Shoshana, R Street’s digital media specialist, mixes her own hair dyes and dyes her own hair. So she’s not a big fan of the lawyers and legislators who say that hair dyeing requires special licensing permission. Shoshana does all sorts of creative things. Besides custom-coloring her hair, she sews her own gowns. And her Twitter GIF game is unmatched.
But what if, as with hair-dyeing, the government regulated creativity? What if a law said that, before being creative, she had to get a license?
This week is Fair Use Week – a yearly celebration of important and essential limits on copyright laws. Laws that affect people like Shoshana. But she is far from the only creative person at the R Street Institute. The creativity starts at the top, with our president Eli, who writes restaurant and poetry reviews, and keeps the office full of pirate jokes and South Park–inspired portraits.
Others do it out of love of the craft: Kevin makes videos about fishing and wrote a book about whiskey, Jarrett and his wife created a recipe book as their wedding favor, and Christie makes miniature figurines out of modeling clay.
Easton carved a wooden chest for his goddaughter, and LT built a complete portable tiki bar out of PVC pipe.
Like all creative people, R Streeters depend, in making their own crafts, on the creations of others. Sometimes, this is literally turning old things into new ones. Erica makes parts of old books into new journals and art, and would make antique buttons into jewelry.
Lauren finds old furniture and refinishes it. Shoshana buys hair dye and mixes it with conditioner to make lighter colors.
Art builds upon art, and that is where copyright law comes in. Copyright law is supposed to help creators by making it illegal to copy their creative work without permission. This makes sense in the obvious cases—you should not be allowed to rip off books, songs or movies.
But not all copying is unproductive theft. When art builds upon art, some amount of copying is required to make future art. Because of that, copyright law, when taken too far, can actually hurt creators rather than helping them—the opposite of what copyright is supposed to do.
Consider Caroline, who taught pole dancing fitness, a creative endeavor in itself. She and her fellow instructors put videos of their dance routines up on Facebook, only to have them flagged because of copyrights in the background music. That’s one way copyright can interfere with creativity.
Fair use is a safety valve that keeps copyright law from going too far. It is an exception to the law, recognizing that some amount of copying must be allowed to serve the needs of ordinary people, and especially ordinary creative people.
Ask any copyright lawyer about how fair use works and you will be told that it is difficult to explain and unpredictable in practice. And it is true that, on the margins, courts can be indecisive about fair use. But fundamentally, the core purpose is simple: Fair use helps to ensure that all artists, big and small, can take part in creating art that builds upon the work of others.
The big creators, the Hollywood directors and executives, have the money and connections to hammer out complex copyright licensing deals for permission to create. Individual creators are just as important—a new study finds that almost 15 million independent creators earned almost $6 billion in 2016—but they can’t walk into Hollywood boardrooms and strike deals.
Instead, fair use allows these independent creators—like all the creators at R Street—be creative.
Jon composes piano covers of hip-hop songs for his own personal entertainment. Fair use is for Jon.
Dan used to create his own electronic music for himself and small parties, including “plunderphonics” involving copious short music samples assembled into a totally new work. Fair use is for Dan.
And the GIFs and memes that Shoshana and her fellow R Streeters create, that put an entertaining and effective point on otherwise dry Washington policy topics? Fair use is for all of them.
Without fair use, copyright law would only allow those who can deal with the complexities of copyright licensing to create and build upon others’ work, as all creativity does. This sends a message to the small creators that the club of creators is limited to Hollywood executives. And that everyone else must sit back and receive whatever movies and TV shows we are handed.
The message of fair use is inclusive—to paraphrase Chef Gusteau in Ratatouille, “anyone can cook create.” That is the message for Jon’s covers and Dan’s music and Shoshana’s GIFs. That is the message for all the creators at R Street. And that is the message for all independent creators, who make this world a funnier, happier, prettier, better place.
Header image credit: Kirasolly