The Future of Copyright and IP: Part 1

all right. I'm actually very excited about the episode we're doing today because it is an excellent topic that came in from a listener. Our listener, Dave sent us an email asking us to do an episode on creativity and intellectual property and what the future holds for them. Hey, and just so you guys know, this is going to be a two part episode of Forward Thinking. We originally planned on it just being a one part episode, but then we got to the end and realized it was

longer than the longest thing that was ever long. So, uh, this is a little bumper to let you know. This is part one. Check out part two next time. Lauren, would you be kind enough to read Dave's email? Absolutely, Dave says, Hey, forward Thinkers, I really appreciated Jonathan's recent text Stuff episode exploring creativity and intellectual property issues with Mark Hustler of Negative Land, and I'm wondering what all three of you might have to say about a related topic.

Side note, Jonathan, excellent job on that. Oh yeah yeah, and Nol as well. That was a really really fun episode. Um, so go listen to that. Back to Dave's email, Today's artists face many new and seemingly insurmountable challenges to creating truly original works after so many decades of postmodernism, mass media, and computer assisted Sky's limit creation, where millions of artists have already explored the past, present, future, and furthest reaches

of the imagination. Is every new picture, sound, and story now pretty much doomed to resemble something else that came before? And how does copyrate law play into this? Are any amos contemporary works really so different from lesser known works at the same variety or are they just lucky to have gone viral for whatever reason? Are the creators and or owners of popular media unfairly privileged and protected? Should other artists have more leeway to adapt iconic works and

sharing their overall success? Specifically and most importantly, will there ever come a time when I can sell my Harry Potter e Studied Universe spinoff on Amazon? Thanks for all the great podcasts, Dave. And then in a ps he gave us the lyric suggestion which Jonathan used, which like an automaton, you followed his command like like someone who didn't have to try and figure out the lyric. Thirty seconds before we hit record, I used the suggestion. Well,

thanks Dave for this excellent suggestion. I think this is a really great topic. This is actually something that we were wanting to talk about anyway, So I I thank you for giving us the willpower to do it. Yeah, you read our minds and sent us of really terrific emails. That thinks, But I guess we should back up and before we can talk about the future of creativity, copyright, intellectual property, look at what's the reality today and how

we got to where we are. Yeah, I mean you have to have an understanding of what what all these terms actually mean, because people throw them around a lot. A lot of terms, you know, copyright or trademark or patent or fair use. These are terms that that get used pretty liberally, and I don't think that everyone necessarily has a full understanding of what they actually mean. Right, So let's say that I write a book. All right, you write a book, and then I trademark that book.

Now you can't do that? Well, well, no, hold on, hold on, I patent that book. You can't do that either. Okay, what if I make an invention and I copyright that invention, that's I would be more of a patent thing, you know. Wh Why don't we just define these things? Okay, and let's let us state that this is we're talking about the US here, although a lot of international law kind of falls in line with what we're talking about. But your mileage may vary depending upon what country you happen

to live in. But uh, some of the decisions that have been made in US copyright history have been in part to bring it in line with international standards. So first we have to define what a copyright is. A copyright is a protection for an original work of authorship that's set down in a fixed tangible medium, according to the United States anyway, So we'll get into more of that in a second. It makes sense you have to have sort of created this work in some way that

you could show somebody. It can't be just an idea you had, right, You can't. You can't think of an idea for example. I remember this happened to me and my wife. I chatted with her on we were on a subway train and I turned to her and I just said, apropos of nothing. I said, um, uh, if I die before you, you know I I've filled out my my Oregon donation card. If I did before, you, please promise me you won't fall in love with whichever guy gets my heart. And then she said, that's the creepiest,

weirdest thing you could say to me right now. And then about about a year and a half later, a movie came out with essentially that premise, and David d Kovny, am, I right. I maybe I don't remember everything that. I don't remember who was in the movie, but I do remember the premise was that. No, I think you're thinking of that Benicio del Toro movie. It may very well be.

