Smolar begins his column stating, “Just because something is commonplace doesn’t always mean it’s legal.” I would counter that with this: just because the record companies made a decision back in 1991 that they each would pay for permission to use recorded samples of each other’s music doesn’t mean that payment is required.

Smolar also seems to imply that because fair use is used as a defense to copyright claims and can be characterized as an “exception” to the real rule that any use of a copyrighted work constitutes infringement it somehow has little importance. One could just as easily characterize fair use in this way: Under the First Amendment to the Constitution, we can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us. In short, copyright is an exception to the foundational right to free expression.

But Smolar isn’t interested in being accurate — he appears interested only in scaring anyone off of unlicensed sampling. He and his ilk haven’t been too successful in that effort. But then why would he be successful in scaring people if he misrepresents the law as egregiously as he does when he states that “[sampling fails to meet each and every one of the four prongs of the" statutory elements courts consider in determining whether the use of copyrighted material constitutes fair use. It's a whole lot more complicated than that. First, of course, the four-part test does not call for an "either-or" determination on each factor. So it's just plain wrong to write "[t]he use must be for non-commercial purposes.” It’s not true either that “[t]he nature of the copyrighted must be in the public interest.” The mere fact someone samples the identifiable part of a song does not make the sampling an infringement either. Finally, Smolar states that sampling damages the market for the song from which the excerpt was taken “because the new song may be purchased for as much as the original.” I’m not sure what that means. He can’t possibly mean that if I get Girl Talk’s “Triple Double” I therefore wouldn’t buy “Steppin’ Out” by Joe Jackson. But all he might otherwise mean is that if Girl Talk’s songs are so good that people are willing to pay a lot of money for them (though they can get them for free), that can’t be right. The more the appropriation is valued in its own right, the more “transformative” it is and, therefore, the more likely it constitutes fair use.

But Smolar isn’t interested in the law. He’ just interested in scaring people into believing they’ll be sued by the record industry if they sample anything.

Addendum: For an good discussion of fair use and its complexities (in a context entirely divorced from music), see “Fair Use Controversy: The Gift That Keeps On Giving.”

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:

Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.

The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:

(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but

(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.

(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.

(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.

In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.

 Let me explain in greater detail why I not only think Shepard Fairey will prevail in the lawsuit AP has brought against him for copyright infringement, but also why I think it isn’t even a close case. The case, of course, involves Fairey’s poster (pictured on the left), which Fairey created by first stenciling the AP photo wire photo pictured on the right.

As the Stanford Copyright & Fair Use site explains, determining whether a work that appropriates all or part of a copyrighted work is no easy thing:

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The four factors and my evaluation of their significances in this case are as follows:

(1) The Purpose and Character of Your Use: As the Stanford Fair Use & Copyright site makes clear, this factor turns to s large degree on the following two questions:

(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?

As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did.

(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While photography is, of course, a creative endeavor, some images are more creative than others, and the AP photo of Obama is about as generic as they come. First, it’s an image of the most recognizable face in the world. Second, there is nothing special about it. This generic nature of the work is emphasized by the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the internet on a search for the source of Fairey’s image, finally found the right one. AP had not even known its copyright image was part of a poster that was visible all over the country and in all the media.

(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above, about all Fairey’s image ultimately uses is the expression and the tilt of Obama’s head. The very nature of the image is changed from that of a photograph to that of a semi-abstract painting. The background is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol on the suit’s lapel is added. And, of course, the word “HOPE” is added.

(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been referred to as the most important factor, isn’t even close. Fairey’s image has obviously had NO negative impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially increased the value of AP’s copyrighted image.

The Stanford Copyright & Fair Use site also points out that “Fair use involves subjective judgments and are often affected by factors such as a judge or jury ’s personal sense of right or wrong.” The fact that Fairey’s image was produced as his contribution to a political campaign would, I believe, weight the case even more heavily in his favor. The courts give great leeway to political speech, which is at the very core of the First Amendment’s values.

ADDENDUM: Brian Ledbetter kindly quotes substantially all of this post and expresses agreement with most of it, but also expresses two reservations: (1) cross-media copying like Fairey’s — whether it be from photograph to painting, painting to statue, photo to Hallmark card-does not necessarily fall under “fair use” exceptions of Copyright law and (2) modern technology makes alterations to photos like the ones Fairey made to the AP photo so easy that we’ll have to begin to believe that “anyone” can create art.

My response, reproduced from the comments to his post:

Cross-media copying is not fair use only to the extent that the result is a “derivative” use. What constitutes a “derivative” use may be as obscure as any other matter on this topic, but it cannot possibly mean any work that is “derived” from a copyrighted work. Every fair use is derived from a copyrighted work.

So what is a “derivative” work? I would submit it is something that exploits at least in part the market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as would a cover song. I would submit that this mashup, though quite entertaining, is a derivative work in that all it does is exploit the market created by Charles Schulz and OutKast:

The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used such large portions of unpublished Salinger letters that it at least in part was intended to exploit the market for people hungry for anything new by Salinger (he hadn’t published in decades).

But [Brian's} Tom Daschle photo.isn't exploiting any market created by the original. And you know what? The more and more such things get turned out, the less and less they'll have an impact. There's no denying that Fairey's image, while simple, is a powerful one, or at the very least that it resonated as one with a huge portion of the public. I don't think [Brian's] Daschle workup would. And if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect some right of the photographer not to have his photograph used in ways he doesn’t want it used? There is no such right. Instead, there’s the First Amendment, which, in the absence of copyright (created to PROMOTE creation) would allow us to use anything.