6.17.10 THE FEVERISH FLUX

This article originally appeared in the 6.17.10 issue of Metroland

Some new developments in controversies we’ve talked about over the last couple of months.

First, there’s been a tiny but significant bit of activity in the Associated Press / Shepard Fairey lawsuit. Fairey’s the guy who created the “Obama Hope” image, using what turned out to be an AP photograph as his template. Fairey and AP sued each other a year ago, the AP claiming infringement and Fairey claiming fair use. Then Fairey cops to lying to everybody, including the court, about which photograph he actually used, and to destroying evidence to hide the fact. Oops.

A couple weeks ago the judge, in the midst of deciding a discovery motion, suggested that the lawyers double down in their efforts to settle the case. Without much elaboration, he said that he felt that sooner or later Fairey was going to lose. Uh-oh. Meantime, Fairey is under criminal investigation for lying to the court. Gulp. Despite the judge’s admonition, I’ve seen little to suggest this one will go away soon.

And then that uniquely Republican tendency of using music for campaigns by musicians who hate Republicans continues apace. David Bryne recently sued Florida Governor Charlie Christ (whom I suppose is not a real Republican anymore) for using the Talking Heads’ “Road to Nowhere” in his campaign for the US Senate. And Rush (yes, Rush!) is going after phony libertarian nutcase Rand Paul for using bits of “Tom Sawyer” and “The Spirit of Radio” in his campaign. Paul apparently is not only using their music during campaign stops, but is also quoting Rush lyrics in his speeches. All copyright issues aside, the idea of a libertarian Rush freak holding any kind of elected office totally skeeves me out. You know what I’m talking about.

But the big news on this front is that Don Henley has for now won his suit against California knuckle-dragging far-right Senate candidate Chuck Devore for the use of a couple Henley songs with rewritten lyrics (i.e. “All She Wants To Do is Tax”) for his failed campaign to run against Barbara Boxer. Just this week the judge rejected Devore’s fair use defense, finding that the new lyrics didn’t directly target Henley nor did they indirectly make fun of Henley’s liberal politics, as Devore had claimed. Because of this, the judge reasoned, Devore’s use wasn’t a parody, and therefore wasn’t fair use.

These developments in both the Fairey and the Henley cases are mildly satisfying to me on the basest level, because I dislike Shepard Fairey and Check Devore and would enjoy seeing them both lose; however, the courts swinging that way they have involve overly restrictive interpretations of the fair use doctrine, and that’s not such a good thing.

As we’ve mentioned before, the trends for fair use, at least in visual art, have been the increasing allowance of the re-use of other’s copyrighted works if the new use is “transformative.” Jeff Koons, for example, was recently allowed to use a big chunk of a fashion photo for one of his tedious paintings commenting on the banality of modern life. And that’s good; it certainly is in keeping with the purposes of copyright law, which is to encourage the creation of new works. And the Koons decision and the growing body of decisions like it recognize the legitimacy of appropriation art, which is probably the most significant art movement of the last 100 years, and which is legitimate, whether you happen to like it or not.

This liberalizing trend has not yet spread to music, where the big record companies and publishers put a big legal kibosh on digital sampling in the early ‘90’s that has yet to loosen up. (Ironically, the transformative use argument gained prominence in a music case we discussed here a few weeks ago—the 2 Live Crew / Roy Orbison case, but has only rarely been applied in music cases since then.) As these big companies become less of a force in the music industry (and they’re losing their hegemony by the second), I think more rational fair use standards for music will emerge and develop.

Whatever the standard, one person’s transformation is often another’s infringement, and the courts in Fairey and Henley may be getting swayed by the facts before them. Is Fairey’s use transformative? Sure it is, in a big way. But is the court going to reward Fairey for lying and cheating? Doubtful. Are Devore’s stupid little ditties transformative of Don Henley’s monstro-hits? I really hate to say it, but I have to say it: of course they are. The courts in both cases are headed in the wrong direction.

This doesn’t bode well for any clarity in the foggy law of fair use, or for any level of comfort for appropriation artists in all media who’ve long labored under a legal cloud. As these cases play out, hopefully they’ll both wind up in appeals courts, where the passions run cooler, the issues get sharper, and the decisions get smarter.