I need some help. My CBR Project, Phase I, will be underway quickly; it involves my students composing music and putting it to a silent film. However, I know that most silent films are black and white and they are fairly old. However, I don’t know if there are copyright laws that would pertain to that genre of film. Is there a public domain cut-off for this type of film? If I need to get permission for something I would like to use, if it meets certain criteria, then I need to get it ASAP. Please point me in the right direction. Thanks, MM

So copyright law says, basically, that you need to ask permission to use any copyrighted material and any media created in the past 70 to 100 years, unless otherwise specifically licensed, is copyrighted. For your project what this means that you need to either use movies that were published in or before 1911 or look for movies that were licensed differently or track down the copyright holder(s) of the movies that you want to use and get permission.

There is a tiny education Fair Use loophole. But the test as to whether something can be used under this loophole is:

Can you still teach the same unit/lesson if the specific piece of media were removed or replaced.

I’m guessing that the answer is “yes,” you can replace the silent film with any other silent film and still do the lesson. Therefore the educational Fair Use loophole does NOT apply. You are not really teaching about that film directly, but using it to teach something. Also, even if you could not replace the media, you would not be able to use the whole film because the law states that you can only use a “small portion” of the whole work.

So, a better solution would be for you to go to http://www.ourmedia.org/ or http://creativecommons.org/ to find media that can be used for your projects. These website were specifically created to enable creatives and educators to legally use media and train the next generation of creatives. Hope that this helps. jbb

Resources:

• Chaplin Image by tonynetone, http://www.flickr.com/photos/tonynetone/5185166037/, retrieved on May 8, 2011
• filmstrip clipart by microsoft, http://office.microsoft.com/en-us/images/results.aspx?qu=movie%20camera#ai:MM900162967|mt:3|, retrieved on May 8, 2011

Part of my course at Full Sail is about media issues, you know, stuff like Copyright, Fair Use and Creative Commons. The “M” in our program title (EMDT) is Media and my students, who are in their ninth month of a year long Masters degree program, are expected to stare down this huge subject and come up with a reasonable approach to something that I tell them occupies the life’s work of an army of lawyers, policymakers and troublemakers. As I lay down guiding principles to understanding the moving target that is Copyright/Fair Use/Creative Commons the discussions tend to be quite lively and informative for all participants. One thing that I’ve never fully appreciated is how difficult and expensive it can be for teachers who want to follow copyright law who teach band, or theater or any of the other arts.

One teacher wrote in her class blog:

Seriously, the whole copyrighting thing….I get it. I understand why things are copyrighted. I just think it gets taken to an extreme and so many people suffer from it. I’m sorry, but this recording: (insert, mp3 of me playing Beethoven’s 5th Symphony with one hand on the piano but I couldn’t get to work properly) just doesn’t cut it when I’m teaching my kids about Beethoven. I know I am guilty of a lot of music copyrighting issues. I have gotten a lot better about it since I began teaching (that also comes with the experience and learning more and more about copyrighting). Music teachers have it tough – we aren’t allowed to photocopy music. No matter that it costs an average of $2-$5 per student copy (multiply by 25 students and you’re talking $50-$100 for ONE song). It’s simply unrealistic to think that any school can afford 10-15 songs PER CONCERT. I end up using a lot of the textbook series songs, which in it’s own right is probably not allowed either because it’s being performed live (but not broadcast). And of course, when you’re teaching the classics and the composers who wrote them, and they are not all in the series, you bring in your own music. How can a music teacher teach music without playing music?!??!? - “Alison Van”

Understanding the overwhelming power of motivated students (especially those under the age of 17), my first thought was that we needed to harness their creativity to come up with the music and art that we needed in the classroom to teach those just beginning to learn their craft. Then another student reminded me the role copying has always had in inspiring beginning artists. Oh yeah…

