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Book Review: Bound by Law?

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It seems appropriate that the first image you see when you open this work is reminiscent of the Crypt Keeper. After all, the topic is something most people fear – law. In fact, the specific area, copyright law, even causes the knees of some lawyers to quake.

Bound by Law? is a comic book (or graphic novel if you prefer) issued by the Center for the Study of the Public Domain at Duke Law School. It seeks to explain to the layperson two of the thornier issues in modern US copyright law for writers, musicians, artists, and filmmakers.

The work (written by James Boyle and Jennifer Jenkins and illustrated by Keith Aoki) uses a documentary filmmaker to examine the impact of the doctrines of “public domain” and “fair use.” The public domain is comprised of material on which copyright never existed or has expired and, hence, can be freely used by the public at large. Fair use is a statutory exception to the copyright laws that allows use of portions of copyrighted material for a variety of purposes as long as the use doesn’t exceed the boundaries of a four-factor test the law establishes.

Why a comic book and a focus on documentary filmmaking? Because they are excellent vehicles for exploring the issues.

The work’s filmmaker wants to make a documentary of a day in the life of New York City. She encounters what anyone would, albeit perhaps to a greater degree. Almost everywhere she goes there is copyrighted or trademarked material: music on the street or in a nightclub; a program or movie on the television in a particular room; or the logos that are ubiquitous at almost any sporting event. To figure out if she can use any or all of these materials without being sued for copyright infringement, she needs to sort out whether the material is protected or in the public domain. If it is protected, does her use constitute fair use?

Similarly, a comic book graphically demonstrates the seemingly endless circles and mazes in which an artist or writer can be led trying to sort out these questions. Bound by Law? also frequently relies on a montage or mix approach that displays how material which may or may not be in the public domain or may or may not be copyrighted plays a role in the expression of ideas. The latter is used to particular effect. As might be expected from strong advocates of the fair use doctrine, the book is replete with undoubtedly copyrighted and trademarked images, logos and symbols. Thus, the comic book not only illustrates but makes a point far better than a traditional written work.

The problem today is at least two-fold. First, Congress has repeatedly changed and extended the length of time before copyrighted work falls into the public domain. These actions have effectively resulted in most of 20th century culture being protected for almost 100 years. Likewise, much of the material published today likely will be protected into the 22nd century.

The problem with fair use stems not only from a lack of clear rules but also the fact some copyright holders have taken a very tough — some might say extortionate — stance. Bound by Law? points out a variety of situations in which works had to be cut or modified because of the money the copyright holder demanded in exchange for using a few seconds or snippet of their material.

Bound by Law? brings these complex issues across in a simple, enjoyable style. Not only does it show the firsthand impact of the issues, it also educates about a variety of relevant court decisions. It is also a commentary on trying to make intellectual property law a benefit rather than a hindrance to modern creative work. Some of its references in this regard are subtle, others more straightforward.

The former is seen from the outset. In the very first panel, the book quietly acknowledges the contributions of Lawrence Lessig, a Stanford University law professor in the forefront of arguing that intellectual property laws are hindering creative freedom and technology. Lessig isn’t mentioned in the panel. Rather, the titles of several of his books appear on a bookshelf, together with the titles of other works exploring how copyright fits with new media and new technology. Lessig makes a later cameo appearance as the Statute of Liberty, holding a video camera as his torch and a copy of his most recent work in lieu of a tablet in the left hand.

More explicit is a closing discussion of “cultural environmentalism” as an approach for a future copyright system. Initially proposed by Boyle a decade ago, the theory is that just as the environmental movement demonstrated the impact social and policy decisions had on the environment, cultural environmentalists should show the public how intellectual property laws affect culture. The idea has taken root among a wide number of individuals (including Lessig) who continue to examine how to strike a balance between protecting intellectual property and encouraging creativity in an increasingly remixed culture.

Bound by Law? won’t qualify anyone for membership in any professional organizations dedicated to intellectual property law. In fact, carrying it might alone be sufficient to keep a person out of some of those groups. But the aim isn’t to make readers intellectual property experts. Rather, the goal is to educate artists and the public about current issues and provide commentary by those who believe copyright law must be fixed to remain a useful tool in a digital world. And, speaking from experience, a comic book is a helluva a better way to learn this than a case book or law review article.

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About Tim Gebhart

Tim Gebhart is a book addict living in Sioux Falls, S.D., where he practices law to provide shelter for his family, books and dogs.