Last month, we saw the story of “Kind of Bloop”. Tech entrepreneur Andy Baio had put together a Chiptune tribute album of the classic Miles Davis work Kind of Blue. He secured licenses for the songs but failed to license the Chiptune version of the original album’s cover art that was used as the cover art for Kind of Bloop. Jay Maisel, the photographer and copyright holder of the iconic image of Davis, objected to Baio’s use, and the two settled the dispute without resorting to litigation.

Baio recounts his side of the story on his blog in a post titled “Kind of Screwed.” The story struck a chord in some areas of the blogosphere, spun as greedy-copyright-owner-shakes-down-poor-hobby-artist. The 80-year old Maisel was viciously attacked online in numerous places.

Jeremy Nicholl wrote two posts about this tale (first post and second post), describing the harassment and examining the facts more closely. The real story is a far cry from the version embraced by the online rabble and the bloggers who roused them.

Setting that aside, I want to take a look at the copyright issue underlying this story — the copyright issue that got so many so furious because they felt that, while Baio’s view was correct, the law gave Maisel an unfair upper hand.

See, the premise of Baio’s belief that he was “kind of screwed”, the premise that led some to push this story as “yet another in a long list of examples of how copyright is used to censor, rather than to promote progress”, and the premise that the online mob used to justify their harassment of an 80-year old photographer both online and off, was that the new cover art is clearly a fair use of the original work.

But it’s not.

If you record an 8-bit cover version of a Miles Davis song, you clearly need a license from the publisher, just as you need a license to record, say, a country version of a Beatles song. Baio knew this — he secured licenses for all the songs on the album before releasing it. The rules don’t suddenly change when you make an 8-bit version of a Miles Davis album cover.

To understand why, let’s take a look at Baio’s argument in more detail and see how well it holds up in reality. Baio says that “The crux of our disagreement hinges on the first factor — whether the Kind of Bloop illustration is ‘transformative'” so I’ll also talk primarily about that, but I will add a few comments on the other factors.

Transformative Purposes and Derivative Works

Baio’s argument is as follows:

In his influential paper on fair use, Judge Pierre N. Leval wrote, “Factor One is the soul of fair use.” Stanford’s Fair Use Center asks, “Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?”

From the beginning, Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?

It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.

This kind of transformation is the foundation of fair use. In a 2006 verdict, the court found artist Jeff Koons’ use of a fashion photo “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

I don’t think there’s any question that Kind of Bloop’s cover illustration does the same thing. Maisel disagreed.

Baio is incorrect for one simple reason:

“[C]opying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, is not fair use.” (Emphasis added.)1

Copyright owners have, along with the exclusive right to copy and distribute their works, the exclusive right to prepare derivative works based on their own works. Most commonly, we think of derivative works such as the movie version of a book, or a foreign language translation of a book, but they can include any new work derived from an existing work.

So what distinguishes derivative works from fair uses of a work? Both can, after all, be considered “transformative” in some sense of the word.

The Second Circuit has noted that there exists “a potential source of confusion in our copyright jurisprudence over the use of the term ‘transformative.'” It explains:

A “derivative work,” over which a copyright owner has exclusive control, is defined as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

17 U.S.C. §§ 101, 106(2) (emphasis added). Although derivative works that are subject to the author’s copyright transform an original work into a new mode of presentation, such works — unlike works of fair use — take expression for purposes that are not “transformative.”2

If you want to understand what courts mean by “transformative purposes”, reading through the case law on the subject might not prove terribly enlightening. But in the last few years, three empirical studies of the fair use doctrine in case law have provided a greater depth to understanding its application — Barton Beebe’s An Empirical Study of US Copyright Fair Use Opinions, 1978-2005,3 Pamela Samuelson’s Unbundling Fair Use,4 and Matthew Sag’s Predicting Fair Use.5

In his new paper, Making Sense of Fair Use, Neil Netanel examines these studies and adds his own research to this area. He writes:

[C]ourts have made clear that matters for determining whether a use is transformative is whether the use is for a different purpose than that for which the copyrighted work was created. It can help if the defendant modifies or adds new expressive form or content as well, but different expressive purpose, not new expressive content, is almost always the key. Using Samuelson’s proffered nomenclature and policy clusters, courts as transformative primarily those uses that are “productive” or “orthogonal.” What Samuelson defines as “transformative” uses — uses that modify a preexisting work in creating a new one — are deemed “transformative” by the courts only if the defendant creates the new work for a different expressive purpose than the preexisting work.

Netanel lists some of these different expressive purposes that courts have deemed transformative:

[R]eplication of literary or graphic works to serve as an information tool; replication of artistic works to illustrate a biography; reproducing a fashion photograph originally made for a lifestyle magazine in a painting to make a comment about the mass media; copying and displaying a photographic portrait originally made as a gift item for the subject’s family and friends for purposes of entertainment and information; a football team’s display of artwork that the team previously used as its logo without the artist’s permission in a “museum-like setting” in the lobby of the team’s corporate headquarters; copying a work to criticize its author; and, of course, copying a work to parody or criticize the work.

