DJ Earworm – United State of Pop 2009 (Blame It on the Pop) – Mashup of Top 25 Billboard Hits

Is a music video with no original content “transformative” if I like it better  than any of the top 25 hits of the year it samples and it explains partly why that is? I think so.

Breathlessly waiting for Murdoch to be sued . . . or wither on the web?

The Kwika Entertainment Blog (reprinting a piece from the Huffington Post) breathlessly announces that “if Microsoft and [Rupert Murdoch's] News Corp. go forward with a deal whereby News Corp. demands that Google stop indexing its websites, don’t be surprised if it leads to one of the most important copyright lawsuits in history.”

Don’t bet on it.

Google’s display of snippets from News Corp’s web pages for search engine purposes is almost certainly fair use. Can you imagine a Google snippet ever serving as a substitute for the original? If not, then the snippet is fair use. And copying the entire site for the sake of creating the snippet is fair use too.

The idiotic part of Murdoch’s move would be that, assuming Google allows Murdoch’s publications to “opt-out” of Google (as Google does for any site — all you have to do is insert some code into your site to exclude your site from Google’s indexing), the result will be that Murdoch’s publications will lose all that traffic Google generates. Stupid, stupid, stupid.

Murdoch has always had the option to opt out of Google. The other stupid player here might be Microsoft — why pay to index something that will only be losing readership?

Fair Use, Fairy Tales, and Collage: more proof Girl Talk won’t be stopped

Professor Eric Faden of Bucknell University created this brilliant account of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. The fact it has never been forced down is to me proof positive that legitimate, non-infringing fair use can consist entirely of copied and pasted copyrighted works. Which is proof positive to me that I am right in believing that Greg Gillis/Girl Talk  need not worry should he ever be sued for infringement of the copyright of any of the samples he uses.

I do think this video is deficient in one respect: it doesn’t sufficiently discuss the importance in the fair use analysis of the originality of the allegedly infringing work — it suggests parody, journalism, and criticism are legitimate, non-infringing uses of small parts of copyrighted works, but it doesn’t connect these individual examples of transformative work to the larger point: if the allegedly infringing work stands on its own — if it uses the copyrighted work to express something the copyrighted work doesn’t express to reach an audience for a different purpose than the copyrighted work’s audience comes to the copyrighted work for — then it is “transformative” and very, very likely not to be infringing. (If it is tranformative, it’s not going to have an impact on the market for the original or any of the original’s reasonably anticipated derivative uses.)

The funny thing is that the video doesn’t discuss the larger issues relating to the nature of the allegedly infringing work and how tranformative it is, but the video itself is entirely transformative:

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under‘s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

Painting people whose images are protected — Alabama football, Tiger Woods, and Obama

The Tuscaloosa News reports that a decision is expected soon in the University of Alabama’s lawsuit against sports artist Daniel Moore. As the newspaper explains, the university “sued Moore for trademark violations in March 2005, alleging he painted scenes of Crimson Tide football games [such as the one at right] without permission from the university and reissued previously licensed prints without paying royalties. The university is seeking back pay for more than 20 paintings and wants Moore to license any future paintings.”

Although the decision is by no means binding on the court deciding the Alabama case, a lawsuit filed in 2000 by Tiger Woods and ETW Corporation, Wood’s licensing agent, against the artist Rick Rush might be illuminating. The focus of the Woods lawsuit were a group of Rush’s prints depicting Woods’s victory at the 1997 Masters. Woods sued to protect “his name and his image under right-of-publicity and trademark laws.” Rush, like Moore, argued his prints are protected by the First Amendment. The U.S. District Court and the U.S. Court of Appeals in Cincinnati (6th Cir.) agreed with Rush.

The Sixth Circuit’s decision is illuminating, not only with respect to the lawsuit between Alabama and Moore, but also with respect to the dispute between the AP, Manny Garcia, and Shepard Fairey. The court explained in reaching its decision that, like Andy Warhol’s paintings of celebrities, Rush’s paintings were sufficiently “transformative” to be entitled to First Amendment protection:

When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity….

Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity. . . . [I]n Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001)] the California [Supreme] [C]ourt []stated the test as follows: “Another way of stating the inquiry is whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”

. . . citing the art of Andy Warhol, the court noted that even literal reproductions of celebrity portraits may be protected by the First Amendment.

“ Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself…. Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence.”  Id. at 408-409, 106 Cal.Rptr.2d 126, 21 P.3d at 811 (citations and footnote omitted). . . .

The evidence in the record reveals that Rush’s work consists of much more than a mere literal likeness of Woods. It is a panorama of Woods’s victory at the 1997 Masters Tournament, with all of the trappings of that tournament in full view, including the Augusta clubhouse, the leader board, images of Woods’s caddy, and his final round partner’s caddy. These elements in themselves are sufficient to bring Rush’s work within the protection of the First Amendment. The Masters Tournament is probably the world’s most famous golf tournament and Woods’s victory in the 1997 tournament was a historic event in the world of sports. A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events. It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection. Furthermore, Rush’s work includes not only images of Woods and the two caddies, but also carefully crafted likenesses of six past winners of the Masters Tournament: Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen, Bobby Jones, and Jack Nicklaus, a veritable pantheon of golf’s greats. Rush’s work conveys the message that Woods himself will someday join that revered group. . . .

We find, like the court in Rogers, that plaintiff’s survey evidence, even if its validity is assumed, indicates at most that some members of the public would draw the incorrect inference that Woods had some connection with Rush’s print. The risk of misunderstanding, not engendered by any explicit indication on the face of the print, is so outweighed by the interest in artistic expression as to preclude application of the Act. We disagree with the dissent’s suggestion that a jury must decide where the balance should be struck and where the boundaries should be drawn between the rights conferred by the Lanham Act and the protections of the First Amendment.

In regard to the Ohio law right of publicity claim, we conclude that Ohio would . . . [apply] a rule analogous to the rule of fair use in copyright law. Under this rule, the substantiality and market effect of the use of the celebrity’s image is analyzed in light of the informational and creative content of the defendant’s use. Applying this rule, we conclude that Rush’s work has substantial informational and creative content which outweighs any adverse effect on ETW’s market and that Rush’s work does not violate Woods’s right of publicity.

