At Fellows Hour at the Berkman Center Lewis Hyde talks about a Fair Use conference he went to, called “The Comedies of Fair Use.” Fair Use is a “carve out” from copyright protection. He says that a Harvard lawyer told him years ago that “Fair Use is a defense, not a right.” Among the examples: A documentarian taped a scene on a street when someone’s cell phone rang, using a copyrighted ring tone. She ended up paying thousands of dollars to get the right to use that bit of the tape. Lewis passes around a pamphlet (online here) explaining Fair Use to documentarians. (The pamphlet’s guidelines suggest that the documentarian shouldn’t have paid for the ring tone.)

BTW, the Berkman Center has written up the legal rules around podcasting, in a similar manner.

Derek Bambauer says that “exclusions and omissions” insurance makes it worse. E and O insurance protects a filmmaker from suits alleging copyright violations. One results, says Derek, is that the insurance companies insist on clearing everything, Fair Use or not.

Lewis also recounts an encounter between Joy Garnett and Susan Mieselas. Mieselas took a photo in 1979. Garnett based a painting on the photo’s image. Mieselas sent a cease and desist order. Apparently, Mieselas was clearly within her legal rights, but many have sided against her. But, says Lewis, when Mieselas presented her case, it no longer seemed so simple: It was a photo of a Sandinista that she has allowed to be used widely in Nicaragua. The painting, she feels, strips it of that important context, and turns it into a mere image. [Tags: lewis_hyde fair_use copyright digital_rights]

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