The example of the fashion photograph is especially relevant since that is the same case as the one cited by Baio, the “2006 verdict” involving artist Jeff Koons. But his likening of his cover art to the Koons case misses the mark. When you actually read the case, you can see the court explain how Koons’ use of the fashion photograph was fair because it had a transformative purpose, and you can also see how Baio’s use lacked such a purpose. (I’ve left in some of the citations that shed further light on transformative purposes.)

Koons does not argue that his use was transformative solely because Blanch’s work is a photograph and his a painting, or because Blanch’s photograph is in a fashion magazine and his painting is displayed in museums. He would have been ill advised to do otherwise. We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.  See Davis, 246 F.3d at 174 (use of plaintiff’s eyewear in a clothing advertisement not transformative because it was “worn as eye jewelry in the manner it was made to be worn”); Castle Rock Entm’t, 150 F.3d at 142-43 (quiz book called the “Seinfeld Aptitude Test” not transformative when its purpose was “to repackage [the television show] Seinfeld to entertain Seinfeld viewers”); Ringgold v. Black Entm’t Television, Inc. 126 F.3d 70, 79 (2d Cir.1997) (copy of plaintiff’s painting used as decoration for a television program’s set not transformative because it was used for “the same decorative purpose” as the original).

But 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. 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 original purpose for which they were created”).

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 Sandal” 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. (Some citations removed.)6

Baio used Maisel’s photo from the cover of a Miles Davis album for the same purpose as the original — copying cover art to use as cover art. Aesthetics has no bearing on this lack of a transformative purpose; one could easily say the new cover is “art”, and one could certainly say the new cover has new expression or meaning. But since it serves the same purpose, it is a derivative work, and only Maisel can authorize its use.

Jeff Koons himself knows this, as he had lost in another case over a decade before the one above. Koons claimed fair use for a sculptural copy of a photo from professional photographer Art Rogers without Rogers’ permission, asserting that his sculpture conveyed an altogether different meaning than the photo, but the court didn’t agree:

If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use — without insuring public awareness of the original work — there would be no practicable boundary to the fair use defense. Koons’ claim that his infringement of Rogers’ work is fair use solely because he is acting within an artistic tradition of commenting upon the commonplace thus cannot be accepted. … Of course, while our view of this matter does not necessarily prevent Koons’ expression, although it may, it does recognize that any such exploitation must at least entail “paying the customary price.”7

In the same way, Baio’s artistic motivations for his cover do not justify his copying of Maisel’s photo as fair use. It is instead clearly a derivative work, a “translation” of the original into 8-bit language, if you will — the equivalent of the 8-bit cover versions of Miles Davis’s music that accompany the work.

Protectable Elements of a Photograph

I also wanted to comment on Baio’s discussion of the third fair use factor: “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

Baio first states, “With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements.” One has to wonder based on this, what Baio thinks would constitute protectable elements of a photograph. (And, if he’s correct, he wouldn’t need a fair use defense at all — a work that isn’t substantially similar to another work isn’t infringing in the first place.)

The protectable elements of a photograph are those elements derived from the photographer’s creativity and expression, as opposed to factual or functional elements. Admittedly, no bright line exists between protectable and non-protectable elements, but courts have listed protectable elements as including things like subject matter and posing of subjects; layout, positioning, and arrangement; selection of angles, lighting, shading, and coloring.8

Comparing the two images with these protectable elements in mind, it’s difficult to point to any protectable elements of the original photograph that weren’t copied. There’s certainly little argument that a substantial portion of them were copied — this is the key factor in infringement and fair use questions; it’s not a defense to show how much someone didn’t copy from the original work.9

One also has to wonder if Baio really believes that the illustration incorporates few of the photo’s protectable elements since he follows this statement immediately with his remark that “Courts routinely find fair use even where the entirety of an image is used.”

This remark is easily proven wrong. From Beebe’s study of fair uses:

Of the 99 opinions that addressed facts in which the defendant took the entirety of the plaintiff’s work, 27.3% found fair use (albeit with 9 of these 27 opinions finding a transformative use, and 4 finding a nontransformative use). The story is more extreme in situations where the court finds that the defendant did or did not take the “essence” or the “heart” of the plaintiff’s work. Courts explicitly found that the defendant took the heart of the plaintiff’s work in 37 opinions, and found no fair use in 35 of these. Courts made the opposite finding — that the defendant did not take the heart of the plaintiff’s work — in 25 opinions, and found fair use in 23 of these.

It is hardly “routine” when courts reject a finding of fair use when the entire work was used three out of four times.

Kind of Unfortunate

The mobbing of a celebrated photographer is inexcusable, but unfortunately it is becoming all too common for artists and creators to find themselves receiving abuse whenever they speak up for their rights or seek to protect their work online. It is much worse when, like here, the story used to encourage such behavior was so far from the truth.

