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Fair Use Ruling Overturned on Appeal
Last year I wrote an article about Gaylord v. U.S., a case involving a U.S. postal stamp that incorporated a photograph of a sculpture from the Korean War Memorial in Washington D.C. The sculptor (Frank Gaylord) sued for copyright infringement and initially lost with the trial court ruling that the stamp's depiction of the sculpture constituted transformative fair use and was therefore allowed under copyright law. Today a federal appeals court majority held that the stamp was not a fair use of the sculpture and remanded the case to the trial court for an assessment of damages. Records show that the government grossed over $17 Million on sales of the stamp, so damages could be substantial.
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Proper Copyright Notice bars an “innocent infringer” defense
I've long advised clients about the importance of including proper notice on their works. As a practical matter, you should do everything in your power to make it easy for someone to get in touch with you for permission (and payment) to use your copyrighted material. As a matter of law, however, proper notice—especially when you also embed it in your metadata—gives you some important legal tools. Yesterday the 5th Circuit Court of Appeals issued an opinion that elaborates on one of those tools: the ability to foreclose "innocent infringement" claims by unauthorized users of your work.
Fair Use and Appropriation Art
As I discussed in a previous post, the fair use doctrine provides an important check on the monopoly granted to copyright holders under copyright law. While copyright is a vitally important tool for content creators to protect their intellectual property, fair use has an equally important role in protecting “the progress of science and the useful arts” as mandated by the Constitution.
79 Moons From Flickr - 51 Visible by Penelope Umbrico. Buy a print at 20x200.com while they last!
One place where fair use plays a significant but controversial role is in the field of appropriation art—taking someone else’s work and re-imagining it into a new piece. I’ve been really enjoying a few different examples of appropriation art lately, so one of the main reasons I thought I’d write a blog post on this topic is to share them.
But I also want to point out that copyright law, as strong as it is in favor of copyright holders, has its limits. Fair use is particularly strong where an artist takes pieces of protected works and repurposes those pieces such that the end product is so transformative of the original works that the end result is something completely new that doesn’t directly compete with the original.
I have little doubt that the 79 Moons From Flickr photo above or the Kutiman video below are transformative uses of their component parts, in part because collage, by combining many works into a single piece, seems to have an easier time than one to one appropriation like the current dispute between artist Shepard Fairey and the Associated Press over Fairey’s Obama “Hope” poster.
Niagara, 2000. by Jeff Koons. Oil on canvas, 120 x 172 inches. Deutsche Guggenheim.
Silk Sandals by Gucci, by Andrea Blanch
The Second Circuit Court of Appeals came to that very decision in Blanch v. Koons, 467 F.3d 244. The artist Jeff Koons had taken one pair of the legs (second from left) in the artwork at left from a photograph by Andrea Blanch titled Silk Sandals by Gucci that was published in the August 2000 issue of Allure magazine. The appeals court upheld the district court’s finding that “The painting’s use [of the photograph] does not ’supersede’ or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, and new insights. Such use, whether successful or not artistically, is transformative.”
I have to think that a similar result would apply to audio and video collages as well. The YouTube clip below from the artist Kutiman has been playing (along with the rest of the album) in the background while I write this post. If you haven’t seen and heard this yet, definitely check it out. Kutiman took user-submitted posts from musicians on YouTube as raw material for a whole album of new music. It is fascinating to watch, and musically it holds up extremely well. The track below, appropriate for this transformative use discussion, is titled “I’m New.”
Perhaps better known is the digital musician Gregg Gillis, better known as Girl Talk, who builds new songs using snippets from dozens of well known recordings from the past 40 years. To the amazement of many, Girl Talk has thus far avoided lawsuits from the copyright owners of the original songs, perhaps because the major record labels fear that losing a lawsuit would set a dangerous precident. Try the track Hold Up, from the album Night Ripper (warning, some explicit lyrics) to hear what it sounds like when Ludacris, James Taylor, and The Pixies (among others) are mashed up by a talented musician.
