Blanch v. Koons, transformative appropriation art, and Fairey v. AP

It’s well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the Circuit in which the court hearing Shepard Fairey’s lawsuit against AP and Manny Garcia is pending) in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, “an accomplished professional fashion and portrait photographer,” unsuccessfully sued Jeff Koons for copyright infringement of a photograph she had shot entitled “‘Silk Sandals by Gucci’ (‘Silk Sandals’), [which] depicts a woman’s lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. Allure published ‘Silk Sandals’as part of a six-page feature on metallic cosmetics entitled ‘Gilt Trip.’” The court explained how Koons appropriated and used ‘Silk Sandals’ as follows:

Koons scanned the image of “Silk Sandals” into his computer and incorporated a version of the scanned image into [his painting entitled] “Niagara.” He included in the painting [pictured at left] only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from “Silk Sandals” are second from the left among the four pairs of legs that form the focal images of “Niagara.” Koons did not seek permission from Blanch or anyone else before using the image

Koons was paid $126,877 for “Niagra.” Allure had paid Blanch $750 for “Silk Sandals.” In addressing whether Koons’ appropriation of “Silk Sandals” was fair use or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the “intellectual property” rights of creators and protecting the freedom of expression, including referencing the works of others in new works of creation:

Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.

At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit notes, it considers with respect to this factor whether the work is “transformative” — that is, whether it adds something new to the original work so that it stands on its own as an original work of creation. The court thus quoted the Supreme Court’s decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message …, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine’s guarantee of breathing space …. Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).

The court’s conclusion that “Niagra” is genuinely transformative in its use of “Silk Stockings” is worth quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in favor of Koons:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at ¶ 4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] … to get … more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. 

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative. 

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The court also noted that in Campbell the Supreme Court had rejected the notion that a”the commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that ‘nearly all of the illustrative uses listed in the preamble paragraph of § 107 [setting forth the fair use test], including news reporting, comment, criticism, teaching, scholarship, and research … “are generally conducted for profit.”‘” Thus, the “‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” (Quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since “Niagra” is “’substantially transformative, the significance of other factors, [including] commercialism, are of [less significance],’ [w]e therefore ‘discount[] the secondary commercial nature of the use.’” (citations omitted.)

I by no means would suggest that Blanch is so obviously on point in all respects that it requires the court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the 2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcia’s photo for Fairey’s reworking of that source material, it seems at the very least quite arguable that Fairey’s reworking of the photo meets the 2d Circuit’s test of a transformative work — one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Blanch also makes clear that it is of no moment that, Dan Heller’s assertions notwithstanding, Fairey’s work (1) was intended to convey a message, (2) was intended to “make a buck.”

It also makes plain that Heller is just plain misunderstanding the law when he states that “you cannot misappropriate someone’s likeness or their property without their consent.” (Emphasis in Heller’s original.) Koons neither sought nor received Blanch’s consent to use her photograph. Koons plainly made more than a buck in the transaction. And the fact that Koons’ message might have been a commentary on the world of “mass communication” does not seem any more worthy of fair use analysis even if we do assume, as does Heller, that Fairey’s poster was “merely” a piece of political advocacy. Finally, there is no applicable “right of publicity” that Fairey violated in appropriating Obama’s image (nor does the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity Obama hypothetically could enjoy on his behalf).

ADDENDUM: J O’Shea on Shepard Fairey and the Art of Appropriation.

Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.

I don’t think so, and the discussion of the issue of an infringer’s bad faith in NXVIM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals (whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower court’s denial of a preliminary injunction on the grounds that NXVIM, the producer of a “business training seminar,” had been unable to show it would likely prevail on its claim that the defendants had infringed NXVIM’s copyright in a training manual for one of their online courses. The defendants had posted to the internet quotations from the manual in support of their analyses and criticisms of NXVIM’s activities. NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants’ “bad faith” in obtaining the manual from a former participant in the seminar rather than by purchasing it, as anyone could do.

The majority did in fact state that “it was error for the district court not to have fully and explicitly considered” the defendant’s bad faith, which presumably included inducing the former course participant to breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse the district court’s decision, however, because the bad faith did not alter the conclusions that the use was a non-infringing one. In short, according to the majority, a defendant’s bad faith is not “dispositive” on the fair use question and consideration of all of the factors — and in particular the first, the “purpose and character” of the defendants’ use of the copyrighted material — was so great: “the first factor still favors defendants in light of the transformative nature of the secondary use.”