We further find that Rush’s work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech. . . .

In balancing these interests against Woods’s right of publicity, we note that Woods, like most sports and entertainment celebrities with commercially valuable identities, engages in an activity, professional golf, that in itself generates a significant amount of income which is unrelated to his right of publicity. Even in the absence of his right of publicity, he would still be able to reap substantial financial rewards from authorized appearances and endorsements. It is not at all clear that the appearance of Woods’s likeness in artwork prints which display one of his major achievements will reduce the commercial value of his likeness. While the right of publicity allows celebrities like Woods to enjoy the fruits of their labors, here Rush has added a significant creative component of his own to Woods’s identity. Permitting Woods’s right of publicity to trump Rush’s right of freedom of expression would extinguish Rush’s right to profit from his creative enterprise.

The difference between Moore’s case and Rush’s principally seems to be that Moore’s painting’s are far more “realistic” than Rush’s (as the painting pictured above demonstrates). In contrast, Fairey’s Obama Hope poster is more like Warhol’s paintings of celebrities. The funny thing is that I have no doubt Moore’s paintings take more time and effort — but time and effort are not what is protected by the fair use test; rather, originality of expression is.

RiP! A Remix Manifesto

Filmmaker Brett Gaylor’s RiP! A Remix Manifesto, now available on Hulu.

In an interview conducted by Rebecca Harper, Gaylor, among many other things, discussed the inspiration he drew from Brazilian culture, which apparently suffers no anxiety from the recognition that creativity is inherently built on earlier creation:

[A]s I made the film, I had to amass a lot of knowledge about copyright law. Maybe not what surprised me, but certainly what inspired me was the history of appropriation in Brazil, and how going back to the very beginning of Brazilian culture, there was this history of fair use and appropriation. And you know, we have that in North American culture, as well, with things like the Blues and obviously hip-hop. But what really struck me about Brazilian culture was how recognized it was, and how there was this culture that seemed to be built on taking influences of Europe, of North America, of their native cultures, and sort of putting them in this big pot and making a stew. That was really inspiring, and I read the works of a Brazilian poet and modernist called Oswald de Andrade. He wrote this thing called The Cannibalist Manifesto, which was basically saying that Brazilian culture needed to eat and ingest the cultures of the world to regurgitate and create something new. I just thought that was a really great metaphor for the digital age and postmodernism. That’s why I decided to go to Brazil and spend a good amount of time there.

Aural Collage and the Law

Click on the picture below to see my PowerPoint presentation from last week’s COSE Arts Forum on Intellectual Property and the Arts.

The fair use test — some cases are easy, some are hard, and some are somewhere in between. A follow up to the dialog regarding the postage stamp and the Korean War Veterans Memorial.

Donn Zaretsky, unsurpisingly, took exception to the post I wrote yesterday, in which I strongly condemned his assertion that “you can make the traditional four-factor fair use analysis do whatever you want it to do. As Judge Kozinski has said, the analysis can always go in either direction.” (emphasis is Zaretsky’s) The back-and-forth originated in our disagreement about the decision that a postage stamp that is a reproduction of a photograph of a sculpture forming part of the Korean War Veterans Monument on the Mall in Washington, D.C. does not infringe the sculptor’s copyright in the sculpture. There is a reproduction of the stamp and a photograph of the sculpture in my original post. I believe the court was right and that the determination that the stamp is a non-infringing fair use is a pretty easy one. Given that he is invested in his belief the law’s 4-part test to determine fair use is an utterly arbitrary one that in every case can as easily support one position as another, Zaretsky thinks I’m wrong.

In response to his latest post, I sent him the following e-mail (hyperlinks added):

Donn -

As I said, judging the competing merits in any case that results in a lawsuit rational parties are willing to take to trial and even up on appeal is almost always a question of choosing between better and worse arguments, not a matter of mechanically applying rules that result in obviously predictable outcomes. But I still haven’t heard your argument that the postage stamp that uses a impressionistic photograph of the sculpture in the Korean War Veterans Monument is not entitled to fair use beyond (1) your mere assertion, borrowed from an IP lawyer, that the stamp is a “derivative,” not a transformative, use and (2) a few unfounded legal contentions regarding the definition of a derivative work and the relevance of the nature of the allegedly infringed work.

First, any work of appropriation art is by definition “derivative”; plainly, the mere fact one work is derived from another does not make it an infringing “derivative” work not entitled to fair use protection. As William Patry puts it in his treatise, Patry on Copyright, “[t]he derivative right is subject to a number of special limitations and one general exception, fair use.” Id., Section 12:24. In other words, calling a work a “derivative” work does not answer the question whether it is fair use. So you can’t evade evaluating the elements of the fair use right merely by denominating a work an allegedly infringing work a ”derivative one.”

Nor is there any basis for the assertion by the IP lawyer on whose opinion you rely that a transformative work can only be a work whose uses and purposes are different than the uses and purposes of the original copyrighted work. First, it is impossible to define a work’s “uses and purposes” in any reasoned way without making that definition the a priori determination of your conclusion regarding whether those uses and purposes are identical to those of another work. You can define the uses and purposes narrowly (the sculpture is intended as a 3 dimensional work of commemorative art displayed in a public forum visited by millions of people every year) or broadly (the sculpture is an expressive aesthetic work)? Are the uses and purposes of the sculpture public art and the stamp a means of governmental commemoration of the sacrifices of our veterans, the creation of a collectible for philatelists, and a means of collecting revenue. If so, the uses and purposes of the works are entirely different. Or are both works expressive works of art? Then they share identical uses and purposes.