I think everyone uses something they’ve seen, heard, or read in a book or movie as inspiration. Using sports as an example, every kid with a basketball tries to imitate Michael Jordan’s moves on the court… Jenkins (Convergence Culture, 2008) makes this correlation with fledgling writers. By imitating or using the J.K. Rowling’s books as a starting point beginning writers understand good structure, character development, and how to tell a story. By using Jordan’s moves you understand how to attack the rim, how to play tenacious defense, and how to find openings. In both cases you aren’t trying to invent the wheel just make it better. Jenkins cites the fact that using someone else’s characters gives writers distance and takes the pressure off of drawing from one’s own experiences. - Jay Hom

This got me thinking. Clearly something is really messed up here. I mean, when it comes to students learning how to write and posting things in an educational or non-profit environment it’s pretty clear that there should be a special license for this, recognizing that beginning writers/artists always begin by copying the masters who came before them. From before the beginning of recorded history, persons wanting to learn a craft became apprentices in the service of a master, and what was their first job? Generally they spent years copying the works of the master until they proved themselves to be creative and skilled enough to be permitted to work on their own works. No one starts from scratch. This is where the media business and commerce has failed to recognize how humans, by nature, do things. Where would today’s artists be if it weren’t for an art teacher, a music teacher, a drama teacher or an English teacher? Even if the teacher’s influence was negative, inspiring the young artist to prove them wrong, the inspiration brought them that much closer to their dream. And who did the artists copy when they were learning how to draw, to play an instrument, to write, to imagine?

Let me put it this way, there’s something wrong in requiring the teacher to pay the student. In educational/non-profit situations teachers should have a special license to use the copyrighted works that they need to use in order to train the next generation of artists. This license should either be free or extremely inexpensive and any payment should be made directly to the composer/artist/writer and not to a publishing house or agency. If this seems to unreasonable to the media industry let’s use the same tactic used by the industry and begin by assuming that behind every artist, agency or media business was an educator and/or educational institution that got the artist, agency or business started. And so for every media property licensed, every paycheck generated from a piece of media, every negotiation related to any piece of art, music, literature, videos, any creative work, 10 percent of the gross must be paid to the educational institution or educator(s) who had a hand in beginning and/or nurturing the artist’s career. And given the media industry’s proven track record for creative accounting, artists/agencies/businesses unable to do the math will have a minimum of 10 percent deducted from their pre-tax gross income. This seems fair given the number of years educators and educational institutions devote to developing these artists. Or maybe a special educational use license (something like the creative commons license) could be employed. Either way, the business of taxing teachers and educational institutions in the business of producing the next generation of artists is just another example of how out of control and greedy the industry is willing to be. Getting back to my first notion, there is a lot of talent in the high school and college music programs that should be harnessed to create “Creative Commons” pieces that could be freely used in educational teaching and performances and the whole educational system should turn their backs on an industry that forgets that their “artists” first learned their love of their craft via the efforts of an underpaid classroom teacher.

In a blog that featured the opening video of PS22′s chorus singing the Fleetwood Mac song “Landslide” there were a few comments about what a beautiful performance it was but how pissed the RIAA was going to be. The blogger wrote, “Just got word from Stevie Nicks’ tour manager that she was completely blown away by the PS22 Chorus rendition of her song “Landslide!” He said she asked him to replay two times afterward, crying each time she watched! Talk about humbling!! And the kicker?? She invited the PS22 Chorus to sing the song at Madison Square Garden for the upcoming June 11th Fleetwood Mac show!! Holy cow!!!”

It’s been my experience that when the artist, the actual person responsible for the creative work, is brought into the picture they recognize the power of hearing or seeing their work re-imaged by the generation of artists coming up. And in the age of the Internet and email we educators are only one contact away from securing the releases that respect copyright while supporting the need to train and teach the next generation of artists. When Neil Finn, Crowded House lead singer, heard PS22 perform one of his tunes he said that it was “the most hopeful sound on earth.” Amen, Neil.

Crowded House & PS22 Chorus PRIVATE UNIVERSE live!

