Copyright and fair use (1): Tim Faith

Main Page Agenda Faromet

This is a transcript of the presentation given by Tim Faith at the March 1st 2014 SL Bar Association presentation on Copyright and Fair Use.

If you have come to this page first, please read the introductory notes for details on the presentation and its purpose. Links at the foot of this page provide access to the other sections of this transcript.

In this section, Tim discusses the general principles of copyright and introduces the concept of fair use, examining both in the context of some high-profile cases which have taken place in the US courts.

TF-003 Tim-Faith.

00:00: Thanks everybody for coming. We’re glad to have you here and hope you’ll join us for future presentations. We’re going to talk a little bit about copyright and fair use and technology, and there are some recent cases that have come out in the last year or two that are of interest, I think, as far as this ongoing discussion about what fair use really means.

TF-002 Agenda.

00:22: What our plan was, is that I was just going to talk a little bit about just the basic copyright law in the US, and then Agenda has some slides on some of the things that are misconceptions about fair use, particularly on the Internet with technology.

00:37: So we’ll talk about those two things and then Agenda and I are going to talk together about some of the more recent cases. There’s the Google books case that was decided just at the end of last year [2013], the Carious case, which is an appropriation artist case and then so far, in addition to that, there’s Green Day, which Agenda knows a bit more about.


00:56: So. What is copyright? Well, at least under US law, it protects certain kinds of original works of authorship. You might think that “authorship” means things like writing books, and that is sort-of where it started – books and maps and things like that, back in the eighteenth century, but since 1976, the definition of what is covered is much, much broader.

01:18: When you make an original expression: you take a photograph, you write a book, those sorts of things; you make a movie, you make a video game; a lot of those kinds of things are considered original works of authorship under the Copyright Act.

01:33.5: And when you do that, at fixation – which is when you actually fix it into a tangible medium, in the words of the Copyright Act – you have a copyright under US law, and it gives you certain exclusive rights to reproduce the work, to prepare derivatives, to distribute copies. Certain types of works can be publicly performed, like of you have a piece of music; some can be publicly displayed, like a sculpture or two-dimensional artwork – or a book … then you go to Barnes and Noble, they often publicly display the books that are on sale there in the window, so those sorts of things can be that.  Speeches that are written, for example, can be publicly performed.

TF-006 Copyright overview

02:11.5: But, these are the exclusive rights of the author, the person who owns the copyright. And that means that no-one else is supposed to do it without a licence. So what this slide here describes is what is really protected under the Copyright Act, and where are the limitations on people’s exclusive rights.

02:31: There are some things which might be considered original works of authorship, but aren’t protected under the Copyright Act. That sort-of is, if you can tell, the white bars here on the edges, just sort-of outside the spectrum of copyright.

02:45.5: There’s a well-known case in the nineties called Feist v Rural Telephone, I think, and what the Supreme court said in that case was, “Yeah, you have a phone book, but just an alphabetical list of people’s names and ‘phone numbers, a basic list when everybody’s have phone books in that order; that doesn’t enjoy copyright protection. That’s not an original work. And so that sort of this would be in the white bar. The First Amendment obviously said the ‘phone book is obviously their writing, but the Supreme Court said that there are certain things that  just simply are not copyrightable.

03:36: Also, ideas. You know, a lot of people come to me and they ask me, “I have this idea. Can I protect it under copyright?” And the answer is basically no. When Einstein wrote the Theory of Relativity, the fact that E=MC2, is scientific fact, but the theory itself is not protectable under the Copyright Act.

03:45: Now Einstein actually wrote a book which explained his theory, and he had a bunch of concepts and other things in it … Probably, if that book was still protected under copyright today, you probably couldn’t just make a verbatim copy of it, because they are original expressions that Einstein actually wrote about the theory, and it’s that we’re really talking about in the Copyright Act. We’re not talking about the naked ideas themselves; generally speaking, those are not protected.

