Ipse Dixit


Copyright in a Nutshell for Artists & Filmmakers

Season 1, Ep. 657

Copyright in a Nutshell for Artists & Filmmakers

Brian L. Frye


Hello! Welcome to this introduction to copyright for artists and filmmakers. I’m Brian L. Frye. I’m a professor of law at the University of Kentucky College of Law, where I teach copyright law, among other things. But I’m also an artist and a filmmaker. I earned an MFA in film from the San Francisco Art Institute, was included in the 2002 Whitney Biennial, and co-produced the documentary film Our Nixon, which premiered at SXSW and was broadcast on CNN. So, I understand copyright not only from the perspective of a lawyer, but also from the perspective of an artist and a filmmaker.

The purpose of this lecture is to help you understand copyright law and how it affects artists and filmmakers. Hopefully, they will provide practical information that will be useful for practicing artists and filmmakers. Obviously, I can’t even begin to explain all of copyright law in an hour. But I will address the most important concepts and help you understand how they apply to art and movies.

I’ll begin by asking why copyright exists in the first place. There are lots of ways to answer that question. For example, some people think the purpose of copyright is to help authors profit from their works. Other people think it’s to help authors control the use of their works. And still others think it’s to benefit the public, by encouraging authors to create works in the first place. Maybe all of those reasons are true. Often, they all point to the same answer. But sometimes they conflict with each other. And when they do, we have to ask which reason is the most important and why.

Next, I’ll ask what copyright protects. The answer is, almost everything! Copyright protects the original elements of a work of authorship. But it is very forgiving. Essentially, an element of a work is original so long as it isn’t copied from another work.

I’ll ask how you get a copyright, and what you should do once you have one. The answer is, it’s easy! As soon as you create a work, you own a copyright in all of its original elements. No need to do anything else. But you can and should register the work with the Copyright Office, if you think it might have commercial value, because you usually can’t enforce your copyright without registering it.

I’ll ask how long a copyright lasts. The answer is, almost forever! Currently, the copyright term is usually the life of the longest-lived author of a work, plus an additional 70 years. The exception is that copyright in works created for an employer lasts 95 years from creation or 120 years from publication, whichever expires first. When the copyright term ends, a work falls into the public domain, which means that anyone can use it in any way they like, without asking permission.

I’ll ask what copyright does. The answer is, it gives authors certain exclusive rights to use the works they create. Specifically, copyright gives authors the exclusive right to copy, sell, and show their works, as well as the exclusive right to create new works based on their works. Of course, authors can sell those rights to others. And there are also certain limits on their exclusive rights, including fair use.

I’ll ask what counts as copyright infringement. The answer is, any use of a work that violates one of the exclusive rights of the copyright owner may be infringing, unless the owner gave permission. In other words, copying a work, selling copies of a work, and presenting a work to the public all may be copyright infringement. Likewise, using elements of a work to create a new work may also be copyright infringement, if the new work is sufficiently similar to the original.

I’ll ask what happens to copyright infringers. The answer is, nothing good! The copyright owner can not only force them to stop infringing, but also force them to pay damages. Copyright owners who prove infringement are always entitled to actual damages, but many copyright owners are also entitled to statutory damages, which may be substantial, even if the cost of the infringement was trivial.

And I’ll ask what fair use is and why it matters. The answer is that it’s the most important exception to copyright infringement, because it ensures that copyright permits free speech. Among other things, the First Amendment prevents the government from limiting speech, without a really good reason. Copyright necessarily limits speech, by preventing people from using works in certain ways without permission. Fair use says that copyright owners can’t stop people from criticizing or discussing their works.

Obviously, there’s a lot more to copyright than these eight questions. But I think they will help you better understand what copyright is for, what it protects, what it prohibits, and what it permits. And maybe most importantly, I hope they encourage you to ask what copyright actually does, whether it is effective, and how we could improve it.

What is Copyright?

