Artists and Hackers

Fair Use, the Internet Archive and the Public Domain

Intro voiceover (Gnats Gonzalez)
Let not the work of the past fall to moth-bitten scrap. We have the power to save our core, our culture, our creation from the rot of the decomposer, the time eater, the fungal spore, the plague of history, nipped and gnashed. Let not kings detect what is known among you. Ignore the temptation of hippocampal decay. Plunge into the dark depths of the new forgotten. And feel the warmth of creation at its purest, beyond ownership, beyond capitalism, beyond sustenance. These works no longer feed the fleshy bodies of their fallible creators. So why not? Why not set them free to the masses and the great arms of the individual gods? Why not allow these acts to seep deep into the concrete of the cultural unconscious and see what crooked weeds bloom from the cracks? Why not let all who might savor their infinitesimal soup sleep soundly in the soul of handicrafts sired by sorceres past as Cassandra before us, “See the future, know the past.” Witness the place today where the seams meet and their present presence collides. Artistic works made in the year 1927 are now available within the United States public domain.

Lee Tusman
You’re listening to Artists and Hackers, a podcast On art, code and community. We talk to programmers, artists, poets, musicians, botmakers, educators, students and now legal scholars in an effort to critically look at both online art-making and the history of technology and the internet. We’re interested in where we’ve been and speculative ideas on the future. In this season of the podcast we’re working with the Engelberg Center on Innovation Law and Policy at NYU Law to unpack some of the thorny issues for those working in art and code.

In this episode we’re wrestling with copyright, the public domain and fair use. As an artist working with code, collage, sound and other media, my goal coming in was to make sure I understand definitively, what work is completely available for use when an artist wants to make art, collage, or remix music for example? What works are they allowed to adapt or change? When you look for work online without any restrictions on what you can do with it, you’re looking for work that is part of what we call - the public domain. That’s the term for creative works that are completely unrestricted for re-use. There is no copyright, no ownership by an individual or entity. Anyone may use the work without getting any permission or other approval. Works older than a particular time period are automatically in the public domain - we can think of Shakespeare’s work, or greek statues for example. But also works where the artist signed away their rights, or works where the copyright expired, and works where the artist specifically allows reuse or works that are not allowed to be copyrighted for various reasons. For example, a lot of US Government works is in the public domain.

We can think of the public domain as a common good. Over the years I’ve enjoyed and remixed a number of public domain works and I’ve made some of my own art, music and code available in the public domain. But I wanted to find out more about this work, how common it is. Who makes it? Where does it live? So I decided to vist one of the major collection spots for public domain items.

Last year I had the opportunity to visit the Internet Archive in San Francisco, one of the world’s largest repositories of public domain works, in addition to many other archived items online. My visit coincided with Public Domain Day, a day dedicated to new works passing into the public domain. Each year on January 1 new works such as film, books and more fall out of copyright and become newly available in the public domain. In 2024 many of these works come from 1928, including Steamboat Willie. At the Internet Archive, I met with Brewster Kahle, the founder of the archive, to find out more about the event and how the public domain was so fundamental to the archive’s work.

A note to our listeners, this interview was conducted last year, which is why you’ll hear us reference 1927, but in the current year works from 1928 have now entered the public domain.

Lee
Okay, so I’m going to start with kind of a just a very basic question. Can you say what the Internet Archive is?

Brewster Kahle
The Internet Archive is a nonprofit library. A research library that lives here in San Francisco, best known for the Wayback Machine, an archive of the world wide web. But we also have books, music, video, software. It’s meant to be the Library of Alexandria for the digital age.

Lee
What does the public domain mean to you?

Brewster
The public domain is the world, the air that we breathe, the life that we live, our total environment. And so we want that public domain, the creativity of everybody to live forever. Some of it is kind of locked up under copyright for periods of time. And often the sort of orphan works, or now called hostage works, of just sort of under copyright, but nobody’s getting access to it. But the public domain is, well, kind of what everything used to be, before we started putting fences around things.

Lee
Can you say how the internet archives supports the public domain?

