Guest post by Founding Member Michael Madison

For a week about fair use, let me make fair use about authorship, and the shared goals of copyright, and in a very specific way.

First, some background: I first wrote at length about the purposes and law of fair use in a long paper published in 2004, A Pattern-Oriented Approach to Fair Use. I surveyed fair use cases and offered four related conclusions: To begin with, fair use decisions were (and are) more predictable and consistent than is commonly thought, and fair use decisions can be clustered around the idea that fair use should align with a “pattern” of creative practice. More broadly, as I wrote in a later paper (Some Optimism About Fair Use and Copyright Law):

creativity and knowledge production is an emergent property of patterned social behavior; … those patterns exist concurrently with but distinct from market-based production of knowledge goods by individuals and firms; [and] those patterned behaviors can be identified as institutions, and exempting those institutions from the discipline of copyright’s scheme of exclusive rights is likely to increase the social welfare produced by the copyright system as a whole and is likely to not diminish the social welfare produced by the market side of copyright

In short, what’s good for fair use is good for authors, and vice versa.

More important, however, that paper was timed – coincidentally – to align with the emerging “Best Practices in Fair Use” project at the Center for Social Media (now Center for Media and Social Impact) at American University, and the efforts of that project’s leaders, Pat Aufderheide and Peter Jaszi.

The key insight motivating the Best Practices project was a close cousin of my pattern-oriented argument: That the power of fair use lies not merely with individuals but, importantly, with communities – creative communities. Authorial communities.

Since 2006, CMSI has partnered with a number of not-for-profit organizations to produce “statements” of best practices for members of specific creative communities that are grounded simultaneously in deep knowledge of each community’s sense of its own fair creative practice as well as in generally accepted principles of copyright law. The full roster and text of the statements are available at the CMSI website, at http://www.cmsimpact.org/fair-use (disclosure: for several of the statements, I served on a Board of Legal Advisors that reviewed them prior to publication).

The Statements, like fair use itself, are imperfect in any number of ways. But the perfect need not be the enemy of the good. And it’s very good indeed to have a means for recognizing that creative communities’ practices inform the shape of fair use law, and allowing those communities to take active and considered part in articulating how fair use should work for them. They are an important reminder that while copyright’s exclusive rights are important to authors as creators of individual works, fair use is equally important to authors as members of communities.

Authors Alliance Co-Founder Pamela Samuelson

Authors and artists rely on copyright’s doctrine of fair use far more than they may realize. February 23-28 is Fair Use Week this year, so it’s a good time to think about when and why fair uses benefit authors. (Fair uses of copyrighted works are not infringements; here’s a link to the Authors Alliance FAQ about fair use.) Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.

The preparatory phase of creative work often involves making and being surrounded by fair use copies of materials that contain the information or inspiring words or images that the author/artist needs as raw materials. Sometimes authors search through large numbers of documents or other works to find the exact words or images that they need to prove or illustrate a point they want to make or to set context for the story they plan to tell. Often, the perfect source can only be found by scouring through reams of material, selecting from this a relatively small number of candidates for the use, and then as they create the work they have in mind, figuring out which is the right quote or image to use and where exactly to place it. Fair use copying is an integral part of this phase of the creative process.

Authors Alliance Co-Founder Molly Van Houweling

In honor of fair use week, we’re taking a look back The Ecstasy of Influence, by award-winning author Jonathan Lethem. (Read more about Lethem’s work in this recent review.)

Lethem, who serves on the Authors Alliance Advisory Board, does not mention fair use in his 2007 essay (which is also one of a collection in his book of the same name). Instead, The Ecstasy of Influence embodies fair use with both its text and technique.

The text is a reflection on the role of inspiration and appropriation in all acts of artistic creation. Its purpose (as Lethem later described in an essay entitled The Afterlife of Ecstasy), was to reveal “the eternal intertextuality of cultural participation—of reading, writing, making things from other things.” In so doing, Lethem implicitly defends fair use, which the U.S. Supreme Court has described in Campbell v. Acuff Rose as a “guarantee of breathing space within the confines of copyright” that often privileges the transformation of copyrighted works into new works that do not supersede the originals but rather add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

The Ecstasy of Influence demonstrates this type of transformation through its technique of respectful re-mix. The 8000-word essay reads as a coherent expression of a singular authorial voice. But Lethem reveals at the end why the subtitle is “A Plagiarism.” He presents a key, in which he “names the source of every line I stole, warped, and cobbled together as I ‘wrote’ (except, alas, those sources I forgot along the way)” and clarifies that “[n]early every sentence I culled I also revised, at least slightly — for necessities of space, in order to produce a more consistent tone, or simply because I felt like it.”

Authors Alliance Co-Founder Pamela Samuelson

Having read several of Ian Fleming’s books as a youngster and seen virtually every James Bond movie, I have long been intrigued by the question: what is the essence of James Bond as a character? 007, yes. Shaken, not stirred, for sure. Handsome in a tuxedo or a swimsuit, yes, as well. Narrow escapes in exotic locations, that too. But surely these bits of his persona are not the essence of his (fictional) character.

The question is not just one for idle debate on a late winter evening. There has been litigation about whether those who depict James Bond-like characters without getting permission from those who claim copyrights in the books and movies are infringers.

MGM, for example, once sued Honda for copyright infringement because one of Honda’s television commercials featured a Bond-like character in a Honda del Sol automobile to show off the car’s detachable roof.

In the ad, a young, well-dressed couple was driving along a highway in one of Honda’s cars while being chased by a high-tech helicopter. A monstrous villain with metal-encased arms jumped out of the helicopter, landed on the car’s roof, and threatened the couple with imminent harm. To dispatch the villain, the male driver, with a flirtatious turn to his companion, released the Honda’s detachable roof, sending their foe into space and effecting the couple’s speedy get-away.

A well-known adage of copyright is that this law protects an author’s expression, not his or her ideas. So is Bond’s character an idea or an expression?

Last fall, Authors Alliance began the process of petitioning for an exemption to the law that prohibits the circumvention of DRM in order to facilitate the fair use of copyrighted content in multimedia ebooks. We are pleased to announce that the next step in the process of obtaining the exemption is complete.

Working with counsel from the University of California, Irvine Intellectual Property, Arts, and Technology Clinic and the University of Colorado, Boulder Samuelson-Glushko Technology Law & Policy Clinic, and our co-petitioners, the American Association of University Professors, the University Film and Video Association, the Society for Cinema and Media Studies, and authors Mark Berger and Bobette Buster, the multimedia ebook authors’ comment in support of the petition was filed today.

We will continue to provide updates on this important exemption as the process moves forward.

Download Authors Alliance’s comment.

Multimedia ebooks are still in their early days, but they present new opportunities for authors to express their ideas, creativity, and scholarship. As UC Press’s Alison Mudditt said at the recent Authors Alliance panel at Harvard, “there are an increasing number of faculty who are doing research that cannot be reproduced purely in print form.” And the opportunities presented by multimedia ebooks extend well beyond academia. At the same panel, creative nonfiction writer Rachel Cohen explained how multimedia possibilities are changing her work:

There is, however, a legal wrinkle that can hamper authors’ ability to create multimedia works when those works depend on the use of third-party content for purposes like criticism and commentary. While authors can easily and lawfully quote one another’s words to these ends, the law introduces difficulties when it comes to making quotation-like uses of digital content.