All I know is that the premise was woman in manner in love, one of them dies, the other one falls in love with the person who receives the heart from the original partner. And uh. And so I could not claim copyright on that. I didn't set that idea down. I didn't write it down in any sort of fixed tangible medium. I simply that I made a joke to

my wife. But of course then I joked that someone on the train must have written that movie that they stole my brilliant idea, which obviously it was me just being silly. But if I had fixed that down in a tan will medium, then that work would be protected under copyright, assuming in fact that it is an original work. That's the That's another important distinction. So, but also, you

can't just copyright anything that's made of language. You can't copyright like a word or a name or something, right, it has to be more significant than that. It can't be a title, you know. You can't copyright a character name. Yeah, you can copyright a poem or a short story or a novel or a play or anything along those lines. Piece of software, a piece of software you can copyright. And this copyright, by the way, exists the moment you set it down in a fixed tangible medium. It doesn't

have to be that currently exists. Yeah. Now if it is registered, that's going to make it easier for you. Should you ever have to pursue a claim of infringement that someone else has infringed your copyright. That registration will make it much easier because you can refer to an official document showing that you registered the with the government. They have acknowledged that you are the author of that piece, and therefore that gives you an advantage in any sort

of courtroom situation. If I were to write something down not register it, Joe reads it, I haven't published it in any way, haven't It's it's still there. Technically it's under copyright. But if Joe goes out types out an exact copy of what I've done and then registers it to the government, yeah, the government assumes that you, Joe, are the original author and that I am out of luck. So that's copyright. But let's hear about more of my

nefarious schemes. So like the trademark. Well, let's say I want to open a food truck business, and I want I want to sell Hamburgers out of a food truck. And let's just say, because I just really happen to like Scottish culture, I call my food truck McDonald's, after the McDonald clan of Scotland. Old Yeah, and I side that it would be really cool to have a red background with some like yellow arches on the truck because that makes people hungry for hamburgers. So what you're what

you are suggesting, unfortunately, would be a trademark infringement. Trademarks are words, phrases, symbols, or designs that distinguish the source of goods from one party from all other parties. And it's essentially to say, when you see this particular symbol, you know that the goods or services you are are purchasing come from this one particular source and no other.

And therefore, if you were to try and copy that in any way, it would be as if you are put portraying yourself as that other entity, which is wrong. You can't do that. I mean, you could do that, but you're gonna get sued like crazy. It's kind of like the business equivalent of making a fake I D Yeah, yeah, yeah, pretty much is. And uh, technically there there's actually a trademark,

and then there's a service mark. Service mark is really for a companies that provide services, not physical goods, but we tend to use the term trademark for both because it's the more common just the more common term, but at any rate that's trademark. So we've got copyright and trademark sorted right. So copyright is any any work that's been put down in a tangible medium that, by the way, doesn't have to just be written. Working also includes music.

I didn't mention that, but arks, and yes as well, anything that is that tangible thing. You can have that as a copyright. The trademark is more of a business sort of thing that's associated with a particular purveyor of goods or services or both. But then we've got the third one, the one that you also mentioned as a possibility if you had created an invention of some sort. The protection for inventions is a patent. So patents are

kind of a limited protection. It gives you a certain period of time during which your idea of an invention is protected, but it's publicly filed, so anyone can go and see what how your invention, at least from a very high level works patents. By the way, if you've never read one, try one. They are interesting. Okay, I really enjoy pat They can often be very obduse and

difficult to understand. They're great if you like sequences of numbers and letters within parentheses, yes, and diagrams that are not necessarily helpful. Right and for those versed in the art or or some similar phrasing, you will you will come across that a lot as well. But patents are very useful. They in return for filing this public declaration of how your your invention works, the government provides protection

for your inventions. So should someone else try and make essentially a similar invention that does what your invention does using a very similar methodology, you can pursue a patent infringement claim against them, right right. For for example, I think Michael jack And patented the specific stage shoe that

he used to do that leaning trick in Smooth Criminals. Um, yeah, yeah, And it was a It was a shoe that had a little device inside of it that would hitch into a specialized hitch in the stage and allow him to brace against that to do that. Let'll tell you how many tomes of broke my nose trying to recreate that particular move, not realizing I needed special shoes. On the other end of things, I believe that w D forty has never patented their formula because they don't want anyone

to know what's in it. Yeah, you don't have you have to have to patch your stuff. If you don't patent your invention and someone reverse engineers it, then you don't have that protection from the US government or whatever government you happen to, you know, belong to be part of, oversee you, etcetera. Uh, then that's that's a different issue altogether. But on the other hand, once that that that protection

