Do we really want to treat artists like shoplifters?

Effective lawyering, like any effective practice, requires choosing the right objective.  There are less charitable ways to think of this strategy.  I could just as easily write that effective lawyering requires choosing the right victim.  You don’t sue someone who will beat you, no matter how righteous your cause.  Sun Tzu made this strategy plain: “If your enemy if superior in strength, evade him.” The Art of War (ch.1, v.21),  That’s why, for example, I don’t think Metallica will sue Girl Talk even though Girl Talk makes music by sampling the recordings of a myriad of artiststs that include litigants as aggressive as Metallica.  Girl Talk’s work may consist entirely of sampled copyrighted works, but it is work constructed so creatively that it constitutes something genuinely new and creative, something, in the words of the law, that is “transformative” of its copyrighted materials.

Girl Talk is like Jeff Koons.  In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the United States Court of Appeals for the Second Circuit ruled that Jeff Koons’ appropriation of a copyrighted photograph in a painting did not infringe the photographer’s copyright because Koons’s use of the photograph was “transformative”:

Koons is, by his own undisputed description, using [the copyrighted photograph] as fodder for his commentary on the social and aesthetic consequences of mass media. . . . When, as here, the copyrighted work is used as “raw material,” . . . in the furtherance of distinct creative or communicative objectives, the use is transformative. . . . His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “in the creation of new information, new aesthetics, new insights and understandings.”

Instead of going after the artists like Girl Talk and Jeff Koons, copyright holdlers (typically large media conglomerates) go after victims they think they can beat into submission.  Thus, for example, Prince’s music company, Universal Music Group, sought to remove the 29 second video of a mom’s son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”).  Other people think suing college students for illegally downloading music is the right strategy for resolving the inevitable conflicts posed by the clash between our new technologies and our old copyright laws.  College students don’t have the money to defend lawsuits brought by media companies.  And, the thinking goes, if a bunch of defenseless law students are deterred, everyone else will fall into line:

In a lot of ways, downloading is more like shoplifting than it is like “piracy,” the term often used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an exciting and slightly risky diversion – a relatively petty vice in an otherwise law-abiding life.

The recording industry will have to use similar tactics, and like retail stores, they will have to live with a small loss from undetected stealing. But that loss can be minimized, through warnings, monitoring, and enforcement. And word of enforcement spreads. . . . Few students will keep downloading once their classmates have famously gotten in deep trouble for doing just that. That is good for them, but even better for us. . . .

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

There is a big problem with this reasoning.  The use of copyrighted materials without permission is not like shoplifting.  Intellectual property is not tangible property, and the law does not equate the two.  As I wrote just yesterday,

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose of the fair use doctrine,

The problem is a real one.  I have a new friend, Cathy Vogan, who has created Futurisms, a film that uses the song Que Sera Sera as a jumping off point to comment on the song’s naivete in the face of Reality.  I think Futurisms is a genuinely creative work.

But Facebook has removed Futurisms from its site, and while the company gives my new friend an opportunity to file a “counter-notification” contending that she has a right to have her film posted, when she looks at what she must declare to file the counter-notification, she sees, in her words, “a scary legal word: ‘perjury,’ and wonder[s] what will happen to me if I proceed.”

Who can blame her?  Should she take on Facebook?  She is a struggling, but fairly well-known video artist with 8 international awards who has never sought to make money from her creative work.”Futurisms” was completed a few months ago, and has never been shown anywhere, besides her website and Facebook.

Stephanie Lenz took on Universal Music Group and won. Thankfully, she had the help of the Electronic Frontier Foundation.  What should Cathy do?  I think she should file her counter-notification.  “Perjury” requires lying, and as long as she doesn’t lie, there’s no harm in filing the notification.  The worst that can happen is that Facebook will refuse to alter its position.

But do we really want to treat artists like shoplifters?

ADDENDUM: Cathy filed her counter-notification, and Facebook has restored FUTURISMS.  Here it is too: