Tim Owens

I always know I need to blog about something when I’ve reached more than 5 tweets on a subject and still feel passionate about something. 140 characters makes any sort of civil discourse difficult, but the beauty to me is that it pushes me to flesh out my thoughts here. With that spirit in mind I want to push discussion further here, recognizing that I’m no expert on the topic but think it’s one we should not simply ignore as yet another edge case.

2 days ago someone I greatly admire, Andy Baio, announced the details of a long and difficult copyright battle he found himself in the middle of that resulted in him having to pay a $32,500 fee to a millionaire photographer for an image he commissioned based on the original photo. D’Arcy Norman has an excellent write-up that you should read along with the original to get caught up on the whole saga.

“It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much — emotionally and financially. For me, the chilling effect is palpably real. I’ve felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same — maybe we wouldn’t all feel so alone.” -Andy Baio

Having been involved in the community surrounding ds106 and ds106radio (which I consider two separate entities at this point) the question of legality and copyright naturally comes up. Similar to most, my stance has always been a “Do no harm, mea culpa” attitude. Obviously I try to find source material for the work I create that is licensed for remixing and attribute the source when possible. This can be very limiting to the creative potential of an assignment. When you spend hours upon hours on a video only to have it yanked off YouTube for a copyright violation because of a 10 second audio bumper you start to feel like the whole system is broken and it’s excusable to throw the middle at the whole affair.

What Andy’s situation has done for me is put these issues in the spotlight mostly because of the circumstances surrounding his situation. A few points to make:

• Andy licensed all of the derivative audio work for the album, which is fairly easy to do since there are clear laws allowing for cover work.
• The image he used for the album cover was a commissioned work of pixel art that Andy believed (and his lawyers continue to agree) was covered as transformative fair use of a piece of art.
• When asked to take down the work, Andy complied. But the artist demanded compensation of over $150,000 (later settling for $32,500) for the act.
• The ability to defend himself would have cost over $300,000 in addition to the time and emotional turmoil. As a husband with kids myself I can’t blame Andy for settling rather than fighting.

The reality of what the current broken system of copyright in the U.S. means for educators encouraging their students to remix in a course like ds106 is difficult. I called Jim out via Twitter for this post having a problem with this paragraph:

I really only needed the shape of the milk carton to save me some work, and if GLENNZ has an issue with me using the base of his design I’m more than happy to take it down. That said, finding the work of others as a starting point for creating posters, postcards, album covers, or any of the other visual/design assignments is often very useful —just be sure to give those you are “borrowing” from credit—imitation is the greatest form of flattery.

As far as I am aware, no student has ever been handed a lawsuit for copyright infringement related to remixed or derivative works for a course (but I’d love to know if it’s true or not and specific examples if you have them). I don’t want to buy into a culture of fear where the possibility of getting hit with a lawsuit prevents us from creating art. I believe that culture and art has a rich history of derivative work and laws are going to have to adjust as the tools for creating new digital work become more accessible to a larger public.

I guess the part where I’m left scratching my head is what role educators play in providing awareness of these issues without instigating fear to create. There’s a fine line there where the attitude can neither be “Don’t ever be inspired by other work in what you do, lest you lose your house and home over a lawsuit.” or “F*ck the police, in a broken system, lawlessness reigns.” Ignorance won’t provide a safety net for our students, and we shouldn’t model that by shrugging our shoulders when the topic comes up. So what’s the answer?