Second, even if you’re going to play that logically incoherent definition game, there are numerous cases ruling that works whose uses and purposes were very similar to the uses and purposes of copyrighted works were nonetheless entitled to fair use protection. In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006),, Jeff Koons’ painting was a two dimensional image, just as was the photograph he appropriated. The court held that Koons’ painting was sufficiently transformative to be a non-infringing fair use of the photograph. In Campbell v. Acuff-Rose Music, 2 Live Crew’s “Pretty Woman” and Roy Orbison’s “Oh, Pretty Woman” were both songs directed at the popular market. The Supreme Court held that 2 Live Crew’s song, despite borrowing almost the entirety of the melody of Orbison’s song, was a non-infringing fair use. In the Wind Done Gone case, both that novel and Gone with the Wind were novels sold for commercial gain. The court held that The Wind Done Gone was a non-infringing fair use despite the fact it borrowed the characters and a lot of the story line from Gone with the Wind.

I could go on, but I’ve made my point: merely stating that the stamp is derived from the sculpture doesn’t begin to answer whether the stamp is a non-infringing fair use, nor is there any legal authority supporting the thought that a transformative work  must be a for different uses purposes than the uses and purposes of the source work.

Which is also to say that the mere fact that someone, even an IP lawyer, believes my position is wrong doesn’t mean her argument is as convincing as mine. Obviously, you and everyone else must judge for themselves, but please give me reasoned argument, not baseless assertion.

Plainly too it is well established that merely transposing a novel into a film is not transformative. That answers your point about the Harry Potter novel’s adaptation into a film. The statutory grant of rights to a copyright holder in “derivative” works sets forth the types of transpositions that generally are considered not to be fair use: these include works “such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, [or] condensation.”

I see Harry Potter movies and I have no question they’re the same stories with the same characters as the books. Many of the characters in the Harry Potter book also are likely merely as characters to be afforded copyright protection as a result of their individuality. In contrast, however, I look at the stamp and a photo of the sculpture and for all I know they’re derived from a common source or similar common sources, not one from the other. (You can see a picture of the stamp and a straightforward photo of the sculpture in my original post.) Moreover, you could hardly call any of the individual figures in the sculpture ones that in themselves are individualized in such a way that they could be considered copyrightable characters; compare those figures to the characters of Harry, Hermione, Ron, and Dumbledore and consider whether your analogy betwen Harry Potter films/Harry Potter books and the stamp/sculpture really is a very compelling analogy.

Nor can you consider the tranformative nature of the allegedly infringing work (part of the factor pertaining to the purpose and character of the challenged work) apart from the other factors in the 4-part test. Among those other factors, the most significant is the effect of the allegedly infringing work on the market for the copyrighted work. I can’t begin to wonder how the stamp could hurt the market the sculptor can exploit with his copyright in the original work. Talk about different uses and purposes! If we take the sculptor’s copyright (as I think we properly should) to extend to straight, “photorealist” depictions of the sculpture (whether in photographs or in other media) that are sold for commercial gain, I can’t see how the stamp would hurt that market. And the sculpture as a sculpture, of course, has no commercial market. It’s public art!

Nor is it legitimate if you are engaging in real legal analysis to dismiss as “completely irrelevant”, as you did in your response to my original post, the fact the sculpture was created for and sold to the government for display in a public area visited by millions of people annually. One of the 4 factors in the 4-factor test is explicitly “the nature of the copyrighted work.” Thus, for example, all else being equal, an appropriating work will have a better shot at being fair use if it appropriates a published work rather than an unpublished work. Why? Because the author of an unpublished work has not yet had an opportunity to exploit the commercial market for his work. For example, J.D. Salinger was able to enjoin the publication of a biography of him that contained large portions of unpublished letters he had written. At the time the biography was scheduled to appear, Salinger had not published
anything for about 30 years. Given this long silence and his immense popularity as a writer, there was a market of readers thirsting to buy anything he’d written that they hadn’t already seen. Thus, regardless of its merits as a biography, the biography was going to be sold to that market, the readers who would buy the book simply because it contained big chunks of previously unpublished writing by Salinger.

In short, the “nature” of the sculpture is very relevant to whether the stamp is entitled to fair use protection. The sculpture is a work of public art on view permanently in a location that is one of the most popular tourist destinations in our country. And it was sold to our government — that is, to the public — rather than to a private art museum. Merely dismissing these facts as “irrelevant” is to ignore that your blog is called the art “law” blog. The law doesn’t ignore these factors. [You might note in connection with this factor that I believe the fact that Mark Cuban sent a message via Twitter to all of his followers demonstrated that he didn't have a very strong interest in controlling the use of the words.]

Finally, a “commercial” product is not one that produces revenue. It is a product produced for private commercial gain. Thus, for example, political advertisements plainly directed at raising money are entitled to greater fair use protection than commercial advertisements. And the fact the appropriating work is used by a non-profit entity also
distinguishes it significantly from one used by a commercial entity seeking to raise revenue for the profit of private persons as private persons. I would also suspect that the fact the non-profit use in the case of the postage stamp is a purely public use (rather, than, say, a  use by a private non-profit entity like a foundation) renders it even  less “commercial.”

Finally, you bring up several other cases. I’m not sure how bringing  them up and suggesting they might be difficult cases supports your proposition that the 4-part test is useless and can be equally supportive of any position. Each claim of fair use must be evaluated on its own merits. As you can see in this little back and forth we are having, there are just too many relevant variable to reduce the judgment to simple rules. But again, the fact that the judgments are complex does not mean that, as you implied in your original post, they are arbitrary.

So the fact you might be able to point me to a difficult fair use case doesn’t mean the 4-part test is arbitrary and useless — and that’s what you said. It means that there’s a legal rule under which there are close cases. And there are others that aren’t. Welcome to the law.

But I’ll give you my quick take on each of those cases anyway, and you can make your own judgments (and call me on it when I turn out to be utterly off base).

