yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.
You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:
Do you miss me tonight?
Are you sorry we drifted apart?
Could fair use save the lonely artist?
Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use.
Unfortunately for Daniel, he cannot attempt to sustain that his use of the protected lyrics, musical composition, performance and recording is fair in Europe, because we do not have fair use in Europe. Nor do we have an exception or limitation to copyright that would allow transformative uses of copyrighted materials for artistic non-commercial purposes.
We could have it in the near future, if there was political will, since we are supposedly reforming our copyright laws with the aim of adopting them to the digital age. But the prospects of having the existing proposals on user-generated content exceptions turned into law are currently very low. The majority of EU lawmakers are convinced that people like us, who advocate for fair and balanced laws to protect users rights and not only rightholders rights, are either bots or heralds of the big platforms.
What happens to the creators turned into users?
In the highly polarized debates around copyright reform, the voice of the creators is replaced by the voice of the traditional content-producing industries (music, publishers, newspapers), platforms are just free-riding on content produced by others, and users are at best portrayed as amateur creators. Rarely the profissional creator is taken into consideration, and creators-turned-into-platform-users (such as visual artists who rely on social media platforms as their main distribution platform) are simply not heard of.
yes. i am lonesome tonight. has less than one hundred views on YouTube. The numbers were more or less the same on Vimeo. You would wonder who cares about it, and who bothers about removing these videos due to alleged copyright infringement. Well, the International Federation of the Phonographic Industry does!
I received an email from Daniel a couple of weeks ago because his video had been taken down from Vimeo and he was expecting the same to happen on Youtube, and he wanted my help – as a friend, as a copyright expert – to devise an argumentation against the removal. I recall that a short while ago I collaborated with Daniel and others on the creation of Copywrong, a performance-as-tool, where Daniel attempts to execute a performance by Bruce Nauman, but never does, because I – performing the frustrating role of the lawyer – keep interrupting him and preventing him from doing it, due to copyright concerns.
My first thought when I saw Daniel’s video was that it was too good to be on social media platforms. It deserves to be in a gallery, I replied to Daniel. Indeed, I am not used to seeing these videos on social media. I mean, there are amazing things on social media, but when we talk about user-generated content, on content that relies on other people’s works, what stays there for long is the viral video of someone doing humiliating or funny things. I guess the platforms will fight to keep those videos, as they generate revenues. As for the less-than-one-hundred-views videos, the crappy ones and the ones that are pieces of art, no one will protect them. Nor the traditional industries, nor the platforms themselves.
I’m certainly not equipped to discuss how do we finance the Arts and the artists. But those who are should reconsider adding their voices to this debate, because it seems highly unfair to have the market dictating what can stay online and treating creators of user-generated content unequally. The lawmaker could easily intervene, through the implementation of a balanced copyright system, which would offer creators at least the chance to discuss if their (re)creations are fair and should remain accessible to the public or not.