TF-007 Fair-use-defence

04:13: Now, there is the concept of fair use. What that means is that without a licence, there are certain things I can do with other people’s copyrighted works, and i don’t get in trouble for doing it. And this comes out of Section 107 of the Copyright Act itself, and it says that when you evaluate whether the use of someone else’s work is fair, there’s a four-part balancing test; there’s four things that courts will look at when they evaluate whether a work is fair:

  • The purpose and character of the use by the alleged infringer
  • The nature of the plaintiff’s copyrighted work, that is the original work
  • The amount and the substantiality of the work that is used by the defendant
  •  The effect on the potential market for the plaintiff’s original work.

05:03: And so courts will compare the two works side-by-side, and they’ll look at these factors and then they will balance them to try to figure out is the use by the defendant fair, and therefore not infringing? Or alternatively, is it too much? Is it too much use, is it too infringing on the person’s original market, or is the work not transformative enough? So there are a number of different things the courts will examine when they get into this. So that’s really what the main part of our conversation today is about.

05:35: so there’s an assumption that there is some kind of copying going on of someone else’s work, and the question to the court in general is, is that copying or use fair as that is defined under the Copyright Act itself?

TF-008 Mattel-Forsythe

05:51: There’s a guy named Tom Forsythe, who’s an artist, and he had a bunch of these sculptures where he took Barbie dolls and he did kind-of various … I guess rather upsetting things, at least from Mattel’s point-of-view, who’s the owner of Barbie. This one depicts Barbie … I guess it’s like Barbie’s in the oven; there’s four or five dolls and they’re covered like a tortilla with sauce or something like that, and they’re being cooked as it were.

06:24.5: But Tom made these sculptures and he also made photographs which he offered for sale, and Mattel got mad, and they sued Tom Forsythe over it. And they alleged a number of problems over this, one of them being that tom was infringing on their trademarks; they alleged that there was a trade dress that was unique to Barbie and that he was using it without permission.

06:49: But they also lodged copyright infringement, and their claim was that Tom Forsythe was using copyrighted works as sculpture work, I guess, in this case, without their permissions, therefore infringing it.

07:00: And what’s interesting about this case is Tom Forsythe wins on appeal. Ultimately, the appeals court decides that his use was a fair use. And I think the big real issue here is what tom Forsythe was really trying to do with Barbie. Barbie has, for a long time, [been an] over-idealised figure of what women are supposed to look like, or what girls are supposed to look like: blonde-haired, and curvy and kind-of oddly proportioned and very tall, and a very idealised kind-of figure.

07:36: And really what Tom Forsythe was trying to do was [say], “Well, there’s another side to Barbie”, there’s a social commentary about what Barbie really represents, and maybe that’s really not right; that we’re giving the wrong impression to people about what they should look like.

07:55: And so he had a use which the court looked at and said, “Well, this is probably transformative. He’s not really using Barbie ad Barbie, but it’s a parody or it’s a social commentary that we believe is a fair use, so he should not have to get permission from Mattel.” And by the way, they probably wouldn’t have given him permission, because this is really offensive to the Mattel people, and probably bad for their brand; they have a business interest in keeping Barbie the way Barbie is. And so they probably don’t want to have this kind of free speech out in the marketplace, because it contradicts what their story is about their baby dolls that they sell everywhere on the marketplace.

08:34: And from a market point-of-view, people who buy Barbie dolls are not going to stop buying Barbie dolls just because Tom Forsythe has these photographs. The one is not a substitute for the other. And that’s an important factor in many fair use cases; that if you don’t usurp the market for the original work, whatever it might be, if it’s a separate market for your work, then that rules in favour of the defendant’s use., that makes it more likely that it would be fair.

09:04: And also, in this particular case, the court was real specific about the fact that Barbie has been around so long, is incredibly popular, and has been so for fifty or sixty years, that Barbie ha, in a lot of ways, entered the public perception … a well-known doll that allows people to reference it now. And so when it enters into that realm, there is a kind-of competing First Amendment or free speech right to be able to make commentary about what that doll is about, and maybe criticise it; which is really, I think, at the core  of why the Copyright Act permits a fair use.

09:49: And so ultimately, Tom Forsythe was able to prevail on appeal, because of those considerations of how he was using Barbie, what the message was with Barbie and the fact that Barbie being just so incredibly popular, that to not let anybody not make any criticism of Barbie would really be unconstitutional, if you will, and violate one of these fundamental precepts  of our Constitution. And so on balance, this is considered a fair use.