I can’t really judge the Catcher in the Rye/60 Years On case because, due to the ruling, I have not been able to compare the two works. Nonetheless, having read the decision and the expert opinions in the case, I wouldn’t be shocked if the trial court’s decision is reversed on appeal. The judge who enjoined the publication of 60 Years On largely based her decision on (1) a determination that Holden Caulfield is a copyrighted character, the Holden character in 60 Years On is identical intellectually and emotionally to the Holden character in Catcher in the Rye, and (2) the fact the author and his representatives represented the book as a “sequel” to Catcher in the Rye, only resorting to calling it a ”parody” when they were sued by Salinger. I think one potential defect in her reasoning was her conclusion that the identity of the 2 Holden’s precluded the possibility that 60 Years On commented upon and criticized Catcher in the Rye. What she seemed to miss is the possibility (one that was central to the declaration sworn to in the case by Martha Woodmansee, a very influential and accomplished scholar of conceptions of authorship and the history of copyright) that it was precisely 60 Years On was, precisely, commenting on the observation that Holden showed no emotional or intellectual development in the course of Catcher in the Rye. In other words, depicting the 80 year old Holden as emotionally and intellectually identical to the 16 year old Holden was a commentary on Holden’s failure to change in the course of the original novel. 60 Years On also seems, through the emotional immaturity of Holden and other literary devices, also to critique Salinger for having frozen himself in time in 1964 as far as his reading public is concerned in 1964. Copyright exists to promote creativity. What has Salinger done since 1964 to promote creativity? If anything, he’s only stifled it in himself and in others.

But we’ll see. The Second Circuit will read the two works, review the sworn statements of the experts, and come to its own conclusion. But, as I said above, I wouldn’t be shocked if it reverses the decision of the trial court judge.

As to the Patrick Cariou/Richard Prince case: I strongly suspect Cariou will win. I’ve thought about this case far less than the others you brought up, but I myself don’t find nearly as great a difference between Prince’s collages and Cariou’s photographs as I do between the stamp is of the Korean War Veteran Memorial sculpture. In addition, both Prince and Cariou’s works are graphic, 2-dimensional works made for personal commercial gain by private individuals. Moreover, there appears to be more individual character in the subjects of Cariou’s photographs than in the sculpture’s figures. I would never imagine that Prince’s collages and Cariou’s photographs were derived from a common third source. I myself think there should be much greater latitude given to appropriation art than the law gives, but the way I read the law I feel I’ll stand by my (pretty superficial assessment) that Cariou likely will win.

As to the Shepard Fairey/Manny Garcia dispute, I’m on record with my strong conviction that Fairey will win. You can see what I’ve written in the posts you’ll find here (set forth in reverse chronological order).

Thanks for reading, and for the dialog, and take care,

peter

ADDENDUM: I seem to have gotten under Zaretsky’s skin, which really isn’t my point. I appreciate the dialog. I don’t think I have all the answers. I might be wrong. But I like to see law supporting legal arguments, not unsupported opinions. Before I’d even finished the e-mail above, he had posted another piece, this one arguing I’m wrong to conclude, emphatically, that there’s no way the postage stamp could have an impact on the market the for the sculptor’s copyrighted work. He argues, in essence, that there is an impact on the market for the copyrighted work because if the Postal Service had paid for a license to use an image of his sculpture on their stamp he would have made money and that granting fair use protection to “derivative works” would deprive the copyright holder of the income he is entitled to from derivative works. In support of this argument he relies on a law professor’s statement that “The right way to frame the question [whether a work has an impact on a copyrighted work's market], I think, is whether an artist who creatively appropriates a … photograph needs to pay for a license to do so.”

Again, no cases, no statutes — just opinions. And the point simply doesn’t make sense to me. Maybe someone can make sense of it to me; maybe I’m dense. But, again, this argument seems circular. An artist needs to pay for a license to appropriate a copyrighted work only if the artist’s work is not entitled to fair use protection. The only way to determine whether a work is entitled to fair use protection is to work your way through the 4-part test. If you concluded, for example, that any artist making a collage needed to pay for a license to use any copyrighted work appropriated in the collage, Jeff Koons could not have won in Blanch v. Koons.

While one of the 4 factors in the 4-part test is the impact of the work on the copyrighted work’s markets, it wouldn’t make sense to assume that the copyrighted work’s markets must include the market for all types of works like the challenged one. To do so would be to assume that any appropriating work that produces a revenue stream is not fair use. That is not the law.

Finally, Zaretsky refers again to the decision in the 60 Years On/Catcher in the Rye case. He points out that the judge, in ruling that finding that 60 Years On is entitled to fair use protection would potentially have an impact on the market value inherent in Salinger’s copyright in Catcher in the Rye, stated “it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works.”

Besides the fact that I think there is a real possibility that decision will be reversed on appeal, there are a couple of reasons I don’t find this reasoning terribly persuasive. First, the conclusion that there is a potential harm to the market for Catcher sequels or other derivative works assumes the conclusion I suggested above might be the basis of a reversal — the appellate court might well find that 60 Years On is no mere sequel but instead constitues a genuinely creative commentary upon and critique of Catcher in the Rye and Salinger himself.

Second — and this is where I’ll stray much further away from anything I’ve seen in the case law than in anything I’ve written regarding Zaretsky’s statements yesterday or today — this reasoning seems contrary to the entire purpose of copyright: to promote creativity. Let’s suppose copyright law did not prevent people from writing sequels to books by other people and someone wrote a sequel to Catcher in the Rye that in no way, shape, or form consituted a commentary upon or critique of Catcher in the Rye (and let’s assume such a thing were possible). Let’s say too that Salinger himself wrote a sequel to Catcher in the Rye. What would happen? One possibility, the most likely one perhaps, is that the knock-off sequel had no market impact because the market judged it to be a poor substitute for the real thing. In that case Salinger has suffered no harm. Let’s suppose instead that the knock-off was deemed by the market far better than Salinger’s sequel. Then Salinger has suffered harm, but why? Because the audience has determined that the knock-off was better. To prevent its publication, therefore, would be to stifle creativity, not to promote it. The same would be true if the knock-off and other knock-offs competed well but did not overwhelm Salinger’s work. We’d have two or more works the market had judged substantially equal in creative worth. In other words, the market will reward or punish the copyright holder according to the extent he maintains his creative edge. Why should copyright law step in and change that result?

Negativland was way ahead of Girl Talk, and still is.