You may have heard people talk about “intellectual property,” a blanket term for ownership of expressions and ideas. Copyright is a kind of intellectual property that protects original works of authorship. Other kinds of intellectual property include patent, which protects novel inventions and discoveries, trademark, which protects distinctive marks used in commerce, and trade secret, which protects confidential commercial information. While we refer to all of these things as intellectual property, they don’t really have anything to do with each other, other than that they all protect “knowledge goods,” or valuable concepts.

People often confuse the different kinds of intellectual property. That’s a problem, because they protect different things in different ways. For example, in order to get a patent, you have to describe your invention to the Patent Office and explain why it is new. If you get a patent, it can only protect the new thing you invented, and other people can use your invention to create other new things. In order to get a trademark, you have to use a symbol in a way that communicates information to consumers. For example, you could use the word “apple” to tell consumers who made a computer. Or you could use the word “amazon” to tell consumers who is selling a book. For what it’s worth, a commercial publisher uses the phrase “in a nutshell” to identify its legal study aids, but they did not publish this lecture or essay, and I have nothing to do with them. Are you confused?

Anyway, copyright gives authors ownership of the works they create. Or rather, copyright says that no one can copy, sell, or show a protected work, without the 7author’s permission. Copyright has existed for a long time, more or less since the printing press made it possible to publish books. Copyright forced publishers to compete by selling different books, rather than by selling the same books for lower prices.

The Constitution gave Congress the power to create copyright in the United States, and it did. In the United States, copyright is created almost entirely by federal law. While most other countries have also created copyright, different countries protect copyright in different ways. However, most countries have joined the Berne Convention for the Protection of Literary and Artistic Works, which provides some common ground.

People disagree about the purpose of copyright. In the United States, most people think the purpose of copyright is to encourage authors to create new works. If copyright didn’t exist, people wouldn’t have to pay for works of authorship, and it would be hard for authors to make a profit. Copyright means authors can force people to pay, which encourages them to create more works. This is an economic theory of copyright, because it says that the purpose of copyright is to benefit the public, by encouraging authors to produce works the public wants.

But many people think the purpose of copyright is really to protect authors. Some people think that authors have a natural right to own and control the works they create. After all, a work doesn’t exist until an author creates it. Surely people ought to be able to control the things they create? Other people think authors ought to be able to control the use of the works they create, because they express the autonomy and personality of the author. Why shouldn’t people be able to control the use of their ideas and expressions? These are moral theories of copyright, because they say the purpose of copyright is to protect the rights of authors.

Theories of copyright matter, because they shape what copyright protects and prohibits. We decide what copyright should do by asking what copyright is for. Often, economic and moral theories of copyright reach the same results. But sometimes they don’t. For example, the economic theory of copyright says people can use a work, so long as they pay for it. But the moral theories say authors can stop people from using their works, even if they are willing to pay. So, is copyright about compensation or control? As always, it depends. But how we answer that question shapes both copyright and the freedom of speech.

What Does Copyright Protect?

Copyright protects original works of authorship fixed in a tangible medium. That’s a mouthful, but it doesn’t mean much. As a practical matter, copyright protects just about everything you create. Obviously, copyright protects books, songs, paintings, and movies. But that’s not all. Copyright protects a lot more besides. Every email, tweet, instagram, tiktok, snapchat, and text is also protected by copyright, so long as it’s arguably unique, even in the most trivial way.

But I’ll be more specific. The Supreme Court held that a work of authorship is original and can be protected by copyright only if it was independently created by the author of the work and reflects some minimal degree of creativity. Independently created just means not copied. Even the most banal work is independently created, so long as it isn’t a copy of another work. After all, most emails aren’t copied, and every snapshot is by definition unique. 

Of course, copyright also requires creativity. While it’s unclear what creativity requires, it clearly doesn’t require much. The Supreme Court held that copyright couldn’t protect a white pages telephone directory, because it totally lacked creativity. But it implied that copyright could protect anything else.

