Fair Abuse – by “Zak J”

It’s not likely news to anyone that graffiti and its amorphous offspring, “street art”, are and for years have been highly marketable aesthetics. While this long standing trend has produced much commercial collaboration with and imitation of graffiti and street artists, it has also led to some contentious use of existing works.

For example, Banksy, a widely recognized but still anonymous British artist is often imitated, if not simply reproduced without permission in an ad or on a product, as seen here:

(Above: stencil by Banksy and t-shirt design by Agui Design. Images and story found at youthoughtwewouldntnotice.com)

Of course, the work of many less famous artists is subject to similar use, like this stenciled work that was picked up for a club flyer. Here’s a t-shirt graphic apparently composed in part from a wall in Milan. Notice that the text in the speech bubble on the t-shirt has been changed to say “copy of copy”. A knowing commentary on their appropriation?

Considering these cases, I’m wondering if and how copyright applies to illegal work. US Code seems to say that graffiti, as an “original work of authorship, fixed in any tangible medium of expression“, has copyright protection. Is work created outside of the law also subject to it’s defense and support? If so, how are questions of fair use dealt with? Since arbitration requires a court, artists would have to appear, revealing their identity and admitting breaking the law. This, as well as the financial burden of such an undertaking, seems to be built in protection for any and all use of illegal creative work.

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A separate but related thought regarding legal graffiti and street art: There may be an assumption by would-be reproducers that the work is illegal or that the artist is anonymous or unaware of copyrights. Here’s an article in the New York Times on that issue—a photographer made a book of images featuring graffiti murals without contacting or crediting the artists. Here’s a similar situation where a photograph of commissioned work by well known artist ESPO is being sold at Crate & Barrell. Just one more!

Mashup: A Fair Use Defense – by “Ryan B”

Mashup, a style of music that combines samples from various songs, would appear to many to be the epitome of copyright infringement. In fact, a 2005 court case, Bridgeport v. Dimension, deemed the unauthorized use of even one second of a sample to be copyright infringement. Since mashup blends several samples over the course of any one song, it must certainly be copyright infringement. Right? Not so fast.

Judges do make mistakes, and no court decision is set in stone, so it is worth considering whether a legitimate legal defense could be made on behalf of the mashup artist. In establishing such a hypothetical defense, let’s turn to the fair use doctrine, which permits the unauthorized use of copyrighted materials under certain circumstances.

Fair use is a legal doctrine meant to protect works deemed valuable for society, often shielding works involving first amendment expression, such as parodies. When reviewing a fair use defense, courts consider such things as how “transformative” the work is, the substantiality of the portion used, and the effect on the market for the original work. With this in mind, could a fair use defense be made on behalf of the mashup artist?

I will now show one reason why mashup could be considered fair use. While this particular argument will certainly not apply to all mashup music, I think that it at least demonstrates that Bridgeport’s blanket prohibition of sampling does not leave space for the sort of legitimate behavior that the fair use doctrine was meant to protect.

For this hypothetical fair use defense, let’s delve into the transformative nature of mashup music. To start, mashup artists frequently splice up samples while editing the pitch, tempo, and the mix of the original work. At the end of the day, however, samples are usually meant to be recognizable. As a result, the extent of these edits is typically held within limits.

Nonetheless, mashup can be incredibly transformative for another important reason. By pairing up samples from different songs, mashup can provide an entirely new context for the original works. In this way, mashup artists can provide critical commentary on those works, expressing their own perspectives on the songs being utilized. This can spur valuable conversations that construct new perspectives, a similar process to that triggered by an SNL parody, for example. As a result, mashup can yield the sort of first amendment expression that the fair use doctrine was meant to protect.