TS-009 Rgers-Koons

10:20: And then this will be the last thing before i turn it over to Agenda to talk more about fair use myths and misperceptions.

10:26: This case was from 1992. Jeff Koons is a well-known, and probably at this point, probably a famous artist, and he’s well-known for making art that’s controversial. I think that within the art community, there’s definitely a divide – there’s always been a divide; so artists think that his art isn’t art at all, it’s just sort-of junk, and other people thing that he’s the best thing since sliced bread. So he’s a very divisive figure, I think.

10:53.5: And he got sued and ended up on appeal in a copyright matter. So if you look on the left, there’s this fellow named Art Rogers who took this original photograph. And it’s a couple of people he knew who had recently gotten all these puppies. And so he took a photograph – Art Rogers is a professional photographer, he does stock photography; his photographs are often used in stock photography books which get re-sold and re-licensed for post cards and for posters and other things. So that’s his business; that’s what he does. And he made this photograph and got paid a couple of hundred bucks by the people who are depicted in it, and it ended-up in a stock photography book.

11:35: And eventually it got licensed to be made into a postcard. And so it was in a shop somewhere, actually in Europe,  the original photograph was on this postcard in like a gift shop somewhere, and Jeff Koons happened to be travelling through and he found it. And he said, this really fits in with what my art is about; it’s just the banal, basic, common everyday photograph, it’s not art, it’s just this junk. And so I’m going to make this into a sculpture and make this social commentary

12:06: And so the way Jeff Koons works is he doesn’t make the art personally; he hires artists as sub-contractors. so he hired this group of  people that are sculptors and said, “Here’s the photograph, I want you to make this sculpture. I want you to make it as identical as you can to the original photograph.” And so they do that; they do add some colour … I don’t think the puppies were blue in the original photograph … and so they do some changes to it, but basically the point is to make an identical copy, just in a three-dimensional form.

12:36: And so Koons has a show and as opposed to Art Rogers, who makes a couple of hundred bucks in licensing, Jeff Koons sells stuff for hundreds of thousands of dollars. He has a big show and he sells this and a bunch of other sculptures that are kind-of like this, and makes a bunch of money. And Art Rogers finds out about it, and sues him.

12:55: And Jeff Koons’ defense is, “Well, look. I have social commentary, I’ve transformed this into a sculpture, and it’s a different market.  I’m a fine artist, and Art Rogers is just some photographer. And when the court finally got around to this case in 1992, they actually sided with Art Rogers, which I think surprised a lot of people in the community, art or otherwise …

13:22: And I think what the court really struggled with was that it was meant to be a faithful copy of the photograph. Now, that’s not to say that was the end of it. I honestly think, and a lot of people have criticised the Rogers v. Koons case since it came out 20-25 years ago, and said, “what this is really about is that the appeals court didn’t like Jeff Koons; they think he is a jerk, makes a lot of money, he’s not real art, and he’s just ripping-off this guy, and he doesn’t deserve to win”. And so they made this case really into [something more] about  Jeff Koons and his conduct, and less about what the factors in Section 107 are really about.

14:05: But nevertheless, the reason why I teach it this way, or talk about it this way, is that fair use is really not obvious. I’m not really sure that this is really that dramatically different from tom Forsythe’s work and other fair use cases we’ll talk about, and yet Jeff Koons didn’t win this one, and it was found to be not a fair use. Which I think is a curious result, but it’s not to say that it’s impossible. You can have similar situations and yet have different results because fair use, as a legal test, really comes down to the facts and circumstance of the particular case,

14:42: Here I think the intent of Jeff Koons didn’t look good, and it really looked like he was trying to rip Rogers off and not pay him for it, and the appeals courts never like people who do that. I mean when you act in bad faith, that’s a good way to lose a court case, whatever the other facts are. Whereas I don’t think that [in] the Mattel  case that Tom Forsythe was trying to rip-off Barbie. He really was trying to make a social commentary about it.

15:11: But nonetheless, as a foundational thing, these two cases come out differently, and that says a lot about how courts evaluate fair use. So let me step off the podium and turn this over to Agenda to talk about the next part.

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