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

Another day, another Fair Use issue in the headlines. Imagine my surprise as I began to do research to update my previous article on the Fair-Use/Copyright kerfuffle between the Associated Press (AP) and street-artist/icon-wanna-be Shephard Fairey, to discover that the case was dismissed yesterday, January 11th, 2011, and that the two parties had entered into an undisclosed financial arrangement. I loved the lead paragraph from the Animal/New York website:

US District Judge Alvin Hellerstein has dismissed the cases between Shepard Fairey and the Associated Press. And so, the whole copyright infringement vs. fair use vs. fake evidence ballyhooed mess has been resolved with a “confidential” financial settlement. The AP and Fairey will also “collaborate on a series of images,” according to the AP’s press statement. Wait, what?

For those who may not be familiar with the case, Shephard Fairey has been practicing his craft of graphic commentary/stencil graffiti for a number of years and found some notoriety with the Andre the Giant/OBEY image. According to Fairey, in an LA Times video/interview, he said that he wanted to do something for the Obama campaign around the time of the Super-Tuesday push, found an image of Obama and by the following day had a poster with the word HOPE. The poster and image instantly went global. Fairey said that the image captured the leadership and humanity of the candidate and the word HOPE captured the feelings of his supporters. Success.

After the conclusion of the campaign AP threatened to sue Fairey for the use of the photograph that they believed he used to create his poster. Then in February of 2009, Fairey decided to beat AP to the punch and sued AP, claiming that his use of the photo was covered under Fair Use. To make things even more complicated, the photographer who allegedly took the original image, Mannie Garcia, sued AP claiming that he was a freelancer and not an AP employee when he shot the disputed photo and therefore he was entitled to compensation from this litigation. At the end of February 2009 NPR interviewed Fairey and Garcia (separately). It probably didn’t help to settle things down that the disputed poster had just been hung in the US National Portrait Gallery on January 20th, 2009.

It was a textbook case on Fair Use that I immediately chatted with my students about. Looking at Fairey’s actions and pre-emptive lawsuit, those who had read the requirements for a Fair Use defense could say in unison: Fair Use is not a right but a defensible position. Again, Fair Use is not a right but a defensible position.

At the time I asked around to see what others in the media business felt. 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 [the] 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, doesn’t mean that it belongs to you.”

A cursory survey of opinions online at the time 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 came down on the side of Fairey’s Fair Use claim. NPR, of course, 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 on the link/player at the end of this story for NPR’s interview.

And so the case stayed here for about ten-months with the photographers crying foul and the graphic artists flipping the bird. Then in October of 2009 Fairey dropped a bomb admitting that he’d lied about which photograph he’d used and destroyed evidence of the actual images he’d used (which he feared would have proven AP’s case because the image required far less manipulation to create the poster). Fairey’s attorneys, which included support from Stanford University’s Fair Use Project, withdrew their support. Photographers 1, Graphic Artists 0.

In my original article I concluded that 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. Even though it would have gone completely counter to his street-artist-persona, a simple call or email to AP would have saved him all of this hassle.

But who am I kidding. In one of the videos, when Fairey says, “Shephard Fairey: Icon” for the G4 series of the same name, implying his own status in the art/street culture world, I was put off by the arrogance and willingness to play both sides of the media. I predicted that when all of this plays out the title of his next video would be, “Shepherd Fairey: Oops.” But I guess given the out of court settlement, the Fair Use test case was kicked to the curb and Fairey is left to say either, “Shephard Fairey: Halfsies” or “Shephard Fairey: Do You Take Checks?”

Media:

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

If you don’t see the audio player above, you can switch to Firefox or Click here to listen to the podcast

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

Sources:

Image: (FILES) People walk past Shepard Fairey’, retrieved from http://www.boston.com/ae/specials/culturedesk/FILES-US-POLITICS-INAUGURATION-PORTRAIT_001.jpg on 01/13/2011

Shepard Fairey Settles Case, Collaborates With AP Instead by Marina Galperina, retrieved from http://animalnewyork.com/2011/01/shepard-fairey-settles-and-collaborates-with-ap/ on 01/13/2011

Barack Obama artwork case settled, retrieved from http://www.bbc.co.uk/news/entertainment-arts-12170620 on 01/13/2011

Image: Giant/OBEY, retrieved from http://www.graffiti.org/faq/kataras/kataras_fig3Fairey.jpg on 01/13/2011

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

Obama “Hope” Image vs. One Lost Shephard by Joe Bustillos, retrieved from http://joebustillos.com/2009/04/10/obama-hope-image-vs-one-lost-shepard/ on 01/13/2011

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

The video prompted the following video response by one of my students (and my response to his video):

My video response:

Sources:
* Eyes on the Fair Use of the Prize directed and produced by Jacob Caggiano/Center for Social Media, http://www.youtube.com/watch?v=0r0pM1hJGU8 retrieved on 10/22/2009

* Save the Prize by Seann Goodman/OnOttButton, article at http://seanngoodman.wordpress.com/2009/10/16/save-the-prize/, video at http://www.youtube.com/watch?v=y8fvmpRtDb0 retrieved on 10/22/2009.

* Save the Prize – Cha-Ching Version by Joe Bustillos, http://www.viddler.com/explore/joebeebee/videos/17/ retrieved on 10/22/2009.

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