Copyright and fair use (3): recent cases

Agenda Faromet Q and A Session

This is a transcript of the presentation given by Tim Faith and Agenda 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 and Agenda discuss a number of high-profile fair use cases in the USA.

00:00 Agenda Faromet (AF): And so Tim and I were going to talk about a couple of cases that came up in 2013.

AF-011 Cases

00:07 Tim Faith (TF): So Google Books, they had a library project back in 2004, where they scanned about 20 million books in conjunction by contract with a variety of libraries – including the Library of Congress, interestingly, who is the gatekeeper of copyright in the country. And they didn’t ask for permission, a lot of the books that they copied were out of print, some were probably in the public domain but many were not; there were many copyrighted works that were there. And as you can imagine, with that many books in play, there was a lawsuit that was filed in 2005, and it went on for a really long time until there was an attempt at a settlement in 2011 among the parties.

00:49 AF: If I can interject. One of the big concerns about Google Books was that many of the authors involved were unknown – the books were orphan works, and so they couldn’t find the authors to ask permission.

01:04 TF: That’s true, and there’s not solution to orphan works; there’s no general index or agent you can go to. There’s just no way to really solve orphan works; there’s just no way to really solve orphan works en masse.

01:16 TF: And so Google to a bunch of books, and the number of books that are actually in print at one time is just a few million, so clearly there were a lot of books that you just couldn’t get easily that were scanned, some of which there probably weren’t that many copies left. So, I can see how that would start out, but it made some people mad, and they filed a lawsuit and for a long time, there was an effort to try to settle. Google had basically offered to put together a relatively large amount of money that would essentially be held in trust and that it would manage the rights. But the court that was in charge of this looked at the settlement and listened to everybody who had problems with it and said, this just isn’t going to work; I cannot certify this as a fair settlement of this dispute, and it tries to go too far in some cases. And so they weren’t able to settle, the court wasn’t able to solve it. They tried after that to re-do the settlement, and that didn’t solve it, and they just couldn’t come to an agreement.

02:15 TF: So eventually, they all filed a motion for a summary judgement, which was basically, we can solve this problem without a trial; it’s a question of law whether Google’s actions were legal or not under the fair use doctrine.

02:26 TF: And in 2013 the Federal District Court Judge, Judge Chin, issued an opinion basically agreeing with Google, that this was fair use. I think that is a fascinating result. I’m not saying that it’s particularly surprising, if you want to read through a lot of the literature about fair use; but it is a monumental decision in the sense of how many works were affected by it. Many fair use cases are just the two parties; it’s the plaintiff’s work and the defendant’s fair use or infringing use of it.

03:01 TF: Here is was Google versus millions of people. And I think [it’s] a very important decision in terms of fair use factors. The court doesn’t cite to it, but there’s another case from about ten years ago, it’s called Kelly v. Arriba Soft Corporation, which was another search engine which had indexed images back before there was Google Images, so Arriba Soft was trying to do this in the late nineties, and they’d go out searching website for images and they’d index them.

03:29 TF: And Kelly was a fine art photographer, had his works on his website and he got indexed, and he sued Arriba Soft. And Arriba Soft also won that case under fair use. and I think there are some similarities, because of what Google is actually doing with these books. It wasn’t just to make flat-out digital copies for sale, like a normal infringement case would be, which is a wholesaler copied my stuff without paying me anything for it.

03:55 TF: What Google purpose, from the court’s point of view, was to build an index that would make available large numbers of works by keywords that otherwise, we would probably never find. It really provided some very different uses for books electronically that don’t exist in paper or really don’t exist anywhere else. Only Google could probably have done it, and which goes to the purpose of Google’s use.

04:20 TF: The other factor that really, I think, had the most important impact, as Agenda has talked about, is the effect on the market for these works for authorship. From the court’s point of view, Google wasn’t making any money directly. When you go to the books, you only get snippets; if you use a search engine you’re more likely to find the book then if you just went to the library … in many cases these books are just unknown. But when you go to the About page for each of these books on the Google Library projects site, it points you to places where you can buy the book  – and not from Google. It’s actually Amazon or wherever they’re actually available to be bought.

05:02 TF: And so the court was like, this is not a bad effect on the market; if anything, it positively impacts the market. I think that’s kind-of an interesting conclusion, because that’s not often how other courts look at this factor. But the trial court said, “you know, Google’s not the one that’s actually making money on this, they’re actually helping authors sell their works, so what’s the problem?”

05:24 TF: Not that other courts agree necessarily, but I think it’s a really interesting conclusion to a really long-standing dispute. Now I suspect that the parties will appeal, and this may be big enough a case to go all the way to the Supreme Court, potentially. I don’t know if you know, Agenda, if an appeal has actually been filed or not. It’s been a couple of months since that appeal was issued and I’m not sure. We might hear about this again in the news in the next year or two if a circuit court takes it up or if it ends-up served to the Supreme Court.