period is over, then it's fair game. Any comp editor can come in and create an invention using that same design. Can you patent something that doesn't work? Yes, it's supposed to work. It's supposed to work. But here's the thing is that if you're in the patent office and you receive patents, it's not like you can go out and build everything that someone has created. So you could just sit there all day filing patents on designs for things

that might not work at all. Why don't you do a search for patents for perpetual motion machines if you want examples of stuff that does not work, and you can sometimes claim like like partial responsibility for someone else's patent if you have a patent for similar It gets very tricky. It does and there are also other elements that you have to consider, like depending upon the government,

they define patents in very specific ways. For example, you can't patent something that's a natural occurrence, right, You can't patent the sunrise, something along those lines exactly. So, uh, there are definitely limitations built in so people don't try to take advantage of the system. But some times we have to write those afterward after someone has taken advantage of the system. Yeah, okay, Well, let's get a quick history on where copyright comes from, because obviously we did

not have this in ye old ancient times. This is true, Well, we had him in semi yield ancient times. The printing press actually pushed copyright into being um first in the mid fourteen hundreds in Italy, when the Venetian Senate began granting printing licenses, essentially like monopolies on certain works to particular printers and authors. Over in England, after a few similar licenses were granted, Henry the Eighth started a proud tradition of royal decrees that gave the government power over

what was printed and who printed it. Big surprise from Hank, you know right right. The Church wasn't enough for him he had to have all the printed words to so much censorship. Yes, and before this, obviously it was not a big concern because if you wanted to copy of work, you pretty much first needed to go to a monastery. Yeah, monks, yes, and yeah, because you probably couldn't write. If you could, yeah, you were probably a monk, and so was. It probably took you a few years to copy out a book.

Total monkey business. Oh anyway, So for over a hundred years in England that that privilege of of printing went to a company called the Stationers Company. And uh, that was up until these laws got struck down during some age of enlightenment kind of ideals that were going around the country at the time. That was a whole lot of like information wants to be free kind of stuff. Sound familiar to anyone who's paying attention today, Yeah, yeah,

but in a British accent obviously. Um and uh, Stationers Company, if you can imagine this, was faced with a sudden influx of competition and not too excited about it. So they petitioned Parliament a whole bunch of times in the next few years, um to to try to impose new printing regulations, and the one that uck was their attempt to profit by pushing authors to the front lines of their fight, and that one was the Statute of Anne of An uh so called because it was passed during

Queen Anne's reign. Yes, yes, uh so. In seventeen ten, the British Parliament signed into law the act that protected the owners of original works for fourteen years. So yeah, Actually at the time, at the time, some people were saying, that's really long. That's a long time. Fourteen years. You mean I can't I can't take advantage of someone else's work until fourteen years after it was set down. I guess to be fair, people didn't really live past their

sixties at that time. You can't understand why we were laughing. You will in a bit. So after that the work would pass into what we call the public domain, which is when you can have free use of that that

original work. Uh So. Others would actually see their works become public domain within their own lifetimes, often not always obviously, if they published lay in their lives, they might not live to see that, but they would also have the opportunity to make money off of that freely for fourteen years. With the protection of the government should anyone come in and try to undercut them by selling copies, and whatever printing press they were using also had protection by the government,

which made the stationers happy. Maybe not as happy as they could have been, um, but happier. And and we mentioned all of this history because first of all, I think it's it's just fascinating that, um that the that the profit of a particular company was in play and copyright law this early, from the very beginning. And um, and be that that that statute of ann directly influenced the law that was created here in the United States. That's correct. And in the United States, it's part of

the US Constitution. It's an Article one, section eight, clause eight, which gives the government the power to quote promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive to their respective writings and discoveries end quote. So kind of patents and copyrights being that's that's the groundwork being laid for the United States to establish its own offices to oversee that

sort of stuff. Um. Now, in Congress pass the Copyright Act of it would have been Yeah, it would have been odd to do a different year at that point, which granted copyright for fourteen years just like the Statute of ann and allowed for a fourteen year renewal option should the author of the work still be alive or the owner of the work still be alive. Yeah, so

