Bound by Law? Tales from the Public Domain

by Keith Aoki, James Boyle, and Jennifer Jenkins
Duke University Press, Durham, NC, 2008
80 pp., illus. b/w. Trade, $8.95
ISBN: 978-0-8223-4418-6.

Reviewed by John F. Barber
Digital Technology and Culture
Washington State University Vancouver

jfbarber@eaze.net

Digital media provides easy access to much of the popular culture—texts, movies, music, and images—of the twentieth century. Digital technology provides opportunities to use this content, for example, to break major political scandals on blogs, send homemade movies to the Cannes Film Festival, share podcasts with tens of thousands of listeners, create mash-ups that severely criticize the government's handling of some situation, and to produce audio and video recordings on laptop computers which previously would have required the services and equipment of major commercial content producers. Digital artists, filmmakers, and musicians are using such access and ability to create a flurry of remixed collages in response to the events in their personal, cultural, and social worlds. Such remix creations may run these artists afoul of copyright law as owners of rights associated with cultural artifacts increasingly demand payments, or threaten users with cease and desist letters and legal transactions costs.

Imagine this scenario. A documentary film is being made. In one scene, the actor is watching television and his cell phone rings in the background. Its ring tone is a MIDI version of the theme from the motion picture Rocky. Just prior to release of her film, the filmmaker is told that rights to use the few seconds of the television program are not available, and that the use of the theme song will cost her $US10,000. Does the artist cut the television scene and pay for using the song snippet, possibly compromising her work? Does she substitute another television program and ring tone, these without necessity for clearance or payment? Or, does she ignore the demand for payment, claiming fair use?

Such a scenario forms the plot for Bound By Law? Tales from the Public Domain, a book by law professors Keith Aoki, James Boyle, and Jennifer Jenkins, the director of Duke University's Center for the Study of the Public Domain. Boyle is one of the founders of the Center, and Aoki is a lawyer and longtime cartoonist whose work provides the medium for their book. Interestingly, Bound By Law? is a comic book, its black and white illustrated pages using hundreds of copyrighted works to tell a story of the effects of the ownership and control of intellectual property on art and culture.

Aoki, Boyle, and Jenkins argue that documentary films, of all digital media, are the most vivid visual records of our history, our culture, and our controversies. But how can documentary filmmakers (and other artists) work with the material they need to interpret, critique, or parody culture when a large audience of citizens and policymakers decry flourishing digital media as a threat, a rise of a "pirate culture of lawlessness" (68)? At the same time, how can artists work with a copyright law that, due to its retrospective lengthening, effectively places most cultural artifacts off limits, even though they are commercially unavailable and their authors cannot be found?

According to Aoki, Boyle, and Jenkins, the threats and opportunities in both questions are real although not often apparent in a culture of fear and legal threats. Private gatekeepers, using copyright law as an excuse, often impose conditions on artists who lack the information and power to resist. As a result, many artists see copyright only as an impediment, a failure, something to disrespect, ignore, violate.

But, as the authors argue, and show, in their unique book about a complex topic, copyright is not an end in itself. The demand for payment or clearance have nothing to do with copyright law as it now stands, but rather the evolution of a "permissions culture" (68) premised on the belief that copyright law gives its owners the right to demand payment for every type of use, no matter its length, or its purpose, or the context in which it is set. Aoki, Boyle, and Jenkins, as characters in their own book, guide the young documentary filmmaker through a series of examples where courts have found in favor of remix, collage, or use for parody of samples from previously copyrighted materials.

In a world where copyright may be adjusting poorly to the fact that everyone can have their own digital printing press, Bound By Law? shows how copyright, originally designed to promote "the progress of science and the useful arts" (68), can be used as a tool by current-day media artists to promote the creation and distribution of knowledge and culture through their own, copyrighted works, that may include references to previous works.

Bound By Law? is the first in a series from Duke's Center for the Study of the Public Domain dealing with the most pressing issues facing law, art, property, and an increasingly digital world of remixed culture. By following the collision of documentary filmmaking and intellectual property law, Bound By Law? navigates the twists and turns of how copyright and fair use affect art and culture. In the end, the authors call for a "cultural environmentalism" (64) that provides for a sustainable development of and understanding regarding the balance between what is owned and what is free for everyone to use. Although unusual, the comic book format may be the exact recipe for introducing copyright law to students and other perplexed individuals who worry about how creativity will flourish in a world where every snippet and fragment is owned and controlled.