Amy Alkon & Christopher Harris Redux ~ Considering the Actual Complexities of 'Fair Use'
"One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.Now, the bottom line is subject to interpretation on many dimensions. Indeed, none of these four factors is, alone, unambiguously dispositive in any given case. The burden is different for each of the different factors and any judgment or assessment must weigh them all. Neither the nitwit nor her aggrieved chum seem to grasp that commonplace. They were too busy yowling with outrage and self-righteousness. What is called for in all this is subtlety of interpretation and that is something that seems to be in short supply in their self-referential bubble.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and;
4. the effect of the use upon the potential market for or value of the copyrighted work."
So it may be helpful to think through some of the instances in which I post copyrighted images or text. We could do the same for nitwit's blog where she too regularly posts copyrighted materials. Life, though, is way too short. Let's take each factor in turn:
(1) I make not a dime from this blog. I do not post advertisements. I use copyrighted materials almost exclusively for purposes of comment or criticism in the course of a broadly educational undertaking. By that I mean education in a public sense not solely in a classroom sense. I rarely use an image without commenting on it or connecting it to some other or associating it with some text or idea that the photographer in all likelihood knows little if anything about. I use the blog for educational purposes by creating themes (indicated by the various labels attached to most posts) which would associate particular works with a variety of others.I am sure there are many other issues at stake. But they call for thought. And while they were jumping up and down yowling with outrage, neither nitwit nor her aggrieved running buddy bothered to think through what I actually do around here. (In fact, to the best of my knowledge neither has spent more than a few minutes at this blog. And then they were searching out some imagined gotcha. That is the approach of the terminally self-satisfied.) Admittedly, it must be hard to think and yowl at the same time; at least I suspect it must be since I've not tried it myself.
(2) The nature of the original materials? Sometimes text, sometimes images. What seems to have gotten nitwit and her aggrieved pal really riled up is the use of images. Among the important factors here is whether the initial text or image is creative or factual. Try to draw that line clearly with even the most 'documentary' photography. What about portraits? Landscapes? Hopefully you get the point. One would have to argue the case either way in each instance. And although nitwit and the aggrieved fail to recognize the point, an assertion is not an argument. It is an assertion.
(3) So, let's think of what we mean by a "work." In the case of texts, an article or a book would, for instance, constitute the work. So we might use passages. and fair use would require not just word counts but an assessment of the centrality or otherwise of the quoted passage as well as the context in which it is quoted. In the case of photographs, almost never does a single image stand alone. Photographers present images as series or groups, whether they present them in books or exhibitions. (For example, think of Walker Evans's American Photographs, etc. as both book and exhibition.) Often even a single image comprises part of a larger work that also includes text of various sorts. So, when I use a single image it is at best an open question as to whether it alone would constitute a complete work. Usually it does not. And even if it might, I rely here on small jpeg images that hardly rival an actual size photo. (As an extreme example, consider any of the images of Burtynsky I have used here as compared to his giant prints.) So what counts as the substantial use of a work is, politely, subject to interpretation.
(4) As I state in my sidebar, I endeavor in each post to offer as complete an attribution for any non-original material as is available. This includes indicating copyright whenever I can determine it. Of course, it is a commonplace that such attribution is no substitute for obtaining permission if obtaining the latter is not obviated by fair use. Here an important issue is whether the use of copyrighted material undermines the actual or potential market value of the original. One has to wonder whether my critics really believe seeing a jpeg of a Burtynsky photograph on a blog undermines the value of the original. The jpeg is surely no substitute for the original and I, at least, would never pretend otherwise. Nor would any self-respecting photographer. Who knows? But I seek not only to identify the writer or photographer or artist or publisher and reassert his or her copyright, but also to discuss their work in a way that directs readers of the blog toward rather than away from it. I try whenever possible to link directly to whatever web presence the author or artist might have established. And in the case of exhibitions I try to link to the venue (e.g., museum, gallery, or whatever) homepage. And in light of what I've already said above, I try to place the original work in a broader artistic, political or intellectual context - all of which would work to enhance the market (economic or intellectual) of the work. even when I am criticizing some artist or writer or work, I try to prompt readers to attend to and think about the subject at hand, namely the artist or writer or thinker and their work. Perhaps nitwit and her accomplice are so busy trying to browbeat people into agreeing with them that they overlook the possibility that others might be trying to prompt readers to think for themselves.
Having written all that, it is important be clear about something. We should not follow nitwit and her pal in assuming that anyone who challenges "fair use" of copyrighted materials is a defender of virtue or the oppressed. That would be a serious error. Those who question fair use too often include writers and artists (and heirs or executors) out trying quite opportunistically to extort rents from other writers and artists - including, you guessed it, photographers and film makers. This eventuality, of course, is something that nitwit and the aggrieved entirely fail to consider. For their enlightenment, therefore, I recommend this comic book written by legal scholars and published by Duke University Press.
The world that nitwit and the aggrieved live in apparently is very simple and all black and white. Yet the actual world the rest of us inhabit is very different. In the real world what we need is judgment and arguments (not assertions) and attention to details. Neither our nitwit Amy nor the aggrieved Mr. Harris are up to living in the real world. It would require them to think. So I close the door on this exchange with a simple piece of advice. As my wise, now deceased grandmother used to tell me ~ "Use your head for something other than a hat rack!"