In a broader sense, there is no broader sense to this event. The right exercised by Maisel to authorize works derived from his own work is much the same right a creator in 1909 had. Fair use is not disappearing — Netanel graphs defendant win rates in fair use cases in his paper; the graph bounces up and down at times but displays a remarkably constant trend since 1978 (when the doctrine was codified into the US code). Baio chose not to defend his use as fair in court because of the cost of litigating, but lawsuits are expensive for both parties.

Footnotes

  1. Ty, Inc. v. Publications Intern., 292 F.3d 512, 517 (7th Cir. 2002). []
  2. Castle Rock Entertainment v. Carol Publishing Group, 150 F. 3d 132, 143 (1998). []
  3. 156 University of Pennsylvania Law Review 549 (2008). []
  4. 77 Fordham Law Review 2537 (2009). []
  5. Unpublished, July 6, 2011. []
  6. Blanch v. Koons, 467 F.3d 244, 252-53 (2nd Cir. 2006). []
  7. Rogers v. Koons, 960 F.2d 301, 310 (2nd Cir. 1992). []
  8. See e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 US 53, 60 (1884); Ets-Hokin v. Skyy Spirits, 225 F.3d 1068, 1077 (9th Cir. 2000); Rogers v. Koons at 308; Eastern America Trio Products v. Tang Electronic, 97 F.Supp.2d 395, 417-18 (SDNY 2000). []
  9. Harper & Row v. Nation Enterprises, 471 US 539, 565 (1985), quoting Sheldon v. Metro-Goldwyn Pictures, 81 F.2d 49, 56 (2nd Cir. 1936). []

52 Comments

  1. Fantastic article, Terry. It’s so refreshing to read an article with substance on the topic of digital copyright.

    • Mr. Hart misstate the rule when he says: “Baio used Maisel’s photo from the cover of a Miles Davis album for the same purpose as the original — copying cover art to use as cover art” and “since it serves the same purpose, it is a derivative work, and only Maisel can authorize its use.”

      While Mr. Hart may be correct that Baio would prevail at trial, Mr. Hart’s argument mangles the legal precedent (unlike your own analysis elsewhere in this thread).

      My point in this thread has never been who would win, but what the case law says about parody.

  2. I just wanted to ask a few questions to clarify something: If the 8-bit art was displayed in a museum, it could, potentially, be protected under fair use, but because it was used in the exact same way as the original photograph it was considered derivative?

    This is a much more complicated question, and one I understand if you don’t want to get into, but what are some provisions for a work to be considered parody? A more pointed question, perhaps, is, Could artwork derived from other album artwork ever be considered a parody protected under fair use? Or does it have to be presented in a different context for it to be considered a parody? For instance (and this is unspeakably lame, so forgive me), but could you release an album by a band, Pig Floyd, title Pork Side of the Moon featuring a cover with a triangular canned ham in place of Dark Side of the Moon’s prism?

    Regarding the case, I find it very strange that Baio went to such great lengths to secure the permission for the sound but completely forgot about the visual aspect. I really don’t understand why he would think it would be okay to derive the cover art when he clearly understood it wasn’t okay to derive the sound. I really enjoy the 8-bit album and find the cover art really great and complimentary, which is why it is even more painful to see how Baio bumbled the rights here.

    • I just wanted to ask a few questions to clarify something: If the 8-bit art was displayed in a museum, it could, potentially, be protected under fair use, but because it was used in the exact same way as the original photograph it was considered derivative?

      Not entirerly. As the court pointed out in Blanch v. Koons in the quote I included above: “Koons does not argue that his use was transformative solely because … Blanch’s photograph is in a fashion magazine and his painting is displayed in museums. He would have been ill advised to do otherwise.” You would still need to consider the four factors of fair use to make the distinction.

      This is a much more complicated question, and one I understand if you don’t want to get into, but what are some provisions for a work to be considered parody? A more pointed question, perhaps, is, Could artwork derived from other album artwork ever be considered a parody protected under fair use? Or does it have to be presented in a different context for it to be considered a parody? For instance (and this is unspeakably lame, so forgive me), but could you release an album by a band, Pig Floyd, title Pork Side of the Moon featuring a cover with a triangular canned ham in place of Dark Side of the Moon’s prism?

      To be protected by fair use, a parody has to criticize or comment on the original work; if the target of the criticism or commentary is something else, or society in general, such a parody is not protected by fair use.

