Asking Questions First

In good news for fair use rights activists, Richard Prince won his Second Circuit Appeals Court appeal of a decision that his use of copyrighted imagery in collage of ambiguous “commentary” (i.e. they did not directly comment on the original work) was erroneously considered copyright infringement. This overturning is a big blow to a narrow framing of fair use as only applying to “commentary and criticism” in a limited sense, and gives more support to emerging best practices in remix and other forms of transformative — but not strictly “critical” of original texts — art and communication practices.

I’m a big believer in justifying intentions in art creation as a teaching strategy, but I’m completely opposed to it as a legal obligation. Authors and audiences have complicated relationships, and often what authors intend to do — whether it’s to “comment” on a piece of copyrighted material or use it for more ambiguous purposes - just isn’t the most relevant consideration in a given case.

In a BoingBoing article, NYU law professor Amy Adler comments on the significance:

The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince’s testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work

This squares with some of Prince’s cheeky but important commentary on the justification of his own work:

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

I don’t think educators should stop at such justifications in the classroom, but certainly the law should.

Next up in my mind: Applying these standards to art in the realms of music remix and sampling and fiction film, both of which have been unfairly targeted with absurd industry norms around licensing. On the remix front, artists like Girl Talk (regardless of what I think of his music) and other amateur DJs have been pushing fair use in their use of samples, but I would like to see some mainstream hip-hop artists (say) defend their samples as fair use and change the 1990 precedent that transformed the evolution of hip-hop sampling.

As for fiction film, I have high hopes for the film Escape from Tomorrow finally galvanizing the fiction film community to rethink their restrictive licensing practices. We’ll see how these go.

This week I’m blogging with a few other folks over at SCMS’s In Media Res. The week is about documentary, but I’m thinking specifically about documentary pedagogy in an increasingly postclassical and reality TV environment.

A refreshingly splenetic diatribe against MOOCs from Jonathan Rees, who complains:

while a few already well-paid superprofessors get their egos stroked conducting experiments that are doomed to fail, “second- and third-tier universities and colleges, and community colleges” risk closing because Coursera and its ilk have sent higher education price expectations through the floor and systematically devalued everybody else’s work.

That said, I’m confused as to why anyone is singling out MOOCs as anything different from the norm in higher ed. Young scholars and professors understand firsthand how dysfunctional all aspects of labor at the college level are, at pretty much all universities regardless of tier status. It seems like what’s happening in an accelerated fashion through MOOCs — established professors not thinking about the collective economic impact of their own privileged status — has been normative in higher ed for quite some time. It’s not a sustainable model, and as in most unsustainable models, it’s the middle and lower tiers that will give first.

If other labor environments are any indication, that suggests the future conglomeratization of the haves. At some point US higher ed — which from my perspective (straddling K-12 and higher ed) just looks like the dystopic future of the current assault on public education happening in K-12 — will either undergo a bottom-up re-organization and re-energizing of labor (I can imagine a national network of adjunct professors forming, say) or will simply crowd out the middle-tier competition, restrict college access as a component of public education, and operate in a more elite and specialized way.

The real problem, as I see it, is that college isn’t just there for you to learn things. Learning things isn’t impossible outside of a college environment, lord knows. College doesn’t have a unique monopoly on instilling critical thinking or intellectual curiosity or any number of phrases that often stand in as blanket phrases for constellations of ideas that may differ person to person (e.g. your “critical thinking” is my inflexible ideological signaling). What it does have a monopoly on is the conferment of college degrees and access to college networks — markers of social capital first and intellectual capital second.

It’s unfortunate if MOOCs are in fact crowding out the only realistic avenues for public higher education — namely community colleges and local second- or third-tier universities. But just like in K-12, the only way to sustain public education as a valuable asset to social welfare is to value and fight for public education. It seems to me that far too many people I meet — whether they’re making flippant state school or community college jokes or otherwise dismissing the value of community college, vocational, or other forms of valuable higher education — are actively part of the problem, often while being exploited by their employing institutions themselves.

Thanks to a cool partnership between NAMAC and Daily Dot, I’ll be moderating a discussion about copyright, fair use, and the DMCA today at 3PM — come hang out! Details here.