It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that much. Judge Dennis Jacobs‘ concurring decision is even more illuminating, however, and gives good reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair use analysis should be zero. After reviewing the rather recent history of the role of a defendant’s bad faith in fair use analysis, Judge Jacobs states rather bluntly:

I think that the secondary user’s good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use defines the outer boundary of copyright protection, and that perimeter should be drawn by reference to the central objectives of copyright. Copyright itself would be distorted if its contours were made to depend on the morality and good behavior of secondary users.

To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had its origins in the Supreme Court’s 1985 decision in Harper & Row v. Nation Enterprises, in which the Court held that the Nation magazine had infringed Harper & Row’s copyright in the memoirs of former President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the manuscript illicitly tipped what was generally considered a close case in favor of the publisher.

One might question in retrospect precisely how close a case Harper & Row really was. The chapter the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It seems quite likely that many people who would have purchased the book for that chapter alone (it was clearly the most noteworthy event of Ford’s political career) would have purchased the magazine and therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation it would derive from the sale of the book.

But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative purpose of the appropriating work and (2) whether the appropriating market “usurps a market” that belongs to the copyright holder:

Campbell’s footnoted discussion questioning the pertinence of good faith reinforces the entire thrust of the decision, which requires that fair use be assessed primarily in light of whether the secondary work quotes the original with a transformative purpose and whether it usurps a market that properly belongs to the original author — issues as to which the defendant’s good faith in accessing the plaintiff’s original work does not matter.

In other words, according to Judge Dennis, “the fair use defense exists to encourage the creation of original works that do not ’supersede the objects’ — and thus the market value — of the original. Nor is fair use a doctrine a privilege we confer on people we like. It is not ‘earned by good works and clean morals; it is a right — codified in § 107 and recognized since shortly after the Statute of Anne — that is ‘necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of science and the useful arts….”‘ Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, § 8, cl. 8).”

Thus, while someone’s bad acts may subject him to criminal or civil prosecution on a number of grounds, they should not bear on the fair use analysis:

A person who acquires the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107 [of the Copyright Act], it is fair because it advances the utilitarian goals of copyright.

Shepard Fairey’s deceit in the course of discovery in the lawsuit has been uncovered, and it can be punished through civil sanctions or even criminal prosecution. But it should not affect the court’s determination of the artistic legitimacy of the Obama Hope poster. “[C]opyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense.” Nor is “good faith” a factor in fair use determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you in the fair use analysis.

In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a tolerated exception to the copyright holder’s domain:

Fair use is not a permitted infringement; it lies wholly outside the domain protected by the author’s copyright.

The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still think I was right, and I think the case is bad for art.

Consider me dumbfounded, or just plain dumb. I thought the copyright infringement case brought by the sculptor of the Korean War War Veterans Memorial (above, left) against the U.S. Postal Service for the use of the memorial’s image in a postage stamp (above, right) was an “easy case” — that the stamp constituted fair use of the image of the memorial because, among other things, I thought the image was sufficiently “transformative” of the memorial itself to constitute a creative work in its own right.

But today, in Gaylord v. U.S. (pdf),the U.S. Court of Appeals for the Federal Circuit reversed the lower court’s holding and ruled that the stamp infringed the sculptor’s copyright in the memorial (pdf). Whereas I thought the image on the stamp was transformative because, among other things, I wouldn’t have even known it was an image of a sculpture rather than a stylized image of actual soldiers unless I’d read otherwise, the court held that the purpose and character of the image on the postage stamp and the purpose and character of the sculpture were identical: “to honor veterans of the Korean War.” Slip op. at 9. The court rejected the reasoning I had advanced, reasoning as follows:

Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message.  Slip Op. at 11.