      More importantly, the fact that a new work parodies or comments on an original work is not the only question — the use still has to be analyzed under the remaining fair use factors. Parody is sort of a unique case when it comes to the “amount and substantiality of the portion used” factor since it must necessarily use a substantial portion of the original to “conjure up” the original so that people recognize the connection. But that isn’t necessarily a license for the parodist to use as much of the original as he wants. “Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song’s overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”

      I think it’s important, if you’re talking about a parody album, to separate the parody of the music from the cover art. If one is fair use, that doesn’t necessarily imply the other is. For example, Baio might conceivably show a transformative purpose for the music on this album: recontextualizing “highly improvisational, warm” music using “cold mechanical tones.” In this case, the other factors doom a finding of fair use even with this transformative purpose because of the existence of a compulsory license for cover versions of songs — there’s a ready derivative market for licensing cover versions of songs, and there’s no possibility of the copyright holder refusing to license a cover version (because the licenses are compulsory).

      But when you turn to the album art, any transformative purpose you could argue for the music evaporates. The photo couldn’t be considered “highly improvisational.” Indeed, Baio himself says his purpose was to “capture the artistic essence of the original” — which sounds a lot like, as the Supreme Court said, “avoid[ing] the drudgery in working up something fresh.

  3. Just an observation, but on the back of the album appears the names of all the relevant persons, and the photographer is one of them.

    • Seems to me that simply crediting the creator of the work does not imply a license to use the work. I think Lawrence Lessig has a lot to answer for in that regard. His ‘Creative Commons’ idea has lead to a belief, on the part of many, that crediting and linking, where appropriate, creates permission and license. It does not.

      Only explicit permission grants permission. In the case of a work licensed by CC, the permission is automatic, under the terms of the applicable license form, but very few people understand that CC does not apply universally. And that is the fault of Lessig and those who muddy his message even further than he has done himself.

      • Andy Baio is the worst kind of freetard: a rich one. He could easily have afforded to pay the license for the photo just as easily as he paid the music licensing fees.

        But out of the usual juvenile, irrational, sense of entitlement…he didn’t.

        The freetard peanut gallery that rose up to defend him is many orders of magnitude worse, however. They bought the BS hook, line, and sinker. What a bunch of puppets.

        http://www.jeremynicholl.com/blog/2011/06/27/%E2%80%9Cjay-maisel-is-a-dick%E2%80%9D-freetard-mob-savages-octogenarian-photographer-over-copyright/

        http://www.jeremynicholl.com/blog/2011/07/04/how-stockbroker-andrew-peterson-aka-thomas-hawk-smeared-photographer-jay-maisel-in-andy-baio-copyright-row/

        • He could not have paid the license for the photo, because Maisel would not have sold him a license under any circumstances. (Or at least, so Maisel says.) Baio didn’t know that, though – it’s not like he boldly decided to strike a blow for fair use after trying to do the right thing. (Cf. “Weird Al” Yankovic, who even though he would be *perfectly within his rights* to do so, will not sell a parody version of another artist’s song without their express permission.) The charitable view is that he had an incorrect understanding of copyright law and learned a very valuable lesson about it.

        • What I don’t get is – Who would ever listen to this? Kind of Blue is probably the greatest jazz album of the 20th century. It’s an insult to listen to Kind of Bloop. Copying a Miles Davis solo and then playing that on a keyboard with an 8-bit square-wave patch is silly. Why must we forever dumb things down and then asked to be praised for our mediocrity?

      • I was not clear. I should have noted the name of the photographer was on the original album.

      • Do you have a source to support your assertion that Lessig or Creative Commons portrays CC as applying universally? Do you have a source to support you (backhanded) assertion that Baio credited Davis thinking that would suffice as a licence?

        If memory serves Baio said in his post that during deliberation Maisel said that he would have never agreed to licence the work for Baio’s album even if he’d sought a proper licence.

        While this does not excuse Baio from not seeking a licence – it does raise the question of whether the problem is people who “infringe” on an artists work, or artists who can’t see past their own noise enough to understand that things like the “Kind of Bloop” cover art actually work to enhance and popularize their original work.

        • That’s your opinion. In Maisel’s opinion, things like the “Kind of Bloop” cover art do not actually work to enhance and popularize their original work. Maisel is one of the most successful and longest-careered photographers in the history of the medium. What were your qualifications for your opinion again?

        • Dear Adam,

          If an artist fails to take an advantage of an opportunity, that is their problem, not yours. Nothing in copyright law or property rights in general says that the owner of a property is under some obligation to make the smartest decisions about its use. The simply get to make the decisions.

          I live in a nice house overlooking the Pacific, near San Francisco and several public beaches. I could make a case that it would make economic and personal sense for me to put it out as a vacation rental and live somewhere else. Choosing to not do that with MY property is MY choice, even if it is an unwise one.

          You could have plausibly said that you think Jay erred in being unwilling to license his work for that kind of derivative use, that it could bring him to the attention of a new, younger audience without diminishing his old one. It’s certainly a reasonable argument. But Jay gets to make that error, because it’s his property. The law doesn’t allow that you or Andy get to make those decisions for him.

          pax / Ctein

          • Ctein Your analogy to your house might have some use, if your interest in your house was the same as Mr. Maisel’s interest in his photograph. It is not. The copyright interest that Mr. Maisel has in his photograph is a limited monopoly (an exception to the First Amendment granted “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”) – quite dissimilar from your interest in your house. This thread is about fair use rights that implicate fundamental questions of freedom of speech – not your house. While you are entitled to express your opinion – you might want to educate yourself a bit more about the topic first.