On September 2, I will have the honor of being part of a seminar, sponsored by the Arts Network of the Council on Smaller Enterprises (COSE), that “will feature a multimedia presentation by independent musician, arts activist and “citizen lobbyist” Mark Hosler from Ashville, North Carolina. Mr. Hosler, well known [as one of the founding members of] the band Negativland for his experiences fighting legal battles over copywright, intellectual property and fair use in art and music, will present a mixed media lecture about his first hand experience with these topics.” Negativland was way ahead of Girl Talk. Holser’s encounters with the inanities of copyright law are legendary and illustrative. Most importantly, Holser is remarkably articulate on these issues. Negativland’s entire site is worth a visit; here is one of Holser’s most recent writings:

From our 28 years of being creators, observers, and consumers of music, art, and video, our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the public is now able to create and distribute new work via digital technologies. We’ve also witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At other times, as I am sure you know, they benefit no one except the businesses lobbying you. We are concerned when this does not serve the public interest.

We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of how we all build upon the ideas and works of those who came before us. Copyright was always intended as a balancing act between giving ownership to creators so as to provide incentive to create new works, and allowing works to lapse into the public domain so that new ideas could develop. But our founding fathers could never have imagined the kind of world we live in today and the amazing new technologies that we are surrounded with – technologies that encourage and inspire us to interact with the world and create in unprecedented new ways. Protecting the author of a creative work is a good thing, but the benefits of copyright have been thrown off balance by the disproportionate influence of those with the most money. In fact, the more recent expansions of our nations copyright laws represents a break from our nations past and from the intentions of our own Constitution.

Did you know that copyright originally lasted only 14 years, and then all work fell into the public domain? The limit now is 70 years plus the life of the creator, meaning that nothing made in our lifetimes will fall into the public domain. This does not strike us as a very good public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and this system seems to have done nothing to discourage innovation, creation, and especially remuneration in the fields of science and technology with this relatively short time span.

But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite literally, bombarded with media. It has always been a part of human nature to make art in response to and using material from the world around us. Nowadays, anyone with a small computer can easily make, remake, slice, dice, mix, and remix from any electronic media they can get their hands on. And because we can, we often do. Besides being fun, this kind of work creates a new type of cultural “conversation” that we can all have with the media around us, a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom of speech.

Copying has gone on in art and music throughout the ages, from “quoting” in classical music compostions, to homage and parody. In much of the last century, these “appropriation” practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent developments, they have now moved wholly and firmly into the mainstream. And yet our laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen woefully behind the curve of what the public actually wants to do with all that digital “stuff” out there. Millions world wide are creating art, music and video that incorporate elements of existing work – cutting and pasting bits and pieces of music, video, text, and pictures made by others to create new works. Millions of web pages now use various Creative Commons licenses to provide a nuanced alternative to traditionally black and white interpretations of copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all happy with copyright as it stands now.

At this juncture, we feel it’s necessary to point out that we support artists and creators being paid for the work they produce. We believe copyright was correctly intended as a judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses who produce and sell most media and entertainment. And we should also mention that all this creative re-use of material rarely if ever puts new work in economic competition with its sources. It does not pose any reasonable economic threat to the original source in any marketplace that they share. In an ideal world, Negativland would like to see the notion of Fair Use expanded to accommodate, accept, and protect these new practices.

How good a literary critic was the judge in the Catcher in the Rye case?

Will the judge’s decision that 60 Years Later: Coming Through the Rye infringes J.D. Salinger’s copyright in Catcher in the Rye stand up on appeal? My judgment is necessarily a qualified one. I haven’t read Coming through the Rye, and a truly informed judgment would require me to do so — in essence, the decision turns on whether Coming through the Rye is a commentary and criticism of Catcher in the Rye or, instead, an effort to cash in on the copyrighted character of Holden Caulfield. In other words, is Coming through the Rye original or not? I can’t tell for sure without reading it myself. Nevertheless, there are problems in the judge’s decision that cast it, in my mind, in some doubt.

Most troubling is the judge’s conclusion that Coming through the Rye cannot be deemed to comment on the original because Holden in the former is identical to Holden in the latter. The judge stated: “First, Colting’s assertion that his purpose in writing was to ‘critically examin[e] the character Holden, and his presentation in Catcher [in the Rye] as an authentic and admirable (maybe even heroic figure” is problematic and lacking in credibility.” To support that point, the judge refers to the sworn declaration submitted by Martha Woodmansee on behalf of Colting, quoting Woodmansee’s statement that “[r]eaders familiar with [Cather in the Rye] will anticipate the same laconic observations and reflections they associate with Holden Caulfield. What do they get from the 76 year old C? They get much the same kinds of observations and freflections, but coming from a 76 year old and applied to a world much changed in the 60 intervening years, such observations and reflections fall flat. They reveal a character whose development was arrested at 16, who instead of growin g up could only grow old.” The judge also quotes Woodmansee’s statement that the observations and reflections of Mr. C evoke “[in style and content . . . vintage Holden Caulfield, and coming from a 16 year old, they seemed honest and endearing. Coming from the 76 year old C, however, they seem pathetic.”

In short, the judge concluded that Coming through the Rye was not a parody of Catcher in the Rye because Holden in the new work was merely a copy, not an original character. She stated that it is hardly a parody to merely put the same character in a new situation: “It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.”