Brewster
As a library, what libraries do is they collect materials, so they buy materials, they preserve them forever. And then they make them as available as they can. And if there’s copyright issues, then we lend them one person at a time or only for personal use, or whatever the sort of the general approach is. And so the Internet Archive, by being a library, largely in the digital world, does this by collecting digital materials, whether it’s web pages or television broadcast, radio broadcasts, and then preserve those and then makes those as available as we can. Or we digitize materials to go and make them available to digital learners and go and have as much access as we used to have in the physical world, but in the digital, digital world. So the Internet Archive wants to be a home for the public domain, for the commons, for the cultural works of humankind to go and invest in them to make them permanently available because we’re worth it.

Lee
What are the threats that the Internet Archive sees as as threatening to the public domain?

Brewster
The public domain has been shrinking and shrinking. I mean, it used to be kind of, well, everything and then 1976 Copyright Act flipped it. So it went from opt in to opt out. Oh, and it turns out, you couldn’t even opt out of copyright. There was no way of doing that until Richard Stallman came up with this concept of the GNU public license, which is kind of a clever copyright hack. So the flipping was really problematic. And then the term extensions. Ben Franklin, you know, it only took 14 years before something was exhausted in terms of what it could be used in a sort of private way. And you can be extended once to make make it 28 years if you really wanted to. But now it seems that corporations are saying it takes 95 years to do what Ben Franklin took 14 years to do, to go and have these copyright extensions. And then all the derivative works does suddenly became copyright is just, there’s just this blossoming of sort of everything is copyrighted, oh, and almost forever. And this has caused real problems. But then it even has gone even further wrong. So eBooks are not even available for sale under this incredibly restricted copyright world there. In general, from the big publishers are only available for licensing, except you get the indie publishers, like PM press, and Seven Stories and awesome people like that, Brick House, that are up for selling materials. The big publishers are saying we’re opting out of copyright completely. We want both copyright protection and licenses that actually don’t have any exemptions for the Blind and Dyslexic. They don’t ever expire. So we have sort of a ever encroaching shutting down of the public domain. And now there’s just trying to do this jujitsu in the digital world saying, there’s no even rule of law, it’s all rule of contract by large corporations.

Lee
Obviously, one of the things that’s really special about the Internet Archive is your work with digital artifacts. And digitizing things that were formerly physical, but also you working with born digital items as well: videos, sound and obviously websites. How does the fact that something in the born in a digital context, how does that impact from your perspective, longevity, preservation and keeping things in the public domain, or even just keeping them alive in some in some way?

Brewster
Surprisingly, digital books wear out much faster than physical books. Doesn’t that seems odd? But they absolutely do. Just try reading a digital book you might have licensed 10 years ago. Probably the device is dead. Or you can’t know that actually the format if you actually figured out how to get it off of that device is changed. But then take a book that you got from your grandparents. And can you read that physical book? Absolutely. So we have this ephemerality of the digital world, which is, I think strikes people as really obvious, but it’s really true. The average life of a webpage is only 100 days before it’s changed, or it’s deleted. And people don’t keep their own web pages. How are they going to do that? And so the Wayback Machine tries to put a bandaid on this by going and archiving the World Wide Web all the time, to try to go and make it so there’s past copies of the wonderful work that we’ve been pouring into this commons, which is the World Wide Web. And so the Internet Archive is trying to emerge as an institution as a library to play the traditional role of libraries to go and buy things from publishers or collect things that are available for free and then make them permanently available.

Lee
Can you talk a little bit about how the Internet Archive became a library, what that process was like?

Brewster
In the United States, there aren’t actually regulations that say what a library is or isn’t. Walk like a duck, quacks like a duck, a duck. And so by being free public access, by having librarians collect these materials, preserve them, act like a librarian, and libraries have been around before, well, publishers. I mean, they’ve been around forever. And we want to see libraries persist, but actually they’re under enormous amount of threat. So not only are the book bannings going on by government entities, there are corporations that are pulling books or changing books on digital library shelves, and making it so libraries can’t have any holdings at all, much less individuals. I just got my aunt’s collection of her books. And those she collected over 94 years. Some of those came from her parents, but those I have, because they’re physical. If those were digital, would I be able to get those from my aunt? No, not at all.