corporate interests aside. Looking at the language in the U. S Constitution kind of gives us an idea of the thinking behind copyright law, which is that it's there to incentivize good creative work. Right. If the thinking goes like this, Uh, if an author or creator of any type feels that he or she is not going to be able to profit from their work, then why would they ever go into it? Why would a poor in the effort, the talent, the possibly the money in creating this there was never

going to be any return. Speaking as an artist, I think that that still happens a lot anyway. But anyway, Yeah, Actually I wouldn't put it in exactly those terms because I think a lot of times artists and and people who are pursuing creative works one way or another that enrich our culture would still want to pursue those works even if they weren't going to make a lot of

money off of them. But they need to be able to make something in order to devote time that would otherwise have to be spent working a job to stay alive. And from the government's perspective, the the motivation for creating art can't be assumed any way. They can only protect it in this way, right the only protected by saying we'll make sure that if you register the stuff, we will totally have your backs. If someone else steals it,

we got you. Yeah, yeah, you can go after them and you can cite this and then that will be your basis for your claim. Obviously, the government can't go out and figure out all the actual internal motivations for someone to engage in creating art. But um, the other thing that it creates an incentive for with this fourteen years and potential fourteen more for renewal. By the way, a lot of copyright holders didn't bother with renewing their

copyright once it expired. The thought was that it also could encourage these creators to continue creating because the amount of time they could they could expect to earn money off of any given creation was limited. They couldn't, you know, they couldn't hope to strike oil or strike gold or however you want to think about it and create that peace.

That gets so much a claim that that right. And then from a cultural perspective, it means that we as as people who consume this art and however we might do so, would continue to benefit from the artist's talent and creativity. So there's there's kind of a balance there. There's a public good and there's also a protection for the the author. So it's a balance that has been very delicately managed and sometimes not so delicately managed because as it turns out, there have been a lot of

changes to that original copyright. How long years? Okay, so eight one there was a change in the law where it was extended to twenty eight years of protection with then the option for a fourteen year renewal or extension, and then in nineteen o nine that was extended to twenty eight years of protection with a renewal of a further twenty eight years. So, uh, you know, it's we're seeing it start to creep up. That lasted for a

really long time. That's essentially fifty six years of protection. Uh. Yeah. There was a particular um iconic character protected by copyright whose copyright would have expired in nineteen eighty three had this stayed true, that character is Mickey Mouse. I was about to say, are we about to talk about the mouse we are specifically to be to be really specific, the steamboat Willie version of Mickey Mouse, all right, that would have entered public domain in three had nothing changed.

So there was some pressure, let's say, from various entities, Walt Disney Company not being leased among them, to extend copyright protection beyond this because now we have corporations that can own intellectual property. So we're no longer talking like when we're talking about owners of intellectual property. It doesn't have to be the author the you know, the outher can sign over or sell intellectual property. You know it can it can descend to one of their children, or

they can sell it to a corporation exactly. And corporation is unlike people don't have a lifespan, like they can die, but they don't die of old age. No, they die like empires. Yeah, so there's no there's no point where a corporation is just going to wither away due to being too old. So they no, they don't. They can get creaky, but it's a different thing. So because of that, the corporations want to be able to ensure being able to earn revenue off of their assets, which means they're

going to try to protect them. So in nineteen seventy six we saw the greatest extension of the term of copyright protection, which was the life of the author plus fifty years on top of it, so you would never be able to use the original work of an author within that author's lifetime plus another fifty years. Works for Higher had seventy five years of protection completely works for Higher.

That's where a corporation or other entity hires an an artist or author to create something but belongs to that entity, the author gives up ownership of it. The Revision of US Copyright Act also established copyright protection for unpublished works and codified the concept of fair use, but will cover

fair use in a little bit so comes around. The US became a BURN Convention b E r N E Convention signatory, which created formal copyright relationships with twenty four countries and eliminate the requirement of copyright notice for copyright protection, meaning that's where any work in a fixed tangible medium is under copyright. Once you have written a poem on

a napkin, it belongs to you. Yes. Uh So, in nine, Congress amends the Copyright Act to automatically renew the copyright of any work they've been published before ninety eight, so that extra renewal ends up being tacked on. Some renewal is no longer a thing at that point is just assumed. And then in the sunny Bono Copyright Term Extension Act has passed, which increase is the length of protection for

the life of the author plus seventy years. I think it's nine years for works that are essentially works for higher owned by another entity. Uh So that extends their

