Copyright question

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I was given this article: CC Talks With: Illegal Art (almost at the bottom) about some modern art exhibition called "Illegal Art", and was asked to write an essay for my copyright class, analyzing the validity of their arguments while establishing a relation between ethics and legislation. Let me highlight some of the main points:

Copyright holders have threatened and sued many of the show’s artists for sampling, remixing, and recontextualizing other people’s artistic creations without permission (...) the show highlights how copyright, typically considered an engine of creativity, can stifle art and free speech.

Because this exclusive right is in tension with free speech, artists can invoke fair use to defend their adaptations. Just as courts have protected controversial speech by setting high standards for libel, courts have identified commentary, criticism, and parody in particular as fair uses (...) Most works in “Illegal Art” arguably fit this exception: they take “elements of our mass media environment to express how the artist feels about our culture,” McLaren said.

For most artists, clearing a copyright is too cumbersome, even when the sampled artists do not mind the sampling (...) Had these legal limitations existed years ago, perhaps collage, rap, and Pop Art would have been sued to death before they ever had a chance to flourish.

“The law presumes that sampling intends to undermine the work of others,” said Mark Hosler (...) we’re inspired by what we find, and I think that’s true of many collage artists. Collage has been a legitimate form of art for a long time, and it’s everywhere in today’s society.

Now that the “Illegal Art” artists and many more have popularized their artistic practice and suffered for it, corporate copyright holders are ready to reap the rewards (...) the “Illegal Art” exhibit is touring the country to show people the value and plight of appropriation artists.

What do you think of these arguments? I would assume this is all rationalizing thief, but I'm not well acquainted with copyright laws, so I'm not very sure. How does copyright work with all these activities (collages, fan fiction writing, etc.)? Is the exhibition infringing any copyright restrictions, even if they don't profit from it?

These are some of the works:

Edited April 5, 2010 by 0096 2251 2110 8105

[Jake_Ellison]

Copyright holders have threatened and sued many of the show’s artists for sampling, remixing, and recontextualizing other people’s artistic creations without permission (...) the show highlights how copyright, typically considered an engine of creativity, can stifle art and free speech.

That's an unsubstantiated opinion, not an argument. How exactly does it do that is the question.

Because this exclusive right is in tension with free speech, artists can invoke fair use to defend their adaptations. Just as courts have protected controversial speech by setting high standards for libel, courts have identified commentary, criticism, and parody in particular as fair uses (...) Most works in “Illegal Art” arguably fit this exception: they take “elements of our mass media environment to express how the artist feels about our culture,” McLaren said.

Does he have evidence that the Courts are disregarding fair use laws and precedents? If he does, he should present them. In my experience, commentary, criticism and parody are all very well protected forms of speech.

For most artists, clearing a copyright is too cumbersome, even when the sampled artists do not mind the sampling (...)

I doubt that. What does that cumbersome process consist of?

Had these legal limitations existed years ago, perhaps collage, rap, and Pop Art would have been sued to death before they ever had a chance to flourish.

I don't know what collage is, but who and why would sue rap and pop art to death?

Sorry, I haven't spotted a single argument in the whole package, so far. As for the rest, I don't know what collage art is, so I can't comment.

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I doubt that. What does that cumbersome process consist of?

Hmm, I wish I could ask him, but all it says is this: "you have to obtain permission—read: navigate a labyrinth of red tape—from the work’s copyright holder. Every appropriation is presumptively a misappropriation."

I don't know what collage is

This sort of thing:

http://en.wikipedia.org/wiki/Collage

but who and why would sue rap and pop art to death?

Sorry, I haven't spotted a single argument in the whole package, so far. As for the rest, I don't know what collage art is, so I can't comment.

I don't know if one could call them "arguments." I was just giving some highlights, but you should try reading the article (it's very short) to get them in context, if you like. Probably they'll make more sense that way.

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[DavidOdden]

I assume it's true that some copyright holder threatened to or did sue some of the artists of that show. Their defense would, obviously, be 17 USC 107. A seasoned IP lawyers is the best judge of such matters, but I have a hard time believing that those samples would not be flagrantly allowed. That stuff veritably reeks of commentary. At the same time, if the copyright owner files suit and it's not thrown out from the git-go, then it will go to trial, and that will cost money, and be a major nuisance, besides there being some risk of actually being found to have violated copyright. So wouldn't you rather settle out of court? The key here is that what constitutes "fair use" is complete legal witchcraft, which is why filing an infringement suit wouldn't be necessarily frivolous.

The "cumbersome process" is not a cumbersom process, it's a potentially expensive process. Okay, with Disney it's massively cumbersome too. All you have to do is secure a license to use the IP, which may well cost a pretty penny.

It is true that the law presumes that sampling has a tendency to "undermine" the work of others (surely they can't believe that the law makes a claim about an intent -- I assume the author is an ignorant slut who doesn't know the difference between "intend" and "tend"), and the law also presumes that such sampling is permitted, in ill-defined circumstances.

[D'kian]

"Illegal Art" my ass. It's second-hander's "art."