Lee
Can you talk a little bit about public domain day, which is today, and we’re going to be celebrating it tonight and how this got created as a holiday or special event and what it entails?

Brewster
The public domain day is just a good day. We should just celebrate that there are so many works that sort of survived the cold, long dark periods of copyright, and made it to the public domain. So we in the public can go and preserve them, we can make copies of them, we can build on them, we can celebrate them, we can afford to take the public’s money to go and preserve them. So the films from 1927, which are now coming public, only 15% of those films from that era, the silent era, have survived to make it into the public domain where we can actually legally really straightforwardly support these materials. So it’s a preservation disaster. But the public domain day is a good day. So we can now sing “I scream, you scream, we all scream for ice cream” without feeling like we’re gonna get sued. The best things in life are free, that wonderful song is, now free and part of the public domain. Metropolis. The Jazz Singer. Wings. All these old films. And so when the public domain reopened after basically a 20 year shutdown based on the Sonny Bono Copyright Extension Act, which just needlessly extended copyright yet another 20 years, there was nothing that came into the public domain. And then it started back up again a few years ago. And it’s just been a hurrah from artists, from publishers, from authors to go and see these works once again. It’s just fantastic. And so every year, there are a number of us that all get together physically and virtually to go and celebrate the public domain. So at the Internet Archive tonight, were going to have a remix contest of of movies that can be shown, singing the songs of 1927, using the recipes from 1927 to go and cook food, dress up and just celebrate the liberation of the works that have survived from 1927.

Lee
What are some of your favorite outcomes of having a strong public domain and of being able to see people use, remix, recontextualize, represent materials when it enters the public domain?

Brewster
Having the public domain be used and reused by artists, it’s just been fantastic to see. And they can do it without fear. They can, you know, there’s just a pall. Everybody becomes a copyright expert because of basically screwing up in 1976, where it stopped being just a little corner of the publishing world. And just like everything, I mean, things that are pointless, suddenly became copyrighted forever. So being able to see people just be able to play and know that they don’t have to go and worry about going to have their thing actually become distributed by somebody, that they have to go and have permissions for people that they can’t find from the 1940s or 50s. And on and on and on. It’s a liberating, creative environment. The public domain is all of ours. And that is the celebration. And we’re seeing great works even though they’re based on 1927 words, really really freaking all great things are coming out of it.

Lee
Thank you so much. I’m excited to see the films tonight and obviously a huge fan of the Internet Archive and everything that you do, I really appreciate it. Thanks

Brewster
Thank you very much. Long live the public domain.

Lee
After speaking with Brewster Kahle, I thought I had a pretty good handle on the public domain. Over the years, I’ve also seen lots of references and discussions about “fair use” online, something that seems to continuously confuse artists. So I spoke to a scholar I met through the Engelberg Center for Innovation Law and Policy, Amanda Levendowski. Amanda is an associate professor of Law at Georgetown. She’s also highly creative, though I’m not sure if she identifies as an artist. I’d read about an interactive web-based media project she had created as a student. I got in touch with her to find out a bit more about her practice, and to get a handle on how concepts of fair use impacts the arts.

Amanda Levendowski
I’m Amanda Levendowski. I’m an Associate Professor of Law and the Founding Director of Georgetown’s Intellectual Property and Information Policy Clinic. But I’m here in an academic capacity, not as a lawyer and not giving legal advice.

Lee
How did you get into working in this area?

Amanda
Well I was very cool and fun in college. So I actually majored in publishing copyright and technology.

Lee
So going back in time, can you tell me about your redacted poetry project?

Amanda
Oh man that was so long ago. Yeah, So the redactive poetry project was an experiment as part of a copyright class that I took as an undergraduate and the idea was to experiment with the bounds of fair use by redacting various web pages or articles and creating poetry out of them.

Lee
So we might need to to kind of zoom out just for a second and when you say fair use, what is that?

Amanda
Fair use is a provision of copyright law that allows the consentless use of copyrighted works as long as it meets certain qualifications.

Lee
And why does this exist? Like why did the government want to make fair use so that we can use some works that are under copyright that we wouldn’t be allowed to use otherwise?