Of course, appropriation art is controversial, and what appropriation artists call “borrowing” might be considered outright theft by the original artist. Artists who appropriate the works of others run the risk that they’re going to make some people mad, possibly mad enough to sue. And even if an artist’s use of a work turns out to be fair use, as I often say to my clients, being right can still be expensive. In the Koons case above, even though the defendant prevailed he still had to come out of pocket for over $1 Million in legal fees (he tried to get an attorney’s fees award from the trial judge but the judge denied the request).
But while appropriation can be risky, there are some things you can do to minimize that risk. The School of Communication at American University maintains the Center for Social Media which publishes several helpful guides on the topic of fair use, and the Fair Use Project at Stanford Law School maintains a good list of fair use resources. While the guides aren’t foolproof, they should go a long way to helping artists understand the balance between copyright rights and fair use, and hopefully stay far enough away from the tipping point to avoid unwanted attention.
As always, for a better analysis of your particular situation, or if you’ve been accused of infringement, it is a good idea to consult a lawyer. Maybe one who gives free 20 minute mini-consultations, for example.
Amazon Relents on Control over Kindle Text to Speech
I just updated my earlier post to reflect Amazon’s recent announcement that it would give over control of the Text to Speech (TTS) capabilities of its Kindle 2 e-book reader to whoever holds the rights to the text of the underlying e-book.
I find it fascinating that the very first sentence of the press release is an unequivocal statement that “Kindle 2’s experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given.” Why would Amazon give in if it were so certain of its legal argument? Certainly the cost of litigation wouldn’t scare it off—I’m sure Amazon has a substantial war chest for this type of thing. And, because Amazon controls a significant (and growing) portion of the audiobook market through its Audible and Brilliance divisions, a legal battle would in some respects be a no-lose proposition (a ruling in favor of TTS makes the Kindle more valuable, a ruling against it gives Audible/Brialliance a bump).
Kindle 2’s “text to speech” function.
Several people have recently asked me what I think about the Author’s Guild’s assertion that the “text to speech” functionality of the Amazon Kindle 2 E-book reader somehow runs afoul of U.S. Copyright law. I admit that my first inclination was to defend the Kindle under the theory that “fair use” protects machine-aided reading (as well as things like reading aloud to your kids), but Peter Jazzi at the ©ollectanea blog points out that such readings usually aren’t infringement to begin with. (To be fair, he isn’t the first to do so, Sherwin Siy at Public Knowledge also has a thorough post on the topic.)
The upshot of the argument is that Section 106 of the Copyright Statute contains a finite list of the exclusive rights of copyright owners; if some act isn’t on the list, then copyright holders have no right to control the behavior. While the statute indicates that a reading of a literary work can constitute a “performance” of that work for copyright purposes, it also states that copyright holders only have the right to control public performances, not private ones. Therefore since most uses of the Kindle’s text-to-speech capabilities will be personal ones, nobody has a legal right to prohibit them.
Court finds transformative “Fair Use” in Korean War Memorial stamp.
I get a lot of fair use questions, and I have a hard time explaining the concept in anything less than a 45 minute conversation. I find it to be a fascinating concept: in the often black and white world of copyright infringement, fair use is a gray fog that both obscures the traditional boundaries of copyright and reveals contours that aren’t otherwise apparent.
There are some basic rules of thumb: I often tell my clients that they should think about whether their use of a particular work (without permission) is merely substituting someone else’s creative expression for their own. For example, if you use a photograph to illustrate a blog post, ask yourself whether you could achieve a comparable result by going out and taking (or buying) your own photograph or whether your use of that particular photograph integral to that particular article. Or to put it another way, are you using the photograph to illustrate the news, or because the photo is the news? (Just to be clear, the second situation is pretty rare).
But rough rules have their limits, and fair use is a big topic that takes some experience to navigate. Therefore I think the best way to explain fair use is to discuss actual cases and try to draw parallels to similar situations. One such case was decided last week involving a U.S. postage stamp depicting a sculpture at the Korean War Memorial (the case is Gaylord v. The United States). Note that this is a district court case in the United States Court of Federal Claims, and there’s a chance that the ruling could be reversed on appeal.