protection automatically. And uh and and and of course there are a whole lot of smaller bills and and court cases that have laid down more specific things about copyright of for example, about a sampling pieces of music and a new song, or the public's ability to rent audio books, or um whether displaying a cashed website is an infringement of copyright. This is this is where things get kind of crazy. It's sort of like when we talk about the Internet. It adds a whole new level of complexity

to a lot of these these different concepts. Right because in order for the Internet to work, certain things have to happen, and it's there are things that, in taken from a very black and white view, might violate something like copyright or they're also these are where you start seeing those weird terms of service where a company will say we want to have ownership of all the stuff you create. But really it's it's not necessarily the company

wants to own it. It's that the company needs to have your permission to actually show it that kind of stuff. It gets complicated, and then we're gonna make it more complicated by bringing in the concept of fair use. Yes, all right, to do it. Complication go. Fair use is a pain in the butt, alright, so it shouldn't be fair use. Fair use is something that absolutely needs to exist because otherwise we would be unable to comment on

anything that was created by someone else. Right. So, let's say you want to create a video that's a film review. You want to say, hey, the newest Star Wars movie, I think it was terrible and here are the four reasons why, and so you want to show some scenes from it. Can you do that? That's an excellent question and the answer is maybe sometimes occasionally, like should the creator of the film be able to sue you for

using their work in a commentary on their work. Well, whether they should be able to or not as immaterial. You can sue anyone for anything. I mean, under the spirit of fair use. Oh, under the spirit of fair use, then that should not happen, assuming that you are, in fact, uh, following the basic tenants of fair use. So let's let's talk about what fair use is. This is when, under specific circumstances, you're allowed to use an original work that's

under copyright that's held by somebody else. So you are not the author or the owner of that intellectual property, but you wish to make use of some of that for some reason. There are certain conditions where you are allowed to do that. It's completely legitimate. But it's fair use is a defense, right, it's a It's a defense you use when a copyright holder claims that you have infringed upon their copyright and then you say no. The instance being referred to is a case of right. So

here's the issue. This is something that's just cited on a case by case basis in the court. So you can't just say, hey, I followed the rules here and therefore I'm I'm good to go because there are all these other cases that did the same thing. The lawyer could argue that, but it shanna go to a court. So there there was well, it's going to go to a court. If you stand up for it, you could

settle out of court. Yeah, a lot of these cases do settle out of court because court cases are expensive, and settling often will just mean that you either stop doing whatever it was you're doing, take it down, stop whatever, or hand over any revenue generated from said thing to the owner of the original copyright, which is there's there's a whole discussion that we could have about that, but

it was interesting. There was a court case in two thousand fourteen in which one case, the lawyer the judge actually approved of an arithmetic approach to uh TO to figuring out whether or not h a an instance was fair use. That's saying that there are four criteria that I'm going to go over in a second to determine fair use, and if three of the four criteria were met, at least three of the four, it was fair use,

and that would be that. However, it then went to a superior court that reversed and remanded that decision, saying that fair use can't be broken down in a logical way like that, because why would we let that happen. We don't want your logic, We want more court cases. Yeah, so it has to be decided on a case by case basis to be fair. It is a very individual kind of issues. Yeah, it can be certainly. Yeah, well,

I mean we should hear what the criteria are. But of course the effect of saying it has to be decided on a case by case basis, at least seems to me is that that just allows whoever has legal resources to bully the other person into doing whatever they want. It means it's so vague, so vaguely defined, even with this criteria, that you can never be certain that what you are doing is going to fall all under fair use unless you get sued, go to the court, defend

yourself and win. That's the only way you can come out of it. Saying here's an example of fair use. Is if the court decides in your favor, So you can't you can't look at it and say, well, because it falls it very clearly meets these criteria, It totally works. It still is going to be something decided in a court or you're gonna settle out of court. So here the four criteria. The first is whatever the what is the purpose and character of the use of that original work.