I am stunned, and I find the court’s limitation of of “transformative” work to work that “comments on or criticizes” the work it appropriates without real rationale, but the odds are long the case will end up before the U.S. Supreme Court. It might be a good case for the Supreme Court to weigh in on — the ease and low cost of copying and disseminating images in this day and age makes any and every sort of appropriation art a contentious and wide open field, but I suspect the Supreme Court would prefer to let these issues simmer in the lower courts for some time before it chooses to weigh in on the question. In the mean time, I have to bow in humility to Donn Zaretsky, with whom I engaged in an online debate last summer on this particular case in particular and on the issue of the photographic appropriation of public art in particular. Donn was right, and I was wrong. I suspect, though, that this isn’t the last word we’ll hear on this type of case.

Addendum: The more I think about the decision in Gaylord, the more wrong-headed I believe it is, and the more I think it falls prey to a dangerous proclivity to commercialize every last aspect of our culture, including art. To limit “transformative” uses of copyrighted materials to uses that comment upon or criticize the copyrighted works they appropriate is to eliminate the use of the kind of appropriation as source material that is the very foundation of art. Copyrighted art works become part of the cultural language. A work that has impact in a culture takes on a meaning of its own. That cultural meaning then becomes part of the language of art, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that art needs to use in order to be art. To remove copyrighted works from this language in the absence of payment for their use would substantially damage our culture. By the time a work of art becomes available for the free use of other artists as part of the public domain — the duration of the artist’s life plus 70 years — it no longer will have any resonance worth exploiting.

Moreover, it is, I think, strange that the court in Gaylord reasoned that the photograph of the sculpture was not sufficiently original in its own right to be transformative despite what I referred to above — the fact that one would not likely even spot that the photo was of the the memorial, much less a sculpture — because that character of the photo was merely the product of the fact the photo was shot on a snowy day:

To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude. Slip op. at 11.

This reasoning is strange because, as I have pointed out before, photography itself is protected by copyright as “original” — rather than being rejected as mere transmission of the “facts” it conveys — precisely to the extent it reflects the photographer’s choices regarding the framing of the image, the choice of background and lighting, and the resulting mood:

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). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).

I am not sure how one reconciles the idea that photography constitutes original work entitled to copyright protection with the notion that the elements of the art that give it originality — the elements that are the result of the artist’s choice — are merely “nature’s decision” and therefore not an element that make a work sufficiently original to be entitled to stand on its own without paying its way. I also think that the decision is vacuous as an artistic matter.

Finally, the decision plainly has significance with respect to the claim by the Associated Press that Shepard Fairey’s Obama Hope poster infringed Manny Garcia’s photo of then-candidate Obama. I have stated again and again that I think the Hope poster is a non-infringing fair use primarily because of the way it transforms the photo and stands on its own as a creative work. It was many, many months before anyone even identified which photo was Fairey’s source material; even Garcia himself, despite seeing the poster again and again during those months, did not recognize that the poster was derived from his own photo! But there’s no doubt in my mind that the poster does not constitute a comment or criticism of the photo. Under the Federal Circuit’s reasoning, therefore, Fairey’s poster infringes the photo’s copyright. Fortunately, however, the Federal Circuit’s decision is not binding on the United States District Court for the Southern District of New York, where AP v. Fairey is pending, so that court will be left to its own judgment as to the scope of appropriation art will be permitted in this age of digital copying and transmission.

Here’s hoping, on my part, that the court in that case comes to a different decision. Art is a language that draws on and builds from itself. To reduce the language’s components to commodities would be to commercialize one more part of our lives, monetize one of the few things we have left that have not been reduced to the equivalent of cold cash.

Second Addendum: John E. Grant has a very interesting take on the Gaylord decision – he reads the decision as one that focuses on the stamp rather than the photo the stamp consists of:

In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge was wrong to focus on the transformative aspects of the photograph. Instead, it held that it must analyze the purpose and character of the stamp. The appellate majority then found that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean War veterans.

It’s an interesting thought, but I’m not sure I entirely buy it. If the photo itself was fair use, then I do not understand why the photographer did not have the right to license the use of that photo to the government for use on the postage stamp. Further, as Grant acknowledges and as I pointed out above, the court reasoned that although the image on the stamp “altered the appearance of the sculpture, . . . the alterations [were attributable] to mother nature, not the photographer and . . .  ’nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right’ to his copyright.” Again, I cannot understand why the very elements that constitute the creative elements of a photograph can in this fair use analysis be passed off as merely “nature’s decisions.”

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.

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:

When is a copy an original?

