Frustratingly, I am still unable to beam myself up and attend all the great IP conferences that proliferate these days (I’m working on it). So I’m really happy that Diane Zorich, my partner-in-crime in running MCN’s Intellectual Property SIG, was able to attend and report on a very important conference that took place at NYU recently. The big names were there: Lawrence Lessig, Siva Vaidhyanathan, artists, novelists, filmmakers, a judge. Diane’s report, below, and especially her comments about the messages she took away with her (more on that in a future post), are hugely appreciated.
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The Comedies of Fair U$e Conference, NYU, April 28-30 2006
If you need some brain candy, take a look at the Magritte painting used in this conference’s announcement – . It is titled “Forbidden to Reproduce.” As a sly nod to the complexities of fair use, the planners of this New York University’s (NYU) Institute for the Humanities symposium note that they reproduced not the actual painting by Magritte but rather a third or fourth generation reproduction from a book, and that they are using for an educational purpose to highlight the issues of the symposium. So, is it fair use?
Amid all the conferences on intellectual property taking place these days, the recent symposium entitled Comedies of Fair U$e: A Search for Comity in the Intellectual Property Wars, lived up to its billing. Held at NYU in late April, the conference was enlightening and entertaining, the speakers were excellent, and the discussion was inspiring. Notes from most of the sessions can be found on various blogs (I recommend the IPTAblog, http://www.iptablog.org/). Also, NYU’s Institute for the Humanities will be posting complete MP3 files of the conference, synched to Powerpoint slides, mashups, etc. and containing all known links to the conference. See: http://www.nyu.edu/fas/institute/nyih/public/upcoming.html
I realize IP-related conferences are proliferating as fast as, well, infringement suits, but this one is worth your time listening to or reading about. The inspiration, the lessons, and the ideas were among the best I have heard floated around in a long while. Full disclosure: I missed the opening and closing sessions of this conference, which is I admit is akin to reading an entire book except for the first and last chapters…. Nevertheless, from a museum perspective, I took away three important lessons in a very short time. (Some border on pontification, but so be it.)
Lesson #1. We have to show up.
Museums have to participate in the process, show their interest, and hear how others are facing the same issues if they hope to get a sympathetic ear in the larger community and maybe even be invited to the table to discuss solutions. Yet I did not see a single museum colleague during any of the sessions I attended. How could this be? Fair use is one of the most important IP issues for museums, so why aren’t museum professionals showing up in droves to a free event such as this?
By the way, participating in the process could also help in the area of museum public relations. Although museums were only mentioned a couple of times during the day, the comments were very negative. The words “extortion” and “illegal” were bandied about in the context of museum permissions statements. Not a good sign when you’re grouped with the bad guys in this debate….
Lesson #2. The problem is one of values, but the solution will be judged by the consequences.
In one emotionally raw session with artists Joy Barnett (painter) and Susan Meiselas (photographer), both women voiced compelling arguments about the right to use an existing work as part of a new creative effort (Barnett), and the right of that work’s creator to ensure that its context and meaning is not decontextualized (Meiselas). I listened to Barnett and nodded “yes, she is right.” Then I listened to the counterargument by Meiselas and nodded “yes, she is right.” And then the Solomonic Lawrence Lessig lifted my fog of confusion by noting that we can’t make progress based on subjective feelings, as important as they are. We need to look at methods to resolve the dilemmas. And the litmus test for any method must be the consequences that result from that method. For example, in the film community the “permissions method” has resulted in a juggernaut of lawyers compiling volumes of rights clearances for every film so that filmmakers/producers can procure E & O insurance. But what if you’re a documentary filmmaker with a low budget and a small staff? You’re now expected (by rightsholders) to abide by this methodology, but you can’t. Indeed, documentarian Amy Sewell spoke eloquently about the maze of rights she personally had to clear for her award-winning film (“Mad Hot Ballroom”). The specter of rights looms so large in the documentary film community that it paralyzes creativity.
Turning my thoughts towards museums, I couldn’t help but think how museums promote the permissions culture on the one hand, but also suffer the consequences of that culture, depending on which side of the negotiating table they sit at. We all need to think about the consequences more carefully. How do we do this? See Lesson #3.
Lesson #3. Museums need “best practices” for fair use.
Patricia Aufderheide of the Center for Social Media at the American University spoke about her work with the documentary filmmakers to develop a “Best Practices In Fair Use” statement for that community (available at http://www.centerforsocialmedia.org/fairuse.htm). Aufderheide noted that industry practices change immediately when best practices documents come to light and she gave two examples of this with the documentarians guidelines. First, documentarians are citing the guidelines when rightsholders challenge them in what are clear fair use circumstances and second, a major public television network has agreed to broadcast a documentary that it might not have otherwise shown because of fear over fair use issues. In other words, the guidelines have become a negotiating tool that documentarians are using to be pro-active about fair use so they can make the documentaries they want to make and not ones that are limited by fears of rights issues.
Aufderheide and other speakers were adamant in their belief that every creative community needs to develop its own “best practices” for fair use to clarify the issues and to allow for what was termed a “fairer fight.” Best practices guidelines show rightsholders that the community has carefully considered the issues of copyright and fair use, wants to do the right thing, but also will assert fair use when it is warranted. It’s a pro-active way to address fair use and one that brings with it more understanding and consensus among creative communities. (As a related aside, attorneys who spoke at the Saturday session were effusive in their praise of the documentarians’ “Best Practices” guide. You know you’re on to something when attorneys agree…)
In his welcoming remarks at the Saturday sessions, NYU Institute for the Humanities Director Lawrence Wechsler suggested that creative communities hark back to the day of “guilds” and work together to seek solutions for their communities in the area of fair use. Museums are an obvious guild with common issues and concerns about copyright and fair use. Their Janus-like role as right owners and rights users (plus their “third face” as intermediaries for both) present complicated relationships that just scream for best practices. So here’s a challenge to MCN, AAM, AAMD, and other representative museum associations: let’s act like a guild (in a positive sense) and develop fair use guidelines for the museum community. And let’s reach out to other communities who have done so (like documentarians) and who are in the process of doing so (like the College Art Association) to learn from their efforts.
Diane M. Zorich
May 9, 2006
