Computers, Privacy & the Constitution

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JustinColanninoFirstPaper 15 - 11 Mar 2009 - Main.JustinColannino
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Does Copyright Deter Social Movements?

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 Adaptation, both lyrically and musically, is a factor in the success of music to encourage collective action. Guthrie, Seeger, and others had a large public domain to draw upon to craft their songs, including the country and African-American traditions. However, there was a concern even at that time that copyright could deter the civil rights movement and be used in support of Jim Crow. In a 1952 issue of Sing Out! Irwin Silber wrote, "at a time when a growing Negro people's cultural movement is rediscovering its own heritage and proudly and beautifully re-creating it, [pirates] have set barriers in the path of this development by attempting to take this music out of the area of the 'public domain' and making it impossible for the Negro people to sing their own songs without getting (and paying for) permission from the white copyright owners."(1) The problem that Mr. Silber was afraid of in 1952 is more dire today because of the greatly expanded copyright term. Now, copyright controls the current generation's familiar songs so that these songs are impossible, absent permission, to adapt to a specific social movement.

Notes

1 : Irwin Silber, Song Pirates Fly Skull-and-Bones Over Tin Pan Alley, Sing Out!, June 1952 at 6.

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<		At a minimum, copyright puts a burden on social organizers to limit their musical expression to newly created or very old songs. According to recent supreme court language,(2) when free speech and copyright come into conflict the protections of fair use(3) and the idea expression dichotomy(4) provide protection for political First Amendment values. This essay concludes by arguing that both of these copyright exceptions do not protect from the harm done to social movements.

Notes

2 : Eldred v. Ashcroft, 537 U.S. 186, 190 (2003) ("In addition, copyright law contains built-in First Amendment accommodations. First, 17 U.S.C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author's expression. Second, the “fair use” defense codified at § 107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes." (internal citations omitted)).

3 : 17 U.S.C. § 107

4 : See, 17 U.S.C. § 102(b)

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>		At a minimum, copyright puts a burden on social organizers to limit their musical expression to newly created or very old songs. According to recent supreme court language,(5) when free speech and copyright come into conflict the protections of fair use(6) and the idea expression dichotomy(7) provide protection for political First Amendment values. However, these copyright exceptions do not protect from the harm done to social movements.
 

Idea expression dichotomy

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Fair use

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<		Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky.(8) Even if political use of a particular song is found to be 'fair' after trial, copyright erects barriers to social movements not circumvented by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing This Land Is Your Land at camp.(9) Enforcing copyright on groups of people singing and dancing together results in others not singing and dancing for fear of lawsuit. This lowers the chance that song and dance will be known, taught, and adapted for social use in he future. Thus, the chilling effect on free speech can occur before the 'fair' political use is ever contemplated.

Notes

8 : See Lawrence Lessig, Free Culture 108-111 (2004) (Recounting a story of clear fair use that was removed from a movie due to fear of lawsuit)

9 : Thaai Walker, Girl Scouts Change Their Tunes. Licensing order restricts use of favorite songs , San Francisco Chronicle, August 23, 1996.

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>		Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky.(10) Even if political use of a particular song is found to be 'fair' after trial, copyright erects barriers to social movements not circumvented by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing This Land Is Your Land at camp.(11) Similarly, when people attempt to teach a song or dance on youtube, they are censored. Enforcing copyright on groups of people singing and dancing together results in others not singing and dancing for fear of lawsuit. This lowers the chance that the expression will be known, taught, and adapted for social use in the future. Thus, the chilling effect on expression can occur before the 'fair' political use is contemplated.
 

Revision 15r15 - 11 Mar 2009 - 20:14:38 - JustinColannino
Revision 14r14 - 11 Mar 2009 - 13:59:14 - DanaDelger
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