Amanda
Yeah, so the idea behind fair use actually dates back to the 1800s and a case called Folsom v. Marsh which was about the papers of George Washington. It’s as americana as you can get in some ways. And the judge in that case said that in some cases you needed to be able to use copyrighted works without permission. And it operates as sort of a first amendment safety valve for copyright. In order to engage in free speech and free expression sometimes you have to be able to use other people’s works without their permission. An example is, if you’re going to critique someone’s work the chances of them granting you a license are slim to none. Why would they ever sign up for someone to talk shit about them when they don’t have to. But they technically you don’t have to because depending on what kind of critique or commentary you’re engaged in, it may be considered fair use.

Lee
And how has fair use evolved over this century, almost century and a half plus years?

Amanda
I’m so excited. Okay, so for a long time. It was just judge-made doctrine. There were a couple of factors that were laid out in that case I mentioned earlier and courts applied them and made decisions. But then in the 1976 copyright act the lead architect of that law was a woman named Barbara Ringer who I am gently and irrationally obsessed with. And she actually in parts of drafting the new copyright act codified fair use in section 107 in the way we know and frankly love it today.

Lee
Fair use today is something that’s been really, is something that I’m fearful of exercising maybe as an artist because I’m afraid that someone with a lot more money might try to sue me. Is this kind of a fair assessment or is this something that you kind of rub up against when you’re working on or thinking about fair use?

Amanda
You’re really putting the fair in fair use there and I think what’s important is that fair doesn’t necessarily mean equitable or accessible. That’s not the way we’re using fair. It’s more like fair play if you could think of it that way, which means sometimes people are kind of either bullied or chilled out of exercising their right to make fair use of copyrighted works for exactly the kinds of concerns that you mentioned. It could be concerns over litigation. It could be concerns over cease and desist letters. It could also just be concerns over blowback from the original artist who may not appreciate the sort of flavor of new work that’s being created and all of those can have the effect of not having fair use where it might otherwise exist and thrive.

Lee
Right? So for example, I’m thinking about someone like Weird Al Yankovic who makes these mock versions. What’s the right word? Ironic and thank you, that’s the word, parody. He’s making parody music. But my understanding is that he actually licensed the original songs and I’m wondering about that because I believe that parody, it seems like parody is fair use and so I think I’m a little bit confused on those actions and I’m wondering if it’s because of bigger guns with money.

Amanda
So my understanding iof Weird Al Yankovic is he licenses the songs out of respect for the original artists. If they don’t want to be parodied he doesn’t want to subject them to his parody. It’s really out of a desire to seek permission not because he’s scared that he’d be sued if he didn’t right? They’re one of the big, one of the big fair use copyright cases in supreme court precedent is literally about a parody and that was made without the consent of the original copyright owner of the work. It’s about Roy Orbison’s classic hit Oh Pretty Woman with a parody by Two Live Crew, but Yankovic is just coming from this perspective of, if you don’t want to be parodied by me I’m not going to force you to be parodied by me, and that has nothing to do with copyright law and that’s more of his own personal ethos or at least that’s how I understand it.

Lee
That’s really Interesting. You know I’m interested in how we kind of think about it because there’s obviously a legal framework, right? But then there’s also this kind of cultural and social way that we relate to each other too and it’s interesting to try to tease apart how these two different spheres relate or don’t sometimes, so that’s really interesting. Can you you explain a little bit more about that Two Live Crew case that dealt with fair use?

Amanda
Sure, and actually I’m writing about this right now. So I’ll just pull it up. Yeah, so back when Two Live Crew was a chart topper in the early nineties Two Live Crew parodied Roy Orbison’s classic rock hit Oh Pretty Woman with some kind of disparaging words about women, talking about big hairy baldheaded, two-timing women. And it went all the way up to the Supreme Court to analyze whether or not Two Live Crew’s parody of Roy Orbion’s hit was fair use and it turned out according to the Supreme Court looking at the four factors of fair use that are sort of codified in the statute that this rap parody constituted fair use. And again, not fair as in equitable, right? It doesn’t make women look particularly good and it is kind of misogynistic stereotypes equating a woman’s worth with her appearance and behavior. But it also is calling attention to the way that rap music was perceived at the time and it is commenting and critiquing on the social systems of the music industry as well. So it’s towing this really delicate and interesting line of critique and commentary while also buying into some of the stereotypes that you know were problematic in the first place.

