Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.

Mark Cuban asks:

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.

Is Michael Murphy another Shepard Fairey?

Do you think that if we ever discover the photo from which Michael Murphy derived the image for this “shadow portrait” of Obama in urethane Murphy will be accused of copyright infringement?  I do, but I don’t think it’s infringement.

Shepard Fairey did not infringe AP’s copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster.

I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled AP’s photograph of Obama to begin the creation of his Obama Hope poster — nothing Fairey copied is even entitled to copyright protection.

In Meshwerks v. Toyotoa Motor Sales, Inc. (2008), the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. (My friend and former student Brian Wassom was lead counsel for Toyota.) The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot.  All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.  Thus, the Toyota Solara in the photograph to the right is likely a digital model of a Toyota Solara superimposed upon and moved within the photograph of the picturesque background.

The court noted the obvious difficulties of applying existing law to new technologies (a theme I hammer again and again), but found its solution in the ways, since the invention of photography in the 19th Century, courts have figured out how to determine what photographs (or what portions of photographs) are entitled to copyright progection.  Thus, the court explained that a photographer “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The court noted that it is these elements — the ones created by the photographer –  that are entitled to copyright protection:

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

There is nothing in the AP photographer arranged or posed in his photograph that Fairey copied in the Obama Hope poster. The image is a stock wire service photograph shot in the midst of a presidential campaign.  It is so unworthy of note that it was many months after the Obama Hope poster became a sensation that anyone even identified the photograph as Fairey’s original source (and it was neither AP nor the photographer who made that identification). In short, Fairey’s poster duplicates nothing that was original enough in the first place to merit copyright protection. There is likely no copyrightable material in the photograph, in fact, that he could have infringed.

ADDENDUM: Brian Ledbetter suggests in the comments that my argument is that “none of the elements in the AP photograph are ‘copyrightable.’”  That is certainly not what I am arguing.  Rather, I am arguing that none of the elements Fairey copied in his poster were copyrightable.

Fairey’s poster was not a copy of the photograph.  It used one element, the angle of Obama’s face, and changed everything else from the photograph.  I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I’d agree that it was an infringement.  But he didn’t.  He changed everything except the angle of the head.  And surely the choice of subject matter for the photograph was not a creative one.

As William Patry points out in his treatise (Patry on Copyright, section 3:18) “In most cases, the photographer chooses a particular subject and either poses the subject or selects the angle and lighting from which to best capture the subject.” But that often is not the case. In Time, Inc. v. Bernard Geis Associates, Abraham Zapruder, a Dallas dress manufacturer, was taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. In a challenge to the pictures’ copyrightability, the court rejected the defendant’s claim that the photographs were “news,” observing that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.”

What is copyrightable in the AP photograph includes things like “the selection of lighting, shading, timing, angle, and film.” Leigh v. Warner Bros., Inc,  (11th Cir. 2000). As I wrote above, the only one of these elements one could conceivably say that Fairey copied is the angle, and that angle is so ordinary a perspective and so unlikely to have been chosen specifically by the photographer that I cannot imagine what Fairey copied that was copyrightable.

ADDENDUM II: Fairey was interviewed by Terry Gross on Fresh Air.  From the interview:

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.

Mark Twain: we are sewing machines re-weaving old threads.

Mark Twain on “originality”:

Old Man: Whatsoever a man is, is due to his make, and to the influences brought to bear upon it by his heredities, his habitat, his associations. He is moved, directed, commanded by exterior influences – he originates nothing, not even a thought.

* * *

Old Man: Shakespeare created nothing. he correctly observed, and he marvelously painted. he exactly portrayed people whom g-d had created; but he created none himself. let us spare him the slander of charging him with  trying. Shakespeare could not create. he was a machine and machines do not  create.

Young Man:   Where was his excellence, then?

Old Man:   In this. He was not a sewing-machine, like you and me; he was a gobelin loom. the threads and the colors came into him from the outside; outside influences,  suggestions, experiences (reading, seeing plays, playing plays, borrowing ideas, and so on), framed the patterns in his mind and started up his complex and admirable  machinery, and it automatically turned out that pictured and gorgeous fabric which  still compels the astonishment of the world. If Shakespeare had been born and bred on a  barren and unvisited rock in the ocean his mighty intellect would have had no outside  material to work with, and could have invented none; and no outside  influences, teachings, moldings, persuasions, inspirations, of a valuable sort, and  could have invented none; and so Shakespeare would have produced nothing. In turkey  he would have produced something-something up to the highest limit of Turkish  influences, associations, and training. In France he would have produced something  better-something up to the highest limit of the French influences and training. In England he rose to the highest limit attainable through the outside helps  afforded by that land’s ideals, influences, and training. You and i are but sewing-machines. We must turn out what we can; we must do our endeavor and care nothing at all when the unthinking reproach us for not turning out gobelins..  

The Great Emancipator, 200-year-old mashup artist

Reflecting on Abraham Lincoln’s 200th birthday, I’ve made the startling discovery that he was not only an inventor but that he espoused ideas that constitute one of this blog’s principal themes — that innovation and progress require the technical capacity and the legal freedom to exploit existing knowledge.

I hadn’t learned in school or in the many books I’ve read about him since that Lincoln  is the only President to have applied for and received a patent. It was for a device to lift boats over shoals. In fact, throughout his life Lincoln was fascinated by mechanical devices. William H. Herndon, his law partner, wrote that Lincoln “evinced a decided bent toward machinery or mechanical appliances, a trait he doubtless inherited from his father who was himself something of a mechanic and therefore skilled in the use of tools.”