Some works of conceptual art might not be protected by copyright, if they are sufficiently abstract. But the overwhelming majority of works are obviously protected. As a rule of thumb, if your work consists of more than an abstract idea, it’s almost certainly protected by copyright.

What’s more, copyright protects every original part of a work. So, if you create a work, you own the work as a whole, but you also own all of the original elements of the work. Obviously, copyright protects the sentences in a literary work and the images in a pictorial work, but it may also protect a particular way of expressing an idea in literary or pictorial form.

But copyright can’t protect abstract ideas, only particular expressions of those ideas. In other words, as the elements of a work get more abstract, they get less copyright protection, until they get none at all. Or rather, copyright can protect a particular way of expressing an idea, but can’t protect the idea itself.

An important thing to remember is that copyright only protects intangible works of authorship, not particular copies of those works. So, copyright protects the text of a novel, not particular books. But copyright also protects the intangible work of authorship expressed in a painting or sculpture, not the physical object itself.

How Do You Get a Copyright?

I bet you’ve heard people talk about copyrighting their work of authorship or telling you to copyright something you’ve created. They don’t know what they’re talking about. Copyright isn’t a verb. You can’t copyright anything, because copyright automatically protects works of authorship, as soon as they are created and recorded.

The Copyright Act provides that copyright protects original works of authorship fixed in a tangible medium. In other works, as soon as you create something and create a record of what you created, it’s protected by copyright, automatically. You wrote down a poem? It’s protected by copyright. You recorded a song? It’s protected by copyright. You made a video? It’s protected by copyright.

Of course, you can also register your work with the Copyright Office. Registration doesn’t create copyright ownership. But it does give copyright owners certain valuable rights, including the right to sue for copyright infringement, and the right to demand statutory damages, as opposed to actual damages, which may often bee nominal.

Copyright registration is easy and relatively inexpensive, and you can do it online. If you’ve created a work you think might have commercial value, it might make sense for you to register it. You might even be able to register several works at the same time. But you don’t need to register your works in order to own a copyright in them. And it probably doesn’t make sense to register them, unless you want to be able to stop people from using them without your permission.

Anyway, whether or not a work is registered, the author can only own the original elements. Sometimes, they are quite valuable, but more often than not, they aren’t. More often than not, copyright is a way for people to accept that the dream is over, because no one is offering a better deal.

Who Owns a Copyright?

In theory, copyright ownership is simple. If you create a work of authorship, you own the copyright in the work you created. But in practice, it can get complicated. After all, some works are created by many different people, and many works are created for an employer.

When people create a work together, everyone who participates is an author and a copyright owner, so long as they contribute an original element that copyright can protect and everyone agrees they are a co-author. So, if you have the idea for a work, but don’t actually participate in creating it, you aren’t an author or copyright owner, because copyright can’t protect ideas. And if you edit a work created by someone else, you aren’t an author or a copyright owner, unless the original author agrees.

Co-authors own the copyright in a work jointly. In other words, all of the authors own the entire work collectively, and all of the authors can use the work in any way they like, so long as they don’t harm the value of the work, and share any profits with the other owners. Of course, the owners of a work can make more complicated agreements about how to use the work and share profits, as well.

If a work is created by an employee for an employer, then it is a “work made for hire,” and the employer is the author for the purpose of copyright ownership. For some works, like movies, everyone can agree that the work is a work made for hire in a signed contract. But many works, like books and paintings, can be works made for hire only if the person who creates them is actually an employee, which usually means they have to be on payroll.

Copyright is a property right, so it can be transferred, like any other property right. While the author of a work is the initial copyright owner, the author can transfer copyright ownership to someone else. Authors can even transfer copyright ownership before they even create a work. In addition, copyright owners can transfer as much or as little of their copyright as they want. If you own the copyright in a movie, you can sell it to someone else, or you can sell part of the copyright, like the right to show the movie in a particular place, in a particular way, for a particular period of time.

