Speaking of Copyright…

The Calvin and Hobbes video I linked to a few days ago has generated a lot of discussion concerning copyrights and “fair use” on other boards that featured it. On the same subject, this video has been making the rounds on a lot of illustration blogs and message boards lately:

It was produced by Stanford University‘s “Fair Use Project” and advised by Lawrence Lessig, a prominent figure in copyright and fair use law. It begins with the following disclaimer (done as a parody of the familiar “FBI” warning before all DVD/VHS films):

WARNING: Federal Law allows citizens to reproduce, distribute, or exhibit portions of copyrighted motion pictures, video tapes, or video discs under certain circumstances withotu the authorization of the copyright holder.

This infringement of copyright is called “Fair Use” and is allowed for purposes of criticism, news reporting, teaching and parody.

This is a very clever little film on many levels. First, it seeks to teach the viewer about copyright and fair use by using sampling and clips of Disney films, thereby demonstrating the very practice of fair use while explaining it. Secondly, in choosing Disney as it’s source of copyrighted material, it is effectively thumbing it’s nose at one of the most litigious and notoriously aggressive copyright protectors on the planet, daring them to sue and setting up a possible court precedent with regard to Disney properties.

Is the Calvin and Hobbes video fair use? In it’s pure form it likely is, as using copyright material for ‘teaching’ is one of the mainstays of fair use. Clearly using the characters as part of a senior thesis on animation is education, and probably defensible. Publishing it on the web is another story, as part of fair use is that the use of the copyrighted materials does not compromise or damage the value of the copyright, or the ability of the copyright holder to earn money with it. Since Watterson famously refuses to allow any animated Calvin and Hobbes, it can be argued that the animated short cannot damage his ability to make money with his characters in animation. Then again, just because he hasn’t made any animated cartoons doesn’t mean he never will, and this might be construed as damaging that possibility in some way.

Only a court can decide all that, and it’s moot anyway as the cartoon was produced in Italy, and it is not subject to US copyright law. Italy is, however, a member of the Berne Union. The Berne Convention is an agreement between countries to basically respect the copyrights of literary and artistic works created in other countries. However it’s the laws of the country that the infringement occurs in that applies, not the laws of the country the work was created in. What the laws are in Italy I do not know.

So, is the “Fair(ly) Use” video above fair use or copyright infringement? Under the strict definition of fair use it is very likely to be found acceptable. It’s clearly being used for teaching, and the choice of material can be argued to be essential to make the video’s point. Again, only a court could decide. I doubt Disney wants to go there, however… it has a lot more to lose if the court does not side with them than to gain if it does. Using it’s deep pockets to intimidate the opponent won’t work in this case either, as Stanford’s pockets are plenty deep and they would probably relish a chance to take defend themselves against Disney.

Ah, copyright… it’s more dizzying than a spin on Space Mountain!