That is odd reasoning. One of the principal criticisms of Catcher in the Rye since its publication is that Holden did not develop at all emotionally or intellectually through the course of the book's story. "John Aldrige wrote that in the end, Holden remains what he was in the beginning -- cynical, defiant, and blind. As for the reader, there is identification but no insight, a sense of"pathos but not tragedy." This may be Salinger's intent, as Holden's world does not possess sufficient humanity to make the search for humanity dramatically feasible." In other words, by depicting a 76 year old Holden who is no different than Salinger's 16 year old Holden, one might conclude that the author was parodying the self-absorbed, dense, and unreflective 16 year old (as well as the author, who has contributed nothing to the creative life of the society from which he has done everything to withdraw since 1964). And indeed, Woodmansee takes the same characterization of the "young" and the "old" Holden the judge seizes upon and sees it precisely as parody. Her testimony is that "Mr. C" in Coming through the Rye is  "a character whose development was arrested at 16, who instead of growing up only grows old. This is a devastating critique of Holden Caulfield in particular, of [Catcher in the Rye] generally, and of its author J.D. Salinger, whose apparent inability to ‘develop’ his hero reveals him to be ‘burned out.’” (emphasis added)

Is Coming through the Rye fair use.? I think on appeal it might well be found to be . It’s interesting that we make our judges literary critics in these cases. Why do I doubt the judge’s crtiticism? Because it seems to simplistic and because, knowing Martha Woodmansee personally, I feel far more confident in her abilities as a literary critic than I do in the judge’s.

James Boyle: “A Song’s Tale: Mashups, Borrowing, and the Law”

Professor James Boyle lectures on the 199 year history of a song protesting the government’s inept response after Hurricane Katrina, tracing its sources back over 100 years through the work of, among others, Kanye West, Ray Charles, and Clara Ward. Each (I’m shocked, shocked) of these musicians borrowed from the music of others before them, yet they borrowed in different ways, under different legal rules, in a different musical culture. Their music was shaped, for better and worse, by those constraints. At the end of the 100 year journey, we can have a sense of how the music of the future may be shaped, and of what our musical culture will give up in the process.

Why is music the main battleground in the copyright wars?

Andrew Dubber is an established scholar working in Britain, an author, and an online music consultant writing a book “about the music industries and intellectual property in the digital age.” He’s also writing a blog as “a scrapbook of material for” the book. The book and the blog, Deleting Music, are “[s]pecifically . . . about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.”

Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring “extend[] way beyond popular music into books, visual arts, academic works, medicine… and extend[] into the realms of international trade, global politics and genuine life and death issues”? He believes that the reason is that the music industry is uniquely threatened by the commercialization of culture:

There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.

In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.

This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.

To me, that’s important, urgent – and worthy of its own book

Music has been the center-piece in the recent copyright wars. Dubber knows better than I the impact of the music industry’s practices on the culture, but I think there’s a very good legal explanation for the music industry’s centrality to today’s copyright disputes.

In both the plastic arts and in literature there is a long history of, well, “remixing” as a legitimate method of creation. There has been in music as well, but not in quite the concrete and specific way there can be in painting and literature. Collage is a long-established artistic genre, and in literature the wholesale copying and rearranging of existing work as a composition method goes back to the foundation of Western literature in Homer. In music, on the other hand, while composition has always been a matter of reworking existing formulas, we’ve been operating in recent times on a general assumption that lifting a single note from an earlier recording constitutes copyright infringement. For long enough this practice has been the norm in the music industry that most people I know simply assume it’s an indisputable fact that if you sample anything from a copyrighted work you must pay for the sample.

But that’s a very debatable proposition. So where did it come from?

Paying for every last sampled note from a copyrighted song only became standard industry practice beginning in 1991 practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , 780 F. Supp. 182 (S.D.N.Y. 1991), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s cheesy hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction; he also referred the defendants to the U.S. Attorney’s office for criminal prosecution and began his opinion, like a preacher from the pulpit with these words:

“Thou shalt not steal” has been an admonition followed since the dawn of civilization Unfortunately, in the modern world of business this admonition is not always followed.

The U.S. Attorney’s office exercised its prosecutorial discretion and refused to seek an indictment against Biz Markie or his producers. One likes to think the prosecutors were more thoughtful about the copyright issues the case raised than was Judge Duffy.

But Biz Markie’s record company did not appeal the decision and, in fact, the decision marked the beginning of the music industry’s practice of requiring permission and payment for any sample. The companies that at the time constituted the industry had a strong interest in maintaining the regime Duffy’s decision put into place (a regime bolstered in 2004 by the decision in  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), in which the court ruled that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats). Deference to this legal regime meant that each company’s recordings were inviolate without payment. There was no economic reason to challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use was, and no matter how little impact it would have had on the market for the sampled piece. Moreover, artists who would have challenged the existing regime hardly had the financial wherewithal to take on the industry and the enormously successful artists who benefit from it. Thus, as John Pareles has written, “[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. “

Thus, the the RIAA states “generally speaking, the use of any part of a song requires a license.”

But, as I have emphasized again and on this blog, law is forced to change when the material conditions it governs change, and the ability to make and stitch together samples into compositions that can be disseminated world-wide — an ability that in 1991 was held almost exclusive by the recording industry — is now within reach of, literally, millions of people. It is inevitable that with this change the deference given to a trial court decision in 1991 would be challenged and that the arguments Judge Duffy entirely ignored in that decision would be examined anew.

But when, and in what circumstances? That is the interesting legal question right now. As I’ve previously written, Greg Gillis, who performs as Girl Talk, creates music that does nothing but violate the rule Judge Duffy declared inviolate since the dawn of civilization — Girl Talk’s work consists entirely of samples of recordings (virtually all copyrighted) stitched together into entirely new works.

Girl Talk’s work therefore has been described as a “lawsuit waiting to happen.” Gillis’s compositions include samples of recordings made by such artists as Metallica, who have demonstrated their willingness to sue people they believe have violated their copyrights, and the Guess Who, whose representative has stated ,  “We’ll chase [Girl Talk] down. What more can you do?” Yet no one, as far as I know, has yet sued Gillis. Why?

Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

Doesn’t art require the use of symbols that resonate with the culture? J.D. Salinger and his “ownership” of Holden Caulfield compared to Shakespeare and his theft of King Lear.

I may be a minority, but I find it odd to think a literary character, rather than the work he appears in, can be copyrighted. Nonetheless, the judge hearing J.D. Salinger’s lawsuit seeking to block publication of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is “a portrait by words.” Funny, I might think of Catcher in the Rye as analogous to a painting, but the character himself?

Holden Caulfield is a cultural icon of adolescent alienation (or at least was at one time). Can no creative work employ him as a symbol with resonance for an entire generation without J.D. Salinger’s permission (that, by all appearances, he would never grant)?