          • Dear Randy,

            Well, you might want to just go stuff that attitude of yours. I’m quite sufficiently well-educated on copyright law, thank you.

            No property are absolute or infinite in scope. Society constrains how I can and can’t use my house, for what it perceives as the good of society, just as it does with IP. That all has bupkis to do with Adam’s remark, which was entirely about the common misconception that a third party (e.g. Andy) should get to decide what is good for the artist. I was merely making an analogy (NOT a legal point) that has, in the past, helped non-IP types understand the error in that misconception.

            Please pay attention to the context of a post before launching inappropriate little digs.

            pax / Ctein

      • It doesn’t constitute a legitimate license but I don’t think that’s why it was brought up. Remember the [url=http://www.ncac.org/art-law/op-rog.cfm]Art Rodgers vs. Jeff Koons[/url] case was referenced above. Contrasting Koon’s conduct to Biaos’ shows that the two cases have very little in common besides the fact that they both try to serve as a juxtaposition of mediums.

        This is largely due to the fact that Koons didn’t in any way acknowledge the original work, which long run damaged the general public’s ability to even make a connection between “Puppies” and “String of Puppies” barring any illustrative purposes the similarities between the two works could’ve served.

        If “Puppies” could’ve reasonably been something assumed to be in the stream of general social consciousness like Miles Davis; if the target audience may’ve been assumed to be able to make a connection between the original and derivative like Kind of Blue fans could make with Kind of Bloop or if at even just an acknowledgement to the original photographer was provided so that appreciators of the work could find the original to make comparison, the court may’ve actually entertained Koons’ commentative fair use defense. They say something to that effect immediately after the statement quoted above.

        Rather just the opposite happened really: Jeff Koons went so far out of the way to hide Puppies from the general public that he tore off the copyright notice before commissioning the creation of String of Puppies. The flagrantly shameless act of plagiarism verily much abhorred the better ethical senses of the court and violated Art’s moral rights.

        That doesn’t necessarily exonerate Andy Biao’s actions as “String of Puppies” was an offense of the worst order, so there’s still quite a fair margin between that and ‘fair use.’ As a manner of fact, drawing the line what constitutes an infringing derivative work and a work protected under section 107 is a rather hazy manner, since 107 is so extremely multifauceted and vague. Even where a majority of the predefined factors seem to be in favor of one party or the other, they can each be weighted with varying degrees of gravity and to quote Rodgers vs. Koons ‘The section provides an illustrative — but not exhaustive — list of factors for determining when a use is “fair.”‘

        The only things I can really say with any certainty regarding Kind of Bloop are that I think it’s kind of odd to license the music without even attempting to license the photography when they share the same character of use. If he really believed his fair use defense could’ve held, he probably shouldn’t have licensed either and if he didn’t feel safe enough, he should’ve either attempted to license the photograph as well or abstain from using it to begin with altogether. As Terry said, the rules don’t just magically change from one medium to the other…

        [Well, unless you’re talking about section 106a of Copyright law, which makes the court’s suggestion of a credit in Rodgers vs. Koon a bit odd since Art Rodger’s and Jay Maisel’s names are theirs to do what they wish with in regards to purely visual works, albeit perhaps still possible since 106a is still subject to 107.]

  4. Mr. Hart is correct when he says “[t]o be protected by fair use, a parody has to criticize or comment on the original work.” But that doesn’t mean that a parody can’t comment on other things as well. Which is why Mr. Hart is wrong when he says that targeting “something else” disqualifies a parody from fair use protection.

    Although Mr. Hart may disagree, there is an argument to be made that the Kind of Bloop image comments on the original iconic image in a way that deserves fair use protection.

    Here’s how parody works in music: An artist takes a pop tune and transforms it – asking the audience to reconsider the original performance. For example, Weird Al takes Beat It by Michael Jackson (as iconic and culturally significant as the original photo of Miles Davis) and thru a lens that distorts and humanizes the original he comes up with Eat It. Just because that Weird Al song also conveys new information (to take Mr. Hart’s example, about “society in general”), that doesn’t mean that Weird Al must lose his safe harbor. What’s important is that the new work comments on the original.

    Similarly, even though it never got to court (because of the way our system favors wealthy content owners), it’s likely that the “Kind of Bloop image is a parody” argument would not fail simply the new image commented on our digital age or because the new image was also used as cover art.

    That’s how parody works Mr. Hart: “Eat It” is also a song, sold for entertainment – and, in addition to commenting on (in this case, making fun of) the original, it includes other information about “society in general.”

