Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
When does appropriation serve creativity? Quite often, in fact.
A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use. In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.
In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::
[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.
Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright. It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.
And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?
Copying or transforming?
Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.
The e-book will open a new front in an ongoing legal revolution.
The New York Times reports today that “[f]or a decade, consumers mostly ignored electronic book devices, which were often hard to use and offered few popular items to read. But this year, in part because of the popularity of Amazon.com‘s wireless Kindle device, the e-book has started to take hold.”
An e-book that works well is a dream of mine. At any given moment, I literally am reading 25 different books. Whenever I travel, one of my toughest choices is which 2 or 3 I’ll bring with me. Not only are my infinitely wide, but my moods change constantly.
But as the e-book takes hold, expect a new wave in the copyright wars. With more and more books being published in electronic form, they’ll be as easy to copy and disseminate as music is now. So illegal copying and distribution will be inevitable.
In addition, the cutting and pasting of portions of books will create a whole new set of questions regarding fair use. We will witness the resurrection of the commonplace book:
“Commonplacing is the practice of entering literary excerpts and personal comments into a private journal, that is, into a commonplace book or, to use a 17th century synonym, a silva rerum (“a forest of things”). Typically the excerpts were regarded as exceptionally insightful or beautiful or as applicable to a variety of situations, and so as such they are often especially quotable. . . . The practice of commonplacing can be traced back in the European tradition to the 5th Century B.C.E. and the Sophist Protagoras.
Historically commonplacing has played an important role in education, and it has served as a vital tool of erudition.
“Boys … had to keep notebooks or commonplace books in which to record, and then learn, idioms, quotations, or figures useful in composition or declamation. Not a little of that wide learning and impressive range of quotation adorning Elizabethan literature comes from these commonplace books.” Schools in Tudor England, by Craig R. Thompson (Washington: Folger Shakespeare Library, 1958): p. 16, cf. 44.
“Students with literary tastes, in days when books were hard to come by, kept ‘commonplace’ or notebooks into which they copied out verses or prose extracts that particularly appealed to them.” The Intellectual Life of Colonial New England, by Samuel Eliot Morison (Ithaca: Cornell University Press, 1965; reprint of the 2nd ed., 1956): p. 49.
–Norman Elliott Anderson, Commonplacing in the Spiritual Traditions
Will a professor’s commonplace book require permission for the reprinting of every excerpt? There inevitably will be questions about when the excerpts are too long, though I would imagine a collection of excerpts that are small enough and together comprise a wholly new work (a literary collage) should be considered transformative enough to constitute fair use. Inevitably, though, there will be lawsuits arising in particular situations.
Charges of plagiarism, no doubt, will also increase. I strongly suspect that some of the recent incidents of plagiarism involving respected writers were the results of the inevitable errors that creep into works that require an enormous amount of research. A quotation taken during research from one work is mistaken at the writing stage as a paraphrase and ends up verbatim in the finished product. Someone spots the quotation (a process that will be even easier when the texts themselves are all electronic), and, voilà, charges of plagiarism fly through the blogosphere and plague the historian for the rest of her career.
These legal problems are inevitable. I’ve said it before and I’ll say it again. Law is a product of the material circumstances in which it arises, not an abstract set of truths brought down and imposed on reality. When the material circumstances change, the law will have to change. We are living through the most profound change in the availability of information since Gutenberg. The law will change, and it will be a very interesting ride.
Has the Copy-Left lost its white knight?
Google has been a very interesting company to anyone concerned with copyright law. Google has taken on lawsuits raising issues others don’t have the resources to fight over, and Google has been very effective in making good arguments in those cases. Fred von Lohman now wonders if those days are gone:
Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. . . .
The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. . . .
Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google’s legal investments have paid dividends for the entire Internet innovation economy.
Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem – but not anyone else’s. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.
I dont know how to tell you all just how crazy this life feels
John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, “Running on Empty,” in a campaign commercial that targeted Obama’s energy plan. . . .
McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks added):
The campaign’s fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that’s an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon’s “Imagine” in a film); and the effect of the use of the song (McCain says that rather than damage the song’s commercial potential, his use “will likely increase the popularity of this thirty year-old song”).
