The comments have been reallly interesting.
I love the Warhol Campbell Soup example. I wonder if Campbell’s would sue him today. doubt it. in fact that is what is always so fascinating. the amount of people who face legal consequences for things like samples or parodies is so miniscule compared to the amount of their use. Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn’t worth it to pursue. Every once in awhile “artistic integrity” comes into play, but rarely.
Public Enemy was genius. Did they lose their mojo because they stopped sampling?
I’m impressed with the balance and thoughts expressed in the comments.
One thing that Larry and I have always agreed on is that the licensing systems for all copyright owners are often antiquated and unresponsive to today’s needs. While most copyright owners with a significant investment in work have made great strides in addressing this issue, there are so many small owners who are either regularly unavailable or not willing to use collective licensing (when it is available) As I have learned over the years, it is particularly difficult in the academic and research settings where university or grant policies often require licenses that are impossible to get or even impossible to trace ownership. That is a very good and important set of examples.
One more bit of info before I head to the beach today – relevant to the Fox News example. I believe the following story is little known.
1988. It is 2:30 in the morning. I am sitting in the House Commerce Committee room with four or five congressional staffers and only three or four lobbyists/lawyers. The final mark-up for the DMCA is the next morning in the Full Commerce Committee. The Bill had already passed out of the Judiciary Committee but it had a sequential referral to Commerce which needed to approve it before we went to the floor for House Passage. And we were hung up. Hung up on the very issue you raised. What would happen when legitimate fair use needs arose and the required content wasn’t available in upprotected formats? While we knew it wasn’t a “dreamers” issue and that technology was moving rapidly enough that protected content could be a reality quite soon, it wasn’t yet at the time. And several of us, including most importantly by that time, the Committee Chairman who had heretofore been opposed to the Bill, wanted to get it done.
So, I pulled out a long used legislative tactic and suggested we put a “study” in the statute. That we empower the Copyright Office to do a regular study on the impact of the law on fair use and the accessibility of works. The tech lobbyist and committee staffer suggested the C.O. was too pro-copyright owners and suggested that the Commerce Department have a role in the study as well. We got a Bill passed the next day.
So, the example you raise, is just the sort of thing that the law envisions be monitored thoughtfully. One such study has already been done and found no adverse impact to date on Fair use. They will keep going.