The following is a note I sent to the SEM list in response to a thread that started with this seemingly simple query (if not so easily answered). I felt the need to add my two cents after reading this post. I’ve added a couple more links, including one to a pdf version of the paper I gave at SEM in Hawaii, so anyone who wants to know why I think ethnomusicologists might take some lessons from sample-based hip-hop producers, mashup makers, and mp3 bloggaz might want to check that out. As subsequent responses suggest (but not all), it may be a while before we become as bold as I think we should.
Victor, et al.,
These are vexing questions indeed, and even more so given that there really aren’t clear guidelines about what constitutes “fair use” — only various (and sometimes contradictory) precedents established and revised in something of a willy-nilly manner based on who gets sued, how they mount their defense, and whether they’re judged to be right.
I discussed some of the issues we face as ethnomusicologists working in the present legal climate in my paper at SEM in Hawaii. My focus there, however, was less on the letter of the law and more on the effects on our practice as scholars considering that “fair use” is a defense rather than a “right.” In particular, because our work tends to be mediated/vetted by the general counsels of universities and presses — a risk-averse bunch by definition — we’re frequently not even given the choice of exercising “fair use” in our publications. This produces what some call the “chilling effects” of current copyright law.
It seems to me that as an “independent scholar” — though correct me if I’m wrong in calling you that (and note that I use that term not in a pejorative sense) — you are actually better positioned than those of us at certain institutions to exercise “fair use,” though it does mean that you may get sued. It’s not necessarily true that the offended parties will issue you a cease and desist notice before instigating a suit, and it’s possible that they might send a c&d directly to your server/ISP asking them to take down the infringing materials (as has happened to various mp3 bloggers). Even so, I think it is important for scholars and artists to challenge the prevailing climate in our practices. Show and prove, etc.
As for the issues of “tribal”/”ethnic” rights over recordings, there is a fairly substantial literature on the subject at this point. Steve Feld’s “Sweet Lullaby” piece and Tim Taylor’s “A Riddle Wrapped Inside a Mystery,” for instance, both illustrate the complexities and potential problems around such (contested/exploited) definitions of ownership.
I’m not a lawyer and so can’t give you legal advice. But in general, I think we should be as bold about our use of audio, video, transcriptions and the like as we are vigilant about the power/privilege relationships involved in such use. I wouldn’t wish a lawsuit on anyone, but the truth is that we may need to take more risks — and make eloquent arguments — in order to push the law/discourse toward a state that better suits our practices as writers, teachers, artists, etc.