When authors sell their copyright in a work, they may eventually be able to get it back. The Copyright Act allows authors to terminate the transfer of copyright after 25 years, by following certain procedures. However, the person who created a work can terminate its transfer only if they were the initial author and copyright owner. In other words, an employee can’t reclaim the copyright in a work made for hire, because they were never the author in the first place.

How Long Does a Copyright Last?

The length of copyright protection has gradually increased over time. Initially, copyright lasted 14 years, but could be renewed for another 14 years. Every once in a while, Congress made the copyright last longer, until it lasted 56 years. Then, in 1976, Congress revised the Copyright Act to make copyright last until all of the authors of a work died, plus an additional 50 years. And in 1998, Congress made copyright last an additional 20 years.Today, copyright usually lasts for the life of the author or authors of a work, plus an additional 70 years. However, because the author of a work made for hire is usually a company, copyright in those works lasts for 95 years from publication or 120 years from creation, whichever ends first.

When the copyright in a work ends, it enters the public domain, which means no one owns it anymore, and anyone can use it in any way they like. Every year, on January 1, works published 95 years earlier enter the public domain. So, in 2020, works published in 1925 entered the public domain.

In theory, copyright is supposed to ensure that works are available to the public, by giving copyright owners an economic incentive to publish them. But in reality, most of the works protected by copyright aren’t worth anything when they are created, and even those that are worth something quickly lose their value. As a result, many works are unavailable, because the copyright owner can’t be bothered to publish them. But copyright means that no one else can publish them either. Scholars have observed that public domain works are far more widely available than works protected by copyright, precisely because people can make them available without worrying about infringement.

Many people think copyright lasts too long and protects too many things. They think more works should be in the public domain and people should be able to use copyrighted works more freely. Unfortunately, the law isn’t on their side. Congress assumes people want to own whatever they create, and tends to make copyright stronger and longer, rather than shorter and weaker. In fact, the Copyright Act doesn’t even provide a way for people to put works they own in the public domain.

Accordingly, people who want less copyright protection created Creative Commons licenses, which enable copyright owners to give people permission to do things copyright prohibits. After all, if copyright owners can sell their rights, they can also give them away. The most popular Creative Commons license is the CC-BY license, which permits people to use a work in any way they like, so long as they credit it to the author. But there is also a CC0 version, which declares a work to be in the public domain.

What Does Copyright Do?

Copyright gives copyright owners the exclusive right to use the work they own in certain ways. That’s why we call it a property right. It creates the right to exclude people from using a work without permission. Broadly speaking, copyright gives copyright owners four exclusive rights: reproduction, distribution, presentation, and adaptation.

The reproduction right is the essence of copyright. It says that copyright owners have the exclusive right to create copies of the works they own. In order to use a work, you need a copy of it. The reproduction right enables copyright owners to control access to a work by controlling the creation of copies. Of course, it is often observed in the breach. People often create copies of works, without even realizing they are infringers. After all, if you’ve ever created a mixtape for your friend, or written down the lyrics of your favorite song, you’ve infringed the reproduction right.

The distribution right reflects the reality of copyright ownership. The primary purpose of copyright is to enable copyright owners to profit from the works they own. Accordingly, copyright owners care about commercial uses of their works, but don’t care about private uses. The distribution right gives copyright owners the exclusive right to distribute copies of their works to the public. Or to put it more bluntly, only copyright owners can sell copies of their works.

The most important limitation on the distribution right is the first sale doctrine, which says that copyright owners can only control the distribution of a particular copy of their work the first time it is sold. The first sale doctrine is why we have used bookstores and record stores. Only the copyright owner can create and sell copies of a book or record. But once they sell a copy, it’s just a thing, and the owner can sell it like any other thing.

The transition from physical to digital media is a problem for copyright, because it’s unclear how to distinguish between a work and copies of a work. It used to be that copyright protected a story or a song, but not a particular book or record. But what is the difference between a story and text file, or a song and an audio file? What does it mean to own a digital file, if anything?