On February 11, 1859 (on the eve of his 50th birthday and precisely 150 years prior to the moment at which  I am writing this post), Lincoln delivered a lecture on “Discoveries and Inventions” in Jacksonville, Illinois. Published as the “Second Lecture on Discoveries and Inventions,” Lincoln described the U.S. as the embodiment of a youthful vitality that caused some to think it “conceited and arrogant” but also made it “the inventor and owner of the present, and sole hope of the future.”

Lincoln attributed this extraordinary national role to America’s capacity for innovation:

The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements.

But Lincoln didn’t consider America’s talent for innovation to be the product of some unprecedented national genius. Instead, its inventiveness resulted from the recognition that innovation requires using and building on earlier innovation. Thus, speaking of the invention of the steam engine, Lincoln made clear that his comparison of “Young America” to “Old Fogies” was ironic:

[W]as this first inventor of the application of steam, wiser or more ingenious than those who had gone before him? Not at all. Had he not learned much of them, he never would have succeeded—probably, never would have thought of making the attempt. To be fruitful in invention, it is indispensable to have a habit of observation and reflection; and this habit, our steam friend acquired, no doubt, from those who, to him, were old fogies.

Furthermore, while humans instinctively exchange knowledge, the progression from speech to writing to printing was indispensable to “facilitating all other inventions and discoveries”:

When man was possessed of speech alone, the chances of invention, discovery, and improvement, were very limited; but by the introduction of each of these, they were greatly multiplied. When writing was invented, any important observation, likely to lead to a discovery, had at least a chance of being written down, and consequently, a better chance of never being forgotten; and of being seen, and reflected upon, by a much greater number of persons; and thereby the chances of a valuable hint being caught, proportionally augmented. By this means the observation of a single individual might lead to an important invention, years, and even centuries after he was dead. In one word, by means of writing, the seeds of invention were more permanently preserved, and more widely sown. And yet, for the three thousand years during which printing remained undiscovered after writing was in use, it was only a small portion of the people who could write, or read writing; and consequently the field of invention, though much extended, still continued very limited. At length printing came. It gave ten thousand copies of any written matter, quite as cheaply as ten were given before; and consequently a thousand minds were brought into the field where there was but one before. This was a great gain; and history shows a great change corresponding to it, in point of time. I will venture to consider it, the true termination of that period called ”the dark ages.” Discoveries, inventions, and improvements followed rapidly, and have been increasing their rapidity ever since.

It is easy to imagine, then, that Lincoln would revel in the capacity of today’s technology to copy and disseminate information world-wide in mere moments. Without the technological capacity to pass knowledge across time and space, “[i]t is very probable—almost certain—that the great mass of men . . . were utterly unconscious, that their conditions, or their minds were incapable of improvement. They not only looked upon the educated few as superior beings; but they supposed themselves to be naturally incapable.”

But it was knowledge, not intelligence, they lacked.  Lincoln knew innovation is not the product of individual genius towering above the mass of humanity.  It is a collaborative enterprise that grows from one person’s creative use of someone else’s invention, which itself appropriated another’s discovery that was inspired by something written across the world in an earlier century.  To think it could be otherwise is to enslave humanity not on a plantation but in ignorance:

To emancipate the mind from this false and under estimate of itself, is the great task which printing came into the world to perform. It is difficult for us, now and here, to conceive how strong this slavery of the mind was; and how long it did, of necessity, take, to break its shackles, and to get a habit of freedom of thought, established.

It is even more difficult for us, for whom the printing press seems the equivalent of cuneiform.  But if we are to overcome the challenges we face, we must embrace the full potential of the technology that makes it so easy to improvise on the creations of others.  It is improvisation and reworking and remixing that leads to innovation and progress.

Who knew that Remix Culture is merely an appropriation of Abraham Lincoln’s thinking, that the Great Emancipator believed that for humans to be truly free  knowledge must be free too?

This morning I didn’t think about the fact I wasn’t being original.

I didn’t realize when I wrote this morning’s post that Ann Bartow at Sivacracy.net had over a month ago quoted musician Jeffrey Lewis’s piece in the New York Times making essentially the same points:

Ruling Imagination: Law and Creativity/Is creativity individual or collective?

The question of authorship on scientific papers is an important question. For centuries, every paper was a single-author paper. Moreover, each was thousands of pages long and leather-bound. But now, when science has become such a collaborative enterprise and single-author papers are becoming a rarity, when a 12-author paper turns no heads and 100-author papers are showing up more and more, it has become necessary to put some order in the question of authorship.

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

[In contrast, the] individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author‘”.

Ruling Imagination: Law and Creativity

Collaborative Writing and Creativity

Legal writing is collaborative and built on appropriations from earlier legal writing. Does that mean it is not original? Take for example a judicial opinion written by a high appellate court. The judicial opinion is not the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include the lawyers’ written and spoken legal arguments to the court, the opinions rendered by the lower courts (which themselves appropriated the legal arguments made by lawyers to them), secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19th Century propounded the notion of the judge as quintessentially Romantic author-creator.

Increasingly it is being recognized that all writing is to some degree collaborative

In short, legal writing is quintessentially collaborative and full of unattributed appropriations of texts, ideas, and forms. My work in this blog will be in part, I think, two-fold: (1) to convince you that such writing is, despite its mongrel nature, fully original, and (2) to convince you that what you consider the most original writing is, in fact, far more collaborative and appropriative than you have previously considered.

In short, I hope to examine what creativity really is and to convince you it is not typically, if ever, the inspired product of an isolated genius.