Can’t Get Away From Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

Copyright owners accuse library advocates of having fair use on the brain, but the truth is that we just can’t get away from fair use. Over Presidents’ Day Weekend, I saw the touring production of Something Rotten with my son at the National Theatre in Washington DC. I knew nothing about the show before I went, other than that my wife thought I would love it, even though I don’t care for musicals; and that the title was an allusion to the line in Shakespeare’s Hamlet that “Something is rotten in the State of Denmark.”

Well I did love it, and not only because it was very entertaining. It also demonstrated the importance of the fair use and the public domain to new creative expression. The show concerns the efforts of two brothers in London in the 1590s struggling to compete with the popularity of William Shakespeare. Desperate to find an idea for a new play, one brother consults a soothsayer to learn what sorts of plays would be popular in the future, and what would be the subject of Shakespeare’s next hit. The soothsayer informs him that audiences will love musicals, and that Shakespeare’s next play will involve eggs, ghosts, and danish.

The brother is skeptical about the concept of musicals—why would actors suddenly start to sing? This skepticism leads to an eight-minute song that contains lyrics, melodies, and visual references to at least twenty musicals, including Avenue Q, The Fantasticks, Les Miserables, Fascinating Rhythm, West Side Story, Music Man, Seussical, South Pacific, Chicago, Evita, Rent, Jesus Christ Superstar, Sunday in the Park with George, Annie, Guys & Dolls, Sweet Charity, Hello Dolly, Cats, Sweeny Todd, and A Chorus Line. The musical the brothers ultimately produce (Omlette: the Musical) contains lines or melodies from Fiddler on the Roof, The Producers, Phantom of the Opera, Sound of Music, Mary Poppins, and Oklahoma.

Moreover, Something Rotten contains numerous quotations and characters from Hamlet, Romeo and Juliet, The Merchant of Venice, A Midsummer Night’s Dream, and Henry IV.

In short, without fair use and copyright term, Something Rotten could not have been created and produced. And it wasn’t exactly a fringe production. It had a run of 742 performances on Broadway, and it was nominated for ten Tony Awards. The actor who played Shakespeare, Christian Borle, won the Tony for best featured actor in a musical.

Existing expression is the raw material for new expression. And for new expression to be fresh and topical, authors must be able to use works more recent than Shakespeare’s.

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