“The Daily Show with Jon Stewart” has won nine straight Emmys as TV’s best talk show. But it has another legacy you probably don’t know about.
Watch tonight’s “Daily Show” and count the number of TV, movie and music clips you see or hear during the episode. Ten? Twenty? While you’re doing that, note how often Stewart makes fun of the subject of the clip. (If he’s talking about CNN or Fox News Channel, this part will be easy.) Do the same for companion show “The Colbert Report.”Now, guess how often Stewart and Colbert ask their attorneys to clear the rights to all those copyrighted clips.America’s most acclaimed satirists turn out to also be our most powerful exploiters of “fair use,” the legal loophole that permits use of copyrighted works without the onerous and often expensive process of rights clearance.Like any large corporation, Viacom — which owns both “The Daily Show” and “The Colbert Report” — doesn’t comment on its legal doings. But careful observers have long been able to spot the telltale signs of fair use: The grainy quality of clips obviously grabbed off the Internet. The graphic next to each clip explaining its origin without using words like “courtesy of” or “used with permission.” “Frankly, fair use works for us,” a spokesman for the two shows told a reporter in 2010 when asked about “Daily’s” and “Colbert’s” habit of using other people’s clips without permission.But here’s what you may not know: The same freedoms that, until recently, only high-profile comedians backed by corporate legal teams dared to exercise are now available to you, no lawyer required.Take the case of Jonathan McIntosh. A web artist in San Francisco, McIntosh describes himself as a “50 percent fan” of “The Daily Show.” This summer he grew increasingly annoyed by what he called the “overwhelmingly male-centered style, jokes, segments and guests” on the show.So he decided to strike back using Stewart’s own weapons of choice — satire and other people’s video. McIntosh downloaded clips from more than 100 “Daily Shows” and artfully wove them into a fast-paced 2-minute montage.Set to a pitch-perfect song by the comic group Flight of the Conchords (the title of which I can’t repeat here), the video demonstrated better than any written story how the male members of “The Daily Show” has resorted time and again to jokes about, well, male members.Not only did McIntosh make no effort to clear the clips with Viacom, he is using the publicity surrounding this remix to raise money for his work.That’s not to say he’s not nervous about being shut down someday. “Every time I release a new fair-use remix video I cross my fingers and hope that this is not the one that gets me sued,” McIntosh says.But that’s not likely to happen, thanks to some timely court decisions and a new groundswell by creatives like McIntosh who’ve learned their rights and are starting to assert them. (A Comedy Central rep wouldn’t comment on the “Daily Show” mashup, but in 2010, a spokesman for both “Daily” and “Colbert” said, “I can’t recall a time we’ve ever sued a blogger for the use of a Comedy Central clip.”)After decades of heavy-handed copyright enforcement, the digital age has brought together legal experts, advocates and even some deep-pocketed artists to redress the balance. To some observers, this shift was inevitable.“Art has always been in conversation with art that came before,” said KU professor and popular culture scholar Nancy Baym. “With copyright now there are competing pressures in play. Large, powerful lobbies are trying to expand it and lock it down. But there’s a powerful counterforce from the grassroots saying: This is out of step with how culture works.”People who are only aware of the music industry’s crackdown on downloads may not realize how liberalized courts have become when it comes to fair use. For his next project, McIntosh intends to pull unlicensed clips from more than 50 Hollywood films he’s calling the Batman Remix Project. And if they are like his other projects, it will all be legal.As American University’s Patricia Aufderheide and Peter Jaszi report in their book “Reclaiming Fair Use,” today’s digital artists are finding that they can use valuable media properties without being served cease-and-desist letters or subpoenas from their owners.There are activists out there who would like to go further and simply abolish copyright law. But fair-use proponents note that fair use is woven deeply into copyright itself. Indeed, its current comeback has been made possible by copyright courts and the Library of Congress, keeper of the Copyright Act. Bashing copyright just because it makes media companies rich is sort of like bashing hybrid cars because they make automakers rich. But if ownership is still important, what’s an old-line media company to do when its valuable products are, as Aufderheide puts it, “circulating furiously in popular culture”? You’d be nervous, too.As Jack Valenti, the face of Hollywood’s anti-piracy crusade, said in 2003, “If I have a Pizza Hut