    Here’s a link to a blogpost that elaborates a bit more on the topic.

    • If I may take the liberty of summarizing your post, Mr. Hart has erred by discussing “fair use” in the context of judicial precedents, and not also opining about what the law should be.

      If you have citations that support your position, it would be helpful to post them so that your position would be more clearly understood.

      • A parody does not need to be for a different purpose than that for which the copyrighted work was created. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (Commercial parody of a pop song by another pop song can qualify as fair use.) Accordingly, if Mr. Baio’s image is a parody, Mr. Hart’s argument (“since it serves the same purpose…only Maisel can authorize its use.”) collapses.

        • Mr. Hart is correct when he says “[t]o be protected by fair use, a parody has to criticize or comment on the original work.” But that doesn’t mean that a parody can’t comment on other things as well. Which is why Mr. Hart is wrong when he says that targeting “something else” disqualifies a parody from fair use protection.

          Randy, you misread my post. Parody that is protected by fair use need not criticize solely the original work. But a parody that criticizes something else without criticizing the work it appropriates is generally not the type of parody protected by fair use.

          A parody does not need to be for a different purpose than that for which the copyrighted work was created.

          A parody is a transformative use that has an expressive purpose different than the original. The Netanel quote I included in the article says this.

          Although Mr. Hart may disagree, there is an argument to be made that the Kind of Bloop image comments on the original iconic image in a way that deserves fair use protection.

          Could be, but I haven’t heard one yet; Baio’s explanation for copying the image certainly isn’t convincing. Keep in mind, even finding parody or a transformative purpose doesn’t automatically make the use fair — the other three factors must be taken into consideration.

          • But a parody that criticizes something else without criticizing the work it appropriates is generally not the type of parody protected by fair use.

            That’s my understanding as well. If it criticizes something else without criticizing the work then it’s satire, not parody.

          • I’m wondering how Mr. Hart can assert that hasn’t “heard one [argument] yet” in favor of considering the Baio image a fair use?

            What then is he trying to refute?

            With respect, I think Mr. Hart is confusing parody and fair use. Does Mr. Hart understand that parody is a special case inside the larger exception to copyright law known as fair use? And there are special rules for parody – distinct from fair use? And that the Netanel “paper” might be about something other than parody?

            To review, taking an iconic image and building upon it in a way that makes comment on the original is, by definition, a parody. Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348, 354 (S.D.Cal.1955) (extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary).

            And (despite what Mr. Hart asserts) a parody does not infringe if it “serves the same purpose” as the original work. On the contrary, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) and numerous other cases have found in favor of the parodist – even when the work enters the same stream of commerce and arguably competes with the original.

            Therefore, Mr. Hart’s central argument – that both images are cover art and therefore they serve the same purpose and QED it is an infringement – ignores the analysis that courts have employed when considering parody cases. For example, in Campbell it was argued that a 2 Live Crew record might dilute the market for the original Orbison version. That argument lost because the court said the versions were “substantively different.” Similarly, one could argue that the Baio image is “substantively different” from the original – because no one seeking the original Miles Davis image would settle for Baio.

            To sum up, a court might say the Baio image wasn’t a parody (e.g., insufficient commentary). But if the Baio image is a parody – the rule that Mr. Hart seems to think applies (infringement if it “serves the same purpose” as the original work) doesn’t.

    • You keep citing Al Yankovic as an example of fair use parody, but Yankovic apparently “asks permission” (it’s unclear as to whether this extends to actual license negotiations.) While the FAQ implies that he is not legally obligated to do so, it’s not like he just jacks the stuff and says “parody fair use, deal with it”.

      • @Duck While I enjoyed reading your speculation about Al Yankovic, reading Al’s own words (below) seems a more trustworthy (not to mention informative) approach…

        Here’s how Al himself described what happened when his request to release a parody of “Born This Way” was at first “denied” by Lady Gaga’s manager:

        “My parodies have always fallen under what the courts call “fair use,” and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album, so of course I will respect Gaga’s wishes. However, given the circumstances, I have no problem with allowing people to hear it online, because I also have a personal policy not to completely waste my stinking time. So I uploaded the song to YouTube, and will be making free mp3 downloads available on weirdal.com shortly. Hope you enjoy it.”

        So, because he is creating parodies, Weird Al doesn’t need to ask permission. But he does ask – simply as a courtesy. And when he was “denied” by Lady Gaga, Al (in your colorful turn of phrase) jack[ed] the stuff and s[aid] “parody fair use, deal with it.”

        Subsequently, after Al’s song exploded online, Lady Gaga “approved” the song.

