Whitney Sorrow brings you Dracula in real time. Ars Technica credits the public domain with stirring the creative pot. Libraries and archives should be all about growing the public domain, let us be the fertilizer of the world’s creative flowers!

At a breakout session I conducted this week I shared the Kutiman Thru-You videos and fielded a question about “how will Kutiman make money if he gives this stuff away.” I speculated that free downloading might increase sales, not diminish them, because it helps increase exposure. Yesterday, in fact, I bought two Lily Allen tracks from Amazon only because someone had made a wonderful communal video out of one of her songs. I would never have known she existed without the remixing of her music with this new video. Today I ran across some documentation of this effect.

A recent report from the Norwegian School of Management suggests that people who pirate digital music are also more likely to buy music. Illegal downloading, it seems, may in fact help boost sales (a try before you buy effect?). And the report notes that this is no subtle effect, illegal downloaders are ten times more likely to buy music from legal download services.

Says BI’s Audun Molde to Norwegian daily Aftenposten: “The most surprising finding of this study is that the percentage of legally downloaded music is so high. The results of the study suggest that legal downloads outnumbers illegal downloads by a wide margin. We also saw that users stating that they were involved in illegal P2P file sharing were in fact the legal download services’ biggest clients.”

On Friday a federal court agreed with the Fair Use Project at Stanford and ruled in Golan v. Holder that falling into the public domain is a one way trip. Once something is in the public domain, no one, including congress, can stuff it back into the copyright box. Why is this a big deal? Because in 1994 congress did just that when it signed the US onto the worldwide Uruguay Round Agreements Act. This act required the the US honor foreign copyrights (the Berne Convention), which until then had not been the case. A whole host of items that had been in the public domain in the US (but not abroad) were suddenly protected in the US as well.

I’m sure this will be appealed. And it is hardly the most appealing win; since it relies on the differences between US and foreign law it really does nothing to crack protections for some very old US content. Still, it is a victory for Larry Lessig and the team at Stanford. Bravo!

While at browsing copyright matters and national boundaries, check out whether the President violated copyright law when giving the Queen of England an iPod. The Queen can’t get in trouble, she has sovereign immunity.

And so it begins. Just a couple weeks ago I was telling my brother that I thought a new model of journalism was emerging. It is a model I’ve been anticipating since Max Headroom. Essentially an independent investigative reporter with some kind of funding mechanism that allows her or his audience to help pay the freight for the investigations.

That’s not quite what emerged this week, but the Huffington Post took a step toward this future by creating a new Investigative Fund as a separate organization.

This model is not quite the independent reporter. Here we have a staff of editors being funded by an initial $1.75 million.

Picture a large pool of reporters — some on staff, and many freelancers — proposing stories and also receiving assignments from Investigative Fund editors.

But these reporters will not be producing news for any single outlet. Instead, the content they create will be open for anyone to run.

The pieces developed by the Fund will range from long-form investigations to short breaking news stories and will be presented in a variety of media, including text, audio and video. And, in the open source spirit of the Web, all of the content the Fund produces will be free for anyone to publish.

This sounds like an important experiment. I still feel the model is not quite as radical as we will see in the future. But it does represent the further unravelling of journalism as we have funded it to date.

I like using images when I put together presentations and posts. I usually find these on Flickr, where if I do an advanced search I can ask it to only return images with Creative Commons licenses. Now I’ve found an easier way, while it lasts, using Yahoo’s experimental TagExplorer. All the images returned by TagExplorer are CC licensed!

Neil has had a good month. Coraline’s opening was big at the box office, and The Graveyard Book won the Newbury. Woo hoo! But then he found himself arguing with his agent: she thinks text-to-speech infringes on audiobook rights, he thinks buying a book means buying a right to more than glancing at the pages.

When you buy a book, you’re also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one’s going to confuse it with an audiobook. And that any authors’ societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what’s good about them with it.

In the agent’s world, Kindle reading the book aloud from the text is an infringement. In our litigious society she may be right. But authors like Neil may stand up and say, as he does, “We must stop this.” If they do, then perhaps we will loose a bit more creative energy on the world.

Holy cow! After all this time the AP is now considering a case against Shepard Fairey for copyright infringement in his use of an AP photo as the foundation of his iconic image of Barack Obama.

Let’s take a look at this from the perspective of the four factors that help courts determine fair use:

Factor #1: Purpose and character of the use… Shepherd Fairey has made some commercial use of this image, this weighs against his case for fair use. Somewhat mitigating this finding, though, would be the degree to which Fairey allowed the image to “go viral”. He was not out to make a buck on this image, he was out to move public opinion. Most of all, the use of this work by Fairey is clearly “transformative”. He took a news photo and made it street art. It is no longer a photograph, no longer “objective”, and not even suitable in the contexts where the original AP photo would have been suitable. Imagine, for example, a newspaper article describing McCain and Obama’s performance at a debate using AP photos to illustrate. Could they substitute the Obama AP photo with the Fairey image? No way, it is much too celebratory, much to subjective, nothing like a news photo. In the end, I think this factor tilts strongly in favor of fair use.

