If you break open a song, you’ll find the eggs of other songs. Misunderstandings are really kind of an epidemic and acceptable. I think it’s about one thing, but someone else will say, ‘That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting, “Repent, repent!” I think that’s great.

Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a “kind of rhino in hot pants on a burnt rocking horse with a lariat shouting, “repent, repent!” Because the lawyer for Patrick Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently “transformative” of that earlier work if the appropriator expresses in words a transformative purpose. Richard Prince, in appropriating Patrick Cariou’s photographs for his own artistic purposes, said he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material,” that it was “taking for the sake of taking.”

Cariou’s lawyer thinks that Prince’s inability to state an artistic purpose is fatal to his case. In his eyes, the law requires a 2-step process: “First the defendant has to say” he was engaged in a transformative use of the work he was appropriating. “Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”

As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular controversial. The phrase “intentional fallacy” was coined in the title of an influential scholarly article (Wimsatt and Beardsley 1946) claiming that artists’ intentions are neither available nor desirable as a standard for assessing art. As has been pointed out, “Intentionalists disagreed, arguing that any sense of the artist’s intention, however obscure, can be a useful resource in interpreting a work of art.”

But the point is, even “Intentionalists” acknowledge that judging, interpreting, and assessing art calls on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and assessments are never limited to what the artist wanted the viewer to see and think.

So Cariou’s lawyer is advancing nonsense when he suggests the court should be limited in that way. Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted to the court. As the court pointed out: “Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.” Quite simply, the court was persuaded by Koons’ explanations. That the court was so persuaded does not mean, however, that the artist’s explanations are the only means by which the court could be persuaded.already stated their intent to parody. Nor, as Cariou’s lawyer contends, did a lower court find that 2 Live Crew’s re-working of Roy Orbison’s “Oh, Pretty Woman” depended on 2 Live Crew’s assertion their song was a “parody.” In fact, the Court found that 2 Live Crew’s words parodied Orbison’s and remanded the case so a lower court might determine (a) whether there had been any negative economic impact on sales of Orbison’s song in the potential “derivative market” of rap cover versions, and (b) whether the quantity of musical elements taken from Orbison’s song were more than necessary to 2 Live Crew’s purposes. Campbell, 510 U.S. at 590-91. After remand, the case settled, and there were no further court hearings.

You can see my presentation here. But the presentation, obviously, is only the starting point of a talk, so I thought I’d take this opportunity to “annotate” the presentation, providing some commentary and a lot of links to provide most of the content of the talk here and to supplement it for those who were there.

This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.

The first “slide” (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a musician, composer, producer and animator from Israel. He is best known for creating an online video music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube videos.

The second slide is the title slide: What does an artist need to know about copyright law? Although I spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts of an artist. I used Warhol’s Campbell’s Soup Can and Shepard Fairey’s Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative letter from Campbell’s Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually settled and thus left unresolved the underlying legal questions.

The next 2 slides ask, “What is an artist?” and give one answer, provided by performance artist Guillermo Gómez Peña:

[T]he artist doesn’t really give answers. That is the role of the theorist, the scientist, the political activist, and the religious leader. The role of the artist is to ask impertinent and complex questions, irritating questions, and also to make the audience aware of the process of inquiry, and that’s where the pedagogical dimension lies—when the performance becomes the search, and when the process of search becomes the performance; and people see you struggling with meaning, with your own philosophical despair, with your political demons, and your own aesthetics.

Not only does this confrontation with questions that confront all of us strike me as central to the role of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult stumbling blocks in teaching law students is getting them over the belief that they will learn answers to the questions they will confront in their careers rather than the skill to identify the right questions and to best move forward in light of those questions.

Thus, the next 2 slides ask, “What is a lawyer?” and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the effect that legal “rules” are not the sort of rules people typically expect:

[T]he rules change from case to case and are remade with each case. Yet this change in the rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.

Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the infinite complexity of human life. If you present me with a legal problem and an answer and then change one fact about the problem, the entire answer may change. Or may not. It depends. So if you’re looking for answers, you’ve come to the wrong place. Another situation is always different. But I can certainly let you in on what I deem important and why.

For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on all things copyright. If you are interested in knowing the basics about what you have to do to register a copyright and other nuts and bolts matters, go there.  Stanford’s Copyright and Fair Use Center is also a great resource on all of the questions addressed in my talk. I like the Copyright Website too.

