It’s easier to ask for forgiveness than it is to get permission: plain english rules of thumb for APPROPRIATION. By Mike Atkins.

(Please note, these are rules that I have learnt in my time as an artist. I have learnt these from self-directed research, and from asking expert advise (mostly librarians, and tutors). These rules have kept me out of trouble, and that why I'm passing them on. But do not take them as the gospel truth. And if you do want to shoot your mouth off at someone who you believe has breached your copyright, or you run afoul of someone else's copyright, please get real advise, -like from a lawyer).

We had an incident at an event which shall go unnamed where our photographer was told not to take a shot by a photographer who had recently taken a similar shot. 'It's been copyrighted' he was told. It is true that in most countries, copyright does not need to be asserted, and is implied by the mere creation of the work. But two photos of the same thing are not the same creation. The issue is a non-issue. Except, there are a lot of misconceptions about what is, and is not allowed. Not just in the sense of what is allowed by law, but also in the sense of what is generally allowed by the copyright holder. It is often

assumed that all artists are fair people, who will let you use their work as long as the use is fair (Hence: the term, fair use). This is not the case, artists can be as petty as anyone else (I suspect that even the ones who believe in a vast utopian creative commons wouldn't put their money where their mouth is). That is why «fair use» is a legal custom.

The standard for fair use is 'for comment or criticism of the original work or artist'. That means, in the strictest sense, that if you're writing a book review, you can print passages of the book to say «see, this is what I'm talking about». Of course, it's not always used in the strictest sense. So, it's been known to cover everything from Weird-Al Yankovich style parodies, to film clips being shown on TV screens in the backgrounds of movies.

Now note, I said «...has been used to...», that's because it's a legal custom, not a law. It's applied on a case by case basis, and therefore doesn't automatically protect you. This is a good thing. If it were sterner, it would have to be better defined, and there would be so many circumstances that it would necessarily exclude that it would offer almost no protection at all.

The lack of legal codification also protects it from abuses, like the recent case in the states where a republican senator used two songs by Eagles frontman Don Henley in campaign attack ads. He claimed he was using the songs to attack Henley (a notorious liberal), rather than the opposing political party. It was a smart strategy, but it didn't work, there's been a tentative ruling against him.

The bottom line is that you cannot rely on fair use, but it makes a good rule of thumb. -It makes appropriation in good faith possible, but not necessarily easy. It's the uneasy border control between intellectual property, and freedom of speech. And it's written into international copyright law, so although it's an American thing, it goes wherever copyrights go.

Here are some common misconceptions about fair use. To avoid the need for further clarification, they are all untrue.

It's automatic. No, you might have • to fight for it.

It's only a last resort, copyrights • are almost aways waived as long as you ask nicely. No, I've seen to many bright ideas dashed because people were dumb enough to ask for permission. Like I say, artists can be as petty as the rest of us.

Profit is the standard for fair use. • Anything's legal as long as you don't make a profit from it. No, If it's genuine comment or criticism of the original work or artist it can make you rich, but if it's not, you could be doing it for charity, and you'd still get in trouble.

Copyright needs to be asserted, • or else it's fair game. No, In most places, copyright is implied by the creation of the piece. That's why fair use exists.

The 30% rule. -You can use up • to, but no more than 30% of any copyrighted material for any reason. If you believe this, you believe that Marilyn Manson had his lower ribs removed so that he could perform auto-fellatio, and that Elton John had a gallon of seamen pumped from his stomach. I don't know where this came from, but I wish people would stop repeating it.

The best advise I've ever heard on the subject, is the quote above which I've used as a title. I believe it's attributed to the graffiti artist Banksy. But take it in concurrence with the advise: 'don't be a dick', because fair use certainly won't help you if you do not act in good faith.