Remember my article from the other day about the White House intellectual property plan that includes provisions for copyright education? I’ve come across a great op ed by Julie Ahrens, director of copyright and fair use at the Center for Internet and Society, and a lawyer who defended Shepard Fairey in his lawsuit with the AP over the Obama “Hope” poster. In this article, she discusses a couple of court decisions concerning fair use, and why it is so crucial to protect the ability to continue making it.
The problem with fair use is that it is a defense. You can’t just tell someone that something is fair use; it has to be decided by a court. This can be a costly and uncertain venture. And often, precedents for a particular type of fair use are thin on the ground. Ahrens writes:
Fair use is the bulwark against copyright holders squelching free expression. But it is often too unpredictable to rely upon. Without well-developed precedent, plaintiffs are emboldened to assert flimsy claims. Even for defendants prepared to stand up to weak infringement allegations, their success in asserting a fair use defence often feels like a roll of the dice, dependent on which judge hears their case. Defendants often settle or pay licence fees rather than face great uncertainty in court.
But a recent victory for an artist in a fair use case offers Ahrens hope that the tide may be turning and eventually fair use will have more of the precedents it needs.
Let’s hope that’s the case. All art is built upon the foundation of works that came before it, whether through direct copying or just inspiration. If artists are afraid to create, then that’s harmful to the culture as a whole.