Has Web 2.0 outdated copyright law?

To quickly answer my own question, no. But sometimes I really wonder about the sanity of current copyright legislation.

I enjoy PostSecret, there is something in the anonymous confession of sins that appeals to the lapsed Catholic side of my personality. I have often wondered about the legal issues surrounding the pictures. It is clear that each of the postcards is a work of art, often expressing complex issues in appealing pictorial fashion, and in my opinion most meet the originality requirement that merits its own copyright protection. Some cases are less straightforward. Take the postcard below for example, where a famous scene of Homer Simpson talking to a Western bearded deity whose name escapes me right now is changed to include a rather profound theological feeling of connectedness. Is this a work of parody? Has there been enough transformation on the original to warrant its own copyright?

I cannot claim enough familiarity with the American fair use doctrine to answer that question, but I would not be surprised if the answer was that this work does not merit its own protection. However, the pictures are anonymous, so I have also wondered about their legal status. Are they public domain? Is the act of sending them to PostSecret an implied licence? Frank Warren, the founder of PostSectret, has been gathering the postcards in book collections, and one would assume that he owns the copyright over the compilations. However, I was surprised to learn that the Homer picture could not be included in one of the latest collections because rights could not be cleared. It is precisely this narrow reading of copyright law that leaves us a little poorer culturally speaking.

Nonetheless, the brash and vigorous creativity that is the hallmark of user-generated content continues unabated regardless of copyright law. Many have pointed out that we are currently experiencing a cultural revolution thanks in large part to the mixing of cultural expression. So, what is the use of copyright? It seems like copyright law continues to be concerned chiefly with the top end of the market, while the masses continue to cut, paste and transform to their hearts content.

Questions like these will continue. Old solutions to new problems are still being put forward as the panacea for a world where copyright is less relevant to everyday life. Until policy-makers learn that there is something wrong with the picture, cultural expression will continue to operate at the margins of the law.