are some new developments in controversies we’ve talked about
over the last couple of months.
First, there’s been a tiny but significant bit of activity
in the Associated Press/Shepard Fairey lawsuit. Fairey is
the guy who created the “Obama Hope” image, using what turned
out to be an AP photograph as his template. Fairey and AP
sued each other a year ago, the AP claiming infringement and
Fairey claiming fair use. Then Fairey copped to lying to everybody,
including the court, about which photograph he actually used,
and to destroying evidence to hide the fact.
A couple of weeks ago, the judge suggested that the lawyers
double down in their efforts to settle the case. Without much
elaboration, he said that he felt that sooner or later Fairey
was going to lose. Uh-oh. In the meantime, Fairey is under
criminal investigation for lying to the court. Gulp.
Despite the judge’s admonition, I’ve seen little to suggest
this one will go away soon.
In other news, that uniquely Republican tendency of using
music for campaigns by musicians who hate Republicans continues
apace. David Byrne recently sued Florida Gov. Charlie Christ
(whom I suppose is not a real Republican anymore) for using
Talking Heads’ “Road to Nowhere” in his campaign for the U.S.
Senate. And Rush (yes, Rush!) is going after phony libertarian
nutcase Rand Paul for using bits of “Tom Sawyer” and “The
Spirit of Radio” in his campaign. Paul apparently is not only
using their music during campaign stops, but is also quoting
Rush lyrics in his speeches. All copyright issues aside,
the idea of a libertarian Rush freak holding any kind of elected
office totally skeeves me out.
But the big news on this front is that Don Henley has for
now won his suit against California knuckle-dragging far-right
Senate candidate Chuck Devore for the use of a couple of Henley
songs with rewritten lyrics (e.g., “All She Wants to Do Is
Tax”) for his failed campaign against Barbara Boxer. Just
this week the judge rejected Devore’s fair-use defense, finding
that the new lyrics didn’t directly target Henley nor did
they indirectly make fun of Henley’s liberal politics, as
Devore had claimed. Because of this, the judge reasoned, Devore’s
use wasn’t a parody, and therefore wasn’t fair use.
These developments in both the Fairey and the Henley cases
are mildly satisfying to me on the basest level, because I
dislike Shepard Fairey and Check Devore and would enjoy seeing
them both lose; however, the courts have used overly restrictive
interpretations of the fair-use doctrine in swinging the way
they have, and that’s not such a good thing.
As I’ve mentioned before, the trends for fair use, at least
in visual art, have been the increasing allowance of the reuse
of other’s copyrighted works if the new use is “transformative.”
Jeff Koons, for example, recently was allowed to use a big
chunk of a fashion photo for one of his tedious paintings
commenting on the banality of modern life. And that’s good;
it certainly is in keeping with the purposes of copyright
law, which is to encourage the creation of new works. The
Koons decision, and the growing body of decisions like it,
recognize the legitimacy of appropriation art, which is probably
the most significant art movement of the last 100 years, and
which is legitimate, whether you happen to like it or not.
This liberalizing trend has not yet spread to music, where
the big record companies and publishers put a big legal kibosh
on digital sampling in the early ’90s that has yet to loosen
up. (Ironically, the transformative-use argument gained prominence
in a music case we discussed here a few weeks ago—the 2 Live
Crew-Roy Orbison case—but has only rarely been applied in
music cases since then.) As these big companies become less
of a force in the music industry (and they’re losing their
hegemony by the second), I think more rational fair-use standards
for music will emerge and develop.
Whatever the standard, one person’s transformation is often
another’s infringement, and the courts in Fairey and
Henley may be getting swayed by the facts before them.
Is Fairey’s use transformative? Sure it is, in a big way.
But is the court going to reward Fairey for lying and cheating?
Doubtful. Are Devore’s stupid little ditties transformative
of Don Henley’s monstro-hits? I really hate to say it, but
I have to say it: of course they are. The courts in both cases
are headed in the wrong direction.
This doesn’t bode well for any clarity in the foggy law of
fair use, or for any level of comfort for appropriation artists
in all media who’ve long labored under a legal cloud. As these
cases play out, hopefully they’ll both wind up in appeals
courts, where the passions run cooler, the issues get sharper,
and the decisions get smarter.