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Phoenix (the band) Stands Up For Copyright Fair Use

Phoenix (the band) Stands Up For Copyright Fair Use

Phoenix, the French rock band behind the hits 1901 and Lisztomania, have come out in favor of fair use of their copyrighted works. Do these kinds of statements signal a move towards a more rational understanding of copyright law?

For years, it’s seemed that copyright law – and copyright holders – have reflexively acted against any non-authorized use of copyrighted works. Why should we care about non-authorized uses? Because copyright law is necessarily limited by free speech considerations. In the US, the ideas of copyright protection and the protection of free speech were both enshrined in the Constitution by our nation’s founders. Other countries’ national laws and treaties grapple with the same tension.

We call the intersection of copyright and free speech “fair use.” My sense is that the tide is turning towards a more liberal view of what fair use should look like.

US copyright law assigns 4 factors to consider when a court is presented with a fair use defense to a claim of copyright infringement. I discussed the four factors in this blog post, among others. However, like any multi-part legal test, there is enough grey area that shifting opinions over time will substantially affect the result of any particular application of the test.

Pitchfork has a story summarizing how Phoenix became involved with a fair use issue:

The back story behind this is a bit confusing, so bear with me: In 2010, Harvard Law School professor and Creative Commons co-founder Lawrence Lessig delivered a lecture called “Open” at a Creative Commons conference. His lecture featured clips of home dance videos soundtracked to pieces of “Lisztomania”. Lessig cited the clips as good examples of fair-use, and a video of his lecture was uploaded to YouTube.

This caught the attention of Liberation Music, the label that licenses and distributes “Lisztomania” in Australia and New Zealand. Liberation issued a YouTube take-down notice on the lecture’s video and threatened to sue Lessig. He responded by suing Liberation for “misusing copyright law.”

According to Billboard, the suit was settled “amicably” this week when Liberation admitted to being wrong and agreed to pay a fee.

Phoenix released a statement on their blog:

We support fair use of our music!

We were upset to find out that a lecture by Professor Lawrence Lessig titled ‘Open’ was removed from YouTube without review, under the mistaken belief that it infringed our copyright interests.
This lecture about fair-use included—as examples—bits of spontaneous fan videos using our song “Lisztomania”.
Not only do we welcome the illustrative use of our music for educational purposes, but, more broadly, we encourage people getting inspired and making their own versions of our songs and videos and posting the result online.
One of the great beauties of the digital era is to liberate spontaneous creativity—it might be a chaotic space of free association sometimes but the contemporary experience of digital re-meditation is enormously liberating.
We don’t feel the least alienated by this; appropriation and recontextualization is a long-standing behavior that has just been made easier and more visible by the ubiquity of the internet.
In a few words:
We absolutely support fair use of our music.
And we can only encourage a new copyright policy that protects fair use as much as every creators’ legitimate interests.

Since the beginning of civilization, artists have built upon what has come before. An overly-strict copyright posture can cause that process to grind to a halt; imposing costs on all parties, encouraging rent-seeking, and suppressing creativity. These are not the goals of a rational copyright scheme. I support Phoenix and Lessig for standing up for freedom of speech and expression – especially in situations like these, where the artist doesn’t stand to suffer in terms of financial receipts or reputation.


(Photo of Phoenix singer Thomas Mars used under license of Wikimedia Commons user Rama.)

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