Most of you are familiar with the work of David Rees, even if you’ve never heard his name before.  He’s the creator of Get Your War On, by my recollection one of the first prominent satirical works to point out that our previous president was not only lovably dopey, but also terrifyingly dopey.  The political content of Get Your War On is not my focus, though.  It’s Rees’ transformative use of images in the public domain, Jamba Juice’ subsequent, wholesale, “fair use” ripoff of Rees’ stylistic choices, and the apparent complete inability of BoingBoing’s commenters to understand what the words “transformative, “fair use,” and “public domain” actually mean.

Here’s an example of one of Rees’ strips:

And here is Jamba Juice’s uncredited homage to Rees:

The reaction of BoingBoing’s commenters, when various contributors wrote about the situation earlier in the year, was shockingly cynical.  The general consensus?  “If this guy wants to claim ownership he should have invented something new.”  The mind boggles.

Among the really, really stupid claims made by BoingBoing’s commenters:

-Rees’ work is in the public domain, because the clip art he used is in the public domain.

Great!  I guess I can go and sell burned copies of Bob Dylan’s first album on the street with my name and picture slapped on top of his…  after all, it’s largely comprised of traditional songs!  That makes sense.

-People are just mad because it’s a corporation ripping off an individual, but no one would say anything if it was the other way around!

That’s because individuals do this all the time in the context of parody.  Which is protected, and absolutely should be.  In what way is Jamba Juice attempting a parody?

Additionally, Jamba Juice was using Rees’ work to make money for themselves.  This is where the word “copyright” comes in: Rees has the right to copy his own work for sale, Jamba Juice does not.

-Rees’ style isn’t transformative, because he uses elements other comics arists have used for decades.  Like, the thought bubbles with the little lines are from Krazy Kat, man!

“Transformative” and “inarguably original” aren’t synonymous.  Rees’ style is immediately recognizable, and Jamba Juice aped it with an incredible amount of detail, adding nothing substantive, and giving no credit to the original artist.  (Whether or not Rees gave credit to the creators of the clip art is a non-starter… that’s the lovely thing about using works that are wholly within the public domain.)  Whether or not you think Rees’ style is sufficiently original is another non-fucking-starter, guys, as far as the ethical implications go.  That the Jamba Juice ads inspired such a relative uproar indicates that his style is distinctive enough.

The baffling and somewhat distressing mistake almost all of BB’s commenters make is conflating what is legal with what is ethical.  True, Rees probably doesn’t have a very strong case against Jamba Juice: they promptly took the ads down when he stated his disapproval, for one, and it would be hard to argue that Rees directly lost any revenue to Jamba Juice.

But equating the appropriation of an individual’s work for advertising purposes with, say, the Grey Album is batshit crazy, unless you regard all art as a form of marketing.  If all individually produced art is subject to potential co-option by the marketing departments of large corporations, then the only safe place to produce said art is within the walls of those corporations.  Unfortunately, these things usually come down to which party has better legal resources at the behest.  Not surprisingly, this is almost always the massive bureaucratic for-profit entity that has the same legal rights as a person, despite not being a person.

One of the few useful cases I can point to for reference (and hope!) is Waits vs Frito Lay Inc. Yes, that Tom Waits.  Yes, that Frito Lay.

The basic facts are these: Tom Waits has a distinctive, immediately recognizable voice and style.  He doesn’t allow his music to be used in commercials (although he has recorded a voiceover for one, weirdly.)  Frito Lays contacted Waits to use one of his songs, and he said no.  Subsequently, Frito Lays recorded a song in Waits’ style and voice and used it in an ad.  Waits sued and won.  Frito Lay appealed and lost.  A juicy tidbit from the appeal:

‘In Midler v. Ford Motor Co, we held that “when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.”‘

Basically, Frito Lay claims both a voice is not in and of itself copyrightable -because it has no fixed content- and this claim is rejected.  Frito Lays’ admitted imitation of Waits’ style is not at issue, because it isn’t protected in this context.

But it is clear that while the distinction between style and voice in music has no clear analogue in graphic design/art, some amount of protection should be afforded to an artist with a distinctive voice/style who doesn’t want his work to be use commercially.  Within the graphic art realm, voice and style are even more closely intermingled, leaving the independent artist without a clear understanding of how much of his work is protected, or even distinctly his.

Those within the Boing Boing snark echo chamber who bring up “fair use” seem to have little understanding of how this term has actually been applied… arbitrarily and indiscriminately, as when the Turtles sued De La Soul over a short sample from a song the culture at large had long forgotten. This is an incident where the resulting work bore little to no resemblance to the source material; any rational application of “fair use” would give De La Soul a pass.

But, it didn’t matter.  The Turtles and their legal team won a settlement not because they could prove a loss of revenue, or confusion over ownership, but because both parties knew the plaintiff would outlast the defendant.

Am I arguing that individual, under-resourced artists should be afforded somewhat more protection and more leeway than corporations with copyright issues?  Maybe.  This is pretty complex stuff, and I’m only passingly familiar with a lot of the legal issues and precedents involved.  But I fear that a broadening of fair use within the current legal system will result in a net gain for the forces of soul-sucking capitalism, and nothing for those who do the actual creative work.  And as long as the lefty Internet doesn’t come to the defense of guys like David Rees, I think my concern is totally justified.