A lot of great art would never have been created if that were the case. Thinking these thoughts, I came across this, from Groklaw (via techdirt):

I was goofing off, looking up some information on Wikipedia on King Lear, and here’s what struck me. If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.

Count how many lawsuits there could have been just for King Lear alone:

Shakespeare’s play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare’s most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser’s The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.

Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne’s Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion’s England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.

The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney’s Countess of Pembroke’s Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.

How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling’s litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they’d have been DRM’d. He’d maybe then never have read them.

Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let’s imagine Shakespeare did that. Shakespeare wasn’t even noncommercial. And there are criminal sanctions under regular Copyright Law, too.

If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn’t have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?

People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

I don’t think J.D. Salinger should own Holden Caulfield. But I think Mickey Mouse belongs to all of the world too, so what do I know?

One must ask: should J.D. Salinger have the exlusive right to profit commercially from stories that include Holden Caulfield? He certainly has the right to block publication of his own letters. The author of a letter owns the copyright in the letter’s contents. But he doesn’t own the letter. So when Joyce Maynard, who was 18 when the 52 year old Salinger started a relationship with her, put up for auction the letters Salinger had sold her from that time. there was quite a hulabaloo. And since the auction was being conducted through Sotheby’s, as Joyce Carole Oates recounted, there was “not only a public auction but also a public exhibit of the private letter preceding the auction.” As Oates wrote, the situation might be troubling, and it’s certainly one fertile for lawyers:

One might argue reasonably that such a public exhibit constitutes ”publication,” for doesn’t it violate the writer’s rights over his or her material, assuming that these rights have been protected by the law? The complications are endless, a battlefield rife with spoils for ambitious lawyers.

But he wrote the letters to Salinger, and what about that exactly gives him sole say over whatever happens to them, as Oates asked:

Though Joyce Maynard has been the object of much incensed, self-righteous criticism, primarily from admirers of the reclusive Salinger, her decision to sell his letters is her own business, like her decision to write about her own life. Why is one ”life” more sacrosanct than another? In fact, we might be sympathetic to J. D. Salinger’s increasingly futile efforts to safeguard his precious privacy, as we might be sympathetic to anyone’s efforts, but that he happens to be a writer with a reputation is irrelevant.

And I can’t say I’m very sympathetic to Salinger’s efforts to maintain control over Holden Caulfield. He’s an iconic character. It’s difficult to live through adolescence in the U.S. without feeling his influence. He has as much life to an American of my age as did JFK, maybe more. Why should Salinger alone control his future. I know the difference between a book about Holden Caulfied by Salinger and one by someone else. But that’s not to say someone else writing about Holden Caulfield wouldn’t have a lot to say J.D. Salinger might never be able to say.

Is Holden Caulfield still only J.D. Salinger’s character?

J.D. Salinger recently filed a lawsuit (complaint (pdf)) seeking to block the publication of 60 Years Later: Coming through the Rye, an unathorized sequel to Catcher in the Rye, on the grounds it infringes Salinger’s copyright in the novel and in Holden Caulfield, the “narrator and essence of that novel.”

It’s an interesting case.  In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights toThe Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  The court’s conclusion was that TWDG was a protected parody of GWTW because one of its principal purposes was to critique the worldview advanced  by GWTW:

TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. In the world of GWTW, the white characters comprise a noble aristocracy whose idyllic existence is upset only by the intrusion of Yankee soldiers, and, eventually, by the liberation of the black slaves. Through her characters as well as through direct narration, Mitchell describes how both blacks and whites were purportedly better off in the days of slavery: “The more I see of emancipation the more criminal I think it is. It’s just ruined the darkies,” says Scarlett O’Hara.GWTW at 639. Free blacks are described as “creatures of small intelligence . . . [l]ike monkeys or small children turned loose among treasured objects whose value is beyond their comprehension, they ran wild – either from perverse pleasure in destruction or simply because of their ignorance.” Id. at 654. Blacks elected to the legislature are described as spending “most of their time eating goobers and easing their unaccustomed feet into and out of new shoes.” Id. at 904.

It seems that any sequel is bound to comment on the original in one way or another. Does that mean any sequel is a non-infringing fair use of the original work? I doubt it, but where would the line go between a sequel sufficiently critical of the original and a sequel that merely exploits the value the author created in the original?

Shepard Fairey, dishonest Fascist? I don’t think so.

Another artist is upset with Shepard Fairey. 20 years ago Ed Nachtrieb took the photo on the left of an armed Chinese soldier at the onset of martial law in Beijing in 1989.  Fairey’s reworking of the image, conveying its own message, is on the right.

Nachtrieb criticizes Fairey for stripping the image of its context, which was the first appearance on the Beijing streets of lethal weapons and, thus, a the first sign of what would happen in Tiananmen Square. Nachtrieb explains that “[i]mages stripped of their context but retaining  strong emotional elements are  hallmarks of fascist and Soviet propaganda styles,” “drains them of meaning,” and is “dishonest.” And, of course,  he thinks “that Mr Fairey [should] credit those whos materials he uses to ‘inspire’ him.”

Nachtrieb has a point: Fairey’s image plainly does strip Nachtrieb’s original image of its meanings. But it is precisely the fact Fairey’s image does transform the meaning of Nachtrieb’s that makes it fair use of Nachtrieb’s photograph (credit or no credit). But is Fairey’s image “dishonest” or, even worse, “fascist”?

Fairey’s image actually does seem a pretty interesting combination of Soviet Socialist Realism and symbols evoking Yippie demonstrations from the ’60s, hardly the type of thing Socialist Realist painters would have depicted. In short, it’s neither dishonest nor fascistic. It’s just not what Nachtrieb wants done with his image, but, as I’ve made clear again and again, artists don’t have the right to control the uses of their images if those uses are non-infringing. Nachtrieb doesn’t even accuse Fairey of copyright infringment, and rightfully so — it’s pretty damn clear Fairey’s use of Nachtrieb’s photo is fair use.

