”
“the Video is probably fair and not illegal.”
And some poliicy advice from the EFF re: Video and Fair Use:
I respect Lane’s right to protect her commercial interests but in this case there is a strong argument for “Fair Use” as a protection. Issuing a DMCA harms the audience since the work of an artist of often controlled and censored without legal protections.
There are two artists in conflict in this case. A general discussion of IP protections should also include some discussion of the rights for re-use of IP content in derivative works… especially non-commercial video’s that comment on our culture using cultural artifacts like Lane’s happy smiling Web 2.0 “gossip journalist”. If you can’t see the satire in the work then you’re missing the intent of the art it represents. It can’t be claimed as any strong commercial attempt to cash in on Lane’s IP. Th re-edited video without her image is 99.9% the same work.
I’m glad you’re hosting a serious discussion of the conflict and I hope everyone is moved a bit towards demanding that free speech be protected against over reaching claims of IP infringement because the real villans in that regard are the huge media conglomerates that won’t even pay the creative talent for a cut of the digital download action… without a major battle.
Embedding a published image in a freely distributed video doesn’t meet my definition of “theft”. I hope the EFF representative makes that argument, gently, put persuasively.
Freedom of speech and protecting the right of re-use for derivative art is important. Most popular culture is a re-mix or derivative application of prior art. If culture is owned the artist is prevented from creating work that comments on culture.
I hope the EFF spokesperson at the public forum is good at explaining the “chilling effect” of Lane’s DMCA action without maing it sound like she needs to loose control of all her images. That’s just not true. She simply needs to have a better sense of when her rights are really violated illegally for a profit motive and not for a derivative work of art that doesn’t impact her commercially.
Frustrating issues but worht discussing… especially now that the whole culture is converting to digital artifacts that can be distributed, re-mixed and re-used any anyone with a home computer. Art and culture are even enabled by simple “toys” like the OLPC XO-1. The world of digital ownership needs new guidelines for empowering expression.