The internet is also a problem for copyright because it makes reproducing and distributing works essentially free. Back in the day, it was expensive to make copies of a work and make them available. Now, it’s effortless and free. Suddenly, copyright ownership is pure profit, with little or no risk, once a work proves popular. But how much should copyright owners be able to charge, as their costs evaporate? Copyright was designed for a world in which reproduction and distribution were costly. Does it make any sense in a world where they are free?

The presentation right gives copyright owners the exclusive right to publicly display or perform the works they own. It used to be that public display and performance was how copyright owners made money. For example, when people went to movie theaters, the public performance right enabled movie producers to profit from every screening. Today, the public display and performance rights are important primarily because they supplement the distribution right.

The adaptation right gives copyright owners the exclusive right to create derivative works, or new works based on a work they own. Typically, that means translating a work into a different language, transforming it into a different medium, or creating a sequel. But the adaptation right is much broader. It gives copyright owners the exclusive right to use any original element of the work they own, which means every sentence of a book, riff in a song, or sequence in a movie might be protected by copyright.

Almost everything we create is a derivative work, even though we don’t realize it. The Copyright Acts says that a derivative work is a work that incorporates an original element of a previously existing work. Well, most works owe at least something to an existing work. And quoting or paraphrasing an existing work is a great way to make your work a derivative work, at least from a copyright perspective. We tell ourselves that works are original, but in reality almost all of them are based on something else. And we like it that way. People tend to like familiar things, and dislike weird ones. Most people don’t like creativity all that much. A little bit is fine, but don’t overdo it.

Anyway, while most people think copyright protects works as a whole, it actually protects every element of a work, no matter how small, as long it qualifies for copyright protection. Of course, copyright protects almost everything, so almost every element of a work is protected by copyright, whether or not the author even realizes it. For better or worse, any element of a work that makes people think about the work is probably protected by copyright, and lots more besides!

Copyright also gives artists special protections. In 1990, Congress passed the Visual Artists Rights Act, which gave artists the rights of attribution and integrity, in order to bring United States copyright law in line with the Berne Convention. The attribution right enables artists to prevent plagiarism and the right of integrity enables artists to prevent the destruction of their works. But VARA doesn’t really do all that much. It only applies to unique works, only protects important works, and can be waived by the artist. When a work is valuable, the owner usually wants to attribute and protect it. The only time VARA really matters is when the owner of a work wants to get rid of it. Many recent VARA disputes involve graffiti. When a property owner wants to demolish a decorated building, in order to create a new one, who’s in the right? It all depends on how you think about copyright ownership.

What Is Copyright Infringement?

Copyright is a property right. The primary purpose of copyright is to prevent people from using a work without permission. And any commercial use of a work might be infringing. But of course, it depends. In order to prove copyright infringement, a copyright owner has to show the defendant actually copied a protected element of the work, and that the works are similar, because of the copied element.

Actual copying matters, because most works are similar to each other. Or rather, copyright only protects the original elements of a work, but most works aren’t all that original, and people have a disconcerting tendency to arrive at the same ideas at the same time. Sometimes, works are similar because of copying. But often, it’s just a coincidence. It’s not unusual for people to have similar ideas at the same time.

But copyright infringement also requires substantial similarity. In other words, a new work infringes a previously existing work only if it actually copies elements of the previously existing work, and is substantially similar to that work, because of what it copied.

Different courts have different ideas about how to identify substantial similarity. Some courts identify the protected elements that the allegedly infringing work copied, and ask whether copying those elements constitutes infringement. Other courts just compare the two works, and ask whether they are similar. Obviously, how you ask the question affects the outcome. On one level, more copyright protection is good for artists and filmmakers, because it enables them to exercise more control over their works, and claim more profits. But on another level, its bad, because copyright makes it harder for artists and filmmakers to use existing works in order to create new works.