05:57 AF: I believe they have filed for an appeal.

06:00 TF: It’s a big enough case; I think the Supreme Court might want to hear it, because it’s not obvious that this is a fair use given the scale of what the alleged infringement was. but anyway, it’s an interesting case; it’s probably a big win for the fair use people, I guess some might think it’s a big win for Google and they have nefarious intentions here, but I think it’s an interesting one that kind-of adds to the complexity of fair use and it gives you the context that it’s not necessarily the scale; it’s not even that it’s a whole copying, because they do have exact digital copies of all these works in their library. But it is a lot more to do with the market in this case, and what use was actually put to these works when they are digital. and it’s a very different use, a transformative use, in the court’s opinion compared to the original works.

06:50 AF: Should we talk about Prince v Cariou? That is kind-of the massive bombshell.

06:56 TF: If you want to talk about that first, then I can just add a few comments.

07:00 AF: So Richard Prince is ia appropriation artist. Which is kind-of a nice way of saying he goes out to find other people’s artwork and he does stuff to them and he sells them for millions and millions of dollars. And people love this, and that’s how he makes his living, and there’s a lot of other appropriation artists out there and it’s a hotly contested area of art. There are many copyright attorneys that are not very fond of it, it certainly gets a lot of litigation.

07:35 AF: Patrick Cariou is a documentary photographer, and he went down to Jamaica and photographed a lot of Rasta men in very noble, just beautiful black-and-white photography in this gorgeous book, and he published this book, called Yes Rasta. And then Richard Prince bought the book, took the photos and repurposed them; painted vivid colours on them [see images below for comparision].

Left: an original image by Patrick Cariou for his book Yes Rasta, and on the right, a painting from Prince’s Canal Zone series (image via and The Art Newspaper)

08:25 AF: And this is the question: is this transformative? And it’s then litigated for several years now, and the District Court held that no, it was not, and then it went to the appeals court, and the appeals court said, “yeah, sure. totally transformative”, with the argument that it doesn’t have to comment on the existing work.

08:49 AF: Historically, the question was: does the transformed work say something about the original? Does the transformed work change the original in a way that makes a statement about it? Is the artist, for example in the Mattel case, is the artist using Barbie to comment on Barbie and to make a statement about Barbie’s position in American society? Or is it just using Barbie because, you know, Barbie.

09:23 AF: And the judge said, “No, you don’t have to comment. you can just use it because you think it’s an orphan picture.” Which really puzzled a lot of people, and as I discussed earlier, I discussed the courts compare the amount and substantiality of the portion used, and they ask whether the use was more than necessary. Now we’re seeing courts that are saying that the law does not restrict fair use to a no more than necessary rule, which is kind-of a new thing. And people aren’t really sure what to make of that.

09:56 AF: This case generated a huge amount of controversy I have attorney friends that still sit around the table and debate it today. I’m looking forward to meeting some friends of mine in a month and I know we’re going to sit here and we’re going to yell at each other over it. So Tim, I’m really curious as to what you are going to say about it.

10:18 TF: Well, composition-wise, I think it’s somewhat new … I mean in some ways, it’s not at all new. If you look at Marcel Duchamp in the twenties or Andy Warhol in the sixties and fifties, they are sort-off appropriation artists of a kind and people thought they were swell in retrospect. So I think it’s a divisive thing within the community to take one person’s work and make it into something else. It’s not comfortable.

Marcel Duchamp and Andy Warhol - appropriations artists of their times?
Marcel Duchamp and Andy Warhol – appropriations artists of their times? (images via Wikipedia)

10:52 TF: One of the odd things about this case is the court says that it’s not the suggestive intent of the appropriation artist that matters, it’s the objective intent from a reasonable person’s point of view,  for a court’s point of view, whether the purpose is really a fair purpose or not. And one of the problems I’ve always had when courts take that kind of stance is that … I mean, I’m an artist that happens to be an attorney; there aren’t that many of me, and there are fewer judges that happen to be artists. I don’t think that there are too many of the that i would look to for artistic commentary or criticism. Yet that’s sort-of the position that they seem to think we have to put them in to figure out if the use is fair or not.

11:36 TF: At least that’s how this case read to me. And I think it’s the same problem with the Koons case in ’92, that in part, the judge didn’t buy the art criticism. He looked at Koons as just a joke as opposed to a real artist. And if that’s what it’s up to, I’m not sure that’s much of a standard in order to judge  whether it’s fair use or not.

11:58 TF: I mean there are problems when the artist just makes up a bunch of junk and says, “That was my intent” to justify conduct after the fact. so I’m not saying there’s a good answer. but it makes me uncomfortable, because I don’t think art’s that simple. It’s not simply a matter of fact whether it’s subjectively transformative or not, and if it’s a matter of opinion, I’m not sure how you’re supposed to make fair decisions then as a judge or court.

