Unaccompanied Bugs (or Copyright Anxiety)

stink bug nymph aggregate

Bugs are some of the “original” copyright infringers. Look at all those copies (stink bug nymph aggregate).

So I had the brilliant idea of taking a popular song that happened to play on my iTunes one day and set the lyrics as captions to some of my photos. There was flying and being this and that and rain and tears, and I knew I had a bunch of photos to match up with them. In a way it’s kind of lame but also silly and amusing. I searched for the lyrics to make sure I was getting them right. A bunch of “lyrics sites” came up, and I clicked on the first or second listing and read through the song. Then all of a sudden it occurred to me that it was odd they get to reprint them. I looked at their terms of service which is always a fine-print headache. My conclusion was they did not really have any rights to reprint the lyrics. (They had the amateurish “Let us know if we’re copyright infringing, we’d hate to do that to you or have it done to us, blah blah blah” in there.) Then the next light bulb went on: what kind of rights did I have to them? Lonstoryshort, none.

Not as short: I looked up fair use, which I was vaguely familiar with and figured was the only likely usage I might have. I also looked up paraphrasing copyrighted material. A cursory Internet search is probably not the best way to understand all this, but Wikipedia and a few other sites, gave me an outline of how it works (in the US anyway). Fair use is determined on four factors set out in the Copyright Act of 1976 (as quoted from Wikipedia “Fair use” entry linked above):

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

I don’t really have the stomach to go through them in any detail, but the fact I offer for sale photographs here seems to exclude me on number one, as essentially it is to promote my own work. There is a measure of importance in the Purpose and Character factor as to whether the work is transformative (versus derivative), but I don’t think my pasting lyrics as captions onto my spider, fly and bee photographs counts as transformative. Perhaps, if I rewrote it as a parody, or maybe even just claimed the nature of the photos paired with the lyrics made it a parody — perhaps then it might be considered transformative. Of course, “transformative” in this case is legal jargon, so who knows what it really means (lawyer and judges). I’m exaggerating, but the language is very intimidating and unintuitive. In some ways, much like our political process and governance, it seems designed to obfuscate in order to serve powerful interests. As a photographer and writer, I certainly am not trying to diminish the importance of copyright, but this bureaucratification of language and intuition itself is very frightening; the more I read, the more I get a creeping feeling of disenfranchisement.

From a photography perspective, breaching infringement does not concern me a lot (except for my infrequent street photography which seems fraught with similar usage concerns); my macro work tends to be simply composed and personal, though I suppose at some point I could be accused of misappropriating a “style.” On the other side of it, I am sure someone will infringe upon my photographic work (if they already haven’t), and maybe I’ll appreciate the complexities of these laws more. What really gets me, however, is when I come at this subject as a writer. It makes me very nervous (which is why I looked up paraphrasing specifically). It seems writers and artists have been drawing upon and alluding to works other than their own for ages, but I’m not so sure what constitutes a literary allusion and a copyright infringement right now. I will obviously have to look into this more, but until then, when I write things I will probably eschew certain details that refer to copyrighted entities even though they might enhance the realism or suspension of disbelief.

In a related bit, the nebulous YouTube realm of potential copyright infringements is yet another area I know little about — how YouTube performances, mixes, and homemade videos of pop songs are not infringements is very unclear to me. (A very quick search calls cover bands into questions as well!) For myself, a few years ago I posted a couple videos on YouTube featuring jumping spiders each set to a pop song, but as I am trying to be more sensitive to copyrights, they are coming down (not that many besides myself will have noticed – which of course should be noted does not constitute a legal defense). I even received an email from YouTube in recent months referring to one of the videos which told me there may be an infringement but don’t worry about it so much (more or less). Well, now I won’t. So in conclusion, no pop song-inspired bug photo series or videos for now.

And, oh yeah. Stink bugs.


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