Taking The Fair Out of Use

June 27th, 2005 · No Comments
by Booksquare

It is a generally accepted principle that art builds upon art. Books, movies, songs, even paintings take cues from what has come before. Stories and themes are reexamined. Pieces of other works are incorporated into new works.

But then art became big business. It was no longer controlled by the artist — once art became a corporate asset, the rules changed. If you’ve been paying attention to the rumblings, one thing you’ve noticed is that it won’t be technology that keeps the vast majority of works out of the public purview, it will be clearances. Especially when it comes to music in films.

The notion of fair use is falling into a black hole. Where once authors would quote other authors, now the spectre of unauthorized use rises. How many words constitute “fair”? What is the line? There isn’t one, which is part of the problem. And as we read about the difficulties the producers encountered in clearing rights for songs for a documentary (a documentary that will be lucky to make back its costs), we had another question: how do the artists benefit from the amounts paid to the rights for their works? Sure they get royalties, but do they get a healthy cut of the license fee? Please save us from the dreaded research. . .

This will be a growing issue in the coming years, and as you read future articles on the topic, we want one notion to stick with you:

The biggest problem was granting Most Favored Nation status. [Granting a rights holder Most Favored Nation status requires giving them the highest fee you pay for a comparable song. For example, if Warner Chappell asks $10,000 for a clip but you have to license a Sony clip for $12,000, you’d have to also give Warner Chappell $12,000 if it has MFN status. – ed.] I would only agree to that for the classics. Things like Frank Sinatra hits.

Yeah. It’s about the art.

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