12:24 AF: I agree with you there. That’s one of the frustrating things that I have seen in fair use cases before, that it always seem to be that you either won or lost depending on whether or not you’ve told a good story to the judge.

12:40 TF: Oh yeah, I can tell you in art school that learning how to tell your story about your art is a part of your training, and so some artists are better at public speaking than others. I do this for a living now, speaking in public, but I can tell you that a lot of my peers, some of whom are a lot more talented than me, are scared to death to say anything or write anything. So I can imagine in a deposition, where you’re being grilled by a big attorney, that you probably won’t be able to explain what the heck you were doing. And if that’s what it turns on, which is part of what this case is about, was the deposition testimony of Prince.

13:14 TF: I don’t know whether that’s a fair resolution, and what you sacrifice … you may not feel it’s much, you may not care about appropriation art, but I think a First Amendment position is not one of let’s discriminate based on the art we like versus what we don’t. I don’t think that’s what our country’s about, and I think that unfortunately, some of these cases border on just that, which makes me wonder just what we’re trying to accomplish here.

13:41 TF: On the other hand, close analysis of the market, because it’s a question of use replacement – did Prince’s work supplant Cariou’s original market? Where they the same audience? And I’m not entirely sold on what the court had to say about that. Just the fact that Prince sells direct to rich, famous people,. and Cariou is just some poor jerk who makes eight grand on his photographs in total, they don’t have the same audience or market. I don’t know if … I’m not sure that that’s true either. I can certainly see the other side of it, which is why couldn’t Prince just pay five percent or two percent or pay a royalty. You know, if he’s making three or four million dollars on these works or ten million dollars, what’s it to him?

14:24 TF: I don’t know … I struggle with this. These big cases, on the facts, they make bad law, because it’s just not a good answer to it, unfortunately. And I know that for the audience here,  I’m not helping you by saying that, you’d rather have simpler rules than this. but unfortunately, it’s really a mess. This case, I don’t think it clarifies, it just makes it harder to get a clear answer on what to do … the appropriation art people are one of those kinds of artists or categories of artists that are a lot more controversial than some guy who makes realistic paintings of landscapes. I don’t think anyone’s going to sue him for fair use problems – unless he’s copying someone else’s landscape.

15:14 TF: But you know, that’s where the art world is; and the controversy in some cases sells the work. That’s part of what Koons was doing; that’s why he litigated the case, because it’s good press for him. Even if he lost, it was good. He gets he social commentary out there. And I think Prince probably may or may not have the same intent. It’s not necessarily that he cares about the outcome. I mean he did lose a trial and had to appeal, and it wasn’t a clear one because there are still five works where the court said, “Well, maybe these are infringing, so you have to go back to trial to try to figure that out.” But I think this case really highlights how hard this is to resolve it.

15:56 AF: Yeah, I agree, and I think that comparing this and the Green Day case, you get some really interesting information.

16:05 AF: For those who don’t know the Green Day case, Green Day, the band which I’m sure you all know, found a picture that [Derrick] Seltzer used. Seltzer is sort-of a graffiti artist.

The Green Day poster (l) and Derrick Seltzer’s original (r) – image via Clancco

16:17 AF: And this image that you see, the one on the right of the man sort-of screaming is his image which he sort-of uses as his trademark – and I hesitate to say “trademark” because that’s not really a trademark. But Green Day used that image and sort-of blew it up on a screen behind them with a big red cross over it while playing one of their songs. and the song was sort-of protesting religion and protesting society’s sort-of involvement in religion. And the court held that was fair use because you sort-of have this screaming image and here Green day was using it in a way that gave it specific context to their song, that was a protest, and they said it didn’t negatively affect the market for the image, and that it changed the meaning.

17:17 AF: And so looking at that in the same light as Cariou, I think we’re starting to see fair use come down to really two questions:

  • In what way have you created a new meaning?
  • Does your new use affect the market for the original?

17:37 TF: In the copyright Act, I think it’s a fair criticism [that] the ’76 Act was more about money and large investors and less about the average artist or the public. I don’t know that that is entirely true, but I think that some of the things that the ’76 Act was about was helping investors have a more solid footing in the things that they’re going to own, the intellectual property that they’re going to own under copyright.

18:04 TF: Money drives a lot of considerations in court proceedings. I don’t want people to be jaded, but money is an important factor, and what your impact is on the commercial market for something is an important factor in whether it is a fair use or not.

18:22 TF: It’s not determinative, and courts have said that commercial use is not the kiss of death to a fair use defence, obviously people use things commercially all the time and it is a fair use, but I think that that’s an important consideration more often than not in many of the cases that I’ve looked at. whether it’s in the fine art community or somewhere else, you follow the money, and if you’ve really impacted the market for the plaintiff then I think you’re much more likely to lose than if you don’t.

18:50 TF: So it’s all over the place; it’s really hard to say that there’s a simple rule that explains what you’re supposed to do.

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