Wednesday, August 17, 2022

Fifth Fair Use Factor: Must Be Leftist, Liberal, or Democrat

I just mentioned the fair use double-edged sword this morning, and as luck would have it, a perfect example arrived in my e-mail box a few hours ago. Oh, by “perfect example” I mean the (obvious) “fair use” hypocrisy when it comes to free-for-all appropriation of copyrighted works. What, exactly, am I talking about?

David Byrnes (Talking Heads guru), has settled his copyright infringement lawsuit against former Republican Florida Gov. Charlie Crist over the unauthorized use of the Talking Heads song “Road To Nowhere” in a 2010 political ad. Charlie Crist is a Republican. Crist used Byrnes’ song while running as a Republican candidate. Charlie Crist is a Republican. And, oh, yes, Crist is a Republican. In case I haven’t mentioned it, Crist is a Republican.

I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the world is our public domain oyster when it comes to a Republican politician using an artist’s song without the artists permission? We certainly know what Byrne thinks…and it’s not good for Republicans.


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  • […] blogger at Clancco asks: I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the […]

  • I have to strongly disagree. I am a “free culture” type and argued yesterday that this is a dangerous trend for free speech.

    FC is not a Left or Right issue. Many of us FC types have pointed out that MaCain was unfairly punish by DMCA take-downs on youtube.

    “It troubles me how we are seeing more copyright claims regarding political speech with few free speech counter arguments. If the song were used in a car commercial that is clearly an issue, but political speech should have a stronger free speech argument.

    We are creating a dangerous social norm here that limits political speech which is at the core of free speech.” From

  • Well, I am very left of center and I did not like what David Byrne did. The reality of it is that most artists, especially the 40 plus years ones, are very copyright is king and do not realize that any use of their songs will drive business to them and help promote the community of free ideas.

  • Brian and Chris: You both make good points. My analysis and observation was based both on first-hand experiences as well as noticing the lack of outrage from the “left” when it comes to “right-sided” appropriationists. Ex: The Cariou v Prince decision has the artworld in a tizzy, while the Byrne and McCain situations don’t seem to raise the ire of most lefties.

    The blade cuts both ways, and I guess we all agree on this. Should political speech be the fifth factor?

    cheers, and thanks for the comments.

  • I don’t think David Byrne needs any help “driving business” to himself. And “ideas” have always been free – it’s their tangible expression that many artists feel is their right to determine. While Byrne has licensed his music and in some cases allowed for its free use, he has always followed a “no advertisements” policy.

    (It could be argued that Crist, in taking a popular song and converting it into a political advertisement, actually created a “transformative” use. I don’t think I’ll go there…)

    One Free Culture advocate sees it differently, though; in their opinion, “Unlike the visual arts scene, the music business is an actual ‘industry.'” The writer sees one set of rules for certain categories of visual artists and a different set of rules for everyone else, stating there is a “very real distinction between something like a corporate ad campaign that reproduces someone’s images, and an artist who uses found, mass produced imagery along with other raw materials in order to make new works.” Personally, I think the corporate ad campaign might transform the original just as much as many fine artists might, and the resulting ad itself is, as I understand it, copyrightable as a tangible expression of creativity. (I could be wrong on that one, but it seems consistent.)

    More troubling is the idea that the appropriationists simply “find” work lying around, and consider certain categories of art, such as photographs, to be “mass produced imagery” not worthy of protection.

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