        Here are links to Al’s blog where he discusses the release of his Lady Gaga parody – without her permission:

        http://alyankovic.wordpress.com/the-gaga-saga/

        http://alyankovic.wordpress.com/2011/04/20/gaga-update/

  5. Robert Bienstock

    Randy Finch is conveniently misstating Terry’s position in order to refute it. So let’s look at the actual position and make it crystal clear: The first fair use factor is “the purpose and character of the use.” One purpose might be that the allegedly infringing use is “transformative”. An entirely different use might be that the allegedly infringing use is a parody. There are different requirements for determining whether or not a work is transformative from the tests as to whether or not a work is a parody. Thus the arguments that Terry sets out that a work require a different purpose from the original only apply when one is claiming that the work is transformative and NOT a parody. If one is claiming that the work is a parody, that is, by definition, a different purpose (parody) and thus if the work passes the parody tests, it is therefore transformative. Put another way, one way that an allegedly infringing use can be transformative is if it serves a different purpose than the original. Another way is if it is a parody. Two different motivations that lead to the same conclusion with different tests for each. Is that so hard to grasp?

    • I apologize if I have misread or misstated prior posts here.

      Here, in his own words, is what Mr. Hart argued: “Baio used Maisel’s photo from the cover of a Miles Davis album for the same purpose as the original — copying cover art to use as cover art” and “since it serves the same purpose, it is a derivative work, and only Maisel can authorize its use.”

      The case law of parody does not support Mr. Hart. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) is dispositive (a parody can enter the same stream of commerce and serve the same purpose if substantively different from the original).

      I hope this is clear, but I appreciate that the law of fair use – especially as it apples to parody – is “hard to grasp.” That may explain why Mr. Hart’s posts are such a jumble and Mr. Bienstock’s supposed explanation contains a confusing circularity (a parody use is “entirely different” from a transformative use and “is therefore transformative”).

      • As I said in response to your earlier comment:

        A parody is a transformative use that has an expressive purpose different than the original. The Netanel quote I included in the article says this.

        I don’t know how to make that any clearer.

        If Baio’s use was a parody than it would serve a different purpose than the original. But Baio didn’t claim this. And I haven’t heard an argument made that it could be considered a parody. In your own blog post, you say “I think there’s an argument to be made that his version of the Miles Davis photo qualified as parody.” Saying there might be an argument and actually making the argument are two separate things.

        I personally doubt one could make a strong argument for parody in this case. In most court cases dealing with the subject, the parody had been either critical of the original work or a burlesque — this is neither. That’s not to say noncritical commentary couldn’t be seen as a parody, though I have yet to see a court decision address this situation.

        It would have to be a rare case. A general rule that any new work that comments in some way on the original would swallow up most of a copyright holder’s derivative works right. A film based on a book “comments” on the book, creating “new information” and “understanding” about, for example, what the characters might look and sound like. All that would be left would be the most rote adaptations: translations of works into other languages, abridgements, “digitally remastered” versions of albums, etc.

        Even if you could argue that this is such a rare case, you still must examine the other fair use factors — it’s not simply a matter of “if parody then fair use.”

        • “But Baio didn’t claim this.”

          A trifle detail. Why limit discussions to what was said, when they can be expanded to what could have been said (whether farfetched or otherwise)?

        • I agree with Mr. Hart that too broad a reading of parody rights could “swallow up most of a copyright holder’s derivative works right.” And, as I have already indicated, I’ll concede that a court could find that Mr. Baio’s particular use of the Maisel image was not a parody – but simply an unauthorized taking. While we can agree on these points, I can’t agree with the way that Mr. Hart has mangled the case law of parody in his prior posts.

          For example Mr. Hart asserts that the “use” of the new image is dispositive: “[S]ince it serves the same purpose, it is a derivative work, and only Maisel can authorize its use.” If Mr. Hart thinks that is the rule from the 2006 Blanch v. Koons case he cites, he is mistaken. The court in Blanch v. Koons said, “the “commerciality” of the use is not dispositive.” Instead, in applying the first factor of the four-part test, the Blanch v. Koons court looked at intent: “The question is whether Koons had a genuine creative rationale for borrowing Blanch’s image.” Blanch v. Koons, 467 F.3d 244, 252-53

          Using the “genuine creative rationale” standard from Koons, a court could find that a low-tech distortion of an iconic image – contrasting the masterful artistry of the original with a cruder homemade version – strongly favored Mr. Baio on the first factor of the four-part test.

          Mr. Hart has said he “doubt[s] one could make a strong argument for parody in this case.” He may choose to disagree about the “strength” of this argument, but assuming a finding that Mr. Baio had a “genuine creative rationale” (see above, low tech machine-made version comments on profoundly human and iconic original) here’s how the four-part test could easily tip in Baio’s favor.

          A court could find the Baio image was:

          1) commentary with a “genuine creative rational” (providing new insight on the aesthetic and cultural significance of the original), where
          2) the exploitation of the original’s creative virtues is limited
          3) only as much as necessary to convey the fact of the original has been taken and
          4) there is not deleterious effect upon the potential market for or value of the copyrighted work.