So the purpose of the use is for something like scholarship or for a commentary criticism, that kind of thing like your film criticism example, this could mean that it it could be fair use under this particular criterion. Uh,

parody falls under this, but not satire. And the difference, according to US law is that parody is something that ends up commenting upon the original work itself, where a satire is a more broad commentary on some other topic and is only using the original work in order to get attention, and so they say that it's less transformative. So if you're talking about a song like It's kind of interesting because weird al it's always referred to as

parody songs. A lot of songs aren't parody. Well, permission from there being only one exception, and that is one that's contested where where the story is he yes, he did get permission, and then the other side says, no, he did not. But otherwise yes, that's exactly true. He does get the permission. But if it were parody, he wouldn't necessarily need that that permission and it could still

fall under fair use. Um. This is the part where we talk about being transformative as well, right right, yeah, And that's the kind of thing where um, why like SNL or Mad Magazine or something like that can get away with portraying characters from other shows because it's a parody exactly, it's a commentary on culture right now. The second one is the nature of the copyrighted work, So fair use tends to apply more readily to cases where

you're using information from a nonfiction source. So if you are citing, like it could even be citing a review or citing um uh, a news item or a speech, something along those lines, as opposed to taking elements from a source of fiction, whether that's a poem, short story, play,

whatever it may be. This makes sense to me because if you were to be too strict about what people could copy from nonfiction sources, that could in cases seem to lead to people being able to restrict the use of facts or like restrict the use of pieces of true knowledge, sure, which I mean obviously that's untenable, Like if you are the author of a study that finds out some important new fact about the universe. Obviously, it wouldn't be good to have people, you know, plagiarizing your

work wholesale. But people need to be able to refer to your find dame. Well, yeah, that's the whole basis of science, right, because if you're not able to do that, then suddenly you can't. You can't end up testing claims because be fear of being sued for copyright infringement. I mean it would be it would be broken, would be a broken system. Yeah, you can't copyright the results of

your experiment, right. And then ultimately there's also uh an even more focused version of this for unpublished works, because there's a general belief that the right of the first public appearance of any work should go to the creator or owner of that work. And therefore, if you were to try and make fair use of something that had not yet been published, that would be a harder argument

for you to make in a court. They would they would say, well, this hadn't even been the general public had not had a chance to see the original work yet, so that doesn't that's stealing. Yeah, Okay, what about the difference between if I want to write about my favorite novel. I'm want to write a blog post about tech War, my favorite novel um and I want to quote from it to show why the pros is so vivid and beautiful.

Does it make a difference if I quote a paragraph versus a single sentence versus the entire book, Yes it does. Substantiality does does make a difference. As the third criterion, Uh so this the the amount and substantiality of the portion used in relation to the copyright work as a whole is something that is under consideration. So the rule of thumb is the less you use, the better off you are. Right, the more you use, the more you're

treading on stealing and less on fair use. Also, it's not just the amount, but is it the heart of the piece. So in other words, if you end up publishing something that is the most important aspect of that work, whatever it may be, then it's harder for you to defend that as fair use than if it were some just random part of the not random, because that would make no sense. But some other less notable element of

that work. Sure, sure, And that's under the argument that you are less likely to infringe upon an author's possible profits from their work if it's if it's a relatively non significant part, then if it is a very significant part, and that'll that'll fall under the fourth one as well. But the other interesting thing to note here is that a lot of people seem to think that there's some sort of hard and fast rule about how much, for example, how much music you can play before it's an infringement,

before it's an infringement. Like yeah, like, oh, if it's just fifteen seconds or five seconds, you're fine. No, there's no. It probably should be, but but there's not. Yeah, there's not. Well, also then people would argue, like, well, which fifteen seconds or how long is the song? If it's a remote song, fifteen seconds is a significant part of that piece. If it's meat loaf, you wouldn't even notice, Um, but no, it's it's it's not the case you couldn't even tell

what song it was from fifteen seconds. You wouldn't even know what album it came from, like it's one of the Beat of the Hell albums, and just not sure which, Um, yeah, it's it's. There is no time limit that you know, there's not a safety zone. Yeah. Yeah. In in a one case that was settled in two thousand four, a two second sample of a song was deemed an infringement. Yeah, that's ridiculous. I agree. Yeah, this this is a This is actually a huge problem or was a huge problem

at a certain point in the hip hop industry. Oh yeah, yeah, and we'll we'll talk more about how artists are kind of shifting this away a little bit. Like the fourth and final criterion for a fair use is the effect of the use upon the potential market for or value