Behind all the shouting about Shepard Fairey and the Obama Hope poster, there is, as I’ve emphasized again and again, a real failure to contend with our conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that I’m seeing remakes of films I’ve already seen as an adult. There isn’t much originality there. But then you look at something seemingly so simply as Douglas Gordon’s 24 Hour Psycho (1993), a super slowed-down version of Alfred Hitchcock’s 1960 film Psycho, and you have to wonder whether it isn’t a whole lot more original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:

“24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation… it wasn’t a straightforward case of abduction. The original work is a masterpiece in its own right, and I’ve always loved to watch it. … I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me…”

Let’s get straight the historically profound benefits of making information available online — Scribd this time.

Two days ago I wrote about the court decision holding that the video hosting service Veoh is protected by the ”safe harbor provisions” of the Digital Protection Millennium Act from liability if any of the service’s users upload videos that infringe existing copyrights. One of the reasons Veoh is entitled to those protections is that it uses adequate technological safeguards to police the content its users upload.

So I don’t expect there is much of a chance that a new lawsuit against Scribd, a web site that hosts documents uploaded by its users, will will succeed or even survive a motion to dismiss for failure to state a claim, a procedural device that ends the lawsuit at its very beginning by means of a court determination that even if everything the plaintiff alleges is true she is not entitled to legal relief. As Geek.com reports, the lawsuit alleges copyright infringement by Scribd not because it hosts copyrighted materials but because the software it uses to detect copyrighted materials before they are published on the site allegedly uses copyrighted materials:

A children’s author in Texas has leveled a strange lawsuit against the company, claiming that the company infringes copyright, but not by hosting infringing works on its service.

No, her claim is even weirder: she maintains that Scribd prevents copyrighted material from being placed on the site by copying the text of copyrighted books and other publications into its copyright infringement detection software, which therefore infringes copyright itself!

The claim may not be as weird as Geek.com believes, though it is likely not to survive long. The original legal challenge to the Google Books Project by the Authors Guild and individual authors holding who were identified was premised largely on the contention not that Google was going to make those authors’ copyrighted works available. It wasn’t. It was only going to make those works searchable so that snippets could be brought up by researchers who could thereby identify and by library loan or purchase obtain relevant works they never otherwise would have found without traveling from Palo Alto, California to Ann Arbor, Michigan to Oxford, England. So what was the problem? The authors alleged that the fact Google was copying their works in their entirety to create the database that would yield the snippets constituted copyright infringement.

And in A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. 2008), aff’d in part and remanded, F.3d 630(4th Cir. 2009), plaintiffs were students who alleged that iParadigm’s Turnitin plagiarism detection system — used by schools throughout the country to detect plagiarism committed by students — constituted copyright infringement. Schools that use Turnitin require each student turning in a paper to submit it through Turnitin. Turnitin then compares the paper to its database and prepares a report that rates the similarities of the paper to papers in its database. In addition, Turnitin adds the paper it is rating to the database, thereby constantly growing and increasing the effectiveness of that database.

The students alleged that they owned the copyright in their papers and that IParadigms was infringing those copyrights by copying those papers and using them as part of the Turnitin database. But last March the federal court hearing the lawsuit dismissed it.

There are several interesting points to make about the decision. First, I read the trial court decision (that was later affirmed by the U.S. Court of Appeals for the 4th Circuit) on Scribd (here). Scribd is a tremendous resource for me — a lot of legal documents are not available online, and a lot of valuable ones that are available online are behind paywalls even though they cannot be copyrighted (including a lot of court decisions). Scribd is a solution to this problem, providing a central clearinghouse where lawyers can upload legal documents to make them available to the general public.

The value of resources like Scribd is one of the reasons I find criticisms like that Chris Castle directed at the decision in the Veoh case so maddeningly unhelpful. If one looks at sites like Veoh and Scribd as doing nothing but making available for free works that people would otherwise pay for, then it is much easier to rant and rave that those sites are nothing but distributors of stolen merchandise and to rationalize a stubborn refusal to admit that copyright must be balanced against strong competing interests in free speech and the exchange of ideas. But if you see these sites as profoundly gratifying resources that make the internet the greatest innovation in the history of information technology, the fact that media companies (and even independent writers, artists, and musicians) can readily identify infringing uses that do slip through detection programs does not seem so profoundly troubling. Those copyright owners can quickly employ the DMCA’s notice-and-takedown procedures, which many criticize as too friendly to the copyright holders.