Lee
I think this also goes for how if you’re an artist, if you’re a musician, if you’re a producer, engineer, even someone working in collage or sculpture. We’re in such a postmodern era that we think of all of culture and history as potentially tools and influences in the toolbox to make further artwork and I’m wondering from that perspective, the law, quote the law can be seen as an impediment to the way that we naturally want to borrow, and frankly, sometimes appropriate or plunder from these different histories. I’m wondering from your perspective, are there ways that artists can safely consider how they can use works in a fair use kind of way? Is there a checklist or a guiding system that you advise people generally when they’re making these kinds of considerations?

Amanda
Yeah, talk to a lawyer but don’t pay them. Not in like a skip out on your bill way but there are plenty of legal clinics in the United States that do really great work advising on issues like fair use for artists and writers and film makers. You can always find one whether it’s in your state or nearby to potentially consult with before you embark on a project that may or may not be fair use. You can get some answers on the front end and then proceed with a little bit more assurances of how you can tweak your vision or integrate it into how fair use operates. But a place to start is always with the statute 17 U.S. section 107 has the sort of preamble that lays out some of the privileged uses that are favored for fair use: research, teaching, news, those kinds of things. But it also has a four factor sort of test that courts will walk through and there’s a ton of cases that do interpretations and applications of those four factors. However, at that point you might as well just go to law school yourself and if that’s not in the cards for you as an artist which of course for many folks it will not be, go talk to your friendly neighborhood clinician, and their amazing students. There’s also amazing organizations like V.L.A. Volunteer Lawyers for the Arts. There’s local organizations in a number of cities and states that provide these kinds of guidances to artists as well. But I’m biased as a clinician, I encourage folks to go to clinics.

Lee
Coming from maybe the opposite angle let’s say you are an artist or other creative producer and you want to ensure your works are used but you actually maybe have ideas on your values and how you want your work to be used, either culturally or legally. Are there ways to ensure one’s own work can be reused in this way that overlap with with fair use, or is this going in a different direction?

Amanda
Yeah, so you could always apply a license to your work that says I want it to be used by other artists. I want it to be used by newsmakers. I Want it to be used by teachers. You could always do something like that. But fair use will always apply. So even if you’re license doesn’t necessarily encompass that view it’s possible that someone could still make a fair use of your work and that license would be irrelevant.

Lee
And now speaking to artists that obviously want a stronger fair use and understanding of fair use, are there ways that artists can actually contribute to this, to exercise fair use to help increase our ability to use it?

Amanda
Yeah, do dope work. Do dope work that implicates copyright law and pushes the envelope because that’s how we get strong case law. That’s how we get cases that are powerful that we can turn to as precedent so that when my student attorneys are preparing to advise an artist, we can look back at some really interesting important cases and say in this case, this is what the Southern District of New York said, this is what the Second Circuit said, this is what the Supreme Court said, and it can provide more certainty to other artists. It kind of has a ripple effect and if folks are willing to take that risk and consult with a lawyer to design a project that could be a powerful source of fair use precedent, it’s a little bit, it’s almost like performance art right? The legal piece is part of the art as well and it ends up being not just the art that it set out to be, but a piece of performance art on top of that that also engages the law.

Lee
I think for my last question I wanted to jump back actually to your first project and ask you a little bit about how the redactive poetry project worked and how it rubbed up against copyright?

Amanda
I mean redactive poetry is not especially new as a poetic approach. Bound poetry has always you know drawn on these themes but in some ways if you’re working with a physical piece there’s this doctrine in copyright law called the first sale doctrine. So once you buy a book, the author’s rights are extinguished and you can do whatever you want with that physical copy, right? You can’t necessarily do… You can give it away. You can tear pages out of the book. You can do some origami. There’s a whole range of things you can do with the physical book and one of the things you could do is you know take a marker and blot out certain words and make a new poem out of you know James Joyce’s Ulysses or whatever book gives you joy. And you could rip that page out and you could frame it and put it on your wall and you have not infringed on any copyrights whatsoever. We did that in the digital context. The idea that if you did it digitally you had to make a copy, right? Your first sale workaround was no longer in the cards and our philosophy as you know college students who had no formal legal training was that this should be fair use and I can’t even fathom, I would just never have the the chutzpah to do this project today. But as a young woman in college thinking that I knew something about copyright law when I probably really did not I felt very confident this kind of project was an interesting provocation illustrating the ability of anyone to do it and it came out with a tool that allowed anybody to install a little bookmarklet in their browser and have the ability to redact other web pages for themselves.

