Fair Use

In an attempt to suggest a culturally sane solution to the continuing legal confrontations between owners of copyrighted cultural material and others who collage such material into new creations, we advocate a broadening of the copyright concept of Fair Use. We want the Fair Use statutes within copyright law to allow for a much broader variety of free, creative reuses of existing work whenever they are used in the creation of new work. The world wide corporate assumption of private cultural ownership is now fencing off such timely artistic directions by using copyright law to assert that virtually any form of reuse without payment or permission is theft. From their economic point of view, cultural owners now use copyright law as a convenient shield from "direct reference" criticism, and a legal justification for total spin control and informational monopolization in the marketplace.

However, from an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated "theft", "piracy", or "bootlegging". We reserve these terms for the unauthorized taking of whole works and reselling them for one's own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else's created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new "whole". This becomes a new "original", neither reminiscent of nor competitive with any of the many "originals" it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are "borrowed" from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone's music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material's avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. Where does such a routine thwarting of common free expression lead to? Society does not thrive on commerce alone, and an enlightened one would have long ago established the legal primacy of artistic intent and authority to be at least equal to that of private commercial activities when these two social forces come to blows within our free market system. One feeds the mouth, but the other feeds the spirit, and either one without the other can only be seen as a form of societal decline. And if you don't think the overwhelming colonization and monopolization of creative formats by economic interests has had a debilitating effect on the very practice of creativity, you have already succumbed to that homogenized haze of inconsequence which commercial media surrounds us with day in and day out.

Because art is not defined as a business, yet must compete for economic survival in the business marketplace, we think certain legal priorities in the idea of copyright should be turned upside down. Specifically, a revision of the Fair Use statutes should throw the benefit of the doubt to artistic reuse and place the burden of proof on the owner/litigator. When a copyright owner wished to contend an unauthorized reuse of their property, they would have to show essentially that the usage does not result in anything new beyond the original work appropriated. However, if the new work is judged to significantly fragment, transform, rearrange, or recompose the appropriated material, and particularly does not use the entire work appropriated from, then it should be seen as a valid fair use - an original attempt at new art whether or not the result is successful and pleasing to the original artist, the owners of his or her work, or the court.

This would fully protect the owner's undisputed right not to be bootlegged, and it's NOT difficult to determine! Think of any past or present examples of unauthorized bootlegging, and any past or present examples of artistic appropriation, and you will find it is always perfectly obvious which is which. The difference between any kind of fragmentary transformation of existing work, and the unmanipulated presentation of whole works by others, which is required for successful bootlegging, would be as clear to courts

...