Factor #2: The nature of the copyrighted work… The copyrighted work in this case, an AP photo, was clearly published. This weighs in favor of fair use. It is an artwork (a photo), but not a particularly notable one. It is hardly consumable, in other words the fact that one has a copy of the image as Fairey re-imagined it does not make it any less available as a photograph. All in all, I believe this factor would tend to support fair use in this case.

Factor #3: Amount and substantiality of the portion used… While the Fairey image uses the whole head of Obama, it does not use the flag at all. I see the flag in the AP photo as quite a striking aspect of the photo. Furthermore, the Fairey image does not use any of the original coloring of the photo. At best this somewhat weighs against fair use in my book.

Factor #4: Effect on the potential market for or value of the work… As I noted in factor #1, the Fairey image, while it clearly uses the AP image as its foundation, is nothing like the AP image in spirit. It cannot possibly effect the market for the AP image in a negative way because it is so different in emotional quality from the AP image. In fact, if it has done anything for the AP image’s marketability, it has probably increased it. This is the image on which the icon was founded, that has tremendous value to the AP. It is at least plausible that Fairey’s use of the image has improved its position in the market. Weighing against fair use was the fact that the AP does make a license available and that Fairey did make many copies available for non-educational purposes. Ironically, if Fairey had sought a license he might have been bound to manage the release of his version of the image in a way that would completely undermine his goal of getting a viral “street” image off the ground. This is the hardest factor to weigh, for me, but I think in the end it is at best a wash, maybe a slight tilt toward fair use.

Bottom line: I don’t think the AP has a case that will fly here. In fact, if they pursue it much further, they will more likely set precedent that this kind of use of their images is allowable. In the end, only the courts can really decide this, but I imagine the AP would rather live with the ambiguity than clear case law against them.

Why raise this in the first place? At first blush it seems terribly ham-handed to me and I can’t imagine the AP will get much positive press for the effort. On the other hand, “there is no such thing as bad press.” Everyone will know that the Fairey image is based on an AP photo (did you know that before today?). Everyone will know where to find that original photo. Artists will be cautious (a bit chilled) about using other AP photos without purchasing possibly unnecessary licenses. As long as they don’t actually pursue the case much further, it looks like a winning strategy for the AP.

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Good for Fairey, this is exactly the sort of use we need to defend in our culture. If the AP pursues the case, may the whirlwind descend on them!

I’ve been pushing institutions in Minnesota to consider putting their images into The Commons at Flickr. This is a wonderful collection founded on an interesting “no known copyright restrictions” policy.

Today I learned that the economic downturn which is hurting Yahoo is now hurting Flickr and last month “affected” George Oates, the champion of Flickr Commons. In other words, she was fired. George had been with Flickr since day one as an interface designer, but her recent work building The Commons has been of huge cultural value. I am very sad to see her leave Flickr. I can’t wait to see where she lands and what she does next.

Meanwhile, the Flickr community is trying to pick up the pieces. Join the Flickr Commons group if you want to keep abreast of what’s next.

The Obama Change.gov site has changed over to the Creative Commons “by” license, a huge shift from it’s former copyright stringency.

CC founder Lessig is quite pleased: “This is great news about a subject that’s harder than it seems…I’m glad the thought in this administration led to the right conclusion, so quickly, and in the midst of so much else going on.”

Today we begin to see the business model behind Google Book Search. Google announced a settlement in the lawsuit brought by the Authors Guild, the Association of American Publishers, some individual authors against Google Book Search. Amazingly enough, it not only leaves Google Book Search intact, but to my eye it seems to expand its offerings substantially. It almost appears that Google used the suit as an educational opportunity and convinced authors and publishers that the service Google could offer would be a win/win for all. Of course, they also paid $125M for the scans they made without permission (but that money goes toward setting up a Book Rights Registry which will try to determine who owns the copyright to out-of-print books so that they can be paid for any sales).

If this works, then the “snippets” will disappear from the out of print results; instead we will see full page results. Furthermore, for a (yet to be determined) price, we will be able to license access to the full books and put them on our Google “bookshelf.” That price is a key to the business model and the agreement, I’m sure. Suddenly authors and publishers have a way to “monetize” the “long tail” of the out of print catalog. That’s pretty revolutionary.

Now the urgency of Google’s effort to scan every work in some major libraries begins to make sense. With the competing Microsoft-led effort already hitting the skids it looks like Google will have some time to polish this model before the competition gets tough.

Of course, this agreement still has to be ratified by the court, so it may not be the shape of what is to come. Keep an eye on this space.

UPDATE: Harvard University Libraries opt out of the deal for many interesting reasons.