More often than not, artists and filmmakers want to have it both ways. They want to be able to use existing works when it’s convenient. But they also want to control the use of the works they create. How should we square the circle? Should we let authors control how people use their works, or should we let people use works however they like?

You’ve probably heard about plagiarism. It’s similar to copyright infringement, but different. Copyright gives authors certain rights to control how their works are used, in order to enable them to make a profit from selling their works. Plagiarism norms allow people to copy and use works without permission. They only require attribution. But if you copy a work without attribution, the plagiarism police will make you sorry.

Notably, plagiarism norms protect works and elements of works that copyright can’t protect. Copyright can’t protect ideas, but plagiarism norms do. Copyright says you can copy ideas willy-nilly. But the plagiarism police will punish you if you copy ideas without attributing them to their “owner.” Similarly, copyright says you can use public domain works in any way you like, but the plagiarism police disagree. For example, copyright says that I can publish The Importance of Being Earnest by Brian L. Frye. After all, it’s a public domain work, and I can use it in any way I like. But plagiarism norms say I can’t, and the plagiarism police would punish me if I tried.

What Happens to Copyright Infringers?

Copyright enables copyright owners to profit from their works. But it also lets them force other people to shut up. When a copyright owner notices that someone is using their work without permission, they can tell them to stop. If the work is registered with the Copyright Office, they can also file an infringement action. Even if you prove infringement, it can be hard to prove damages. But the Copyright Act enables copyright owners who register their works to claim statutory damages, which can be substantial, even if there is no evidence of actual harm. In fact, statutory damages can be as much as $150,000 per infringement, although courts usually award less. Still, the risk of damages can encourage defendants to settle, even if the infringement claim is weak.

Copyright owners can also seek an injunction, to prevent an infringer from using their work. The problem is that injunctions can infringe free speech. After all, copyright owners are usually happy for people to use their works. If they want people to stop, it’s usually because they want to control what people have to say. But sometimes, people use copyright because they don’t have any other choice. For example, some people have used copyright to suppress images and videos of themselves. It’s understandable that people would use any tool available to protect themselves. But should they have to rely on copyright? After all, it applies to some offensive works, but not others. Or should we find another way to suppress offensive works?

But the internet has its own rules. Many people think the internet is a copyright-free zone. Wrong! But it can be hard to enforce copyright on the internet, not only because so many internet users are anonymous, but also because the internet is just too vast to monitor.

Anyway, most copyright owners want to stop popular platforms like YouTube and the Internet Archive from providing infringing content. Not to mention illicit pirate sites. In 1998, Congress passed the Digital Millennium Copyright Act or DMCA. Among other things, section 512 of the DMCA gave websites a safe harbor to protect them from copyright infringement liability for third-party content. Under the DMCA, if a copyright owner tells a website that someone has uploaded an infringing file, the website is immune from liability if it takes down the content. If the person who uploaded the content objects to the takedown, the copyright owner has to file an infringement action. If they don’t the website can restore the file.

What is Fair Use?

Copyright prevents people from using works without permission. But copyright has many exceptions. The most important exception is fair use, which provides that people can use works without permission, if they have a good reason. Essentially, copyright says that copyright owners have an exclusive right to use the works they own in order to make money. But fair use says that everyone else has a right to use those works in order to talk about them, so long as they aren’t competing with the copyright owner.

In other words, copyright says that the copyright owner of a book has the exclusive right to reproduce and sell copies of the book. But the fair use doctrine says that other people have the right to copy parts of the book in order to criticize it, or comment on its reception. Fair use ensures that copyright owners can’t abuse copyright, by preventing them from asserting copyright claims against infringers who are engaging in protected speech.

The fair use doctrine has existed for a long time. In fact, a version of the fair use doctrine is probably as old as copyright itself. After all, when publishers invented copyright in the 17th century, it reflected industry norms and expectations, same as always. When copyright became a property right, rather than a cartel norm, courts recognized certain exceptions, which came to be known as fair use. And when the United States created copyright law, courts read fair use into the statute.