Why would you use copyright to stifle marvelous new innovations? Copyright exists to encourage, not stifle, invention.

So a legal attack on Scribd, even if it is not as “weird” as it might seem on first blush, is something I will scrutinize carefully.

Second, it seems odd that Scribd would be attacked for committing copyright infringement resulting from a mechanism it is employing to minimize copyright infringement by its users and for which it is rewarded by the immunity conferred by the DMCA safe harbor provisions.

Third, a spokesperson for Scribd, as Wired reports, explains that Scribd does not copy works in their entirety as part of its copyright detection system; rather, it “creates a digital fingerprint, or a ‘hash,’ to identify infringing copies.”

Most importantly, even if Scribd did copy the entirety of the copyrighted works only to use those copies to prevent users from uploading and making available to readers those copyrighted works, the decision holding that Turnitin’s similar use of copies copyrighted materials to detect plagiarism is illuminating. The trial court, affirmed in this reasoning by the 4th Circuit Court of Appeals, explained that “iParadigms, through Turnitin, uses the papers for an entirely different purpose [than those the plaintiff did or could], namely, to prevent plagiarism and protect the students’ written works from plagiarism . . . by archiving the students’ works as digital code.” Thus, while the court recognized that iParadigms profits from its use of the student works, the court found that iParadigms’ use of plaintiffs’ works was “highly transformative” because it adds a “further purpose or different character” to the copyrighted works and “provides a substantial public benefit through the network of educational institutions using Turnitin.” Slip op. at 14.

In affirming the trial court’s decision, the 4th Circuit added to this reasoning and described as “clearly misguided” the argument that   Turnitin’s  use of the plaintiff’s copyrighted papers cannot be considered transformative “because the archiving process does not add anything to the work — Turnitin merely stores the work unaltered and in its entirety”:

The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (concluding that Google’s use of copyrighted images in thumbnail search index was “highly transformative” even though the images themselves were not altered, in that the use served a different function than the images served). [Turnitin's] use of plaintiffs’ works had an entirely different function and purpose than the original works; the fact that there was no substantive alteration to the works does not preclude the use from being transformative in nature.

562 F3d at 639.

So let’s get it straight: what Scribd is doing is of tremendous value to society as a whole. It’s use of copyrighted works to minimize the availability on its site of copyrighted works is entirely different than and in no way diminishes the value of the copyrighted works to the owners of the copyrights. A copyright is not ownership of property like title to a car is — it does not give the owner control over any use of that car the owner doesn’t approve. There are a lot of good reasons for these differences. First, if someone else uses your car, you can’t. If someone else uses your copyrighted work, you can still use it too. If they use it for a use you never would have, what’s your problem? And if that other person’s use is doing a lot of good, why should the law confer on you a power to stop it? (Even your ownership of physical property is limited by restrictions imposed for the social good.) Finally, copyrighted works are works of expression, and we have a constitutional right to free expression. The limitation on copyright imposed by fair use is precisely a means of balancing the copyright holder’s interests against this profound social interest in free expression.

It’s an amazing world. In the name of legal rights that exist to promote progress and innovation, people everywhere are trying to stop revolutionary innovations they plainly don’t realize the value of. One of these days I’ll have to talk about the Google Book Project settlement and the fights raging in connection with it. Some are more legitimate than others. But let’s be clear: Google is trying to make available online for research purposes (not in ways that would displace the markets for the works themselves) the contents of major research libraries from around the world. Doesn’t everyone realize what an amazing and unprecedented advance this is for the life of the mind, for anyone anywhere who ever has had an interest in doing research?

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?

Easy Case: Postage Stamp is Fair Use of Korean War Veterans Memorial

Over at the Art Law Blog, Donn Zaretsky points to Gaylord v. U.S. (pdf), in which the court held that a postage stamp (pictured at right) that reproduces a photograph of many of the 19 stainless steel soldier sculptures that are part of the Korean War Veterans Memorial (pictured at left below) located n Washington, D.C. did not infringe the copyright in the sculptures.

