The French design firm H5 has been responsible for some of the most remarkable graphics-oriented music videos and short films of the past decade and their Logorama, which won the Academy Award for Best Animated Short Film is no exception. In order to be eligible for the Oscar, Logorama screened briefly in Los Angeles last December as part of the Flux festival and I read about it for the first time on Holly Willis’ Blur+Sharpen blog on KCET. Since fair use does not apply to trademark appropriation, it was hard to imagine how H5 got away with trashing literally hundreds of icons of Euro-American consumer culture. The answer lies in trademark law’s relatively narrow concern with brand identification and prevention of confusion among consumers. Ironically, the very audacity of H5′s appropriation would seem to ensure that no reasonable consumer could believe that Logorama‘s profane, hyperviolent Ronald McDonald was associated in any way with the McDonald’s corporation. Sadly, both H5′s website and the Logorama site include only the opening sequence of the film (less than two minutes of the complete 16 minute short), accompanied by a perky, nostalgic Dean Martin crooning “Good Morning Life” which belies the shooting, earthquakes and general destruction that ensue.
I spent the morning catching up on some recent talks by Lawrence Lessig in anticipation of my Critical Commons presentation at the Society for Cinema and Media Studies conference next week. Two excellent illustrated lectures have gone online (and were also amusingly taken down thanks to the automated DMCA trolls from Warner Music Group) in recent weeks: one from Lessig’s address at TEDxNYED last weekend in New York; another from last month’s “Wireside Chat” organized by the Open Video Alliance. USC was a local host of the OVA event, which was broadcast live via the internets from Harvard Law School. The two talks include some duplication of examples, but, in combination, give evidence of a significant shift in Lessig’s thinking about fair use. A few years ago, when we were first conceiving of Critical Commons, Lessig’s negativity about fair use rang loudly in my ears — his oft-repeated statement that “fair use is the right to hire a lawyer” — hardly seemed like a principle worth fighting for, but his preference for the tiered licensing of Creative Commons was of no use to educators wanting to teach with copyrighted media. It was only after a subsequent talk by American University’s Peter Jaszi, the legal mind behind the Center for Social Media’s Best Practices in Fair Use guidelines, that we decided to move forward with the project, focusing on the advocacy and expansion of fair use. Lessig’s current, pro-fair use stance seems to be motivated in part by the fact that court decisions have been weighing heavily and consistently in favor of fair use these days. In his typically erudite fashion and signature style of wryly synchronized keywords and graphics, Lessig celebrates the emergence of remix cultures across the internets, likening it to the kind of shared, non-commercial cultural production that is characteristic of pre-industrial societies. Lessig also links the power of remix to a commitment to free code and free codecs. But in the end his real message was about politics. Attempting to sidestep the polarization of the liberal/conservative binary, Lessig made the case for conservatives as agents of support for common culture; citing the abysmal record of democratic politicians in enacting substantive legislative change. Indeed, Lessig’s key argument was to support political action in congress rather than rely on the courts and to continue to enrich culture via fair use.