In order to be protected by copyright, a work must be, among other things, “original.” The quintessential illustration of this requirement — which emphasizes that the mere “sweat of the brow” invested by the work’s creator is not sufficient to earn the work copyright protection — is Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial work of compiling and organizing the information required to put together a rural telephone directory did not entitle the directory to copyright protection. The information itself, though the result of the plaintiff’s hard work, constituted “mere facts,” and there was nothing original about the alphabetical arrangement. Thus, the defendant could not be stopped from copying the plaintiff’s directory and selling it as his own.

A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.

The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of applying existing law to new technologies, it compared the digital images of cars created by Meshwerks to photographs. Since the invention of photography in the 19th Century — when it was believed by some that photography as a mere transmission of “reality” did not constitute art — courts have concluded that photographs are entitled to copyright protection but only to the extent the photograph consists of elements resulting from the photographer’s choices. Thus, a photograph “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.”

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc. v. Bernard Geis Associates,  the court held that the famous “Zapruder film” was entitled to copyright protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. The court observed that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.” The fact that the moment he filmed happened to be historic did not change that fact. And, if you’re interested, here’s another interesting photography case.

The fact that Congress has the power to pass laws protecting copyright is a result of the Constitution’s Copyright Clause. There are at least 2 important reasons the constitutional dimension of this power is important. First, the Copyright Clause expressly states that Congress has the power for the purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict between the two constitutional rights — the right to protection of one’s creative product and the right of one to express oneself (even by means of another’s creative product) must be balanced. That balance is what results in the doctrine of fair use.

The document sets forth a comprehensive strategy for addressing copyright concerns that digitization raises. It doesn’t shy, however, from asserting the legitimacy of the project as an exercise of fair use: “In the unlikely event that a TRLN member library is challenged on the presentation of the digitized collections/groups, and in the even more unlikely event that the library is unable to resolve those challenges…the library will rely on a fair use argument.”

And the document sets forth its fair use analysis clearly and concisely, addressing each of the factors of the 4-part fair use test as follows:

Fair use is a balancing test based on . . . four factors. The factors are not a list of requirements, and all four factors need not be met to have a successful fair use argument. Each factor as it might pertain to the CCC project’s selected manuscript collections and archival record groups is addressed below.

The purpose and character of the use

The CCC project is not for profit; the project’s purpose is to promote historical scholarship and support educational uses of primary sources by providing free and open online access to a large corpus of research materials: the digitized manuscript collections and archival record groups from the four libraries. Individual documents contained in the collections and groups may remain under copyright protection, but they are used in this project for research and educational purposes.

The character of the use is transformative. An individual document’s original use was temporally bound, its value practical. For example, at the time that any individual letter in the Frank Porter Graham papers was written, it served only to share information with Graham. But now that letter is part of a manuscript collection that contains more than one hundred thousand documents. And as with any individual item in a manuscript collection/archival record group, the document serves as a small part of a larger resource, one used in scholarly inquiry and education. The aggregation and organization of individual documents to create manuscript collections/archival record groups transform the purpose and function of the individual documents, as do the finding aids for these collections/groups, which also add to the research value. The digitization and online presentation of the documents in the collection/group further remove the individual document from its original purpose, and deepen its transformed purpose and use as a historical resource that contributes to our understanding of the past.

The nature of the copyrighted work

Most of the documents in the manuscript collections/archival record groups were created in the course of the daily life of an individual or in the routine business of an organization. Created without commercial motivation or artistic intent, these works were not meant for publication at the time of creation, and today are not publishable in isolation. The research value of manuscripts lies not with the individual document, but rather with the collection of documents that together provide context and insight into the past.

The amount and substantiality of the portion used

The presentation of entire documents and entire collections/record groups is therefore appropriate for the intended use by students, educators, and scholars. Individual documents in the collections/groups are the copyright?protected works; but the law does not specify a particular amount of a work that can be used without permission.

The educational and transformative purposes of the use require the presentation of the works in their entirety and so satisfy this factor.

The effect of the use upon the potential market

The scholarly research value and educational significance of these collections are incalculable, but their aggregated online presentation will have little to no effect on the market value of individual documents. In virtually all cases, no such market exists. In the rare instance in which an individual document has a commercial market, the downloadable digital images will not be of commercial quality and therefore will pose no threat to that market.

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it