Lee
And then what was the response?

Amanda
We got this cool right up in the New Yorker. I mean not in the New yorker, it was some blog from the New Yorker but I felt like it was the same, as a girl who grew up in Arizona never thought that the New Yorker would care about anything I did so that felt the same. A couple people used it, I think we had like a Tumblr that was running for a while and now it’s kind of defunct but it was interesting and I kind of wish that it still existed because I think it could be a really fun place for people to play with this idea and see for themselves how much transformation one can make on a copyrighted work by bringing their own vision, their own philosophy, their own views, their own artistic sensibilities even for people who don’t see themselves as artists and to experiment with a real visceral way of just trying it out and seeing what they could make of something that already exists. And seeing how different those two things actually are.

Lee
Well this is great. I want to thank you for speaking with me today.

Amanda
Thank you so much, take care.

Lee
One of the reasons I wanted to talk to experts supporting the public domain and fair use is because openly sharing art and creative work seems like such a fundamental aspect of culture today, abetted by platforms like Instagram and TikTok that encourage remixing other users’ audio tracks or even videos. When I was first learning to program with Processing I created my own experimental camera software that produced video and images in the style of Chuck Close, and I wanted to put my code and images online. I was so worried that representatives of Close’s estate would send a cease and desist, and I didn’t really understand if I was in legal risk. I’ve also seen lots of web-based projects that take work offline with a little note that they received a cease and desist letter so they’ve taken their project down.

And that’s what brought me to wanting to find out more about the public domain and fair use, so I could have a better understanding of what I could actually remix.

After talking with Amanda and Brewster I came away with a better sense of what we can do as creative artists to reuse or remix work. We can find work that’s in the public domain. We can find creative commons licensed materials. And we can learn the doctrine of fair use, which allows us to use copyrighted materials despite that they’re copyrighted because the government believes it contributes to the public good. And it’s helpful to know there are volunteer lawyers for the arts in most cities that can help creators better know the law and respond to legal situations as they crop up. As artists and creators, our world is richer as ideas and culture spread from person to person. Fair use protections grow stronger as we use them. With this in mind, I hope our listeners will have a better understanding of public domain and fair use, and a better sense of how they can use these works in the creation of their own activity. If you’re making work and putting it in the public domain, or making work with creative commons licenses you’re contributing culture to the world. We love to see it.

You’re listening to Artists and Hackers

Thanks to our guests Brewster Kahle, Digital Librarian and Founder of the Internet Archive. And Amanda Levendowski, Associate Professor of Law and Founding Director of Georgetown’s Intellectual Property and Information Policy Clinic.

This season of the podcast is produced with the Engelberg Center on Innovation Law and Policy at NYU Law.

My name is Lee Tusman. Our audio producer is Max Ludlow.

Our music on today’s episode are from the public domain and found on the Internet Archive.

“Echo Echo” from Public Domain Day 2023 Remix Contest by gnats gonzalez. A Bunch of Keys by Harry Richman, performed by Frank Banta and Jack Austin. No No Nora by Lymans California Ambassador Orchestra with vocalist Charles Kaley. Moon River Waltz by Lee David, performed by the Bar Harbor Society Orchestra. And Guitar Boogie by The Rambler Trio featuring Arthur Smith.

You can find more episodes, full transcripts, and links to find out about our guests and topics on our website artistsandhackers.org. You can find us on instagram at artistandhackers, twitter at artistshacking and mastodon at artistsandhackers at post.lurk.org. You can always write to us on our website, and please leave us feedback wherever you get your podcast.

Thanks for listening.