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- <text id=93TT0765>
- <title>
- Dec. 13, 1993: The Arts & Media:Music
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1993
- Dec. 13, 1993 The Big Three:Chrysler, Ford, and GM
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- SPECTATOR, Page 93
- The Freedom To Ridicule
- </hdr>
- <body>
- <p>By Kurt Andersen
- </p>
- <p> Let's say I'm writing a column for TIME and want to demonstrate
- what a lame novelist Robert James Waller is. Easy, in every
- sense. I get a copy of Slow Waltz in Cedar Bend (which is published
- by Time Warner), pluck out a piece of lazy prose, and print
- it here: "A monkey called, sounding far and lonesome. The classic
- jungle sound from old Tarzan movies." Or I could go a step further
- and mimic Waller, as Billy Frolick does in his new book-length
- parody, The Ditches of Edison County ("Concave's scream echoed
- through the canyons and ditches of Edison County, all the way
- to a farmhouse on the other end of town"). The legal principle
- that permits us to quote or closely imitate Waller's writing
- is "fair use," which carves out a small free-fire zone within
- which critics and parodists get a commonsensical exemption from
- the laws against copyright infringement. To quote, in other
- words, is not to infringe. Isn't America's free marketplace
- of ideas glorious?
- </p>
- <p> Now let's say I'm a commentator on TV and want to demonstrate
- what a dreadful sitcom Cafe Americain is, or how sappy Barbara
- Walters' interviews are, or the creepiness of Michael Jackson's
- music videos. Could I turn on the VCR, pluck out some telling
- snippets, then use those clips as video "quotes" to illustrate
- my criticisms? No, I could not, as I discovered firsthand, again
- and again, in the course of producing three specials for two
- different networks between 1990 and 1992. Although fair use
- theoretically applies to television just as it does to magazines
- and newspapers, as a practical matter it exists intermittently
- at best in broadcasting.
- </p>
- <p> Certainly the network TV system is rigged heavily against fair
- use. For one thing, the insurance companies that provide the
- obligatory "errors and omissions" insurance for TV productions
- demand that each clip come with a permission slip from its copyright
- owner. (Imagine if a book critic had to get Rush Limbaugh's
- permission to quote his prose in a review, and maybe pay him
- for the privilege; that's precisely the situation in TV.) Furthermore,
- television "signal piracy"--that is, merely taping and then
- broadcasting 10 seconds of Barbara Walters in order to critique
- her performance--is a federal crime. Well, then, could one
- at least produce a high-verisimilitude parody of Michael Jackson's
- Man in the Mirror? No, not if the Supreme Court upholds an appeals
- court ruling that 2 Live Crew "stole" Roy Orbison's 1964 song
- Oh, Pretty Woman when the group released a rap parody of the
- tune in 1989. (As it happens, Jackson himself has signed a friend-of-the-court
- brief against 2 Live Crew's parody.)
- </p>
- <p> The shrunken state of free speech on TV is especially disturbing
- given the imminent roll-out of the information superhighway,
- which promises to make the American marketplace of ideas an
- almost entirely video realm in the 21st century. A good part
- of our intellectual transactions may start taking place in the
- digitized ether. Meantime, the proliferation of channels and
- programs is improbably transforming a few TV companies into
- guerrilla fighters on behalf of fair use. David Nuell, executive
- producer of Entertainment Tonight until a year ago (and now
- creating a similar program for Time Warner), regularly took
- clips from movies and TV shows without permission when the scenes
- had some journalistic value. "We'd make a courtesy call if it
- was a clip of somebody litigious, [like] a Frank Sinatra,"
- Nuell says. "But we made our own news judgments. If our attorney
- said it was fair use, we'd take it." Alas, the legal criteria--How did you get the clip? How much are you showing? To what
- end?--are slightly murky, and lawyers tend to hem, haw and
- fret toward a veto. "There were four or five different attorneys
- at Paramount," says Nuell of the company that produces Entertainment
- Tonight. "And we'd get four or five different opinions."
- </p>
- <p> Steven Paul Mark is the lawyer for cable TV's Comedy Central
- (half-owned by Time Warner). His pursuit of the channel's right
- to lift and satirize TV programs without permission--music
- videos, network news coverage of the 1992 presidential nominating
- conventions--is stalwart and heartening, and happens to make
- for good publicity as well. "I'm very aggressive about fair
- use," Mark says, "and I give some of my colleagues hives." He
- agrees that in TV, fair use is all but mooted by contradictory
- federal laws. Since fair use is allowed under copyright law,
- then it also should be under the Communications Act--which
- now makes it illegal to tape and "quote" from TV shows on TV.
- "We haven't decided if--that is, when--we are going to fight
- that," says Mark.
- </p>
- <p> During last month's oral arguments before the Supreme Court
- in the 2 Live Crew case, the Justices (with the interesting
- exception of Clarence Thomas) seemed emphatically engaged in
- the issue. If the court's decision goes the wrong way, it will
- surely make journalists as well as ironists more hesitant to
- expose and criticize by mimicking or quoting the powerful and
- celebrated. Even paper-and-ink scribblers are in jeopardy. A
- bill now sliding through Congress would ratchet up the incentives
- for plaintiffs to sue for any sort of copyright infringement,
- making it riskier for a newspaper to publish, say, a leaked
- corporate memo. A lawyer for a major book publisher says such
- a law "would definitely have a chilling effect. We make these
- decisions five times a day. We're conservative. And we'll have
- to be more conservative." The New Republic is America's finest
- journal of opinion. But if it is illegal to parody a Roy Orbison
- song, then isn't it illegal for The New Republic to have published
- on its cover this week a dead-on parody of a Batman and Robin
- comic-book panel? After all, Time Warner owns Batman and Robin.
- </p>
-
- </body>
- </article>
- </text>
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