The Difficulty of Choosing Something Beyond the (Mostly) Certainty of the Clearance Culture of Copyright

Credit: STS-41B, NASA  Explanation: At about 100 meters from the cargo bay of the space shuttle Challenger, Bruce McCandless II was farther out than anyone had ever been before. Guided by a Manned Maneuvering Unit (MMU), astronaut McCandless, pictured above, was floating free in space.

Credit: STS-41B, NASA Explanation: At about 100 meters from the cargo bay of the space shuttle Challenger, Bruce McCandless II was farther out than anyone had ever been before. Guided by a Manned Maneuvering Unit (MMU), astronaut McCandless, pictured above, was floating free in space. McCandless and fellow NASA astronaut Robert Stewart were the first to experience such an "untethered space walk" during Space Shuttle mission 41-B in 1984.

Critics of the limitations of the present copyright system often make suggestions like — Use Creative Commons licenses! Use public domain materials! Fair use is “use it or lose it”! And these are truly great suggestions, but the response is often “We want clarity and paying for materials — even if it isn’t needed this brings us clarity of use.”

Dido's Safe Trip Home Album CoverTwo recent examples show how far the “clearance culture” has gone are the Canadian Broadcasting Corporation (CBC)’s decision to no longer include Creative-Commons licensed materials on podcasts and the musical artist Dido being sued after using a photograph of an astronaut that has been in the public domain since its creation in 1984 for an album cover.

And yes, it might make sense that the CBC is being especially cautious to not mix commercial and non-commercial practices — and it might be that the astronaut in question does have persona rights, but that is not the message that the public is hearing. Instead, it is that pay-to-play is the only way to use creative material — otherwise you may get sued.

After all of the “sue your fans” Lars Ulrich-style RIAA lawsuits, what other message could the public be receiving at this point? The message being sent is “what fair use?” EFF is presently pursuing a lawsuit against Universal for their 2006 takedown notice for a half-minute clip of a baby bopping along to Prince’s “Let’s Go Crazy”

We see what happens when clearance culture is followed — money for all uses — and we see what happens when those who do not directly follow clearance culture are sued (or sent takedown notices). But we don’t see what happens in the aggregate when fair use is not even considered as an option — or when permission is asked for, and then denied (even in cases when fair use could/should apply).

(Dido case docket info: Bruce McCandless v. Sony Music Entertainment, 10-07323, U.S. District Court, Central District of California (Los Angeles))

(Prince Dancing baby case info: Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150  (ND Calif. 2008) and2010 motion for summary judgment by Lenz & 2010 motion for summary judgment by Universal)

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2 thoughts on “The Difficulty of Choosing Something Beyond the (Mostly) Certainty of the Clearance Culture of Copyright

  1. Ah, but if individual artists who aren’t hampered by corporate lawyers do use CC/PD materials and then also distribute their materials via independent channels, then don’t they stand out from the corporate mono-culture that much more? Also, wouldn’t using CC/PD materials reduce production costs (an obvious immediate benefit to independent artists) also mean that said artists can reduce their pricing to compare against the quantities-of-scale benefits of large production runs?

    Combined with the greater viability of small scale production runs, that would (in theory) lead to greater parity between independent and corporate entities. Which, in turn, allows individual consumers to make an active choice of buying into independent vs. corporate ideas WITHOUT additional financial expense.

    Not that most people WOULD go the independent route, of course, but taking advantage of CC/PD material does make it more financially viable.

  2. @SKleefeld, thanks for joining the discussion.

    I agree that there is a great deal of value in Creative Commons (this blog has a CC-license!) and public domain material, especially for small, independent creators. But so much of the market for use of materials (especially money-making) markets is dominated by clearance rights culture.

    And that clearance culture will continue to shut out many independent creators. Therefore, the work that the Center for Social Media does in creating standards for fair use is such an important step in the right direction — for documentary filmmakers, for use in online videos, for others that have been creating codes of best practices.

    But the truly risk-averse will not be looking to CC/PD materials precisely because there isn’t a contracting party on the other end, responsible to say “I own this and am directly licensing this to you for this specific use.”

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