The court found that the stamp was transformative enough to merit fair use protection because the photograph it used “transformed [the sculpture's] expressionand message, creating a surrealistic environment with snow and subdued lighting.” Zaretsky writes that this is “[n]ot a particularly tough standardto meet.” The first problem with the post is that regardless of whetherZaretsky believes the standard is “tough” enough, it is the standard courts apply in determining the “originality” of an allegedly infringing work.

Worse, though, Zaretsky states that the case is “another good example of how you can make the traditional four-factor fair use analysis do whatever you want it to do.” He cites as authority for this damnation of the law Judge Kozinski of the 7th Circuit Court of appeals, who has said that the 4-factor test applied to fair use “can always go in either direction.”

I think Zaretsky’s be;ief that the 4-factor test can support any position is ridiculous. Granted, determinations on the edge are difficult and plainly depend on a case by case judgment, but judgments as to whether (a) the new work is sufficiently transformative to stand on its own without exploiting the market created by the original work and (2) whether the new work has or threatens an adverse impact on the market for the original work are not the arbitrary decisions you assert they are. That’s the way much of law works — it’s a function of better and worse arguments, not bright lines that offer easy predictability. To accept Kozinski’s statement as the truth is to dismiss an enormous amount of law as the utterly rudderless and arbitrary imposition of power. I’ve practiced and taught law too long to believe that’s what it is.

Moreover, the sculpture allegedly infringed by the stamp, called “The Column,” is not, as Zaretsky asserts, a “good example” of the 4-factor test’s arbitrary nature. In fact, it’s an excellent example of a situation in which the 4-factor test leads pretty easily to the conclusion reached by the court. The court’s conclusion that the stamp significantly reworks the sculpture is pretty convincing. Looking at the stamp you can’t tell you’re looking at figures that originate in a sculpture, and other than the figures themselves the entire image set forth on the stamp is not present in the sculpture. Moreover, it’s laughable to suggest the stamp adversely affects the value of the sculpture. And if you want to look at the other factors, those too are pretty convincingly on the side of fair use: the sculpture is public art and therefore is constantly viewed for free. Moreover, it was done for the government, which, last I heard, is one of the people, by the people, and for the people. Finally, the stamp itself is a governmental product — in other words, it’s a non-profit product.

In making the accusation that the fair use analysis employed by the courts is entirely arbitrary without having engaged in any analysis of his own to suggest the ways in which the analysis might support the sculptor Zaretsky may be acting in a disingenuous fashion. But I suspect what he is really bemoaning is that the fair use test is so case specific it is difficult for artists to know exactly whether, in appropriating copyrighted works, they are acting in legitimate or infringing ways. It is a very fair common complaint. I have yet to see, however, any test that would better draw the line. More importantly, the test is one developed by our courts on a case by case basis for over one hundred years. While it is now embodied as a statute in the 1976 Copyright Act, the legislative history of that act makes clear that the statutory language is meant to incorporate that court-made common law, not supplant it, and courts are not limited to considering those 4 factors in making their fair use determinations.

Don’t forget to call your mashup a reflection and critique of the works it appropriates!

In determining whether a work that appropriates a copyrighted work is a non-infringing fair use, the fundamental issue is whether the new work transforms the copyrighted work to a degree that makes the new work so creative it stands on its own. One thing that puzzles me is the degree to which courts rely on the artist’s expressed intent in deciding whether the new work is transformative. Are we really supposed to ground our determination of whether a work is “transformative” in the artist’s own expressed purposes?

To do so poses all sorts of problems. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art?

Not only does art live in its relationship with its audience, not in its creator’s mind, but to explore questions of intent in determining a work’s originality inevitably will raise questions of an artist’s stature. Is Jeff Koons original? According to Wikipedia, ‘[s]upporters claim (for Balloon Dog) “an awesome presence… a massive durable monument’ (Amy Dempsey, ed. Styles, Schools and Movements, 2002, Thames & Hudson), and for other work that it is possible to be ‘wowed by the technical virtuosity and eye-popping visual blast’ (Jerry Saltz, art critic). On the other hand, “Mark Stevens of The New Republic dismissed [Koons] as a ‘decadent artist [who] lacks the imaginative will to do more than trivialize and italicise his themes and the tradition in which he works… He is another of those who serve the tacky rich.’ Michael Kimmelman of The New York Times saw ‘one last, pathetic gasp of the sort of self-promoting hype and sensationalism that characterized the worst of the 1980s’ and threw in for good measure “artificial,” cheap” and “unabashedly cynical.”‘”

It seems likely a lot of people would have a difficult time considering anything by Koons original.

Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the U.S. Court of Appeals for the Second Circuit, in holding that Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that the new work was “transformative” precisely on Koons’ statements regarding what he intended:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,” Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Given the focus on an artist’s expressed intent in making a work of art, it would seem wise for appropriation artists to be versed in the proper lingo. Call your work “a reflection and criticism of the themes evoked by the original.” You might even want to call your work a “parody” of the original, but doing so might be a little too blatant. It is plain that in the recent decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet. The judge’s opinion seems in fact to indicate that if only the author had used the magic words to describe his work the outcome might have been different:

Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that 60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.”

Opinion and Order at 16, n. 3.

Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

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.

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:

You need to understand your teacher’s interests; a librarian’s job is necessarily one that requires a narrow view of copyright.

Lawyers know someone can be very clear and compelling — and even dead-on accurate about his client’s legitimate view of the world — without telling the whole truth.

A librarian sent the video available from the Copyright Clearance Center at this link to my colleague Carolyn Jack, explaining that it explains copyright in a “clear and engaging way.”  There’s no doubt she’s right about that.  It’s very well done.  But it is very much a librarian’s take on copyright.  Librarians control access to scholarship in print and behind subscription-only paywalls. They certainly can’t bypass those paywalls simply by re-posting material, which seems to be a practice the offending librarian is surprised to learn is a problem.  Moreover, a librarian’s job is to maintain and ease access to the material in the library.  There may be ways portions of the material are republished to create more useful means of finding and accessing them, but it would be difficult to imagine those methods would risk infringement.  Plainly, though, the sheer volume and value of the material in a librarian’s control and the need to educate a library’s users on not abusing it is going to make librarians very risk averse.

Therefore, this video leans heavily on the side of copyright holders. That’s not to say it’s inaccurate (and it’s very well done), but one has to walk away from it thinking using copyrighted works is rarely okay. It certainly doesn’t even allude to “transformative uses,” and, while accurate, it’s gloss on fair use is so cursory (and the subject
so complex) that one can’t walk away from it with an idea of what would be fair use. It definitely is a librarian’s piece — their interests are in making sure nothing is done wrong. I don’t blame them; I’m just not sure that the video in the end does much more than say, “Be careful, and when in any doubt don’t do it.” I’m not sure that’s useful to, say, artists or those who would comment on the laws of copyright, among others.

Thus, I don’t think this video does what the Copyright Clearance Center, according to the librarian who sent the video to Geniocity, claims it is doing: “CCC is making the video available for free for anyone who wants to use it for educational purposes. Since corporate librarians are so often called on to educate folks on copyright matters, we thought you’d be interested . . . .”

ADDENDUM: Context is everything, and I want to note the very valid comments a couple of librarians have added to this post.  Larisa points out that librarians are dedicated to providing, not restricting access to information, and suggests that my critique might be better aimed at “corporate” rather than public librarians.  Rob emphasizes both the quality of the video (it teaches someone with no knowledge of copyright an awful lot in 6 minutes) while acknowledging the issues such a brief introduction inevitably leaves hanging.  He’s worth quoting in his entirety:

Your comments are eminently reasonable in respect of this well-done video and its brevity. While incompletely exploring the issue of Fair Use, in the range of most modern-day attenition spans, it does provide a basic grounding in copyright for the unititated in organizations and institutions(i.e. most corporate executives and their respective staffs, a majority of faculty).

In addition, it engagingly presents an opportunity to raise questions such as those here: archivist? preservationist? public/academic/corporate librarian? Fair use? – and presents ample opportunity for informed and intelligent discussion among those suitably interested.

Finally, one cannot come away from the 6+ minutes of this charming video without being forever better informed than 6 minutes previously. How many things have we seen or heard lately about which we can say that? Too few, I’d wager.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

Collage is art, not theft.