In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which the court dismissed Mastercard’s lawsuit against Ralph Nader’s 2000 Presidential Campaign Committee. Mastercard’s lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard’s “priceless moments” television ads infringed on Mastercard’s copyright in those ads. The court concluded:
The Nader Ad does add something new and qualifies as a “transformative” work. Whether it “comments” on the original is the issue in question. MasterCard’s message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be “purchased” or are “priceless.” Hence, “there are some things that money can’t buy.”
This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card–”for everything else, there’s MasterCard.” Ralph Nader’s Political Ad attempts to show various ways different Presidential candidates can be bought in the “big-money arena of Presidential politics” and contrasts the “priceless” truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, “which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks.” This commentary “may reasonably be perceived.” The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader’s Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative.
William Patry, Google’s Senior Copyright Counsel, opines on typically futile efforts to use copyright to quell political speech here. There is a long history of this type of thing, as I’ve mentioned here and as you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted works being used:
Is Google no longer the Copy-Left’s white knight?
Google has been a very interesting company to anyone concerned with copyright law. Google has taken on lawsuits raising issues others don’t have the resources to fight over, and Google has been very effective in making good arguments in those cases. Fred von Lohman now wonders if those days are gone:
Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. . . .
The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. . . .
Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google’s legal investments have paid dividends for the entire Internet innovation economy.
Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem – but not anyone else’s. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.
How can something new come entirely from old things?
I’ve written before (here and elsewhere) about Girl Talk, the name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples of pop recordings re-worked by him through contemporary technology into what can only be considered new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in Tuscon and Dallas. As I have previously pointed out, on its face, Gillis’s work seems to run afoul of legal authority which holds that the use for commercial benefit of any recorded sample, no matter how brief, constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing about this:
Gillis says he’s tired of the media characterizing his music as a “lawsuit waiting to happen,” yet he admits: “There’s definitely a component there of seeming like an outlaw, and I think that appeals to some people.” Girl Talk’s appeal, perhaps, speaks to the preoccupations of a new generation raised online–and he may be just the sort of celebrity it fosters.
And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica will not sue Gillis. Why? Because lawyers no you don’t sue people who have the strongest case on the question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value Metallica has created. Metallica would win the lawsuit against such a defendant.
Gillis, however, really does seem to have transformed his raw materials into something entirely new. (You can hear for yourself by downloading his album here, for any price (even zero — itself an interesting move in legal terms).)
In fact, whether a work is “transformative” is, exactly, what is determinative in deciding whether its appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk “song” that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the “transformative nature” of an appropriating work comes from one of those rare law review articles that actually have an impact on the real world, although in this case it was by a judge, Pierre Leval.
Ruling Imagination: Law and Creativity
The futility, and perhaps unconstitutionality, of locking down your digital creations
DRM (”Digital Rights Management,” a/k/a digital copy protection or digital locks) restricts the ways you can copy and distribute your digital media. I’ve heard even artists suggest that advances in digital locks will solve the problems they think are posed by the ease with which digital media can now be duplicated and disseminated.
The Digital Millennium Copyright Act,(the “DMCA”) purports to make it unlawful to override a CD or DVD’s digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.
I seriously doubt, however, that a court could impose liability under the DMCA on someone who evades DRM protection to copy material he subsequently uses for a legitimate, non-infringing use. Fair use is grounded in the Constitution, both in (1) the “Copyright Clause,” which gives Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” and (2) in the First Amendment protection of free speech.
In other words, fair use is a constitutional right, and constitutional rights cannot be infringed by mere legislation.
Not everyone agrees. Chris Soghoian writes that the creators of the Hillary’s Inner Tracy Flick video are in violation of the DMCA’s provision making it unlawful to copy material under DRM protection even though the video otherwise makes fair use of scenes from the movie Election. Thus, Soghoian concludes, if the creator of the video “used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash-up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.”
I don’t buy it. Many, many digital forms of media state, in effect, that “no copying of the information contained herein is permitted by its creator for any purpose.” Standing alone, those statements are meaningless. Plainly, one can make unauthorized copies of information for many purposes. Nor could Congress pass a constitutionally effective law that purported to make those and similar statements enforceable. Again, if you have a constitutional right to copy and use copyrighted materials, a constitutional amendment would be required to take away that right.
I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than a bare declaration that any copying is unlawful. No statute can make enforceable mere declarations that unauthorized copies are illegal. I really don’t see why an easily evaded digital lock is, for these purposes, any different.