ADDENDUM: In the comments, Banksy (or someone impersonating him) writes: “You’re an idiot.” I’m not sure precisely which aspect of my idiocy he is referring to, particularly with respect to my post. I doubt he considers Fairey’s piece an infringing one. Perhaps my superficial art criticism and the association between Socialist Realism and Yippie symbolism offended him. I do know that one of his pieces, “War and Peace,” does not seem entirely out of place in this post:

Is Nesson crazy? Statuory damages need not relate to actual damages.

As I explained the other day, the merits of Professor Charles Nesson’s argument that peer-to-peer file music file sharing constitutes fair use entirely escapes me (and, apparently, others). But Nesson seems to be making another argument as well — that if the plaintiff cannot show actual damages it is not entitled to the alternative remedy under the copyright statute, up to $150,000 in statutory damages per infringement:

He will argue that statutory damages only apply to commercial infringers.  The law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent. If the two remedies are equivalent, and if “individual noncommercial copying results in no provable actual harm to the copyright harm holder,” then actual damages would be zero-and so would statutory damages.  

As he also has been quoted:

It would be a bizarre statute indeed that offered two completely unrelated remedies,” he writes, “one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month. 

It doesn’t strike me as so bizarre. Statutory damages often serve the purpose of providing a remedy for a proven violation of law where the lawmakers have concluded it would be too burdensome to also require proof of damages, particularly in cases in which damages might be difficult to prove. It does not seem bizarre to believe that Congress in enacting the Copyright Act concluded that situations precisely like the one Nesson is defending — blatant individual infringements that cumulatively could have an impact on an industry but the individual effects of which are difficult to ascertain — should be subject to some liability. In addition, even if the statutory remedy bears no relationship to actual damage it can still serve a legitimate function: deterrence. And, indeed, my very brief research on the question has demonstrated the courts are quite aware of these arguments. In Pret-a-Printee, Ltd. v. Allton Knitting Mills, 218 U.S.P.Q. 150 (S.D.N.Y. 1982), the court stated:

An award of statutory damages is appropriate where the measure of actual damages is difficult to ascertain. See Peter Pan Fabrics v. Jobela Fabrics, Inc., 329 F.2d 194, 196 (2d Cir. 1964). Moreover, “[t]he broad discretionary power given the courts to make such an award serves the dual purposes of the Copyright Act: to compensate copyright owners and to provide a deterrent to would-be infringers.” Lauratex Textiles Corp. v. Allton Knitting Mills, 519 F. Supp. 730, 733 (S.D.N.Y. 1981), citing Lottie Joplin Thomas Trust v. Crown Publishers, 592 F.2d 651 (2d Cir. 1978).

So where is Nesson coming from. I confess: I can’t tell. Perhaps he believe damages divorced from damage somehow violate the Copyright Clause of the Constitution because they discourage rather than encourage innovation. Such arguments, however, have failed in far more compelling circumstances.

ADDENDMUM: “In effect, subject to the limits the statute places on maximum and minimum awards, this gives to the court or the jury the power to simply pick a sum of money to be awarded as damages instead of any other monetary remedies without any proof of monetary loss by the copyright owner.” Howard B. Abrams, 2 The Law of Copyright § 17:11 (2008) (emphasis added).

ADDENDUM 2: The question may be more complicated than I originally believed, and a statutory damage award entirely divorced from any relationship to damages might raise due process concerns. So the court stated in Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574, 587-588 (6th Cir.), cert. denied, 128 S. Ct. 2429, 171 L. Ed. 2d 229 (2007). Nonetheless, the court in Zemba affirmed an award of statutory damages that were 44 times greater than actual damages and emphasized the extreme deference appellate courts must give in reviewing trial courts’ awards:

This review, however, is extraordinarily deferential — even more so than in cases applying abuse-of-discretion review. Douglas v. Cunningham, 294 U.S. 207, 210, 55 S. Ct. 365, 79 L. Ed. 862 (1935) (Congress’s purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages “take[] the matter out of the ordinary rule with respect to abuse of discretion”); Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995)   (interpreting the modern Copyright Act and noting “that the standard for reviewing an award of statutory damages within the allowed range is even more deferential than abuse of discretion”).

In Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278, 282 (D. Conn. 2008)(citations omitted), the court, without addressing the question, observed that “[th]e defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive . . . .”

How online video creators can make remixes, mashups, and other common online video genres.

American University Professors Pat Aufderheide and Peter Jaszi, have produced the video below in their capacity as principals in American University’s Center for Social Media and AU’s Program on Information Justice and Intellectual Property. The video was produced in collaboration with Stanford Law School’s Fair Use Project, and explains how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within copyright law.  (Professor Jaszi happens to be a favorite scholar of mine.)

Is peer-to-peer music downloading fair use? I doubt it.

In defending an individual against liability for downloading music via peer-to-peer networks, Harvard Law Professor Charles Nesson apparently is going to argue that his client’s activities constitute fair use of the copyrighted music. His arguments don’t seem terribly persuasive to his peers, and I confess that it is not clear to me at all what his argument is. Ars Technica even asks, “Is Harvard Law professor Charlie Nesson crazy?”

Nesson seems likely to argue that there is no remedy for non-commercial music downloading in the absence of proof of actual economic harm. If that is the basis of his argument for fair use, at least it makes some sense (even if it seems unlikely to prevail). 

More effective, perhaps, will be Nesson’s efforts to convince the court that a jury should decide his client’s fate. As he explains:

 Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue. 

But I’m not sure he’s entirely right about that. Both an influential treatise (4-13 Nimmer on Copyright Section 13.05, n. 17) and the courts suggest that whether certain acts constitute fair use is a “mixed question of law and fact.” A question of law is one a judge determines; a question of fact is one a jury determines. A mixed question of law and fact is one in which a jury determines what happened, and the judge determines the legal effect of those facts. See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986)  I’m not sure how Nesson is going to persuade jurors who might be sympathetic to his client to find the historical facts he needs to convince the court his client’s music downloading was fair use.