From Negativeland, whom I’ve previously mentioned as a precursor to Girl Talk:

[F]rom an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated “theft”, “piracy”, or “bootlegging”. We reserve these terms for the unauthorized taking of whole works and reselling them for one’s own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else’s created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new “whole”. This becomes a new “original”, neither reminiscent of nor competitive with any of the many “originals” it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are “borrowed” from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone’s music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material’s avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

Now Shepard Fairey sues AP

The AP/Shepard  Fairey showdown continues.  The New York Times reports:

In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama. . . .

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia [the photographer] took.

Further complicating the matter is the fact that “Mr. Garcia contends that he, not the Associated Press, owns the copyright for the photo.” Mr. Garcia also states, “‘If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.’”

Mr. Garcia might want to put the “legal stuff away,” but,  as I’ve written,  “the legal stuff” is precisely what Mr. Garcia is talking about when he talks about what  Mr. Fairey did artistically  with the photo and that the effect his artistic transformation of the photo had.  That Fairey so transformed the photo into something that changed the stencil of a generic wire service campaign photo into an iconic image is a huge part of why legally what he did is perfectly legitimate. So, while Mr. Garcia might “not condone people taking things, just because they can, off the Internet,” what Mr. Garcia condones or does not condone is really what is not the “legal stuff.”

The fight is on: AP sues Shepard Fairey.

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute I’d love to see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its background, and Obama’s suit jacket and tie to create the poster that became an iconic symbol of the presidential campaign.  I hope Fairey sticks to his guns and fights this out without settling.  I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement. And AP has been known to assert blatantly silly infringement claims.  Of course, not everybody feels the way I do.  So I’d very much like to see the matter decided, and I suspect Fairey, unlike many of the victims of copyright overclaiming, has the resources to take the case to trial and through appeal.

ADDENDUM: I am not alone in my conviction regarding the tranformative way Fairey’s poster alters the AP photograph.  Submitted to a Candid World Writes:

Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning.  The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).¹ But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.

How do we promote creativity?

One common theme that runs through my views regarding intellectual property is that there is way too much treatment of intellectual property as the equivalent of real property (that is, land). I can fence off my land and keep everyone off of it. Therefore, too many feel, I can fence off my intellectual property and prevent anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I think the authors who didn’t want their books to be accessible for word searches via the Google Library Project did as well.

My greatest knowledge about intellectual property concerns copyright. The first thing to know is that copyright is a relatively recent legal creation and that tall U.S. copyright law exists by virtue of and within the limits of 27 words in Article 1. Section 8 of the U.S. Constitution:

The Congress shall have 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.

In other words, copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Works that are genuinely creative in their own right but appropriate copyrighted works (Girl Talk and Shepard Fairey, among many others) therefore have a very strong claim to legitimacy as long as they do not exploit the market created by the original work. Indeed, that’s exactly what the fair use doctrine is intended to allow and is beginning to reflect.

My views are shaped to a considerable degree by my belief that all creativity is grounded in previous work, and that the more leeway the law gives to appropriation the more creativity we will have. Of course there are limits. You cannot entirely rob the artist of the financial profits of his work. But using that first artist’s work in an altered way that creates something people want for reasons entirely different than the reasons they wanted the original work does not rob the first artist of the fruits of his labor. Rather, it allows someone else to sprout new fruit.

Apparently, IBM shares this attitude with respect to inventions it could patent. As Securing Innovation reports:

IBM used the occasion of the recent announcement of its 2008 patent record to introduce plans to help stimulate innovation and economic growth. The company plans to increase by 50% — to more than 3,000 — the number of technical inventions it publishes annually instead of seeking patent protection.

Why? According to IBM’s press release:

Publication of technological information is one means to “promote the Progress of Science and useful Arts” the phrase in the U.S. Constitution giving the Congress the power to enact patent laws. Publication protects inventors from allegations of infringement by placing the intellectual property into the body of prior art. Publications also improve patent quality, since they can be cited by patent offices in limiting the scope of patent applications. Publication also helps spur follow-on innovation that ensures dynamic business growth.

While IBM will continue to seek patents and will protect its intellectual property, its planned increase in publishing inventions will focus on those technology areas that will increase the build out of a new, smarter infrastructure. The evolution of IBM’s policy builds on prior efforts to stimulate innovation by pledging not to assert certain patent rights in the area of open source software, health care, education, the environment, and software interoperability.

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.