and I’m selling pizzas at $1.50, somebody puts up a Pizza Hut next to me and gives them away, who do you think is going to get the business?”But downloading digital works and sharing them is one thing. Remaking them into substantially new works — a process the courts call “transformative use” — is something different. When Stewart makes fun of Fox News, he transforms their video into satire. And when McIntosh makes fun of “Daily Show,” a satire of a satire is still transformative. The courts, after several years of wavering, have begun to use this logic consistently in fair-use cases.Meanwhile, Hollywood has started to see that digital culture, fueled by blogs and social media, is turning customers into creatives. Fans are producing variations on their favorite franchises that the original creators never dreamed of.Critics, however, are not sure that remixers are in the free and clear, despite favorable court rulings.“It’s not uncommon for two district courts or even two appeals courts to take very different opinions,” said Jonathan Bailey, a copyright consultant in New Orleans who runs the website Plagiarism Today.“What I think has changed recently is that people are more aware of these issues and at least what they think fair use is and have begun pushing back, sometimes winning.”But not always.“There’s the legal answer and then there’s the real-world answer: How often are people willing to enforce their rights?” said Cheryl Burbach, a partner at Hovey Williams, the Kansas City intellectual property law firm. “It doesn’t happen as much as you think it would.”But it did happen in 2008 when author J.K. Rowling, in a well-publicized case, sued the U.S. author of “A Harry Potter Lexicon” and won. A dictionary based on her novels might have been fair use, said the judge in the case — but the author had quoted too much of Rowling’s work in his definitions.And then there’s the music industry. After a decade of file-sharing lawsuits — and all the ill will that those produced — a growing chorus of musicians have joined their fans in pushing back against heavy-handed copyright protections.Perhaps the best known is the alternative rock band Wilco. In 2001, when its recording label rejected its new album, “Yankee Hotel Foxtrot,” Wilco released it for free on the Internet.“The only way we’d ever made money was touring,” Wilco’s frontman Jeff Tweedy would explain later. “And if our record wasn’t coming out in September, then we couldn’t tour in October.”The tour was a huge success, and when a different label decided to press CDs of the album, it sold 500,000 copies. The experience forced Tweedy to rethink everything the music business had told him about who really “owns” culture.“Once you create something and you’ve made it, it doesn’t exist except in the consciousness of the listener,” Tweedy told a forum on copyright in 2005. “Each one of you has about a 50 percent investment in any event of music-making. If you listen, you are a part of it, and I love you for it.”Wilco rejects the idea that downloading takes money away from artists. It argues that this “gifting” of music to its fans creates goodwill among fans — and that’s the real currency. Happy fans honor the band’s request to buy the new album and bring friends to concerts.For its current tour, Wilco is asking fans to upload footage of their hometowns to the band’s website. (Tickets go on sale this week for the Dec. 3 concert at the Uptown in Kansas City.) If the band likes what you give it, your video will be splashed on a huge screen behind the band during the show. And you’ll be paid in smiles.WHAT IS FAIR USE?“Fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement.” | Source: The Center for Internet and Society Fair Use Project, Stanford University (fairuse.stanford.edu)FAIR USE ON THE RISE: A TIMELINE
1996 “The Daily Show” launches.1998 The Sonny Bono Act passes. Called the Mickey Mouse Act by critics, it extends copyright on many works, including Disney’s iconic rodent, until 2047.2001 A group of Bono Act critics launch Creative Commons, a flexible alternative to copyright that eventually covers more than 200 million digital works.2004 Danger Mouse creates “The Grey Album,” a mashup of the Beatles’ “White Album” and Jay-Z’s “Black Album.” No one sues, but the music is never commercially released.2005 YouTube launches.2006 Girl Talk releases “Night Ripper” commercially. Made up entirely of other rappers’ sampled lyrics, it’s never challenged in court.2006 “This Film Is Not Yet Rated,” a scathing critique of movie ratings, uses dozens of clips from Hollywood films without permission or incident.2006 In a landmark case, artist Jeff Koons’ use of a copyrighted photo in one of his high-priced works is ruled fair use.2008 The Copyright Office greatly expands the fair-use rights of librarians, scholars and digital artists. 2010 A court throws out Viacom’s $1 billion suit against YouTube for letting users post copyrighted videos online.
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