Fair Use: The Foundation Of Jon Stewart's Success
from the celebrating-fair-use dept
Jon Stewart's announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)
Stewart's most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He'll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart's rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.
Jon Stewart's heavy use of clips for the purpose of humorous political criticism has inspired other comedians to emulate him, most notably his former "correspondents" Stephen Colbert on The Colbert Report and John Oliver on Last Week Tonight. Stewart's reliance on clips no doubt has also encouraged the growth of the remix culture online, where individuals combine clips of preexisting works for the purpose of political or artistic expression.
Stewart's reliance on fair use likely made him progressive on other copyright matters. He supported fans distributing excerpts of The Daily Show online, he questioned the position of Viacom (the owner of Comedy Central, the channel that carries The Daily Show) in its litigation with YouTube, and he opposed SOPA.
Additionally, Jon Stewart's fair use of clips has had a positive impact on policymakers. The Daily Show is perhaps the easiest example to give lawmakers and their staffs of the importance of fair use. A reference to The Daily Show makes them instantly understand how fair use functions, in Supreme Court Justice Ruth Bader Ginsburg's words, as one of the copyright law's built-in accommodations to the First Amendment. Further, The Daily Show demonstrates clearly that large media companies (e.g., Viacom) rely on fair use.
Jon Stewart has not announced what he will do after he leaves The Daily Show. But it is hard to imagine that the greatest practitioner of fair use in this generation will not at some point embark on another venture that employs fair use.
Reposted from the Disruptive Competition Project
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Filed Under: clips, copyright, fair use, jon stewart, journalism, news, reporting, satire
Companies: viacom
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When the author of 50 Shades wanted to sell her awful Twific, she changed all the names but left the story more or less intact. Writing her stories surely wasn't a problem, only selling them.
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It’s intended to do both. It allows authors to prevent works from being incorporated into culture in certain ways. For example, an author controls the initial public distribution of a copy of the work. And it grants the author control over reproductions, both private and public. Of course, authors don’t have total control over their works, such as when uses are excused by the fair use or first sale defenses. But it’s incorrect to say that authors can’t prevent certain methods of incorporation into culture. That’s exactly what the exclusive rights in Section 106 do.
Authors have the right “to prepare derivative works based upon the copyrighted work,” and a “derivative work” is one that “recast[s], transform[s], or adapt[s]” the original. Clearly, much of fan fiction is derivative and thus infringing. This is one of the ways copyright “is intended to enable people to capitalize on their creations,” as you put it. It’s also one of the ways that copyright “prevent[s] works from being incorporated into culture.” It's simply not true that copyright is intended to promote cultural incorporation, no matter what.
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I'm not sure how accurately discussing the law makes me "completely full of shit." It's infringement to create a derivative work, even if you keep it to yourself. It's not the public derivative right, it's the derivative right. Naturally, if you keep it to yourself, chances are you won't get caught. But it's nonetheless infringing.
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The challenge for copyright is mostly how difficult it is to handle and understand. If you want to determine where copyright, de minimus and exceptions applies, even if you hold it to a single jurisdiction, you could write a long series about it without being exhaustive! Add in the complexity of non-economic rights and the - lack of - logic behind the different requirements and we have a trap!
The obscurity is chilling peoples interest in sharing their work since it can cause so much grief if what you do is percieved as grey area.
When you say that fanfiction is non-infringing, that judgement is far too broad. And moral rights are not created to allow capitalization of creations.
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Not really. People can capitalize on their works even in the total absence of copyright. Copyright is a simple deal: in exchange for copyright holders getting a temporary monopoly, the public gets to own the works when the monopoly ends.
The primary purpose of copyright is to benefit the public, not the copyright holders.
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That is, perhaps the largest problem with fair use. You have to be sued before you can claim fair use, and for most people just getting sued is enough to seriously harm them whether or not they prevail in the suit.
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Not quite. You have to sue (for a declaration) or be sued to *prove* fair use. You are free to claim it at any time.
I think you mean that fair use is inherently risky because it lacks bright lines.
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Well, yes. I am also free to claim at any time that I am the emperor of the galaxy, and it is just as meaningful. I was really talking about when fair use is actually meaningful, which is only in a courtroom.
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Haha. I hear ya. I think fair use applies to all rights in 106. 107 even says so: "or by any other means specified by that section." But I think the difference between transformative fair use and a derivative work is nonetheless real such that the fair use exception doesn't swallow the derivative right rule. Theere's a cert petition before SCOTUS currently in Kienitz v. Sconnie Nation that turns on this distinction. It's not getting as much press as Oracle v. Google, but I think it's more interesting.
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http://arstechnica.com/gadgets/2013/09/with-30-tuners-and-30-tb-of-storage-snapstream-make -tivos-look-like-toys/
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RTA
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Fair Use as a source of revenue
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Oliver's staff has more TIME to plan the punches.
The time to test/game the response matters.
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