Where There’s Smoke There’s Fire, or, Copyright Shitfuckery

Last week I ran into Lopi LaRoe, a dear comrade, on May Day.  Lopi is a fabulous artist here in New York and has done a lot of beautiful work for various radical projects.  Anyway, she said that she’d recently gotten a stop & desist letter for her use of Smokey the Bear in anti-fracking images.

Wait, what?

If you know anything about copyright, your mind went straight to one of two places — either fair use or government.  You are thinking either that Lopi’s remix of Smokey is arguably a-ok under fair use, or that Smokey is a government creation and therefore in the public domain.

And in a world other than the one it seems we are actually living in, you’d be justified in thinking either of these things.

I’ve written previously about how arguing for fair use often comes down to who can withstand court battles longer.  And when I spoke with her, as well as in media coverage, Lopi is prepared to go there.  There are four points to consider when talking about fair use, as anyone who’s made it through library school had drilled into their head:

1. Purpose & character.  Is it transformative?  Has something new been added, has it been given new meaning?  Or is it just a verbatim copy?
2. The nature of the copied work.  Facts are less copyrightable than more creative works.
3. Amount & substantiality.  How much has been used, and how intrinsic that portion is to the original.
4. Effect on the original work’s value & its market.  Not only whether the new work makes its creator any money, but also whether the new work impinges on potential profit from the original work.

None of these factors outweighs any of the others, and all must be taken into account when fair use is being judged.  It is my professional opinion that Lopi has a pretty strong argument for fair use of Smokey.

But wait, you are thinking, fair use is kind of a moot point.  Smokey is owned by the government, and therefore in the public domain, so Lopi or any of us can do whatever we want with it, right?  Not quite.  Smokey does belong to the U.S. Department of Agriculture Forest Service, that’s true.  But there was a law passed in 1952 — the Smokey Bear Act — that said the image and name could only be used for forest fire prevention. The National Association of Foresters and the Advertising Council (though if the Ad Council did it for hire from the federal government, that makes it property of the hirer, that is, the government, so WFT?) also have some claim to Smokey.  If you ask me, such a law should be unconstitutional, but then we are back to the points made in my previous article (linked to above), where one needs time, money, fortitude, and an agreeable judge for such things to happen.

Anyway, Lopi is facing up to six months in prison and fines up to $150,000.  But if this does end up in court, I think she has a pretty good chance, especially since the Forest Service lost another case over Smokey in 1992.  In the meantime, remember, only you can prevent faucet fires.

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About oneofthelibrarians

Respectable mid-career librarian by day, dirty street librarian by night & other days.

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