Sources:
* “Why Publish Student Work on the Web: PS22 Chorus Perform ‘Landslide’ by Fleetwood Mac” on Open Thinking blog at http://educationaltechnology.ca/couros/1603, retrieved 5/29/2009
* http://alisonvan.blogspot.com/2009/03/week-3-wimba-session-2-for-real.html retrieved 3/29/2009
* http://web.me.com/jayhom/MAC/Jay_Hom_Blog/Entries/2009/4/19_Week_2_-_Chapter_5_-_Fan_Inspiration.html# retrieved 4/21/2009
* “Augusta Savage, artist – 1930s film” (video) posted by Bob Bobster at http://www.flickr.com/photos/32912172@N00/3240099122/in/set-72157608250741007/ retrieved on 5/30/2009
* PS22 Chorus PRIVATE UNIVERSE opening for CROWDED HOUSE at http://www.youtube.com/watch?v=f5-FViUB490 retrieved on 5/30/2009
* Crowded House & PS22 Chorus PRIVATE UNIVERSE live! at http://www.youtube.com/watch?v=yQniDM38450 retrieved on 5/30/2009

Then the last week of February, as if I needed a textbook case on Fair Use, I stumbled across an NPR interview of the artist, Shepherd Fairey, who was behind President Obama’s “Hope” poster that rose to iconic status during the election. Seems that the Associated Press was threatening to sue Fairey for the use of the photograph that he used to create his poster. Just before NPR ran the story Fairey decided to beat AP to the punch and sue AP claiming that his use of the photo was covered under Fair Use. To make things even more complicated, the photographer, Mannie Garcia, is suing AP claiming that he was a freelancer and not an AP employee when he shot the disputed photo and therefore he is entitled to compensation from this litigation. Let’s say it together: Fair Use is not a right but a defensible position. Again, Fair Use is not a right but a defensible position.

I asked photographer and TWiT contributer, Scott Bourne, his take on the case (via Twitter) and he said, “I think the artist stole the photo and his fair use claim will end up costing him treble damages. All depends on whether AP owns pic.”

When NPR’s Terry Gross asked the photographer of the Obama image, Mannie Garcia, his take on Fairey using his photograph he said, “[It's] crucial for people to understand, simply because it’s on the Internet doesn’t mean that it’s free for the taking, and that just because you can take it, means that it belongs to you.”

A cursory survey of opinions online from the likes of Milton Glaser on BoingBoing, Mark Vallen on Art-for-Change, The Institute of Contemporary Art/Boston, and Chal Pivik on the Los Angeles METBlogs, seems to show that the more the pundit knows about the actual steps or changes to the photo that Fairey made to create the poster the more likely the writer will come down on the side of Fairey’s Fair Use claim. Finally, NPR did an excellent job covering all of the angles of the story, finishing up with a discussion with law professor Greg Lastowka on the case and Fair Use. Click the player below for the complete NPR recording.

NPR: Fresh Air: Shepard Fairey: Inspiration Or Infringement?

Los Angeles Times Video: Hope: Shepard Fairey and Barack Obama

Postscript: Had my research on this story ended with the NPR piece I would have been left with a different image of Shepherd Fairey than the one I gained via a series of videos that were created long before Obama campaign, when Fairey’s main claim to fame was his “Andre the Giant: Obey!” world-wide sticker/poster/street art project. Fifteen-plus arrests later for “street art” activities and it’s little wonder that he’d be a media darling while at the same time being in trouble for taking someone’s else’s photograph and not thinking twice about using it to make the Obama: Hope image. When he says, “Icon” for the G4 series of the same name, implying his own status in the art/street culture world, I’m put off by the arrogance and willingness to play both sides of the media. When all of this plays out the title of his next video might be, “Shepherd Fairey: Oops.”

Sources:
Obama photo: Mannie Garcia (AP)/Obama image: Shepherd Fairey, retrieved from http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html on 04/09/2009

Shepard Fairey: Inspiration Or Infringement? NPR Fresh Air interview, retrieved from http://www.npr.org/templates/story/story.php?storyId=101182453 on 02/27/2009

Hope: Shepard Fairey and Barack Obama – Los Angeles Time interview/video retrieved from http://www.youtube.com/watch?v=q_EOzZ9iaJQ&NR=1 on 04/07/2009

ICONS: Shepard Fairey, YouTube video retrieved from http://www.youtube.com/watch?v=ZNv-9IOBZZo on 04/07/2009