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.”
Two 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))