Fair Use, Fairy Tales, and Collage: more proof Girl Talk won’t be stopped

Professor Eric Faden of Bucknell University created this brilliant account of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. The fact it has never been forced down is to me proof positive that legitimate, non-infringing fair use can consist entirely of copied and pasted copyrighted works. Which is proof positive to me that I am right in believing that Greg Gillis/Girl Talk  need not worry should he ever be sued for infringement of the copyright of any of the samples he uses.

I do think this video is deficient in one respect: it doesn’t sufficiently discuss the importance in the fair use analysis of the originality of the allegedly infringing work — it suggests parody, journalism, and criticism are legitimate, non-infringing uses of small parts of copyrighted works, but it doesn’t connect these individual examples of transformative work to the larger point: if the allegedly infringing work stands on its own — if it uses the copyrighted work to express something the copyrighted work doesn’t express to reach an audience for a different purpose than the copyrighted work’s audience comes to the copyrighted work for — then it is “transformative” and very, very likely not to be infringing. (If it is tranformative, it’s not going to have an impact on the market for the original or any of the original’s reasonably anticipated derivative uses.)

The funny thing is that the video doesn’t discuss the larger issues relating to the nature of the allegedly infringing work and how tranformative it is, but the video itself is entirely transformative:

Here’s an old film that fueled my imagination

Lawyers in movies, then and now

In Bad Lawyers in the Movies, Michael Asimow reflects on the ways movies have depicted lawyers over the years:

In years past, film and television presented us with a set of lawyers who were decent people and honest, competent professionals – sometimes even heroes. In film, Atticus Finch, Paul Biegler, Clarence Darrow, Amanda Bonner, or Judge Dan Haywood served as wonderful role models for everyone in the profession from law students up to grizzled veterans. Today, it’s just the opposite. Most film lawyers are bad role models. Lawyers on the big screen are teaching lawyers and law students that uncivil and unethical behavior is rewarded in law practice. Law students are taught that they must be Rambo with a briefcase to be successful; perhaps young people who find that model attractive are disproportionately choosing legal careers. While there is little or nothing that we can do to alter the way lawyers are portrayed in popular culture, we can make use of film and television to better understand the fundamental problems besetting our profession. Do a lot of lawyers have alcohol or drug problems? Do many of them act in a rude, uncivil manner? Do they chase ambulances? Do they treat associates and staff members exploitatively? Do lawyers work too many hours, thus wrecking personal relationships? Are many of them deeply dissatisfied with their career choices? Is there a big firm, win-at-all-costs mentality? Yes, to all these questions. These are the realities of law practice at the millenium. We need to seriously address all of these problems and invest in finding solutions to them, whether or not we ever succeed in improving our public image. Thinking about the way that we’re portrayed in film can teach us a lot about ourselves.

Thankgiving Weekend Music Break

Arlo Guthrie: Alice’s Restaurant

 

Anatomy of a Murder, or How to Coach a Witness

In the Michigan Bar Journal, Frederick Baker, Jr. writes “Reflections on the 50th Anniversary of Anatomy of a Murder (pdf),” noting the movie’s realism and its creation of the law thriller as a whole new literary genre:

[C]onsider “the lecture,” in which Polly [the defense attorney hero] tells his client the law so that Mannion [the defendant in a murder trial] could tell him the facts that might sustain an insanity defense. It is such a deft example of how a lawyer can walk the fine ethical line between coaching a client and counseling the client on what testimony might offer salvation that it is included in Ladd and Carlson’s evidence text, which is where I first encountered Anatomy of a Murder, while studying evidence with Ronald Carlson.

John [Voelker] literally created a new fictional genre with Anatomy. Before then, no novel had so truly depicted the actual preparation and trial of a case. The Grishams and Turows who followed all owe a debt to John, who wrote a novel that was both true to life and true to himself.

As Michael Asimow writes, both the novel and the film version (which he describes as (probably the finest pure trial movie ever made) are filled with legal and ethical issues that resonate to this day:

In his famous “lecture,” Biegler [the defense attorney in the movie] skates close to the line of unethical witness coaching—that is, knowingly altering a witness’ story about the events in question. When Biegler first meets Manion [his client] in jail, he manages to overcome the client’s intense mistrust and then the discussion turns to whether the client has a defense. How far can counsel go in suggesting a defense to a client who hasn’t a clue? And should the lawyer discuss possible defenses before asking the client what happened? Because once the client has told the attorney his story, that freezes the client’s version of the facts; it’s too late to mold the facts to fit a particular defense.

Clearly it is improper to assist the client to make up facts that never occurred. . . . But it’s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his testimony in order to assist the witness to testify effectively. And surely it is appropriate to tell a client what the law is, even if that suggests a defense to the client that he might not have realized was available. The problem is that a clever attorney can convey an implicit message to a witness that alters the witness’ testimony—without ever coming out and actually telling the witness to do it.

In the film, Biegler is obviously quite aware of the limits on witness coaching but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly what happened, he tells Manion about the categories of justification and excuse and rules out each possible claim. For example, killing in the defense of another is a possible justification—but not an hour after the purported rape occurred. Biegler also nixes the “unwritten law” which allows you to kill someone whom you discover in flagrante with your spouse. Not recognized as a defense in Michigan, unfortunately.

So Biegler keeps Manion guessing until Manion says “I must have been mad.” Sorry, bad temper isn’t a defense. “No,” says Manion, “I must have been crazy. ” “Well, Lieutenant,” replies Biegler, as he steps from the room, “in the meantime, see if you can remember how crazy you were.” So the client comes up with the defense, albeit with a bit of gentle prodding from the attorney, and either remembers or fabricates the facts to support that defense. We’ve screened this scene before quite a few audiences, and hardly any attorneys have ever voted to discipline Biegler, even though it seems quite likely that Manion’s testimony is different than it would have been in the absence of the lecture and that Biegler intended exactly that.

In the book however, Biegler goes a step further. The suggestion for the insanity defense comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: ” ‘Then, finally there’s the defense of insanity.’ I paused, and spoke abruptly, airily: ‘Well, that just about winds it up.’ ” Then Manion starts asking questions about insanity. Biegler plays dumb and answers the questions, but tells the reader: “My naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.” (Pp. 45-46)

It can be argued that, in the book’s version, Biegler overstepped the line by coaching his client right into a made-up defense. . . . The movie, however, is more subtle. The client comes up with the defense, but obviously with a lot of covert help from his lawyer.