Did Castle actually read Free Culture? The Else story had nothing to do with the Simpsons being an "orphan work." The issue was that a 4-second clip of the Simpsons was playing on a TV in the background of one of Else's shots, and he was forced by legal threats from Fox to edit it out, even though keeping it in would have obviously been a fair use. Castle's not really claiming that Else should have paid Fox 10 grand to have the TV showing in the background, is he?

The word "orphan" doesn't appear anywhere in the relevant chapter:

http://www.authorama.com/free-culture-11.html

Chris Castle may have used the term "orphan work" to reflect the fact that Else approached several parties about rights to the Simpsons and thus saw the costs of the short screen go from free to $10k. Castle wasn't using the technical definition of "orphan work" just highlighting the "difficulty" Else had in obtaining permissions. Here is the passage from Chris' blog: "In the infamous error-ridden passage from Free Culture in which Professor Lessig laughably tries to pass off The Simpsons as an "orphan work", we get a snapshot of what motivates the Lessig mind."

A couple passages from Professor Lessig's book, and some thoughts on why Chris may feel the way he does about the Else scenario.

***As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene. Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless “fair use” or some other privilege applies. ***

Well, ya know, some of the difficulty Else had in obtaining privileges was due to his own actions of waiting until the last minute. Why do that if a particular copyrighted work adds value to your production, as Else admits.

***Else’s use of just 4.5 seconds of an indirect shot of a Simpsons episode is clearly a fair use of The Simpsons—and fair use does not require the permission of anyone. ***

If Professor Lessig is so clear on this, why didn't he offer to help. Oh wait, Else waited until the last moment to seek copyright permissions.

***Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed “visual cue sheet” listing the source and licensing status of each shot in the film. They take a dim view of “fair use,” and a claim of “fair use” can grind the application process to a halt. ***

So Else had every indication that permissions to the Simpson would be important. If the insurance group wanted to know the licensing status of the screen-shot, then Else should have approached the owners of the Simpsons copyrights early in his project.

***I did, in fact, speak with one of your colleagues at Stanford Law School . . . who confirmed that it was fair use. He also confirmed that Fox would “depose and litigate you to within an inch of your life,” regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. ***

Hmm, the copyright experts at Stanford are Professors Goldstein and Radin, two very very respectable figures. If either said it was fair use, Else should have asked them to write a letter to the copyright holders.

Noel, do you think the 4-second Simpsons clip was fair use?

I still don't know enough about the scenario. Else was a teacher, but was he using the documentary for educational purposes? If so, I would agree that this should have been legitimate fair use.

No, I think it was a commercial film. Do you think it's fair use then?

Well, Else used the video for commercial purposes but the clip was still only 4 seconds long with the camera focused indirectly at it we; might be looking at an instance of (what would have been) fair use. I would invite any copyright experts to chime in here and give their take.

Even if this is the case, Else fumbled every opportunity to either risk infringement and proceed under the belief that his actions were protected by faire use, or to seek copyright permissions in a diligent way. We're not really looking at a scenario where faire use was critical, we're looking at an unorganized film maker. Chris Castle summarized these aspects well when he criticized Professor Lessig's strained efforts to paint the situation as one centering on fair use.

The point is that if he'd "risked infringement," he would've been sued to with an inch of his life by Fox. It wouldn't have mattered who was in the right, legally speaking, because Else wouldn't have had the money necessary to defend himself. That doesn't strike you as a problem?

We keep on trying to make this an issue of fair use. So the Simpsons' copyright holders took advantage of a fair use legal ambiguity to scare a film-maker. OK, there are several conclusions we can draw from this: 1)wait for interpretation by the courts of a similar case and then inform small film-makers of their fair use rights, 2)have a group of copyright critics organize a legal battle to proactively get judicial interpretation to consider their constitutional and user rights arguments, 3)try to work through legislative rounds for expanded digital fair use exemptions, 4)try to repeal all relevant copyright laws. There might be a couple more options, but I would outline these and say the first 3 are practical responses.

By the way, the film-maker was absolutely inflexible, stubborn even. He could have saved himself time and trouble by using a different screen shot. To this day, was his documentary harmed because it did not use the screen shot of the Simpsons?

Congrats, Tim and Noel. your conversation about Fair Use hear was at least three times as enlightening as the post by Chris Castle, the subject of this thread.

Chris post seems to me to be really, almost, well, a rant. Chris is onviously very upset and emotional about what he perceives to be massive theft. I agree that some theft has, in fact occurred, however, the solutions which Chris proposes are much worse than the problem, and I would hesitate to place the rights which natural people are granted under the Bill of Rights on a lower pedestal than the property rights of a few large corporations.

Chris doesn't agree with this, which is fine, I just would like him to be honest about his arguments, so I have only one question for Chris: Which parts of the Bill of Rights does he propose to jettison?

So you agree with Lessig that this is a problem with the copyright system that ought to be fixed?

There are ambiguities in copyright, just like any other area of law, that judicial interpretation will clarify.

Perhaps, it would be better to clarify by legislation here. There are a huge raft of issues concerning Fair Use that have arisen since the rise of the internet, and I find it interesting that those who usually argue for 'judicial restraint' seem to be switching their horses in the middle of a very muddy river...

"By the way, the film-maker was absolutely inflexible, stubborn even.."

Hey, He is an Artist (that's spelled with a capital A)

As an Architect, of course, I am always flexible and adaptable, except when I met stubborn people, who actually refuse to see things my way.

Well, fair use isn't an assertive right, its an exception with very vague boundaries. I see some legislation by Congress, court ruling or action by the Librarian of Congress as three ways of expanding fair use. I wasn't just talking about legislation, and yes, judges should have judicial restraint, but not necessarily where law makers left interpretation so wide open as with fair use.

Well, Tim and I exchanged several pages of posts, and we didn't raise anything new that Chris Castle left unaddressed. I find him very concise, and not "emotional" like you state Enigma (unless the emotion is mockery of Professor Lessig's attempt at painting an unorganized and lazy film-maker as a victim of fair use!!!)

Re the "orphan works" reference, you're right, the phrase doesn't show up anywhere in the passage, but Lessig surrogate Gigi Sohn referred to The Simpsons as an "orphan work" relying on this passage in testimony before Congress. The flavor of "orphan work" is floating through the "Free Culture" passage like an alligator in the Lower 9th Ward. If one were being uncharitable one would call that garbage, and if one were being truthful one might call it a lie.