Eventually, Congress codified the fair use doctrine in the Copyright Act of 1976. At least in theory, the codification wasn’t supposed to change the law. Among other things, it identified four factors that courts should consider when determining whether an unlicensed use of a copyrighted work is a protected fair use:

  1. Whether the use transforms the original work;
  2. Whether the original work is factual or fictional;
  3. How much of the original work is used; and
  4. Whether the new work is a substitute for the original work.

Typically, the first factor is the most important. Courts tend to ask whether the use of a work is transformative. If they answer yes, it’s almost always a fair use. The problem is that no one knows what “transformative” means. Sometimes, a use is transformative if consumers can tell the difference between the original work and the new work. But sometimes it isn’t. After all, a court held that Blurred Lines infringed Got to Give It Up, even though no one could possibly confuse the two songs. Sure, they are similar, but they aren’t the same. Transformativeness says changing a work avoids copyright infringement, but it doesn’t tell us how much change is necessary.

At the end of the day, courts don’t actually rely on the fair use factors, any more than they rely on any other doctrinal test. In reality, they ask themselves whether a use is infringing, and use the test to explain their decision. So, a use is transformative if the judge thinks it should be protected, and not transformative if the judge thinks it should be infringing.

The Supreme Court has explicitly recognized that copyright owners can’t prevent people from making fun of their works. But it hasn’t done a great job of explaining the scope of the fair use doctrine. Many people think fair use protects parody, and little more. They’re wrong. Fair use can protect any critical use of a work that isn’t a substitute for the work it criticizes.

Many people are critical of fair use. Some of them think it goes too far. After all, why should people be able to use a copyrighted work without permission, or even paying a licensing fee? But others think it doesn’t go far enough. The copyleft advocate Lawrence Lessig famously referred to fair use as “the right to hire a lawyer,” because it can be hard to know whether you are protected, and expensive to defend yourself, if a copyright owner disagrees.

But copyright maximalists and copyright skeptics both go too far. Yes, there’s a lot of copyright infringement, and it can be hard for copyright owners to stop it. But works are made to be used. And users have rights too, whether or not authors like it. For example, fans can and should be able to use the works they love to create new works, especially when they do it for free. Sure, some authors don’t like it. But when you create a popular work, public commentary comes with the territory.

As for copyright skeptics, they’re right that fair use can be dangerous ground. But at the same time, we do fair use all the time, without even thinking about it. After all, quoting an article is technically infringing, but fair use. And yet, we don’t think of it that way. Rather, we just think of it as non-infringing. The purpose of fair use is to force us to have a conversation about the kinds of uses we want copyright owners to be able to control, and the kinds of uses we want to protect.

And things have begun to change, especially for filmmakers. Thanks to the efforts of copyright lawyers like Michael Donaldson, filmmakers who claim fair use can insure themselves against the risk of copyright litigation. If you can insure yourself against a risk, you can safely ignore it. As a consequence, filmmakers take full advantage of the fair use doctrine.

Artists have always ignored copyright, using whatever they like to create their works. As Picasso famously observed, good artists copy, but great artists steal. Actually, he probably lifted the quip from someone else. The point is that artists usually don’t care about copyright, because they typically create and sell unique objects, not copies. But some artists have been hit with copyright infringement actions anyway. Andy Warhol copied the image he used for his popular Flowers paintings, and ultimately paid a licensing fee. More recently, Jeff Koons and Richard Prince have been sued for copyright infringement, with mixed results. Maybe artists need a way to insure themselves against copyright infringement actions, too?

At the end of the day, the purpose of the fair use doctrine is to ensure that people can use copyrighted works in productive ways. Does it always accomplish that goal? No. But at the very least, fair use encourages people to think about what copyright is supposed to do, and what it is supposed to accomplish.

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