of the copyrighted works. So if your work, your transformative work, were to have some impact upon the sales of the original work, like a negative impact, like maybe someone wrote a cool song and you took that cool song and made it even cooler song that's way more awesome, you might not be able to argue fair use because you may have potentially affected the revenue the original authors could

have expected from his or her piece. But yeah, this also goes back to that idea of you don't share the heart of the work, right, like you were saying, Lauren, if if I were to give away the important part of a book, like I don't know, if I were to be one of those jerks who explained who kills Dumbledore in the Harry Potter series before anyone's even had chance to read it. And I've done so in a in a way that is using a lot of the original work. I don't know that I could argue fair

use on that. Sure, if you just post a one sentence spoiler on the Internet, that's not infringement. You're just a goat hugger. But if you but if you published perhaps the entire chapter that that thing happened in, that that would be infringement exactly. Yeah, So comment on something is not copyright infringement. Right, If I comment on something, if I say the Last Wars movie was terrible, I'm not making use of any of the copyrighted work. I'm just referring to it. That's clearly not a case of

copyright infringement. Sure, I mean, I mean the problem that you get into is when you start mucking around to the terry territory of what construes um, what construes stealing, and what construes commentary. Because art, as part of art, it comments on itself and on other stuff around it. Yeah,

in fact, that's a great, great transition. Art does not exist in a vacuum, right, Well, y'all mentioned controversies about sampling in the hip hop industry a while back, and that's definitely a case where you can make the claim that great pieces of cultural value of art entertainment have needed the ability to sample sound that might be protected by copyright. But they're they're doing it in a way

that's not just exploiting the original creator. They're doing it in a way that makes a new work of art is transformative. Yeah. Absolutely, yeah, And this is you know, this is a point. And if you did listen to that Negative Land episode, you'll hear um Our Costler make this point to that that commentary the world we live in we're surrounded by this stuff. We're surrounded by art, we're surrounded by commercials and and messages that are consumerist messages.

And therefore, any kind of art that's to comment on what life is will at least some of it will end up incorporating that kind of stuff into the art. I mean, that's how art works. So there has to

be some way of doing that. Yeah. Yeah, And and there are I mean there there are a bunch of interesting examples of court cases that have settled things like this, Like, for example, um I believe Mattel tried to sue the band Aqua when they put out the song Barbie World Barbie Girl, not the title of you Can Brush My Hair, No, I know the all the lyrics, okay, but yeah yeah,

Mattell said, Hey, that's our property. You can't. You can't just trot her out like that, And the courts essentially said, uh, yeah they can, because she's a cultural icon, She's a cultural phenomenon. So so creating a transformative work based on your characters absolutely loud, right. And this is this is

similar too. I mean I've actually know plenty of stories of people who have put up YouTube videos that have incorporated clips from stuff order to comment on it, to actually do it in a news commentary way, then got taken down. Uh, and then they had they actually went through the fight. In fact, Tom Merritt has gone through this where tom Merritt does various technology shows and he did an episode where he did a commentary on a video.

The owners of the video ordered to take down the entire episode that tom had produced, which is like a forty five minute hour long news show. Uh, and he had to fight for quite some time before it was reintroduced to YouTube and of course by then, I mean it's a daily news show, so by then it was like two weeks later or something. Yeah, And and that's a very specific YouTube situation because because once you start talking about an independent, uh privately owned website, then that's

a different issue than the US government. It's like, it's not like the company in question, the owners of the original video and question, we're going through the government in order to get this result. Right, they didn't sue. They simply took advantage of YouTube liberal taking stuff down policy, which and again, if you are a company that provides a platform, then obviously you're going to air on the side of the people who have the most money. That's

just how that works, all right. And here's where we're going to wrap up for this particular conversation, because, as it turns out, we had a lot more to say about copyright, creative comments, and various use cases, and it was just too much, like Joe said the beginning of this episode, to make it one. So we are going to leave off here and rejoin on the next episode. To conclude our conversation. We have to thank Dave, because holy cow, we got a lot of material to talk

about from that one email. It turns out we like talking about aren't here, yeah, so join us for the next one, so that for the conclusion of this conversation where we will we will talk about the rest of all the things that came up in that particular episode. And remember you can get in touch with us to leave us comments, questions, suggestions, what you want to hear on future episodes by writing to f W Thinking at how Stuff Works dot com, or drop us a line

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