Sometimes Fair Use Blows

My first year students have been struggling with a section from Kwame Appiah's Cosmopolitanism for the last couple of weeks, and I've been having trouble helping them translate it into matters they can grasp, but I think I might have found an inroad.

I'm assuming that most of you haven't read the book, but the section I'm teaching deals with cultural patrimony, and one part in particular talks about a culture's desire to control its cultural property, especially as it pertains to intellectual property law, can actually cause the culture to disappear and become less relevant to the wider cultural conversation. For instance, if an aboriginal culture was able to restrict the use of the music of their culture to only those people who would agree to use it in a particular way, that culture would likely find itself losing the very thing it was trying to protect. By trying to keep their culture "pure," they very well might kill it off, instead of introducing it to a new generation of people who might embrace it.

Now you'd think that a generation raised in the age of sampling would be able to grasp this notion of taking a work of art and transforming it into something else, but sadly, it hasn't quite taken hold. Maybe it's because the notion of using other peoples' art has become ubiquitous--maybe it's because they're just young and clueless, I don't know--but when they do get it on some small level, they tend to look at it as an unabashed good. That's probably my fault, as the examples I've come up with have been positive ones--the Shepard Fairey Obama poster got a little recognition, for example.

But I think I've found a good counter-example.

This is the video of the Bank of America/Washington Mutual meeting, and that's two utterly clueless bank employees singing the praises of the merger to the tune of U2's "One." I found it at The Rumpus a few days ago, and I didn't know what to do with it until I saw the first comment, which suggested that Bono should sue.

But he can't--this is an example of Fair Use, so far as I can tell. The same rules apply to this that apply to Weird Al Yankovic (though I'm far fonder of Weird Al than I am of these guys). If the Bank of America wanted to release this as a single--and their management might still be bad enough to consider it--then all they'd have to do is license the composition, and Bono couldn't do anything to stop it. The concept of Fair Use includes having people take our art and transform it in ways we (or our fans) might not like, but the tradeoff is that we get to take things we find weird or quirky or even banal and use them to create our own work. That's how art helps cultures which might otherwise disappear from public view gain an audience of appreciators. That's a deal I'll make every time.

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