stirtoaction

Bound by Law? Tales from the Public Domain

In Articles on 15 August 2011 at 5:33 pm

Reviewed by Rashmi Rangnath

Can a tree and its properties be copyrighted, and those who customarily use it be criminalised? Can the girl scouts be sued for singing copyrighted songs such as “Puff the Magic Dragon” around the campfire? Recently, a corporation trademarked the phrase ‘Radical Media’. With the increasing privatisation of our cultural assets, can we change the system that allows corportations to own our intellectual products?

In policy circles discourse about copyright is almost always in terms of piracy. The big movie and music industries talk of copyright as an absolute right that tolerates no use, reference, or commentary that is not authorized by them. Copyright is commonly portrayed as being under threat from pirates who seek to deprive owners of these absolute rights, but what is lost in all this talk of piracy is an understanding and appreciation of the purpose of copyright law and the nuances in the law that help achieve this purpose.

The comic Bound by Law? is a witty reminder of these nuances. Its comic book format easily illustrates complex concepts that would have taken pages and pages in a textbook or academic publication. By focusing on documentary filmmakers, the comic book reminds us that the law has to both protect copyrights as well as provide certain limitations on these rights. It gives a lucid explanation of the state of copyright law with its various protections for copyright owners and users and highlights areas where the law has lost its balance, also shining light on industry practices—some justified by the law, many not.

The comic’s protagonist, Akiko is a documentary filmmaker who wants to make a film capturing ‘A Day in the Life of New York’. Her film revolves around scenes and sounds in New York City, which she cannot capture without incorporating the music, film, paintings, and other art forms that are present everywhere. She is perplexed about how to clear rights for these pieces, which are inevitably a part of her film, and wonders if she even needs to clear rights for some of them. She even laments that if she cannot use these elements it would be as if she ‘were “disappearing” everything in New York City that was connected with copyrighted culture’.

This fear about disappearing culture underlies the narrative of the book and through Akiko’s search for answers to these questions, two characters act as narrators to walk the reader through the labyrinth of copyright law, fair use, licensing, right of publicity, trademark law, privacy, and defamation. Interspersed throughout are great examples and analogies, but most importantly, Bound by Law? drives home the point that creativity is an incremental process—most artists need to use existing works, and the law should accommodate this process if it is to serve the needs of artists and culture generally.

One of the most compelling narratives of the book is its illustration of the havoc wreaked by the ‘permissions culture’ that dominates creative industries today. In one example about the problems posed by the permissions culture, the comic discusses difficulties that Marilyn Agrelo and Amy Sewell faced in making their documentary Mad Hot Ballroom, about New York City kids in a ballroom dancing competition. In one scene, a cell phone rings with the Rocky theme tune. EMI, the music label that owns the rights to the song, demands $10,000 to let the filmmakers use the song, even though the ringtone’s presence in the film is only incidental.

“Overprotecting intellectual property is as harmful as underprotecting it.”
—Judge Kozinski

Another perhaps more famous example is how documentary Eyes on the Prize can no longer be circulated because of expired licenses. The cost of renewing these licenses is too high for the filmmakers, and thus we are deprived of access to one of the greatest documentaries about the civil rights movement. As the protagonist Akiko puts it, can one copyright history?

Bound by Law? discusses fair use as a bulwark against the permissions culture and other limitations posed by copyright law and practice. The value of this discussion lies not only in the explanation of the law surrounding fair use, but also in explaining market practices that influence how fair use is exercised. The comic points out how despite certain uses of copyrighted material being fair under the law, risk-averse distributors and errors-and-omissions insurers consistently ask filmmakers not to make these uses. However, a clear explanation of law and practice should encourage filmmakers to resist industry practices that discourage greater reliance on fair use. The comic points filmmakers to ways to do this collectively, and refers to the Statement of Best Practices in Fair Use created by American University’s Center for Social Media and the Washington College of Law. Additional explanation of these principles and their effect on fair use practices in documentary filmmaking would have made the comic’s discussion of fair use more comprehensive.

On the subject of copyright term and how it prevents filmmakers from using much of the copyrighted material created in the past 80 years, the comic demystifies the complex system of the current copyright term using charts (based on Prof. Lolly Gasaway’s chart). However, attention to justifications for current copyright term and its effects on access to copyrighted culture is minimal and similarly short is the discussion of copyright formalities, i.e. copyright registration and notice. This treatment may have been justified if the comic’s sole focus was explaining the state of law and practice but Bound by Law? is not limited to that. It encourages its audience to explore the reason for the law’s design and question whether this design is serving the law’s purpose.

By using funny, compelling analogies—such as comparing the public domain to public parks and roads, both of which are essential for civilized living—Bound by Law? conveys the idea that not every use should be subjected to payment, and the book concludes with a look at the purpose of copyright law and the system that can promote that purpose.

Rashmi is a Staff Attorney and the Director of the Global Knowledge Initiative at Public Knowledge. Her current focus is on copyright and patent law issues.

Bound by Law? is created by Keith Aoki, James Boyle and Jennifer Jenkins and is published by the Duke Center for the Study of the Public Domain. It is available online under a Creative Commons Attribution-NonCommercial-ShareAlike license at http://www.law.duke.edu/cspd/comics/digital.php, or for purchase as a hardcopy ($5.95).

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