To see this argument in action, consider the mashup artist, Milkman’s song “All About It,” which samples the vocal track from Pitbull’s “Go Girl” (listen below; the Pitbull vocal track starts about fifteen seconds in to Milkman’s song). Pitbull originally blended his vocal track with an instrumental that had a dirty feel through its use of a base drum and a repeating flute line. Milkman, however, eliminated this “dirty” sound entirely by pairing up Pitbull’s vocal track with a 90s pop song, Real McCoy’s “Another Night.” The pop context that Milkman provides the Pitbull vocal track reveals how silly Pitbull’s lyrics really are. In this way, Milkman’s sampling of Pitbull’s song acts as a sort of critical commentary on that work, and therefore could be considered worthy of the type of first amendment protection that the fair use doctrine was intended to offer.

Pitbull – Go Girl

Milkman – All About It

Do mashups always provide critical commentary on the samples they use? Probably not. Nonetheless, the Milkman example does seem to show that a mashup could be worthy of fair use protection under certain circumstances. As a result, the Bridgeport decision, which deems all sampling to be copyright infringement regardless of the particular use, seems to be going too far.

The Disconnect: The law, Human Intuition, and the Internet – by “Matthew C”

There’s a lot of talk about how copyright laws do not fit with the digital age – and a lot of the talk is quite convincing.  It does seem strange that with a few clicks a suburban teenager can commit six figure copyright infringement, or that artists like Girl Talk can be lauded as visionaries by some and common thieves by others.  It certainly is true that a disconnect exists, but I would argue that the greater disconnect is between human intuition and internet, not the law and the internet.   And this disconnect goes a long way towards explaining why our common sense notions of property fall apart online.

The internet is fundamentally beyond the scope of human intuition.  That’s because biologically, we’re no different from cavemen who didn’t even have a system of writing, let alone Facebook accounts to waste it on.  As a result, we don’t feel a natural connection to our actions online.  It’s like how snakes, which have always been around, make me shudder, yet the sight of a much more significant but modern danger like a gun provokes no such visceral response.  Similarly, antisocial behavior online does not provoke a guilty visceral response.  I can download songs and movies all day without really feeling too bad about it and I know that I’m not even close to alone on this.  Sure I know the intellectual arguments against those actions, but I don’t feel those arguments.  On the other hand, if I were to steal physical property, even from someone who had so much that my theft was insignificant I would certainly feel something.

The internet further disconnects us from our actions by means of scale and anonymity.  If no one knows what we’re doing and what we’re doing is only a tiny drop in an ocean, it becomes a whole lot easier to do all sorts of things that might not be so easy in the physical world in front society’s judging eyes.

The result of all this is that violation of property rights becomes so easy that it doesn’t feel wrong.  We don’t have to go through any of the steps that our ancestors did to commit many of the same crimes and our consciences are not naturally programmed to connect clicking a mouse with any sort of moral transgression.

But then what’s the point of all this?  It leads to the question of whether we can actually allow our intuitions about property to shape our laws and values.  On the one hand remix artists are violating property laws but they do so without any of the physical visceral experience of taking.  And, although I can’t remix, if I could, I doubt my conscience would put up much of a fight. This is where things get a bit dicey.  If it doesn’t feel like a crime, then shouldn’t we treat it differently? After all we have a criminal code that makes huge distinctions based on intent.  It becomes necessary to look at why the other side is so upset.

Obviously it comes down to profit. If record companies are losing profit because people are remixing songs then I believe they have every right to be mad.  But in fact I would say that they are not losing profits.  Not from the act of remixing, at least.  Record companies hold onto traditional notions of property that do not function in a digital setting.  They believe that because remix artists use their products without authorization, they must be subverting the system and therefore a part of the problem.  Girl Talk, as extraordinarily biased as he is, has claimed that he is constantly asked the source of some of his samples which naturally leads to people purchasing the source songs.  Or maybe they know this and that explains the lack of a lawsuit?

Of course my novice economic analysis is highly flawed and it is a product of my intuitions on the subject – intuitions which I’ve claimed are also flawed.  Ultimately I think the connection needs to be made between physical property and digital property.   Although we may not feel the effects of our online actions, they do have consequences in the real world.  The laws on the books ought to reflect the real world consequences of online action, not the feelings or self-interested opinions of actors.