Remix Revisited

The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.
Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:
On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:
Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit’s Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.
Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified– more often than not– as a fair use.
Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn’t there be some level of use that deserves compensation? Where do we draw the line?
But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.
How often do we see iconic images in a public space that aren’t commercial images?
Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn’t necessarily something to celebrate and RIAA lawsuits aren’t necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are
At its best, grassroots activism is actually from the roots, not from above. And it’s going to be messy.
Institutions are made out of people. They’re PEOPLE! PEOPLE!
The NY Times’ Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! “The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?”
Here’s the complaint in Fairey’s lawsuit against the AP seeking a declaratory judgment that “Hope” is not an infringing derivative work, Fairey v. AP
The New York Times, Artist Sues The A.P. Over Obama Image
Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, “He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions.”
Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a
Watchmen-inspired image