          In other words, the Baio image (like Weird Al’s low-tech take on iconic songs or the Koons painting based on an ad) could be found to be deserving of protection under fair use.

          • Using the “genuine creative rationale” standard from Koons, a court could find that a low-tech distortion of an iconic image – contrasting the masterful artistry of the original with a cruder homemade version – strongly favored Mr. Baio on the first factor of the four-part test.

            Creating a low resolution version of another’s cover art for your cover art is not transformative and does not constitute “genuine creative rationale.” It’s borderline wholesale infringement, and you’re grasping at straws in attempt to win a losing argument. You’re also misrepresenting the holding of the Second Circuit in Blanch. If all that was required to satisfy the first prong of the test was the defendant’s genuine creative intent, the first factor would almost always be satisfied. In reality, of course, the court was much more nuanced in its analysis. The court considered multiple sub-factors in considering the first fair use factor, including the transformative nature of the work (at 251), the commercial nature of the use (at 253), the intent of the creator in commenting on the original (via parody, satire or otherwise) (at 254), and bad faith (at 256).

            You also seem confused by the remaining factors. The second factor focuses on the relative degree of protection that should be afforded to the protected work — here the “iconic image,” as you put it, is well deserving of copyright protection. With respect to the fourth factor you completely neglected to consider the effect on the market for derivatives of the original work (Campbell at 590). Unrestricted creation of derivative works of the photo would undoubtedly have a deleterious effect upon the potential market for derivatives (i.e., the market for licenses to create derivatives of an iconic photo).

          • And if your uncle had been plumbed a bit differently, he could have been your aunt.

  6. Fine article as usual, but Terry (and the judge in the 2006 case) is too kind on Jeff Koons. Koons is one of a number of very wealthy, very famous modern artists, going back at least to Roy Lichtenstein in the 60s, who (usually) get away with blatant plagiarism because they have been annointed by pretentious art critics and gallery directors as ‘major artists’, whereas the people they steal from are ‘mere’ commercial artists, photographers, etc.

  7. One nitpick: the digitized version has around 12 unique colors, so saying it’s an 8-bit image is a little misleading. It’s really more like a 3- or 4-bit image.

  8. A real artist

    “Forget the courts, cut off the thieves hands!”

  9. Dear Folks,

    Terry’s written a great article. As a photographer/writer who finds himself frequently called upon to advise other photographers on IP matters, I’d like to be so presumptuous as to restate some of his points in more “lay” form.

    Terry points out that plagiarism has big grey areas. That’s normal in IP law, and the fallback is the “reasonable individual.” Can you convince them of your position? Or, at least a majority of them on a civil case jury. It’s not about clever intellectual games, it’s about passing the sniff test. (The clever games are reserved for appeals [vbg].)

    That’s why the whole parody discussion is a diversion. One might get an A in college debating trying to reconstrue Andy’s misuse as parody. I cannot imagine most reasonable people would look at what Andy did and think, “Yup, that’s a parody.” I cannot imagine how to talk them into thinking that. It just doesn’t pass sniff. Even Andy’s side didn’t try to argue that.

    (And, BTW, Andy is a good guy who has done lots of good things. He made a bad error in judgement. It cost him. He’s unhappy about that. That’s it. That’s all. He’s not a demon, he’s not a monster. He was just wrong. Folks who throw around insults like “freetard” do not belong in civilized discourse; it’s demeaning, destructive and disagreeeable.)

    Sorry, rant mode off.

    OK, back to business. Terry’s section towards the end on “Protectable Elements of a Photograph” is most important. People should really try to grok that one. More than the details of a photo are protectable. There’s a simple background for that. Lots and lots of cases of art directors calling in a photographer to make a presentation, deciding not to use that photographer, and then substantially duplicating the samples the photographer offered. The law has said, firmly, “So you took the layout, the key elements, and the primary subjects from the proposal, rearranged them only slightly, and you don’t think you used that guy’s creative work?! Think again.”

    In this case, the only element Andy didn’t appropriate was fine detail. Squint your eyes and his version and the original look almost identical. Problem (for Andy) is that in this particular photo, fine detail is probably its least important quality (as opposed to a photo like Ansel Adam’s “Aspens”, where it’s all about fine detail). The one element he didn’t copy is the unimportant one. And that makes it extra hard for this to pass the “sniff” test.

    Final thought on grayness. Andy alludes to it at the end of his article where he shows a whole series of derivations that are progressively more abstract and asks where’s the line? That’s the point of case law. To draw (fuzzy) lines, because ultimately there is a requirement for a line, so that it can come down to a yes/no decision.

    Ironically, I think if Andy had gone with the third or fourth derivation from the last, he might have been able to make a good case. It is so abstracted from the original, just a few squares of color, that your intellectual mind tells you it can’t be the same photo, you just can’t see it there. Yet somehow your artistic mind can look at it and recognize its heritage. That raises some really interesting questions about how we take in and appreciate an artwork.

    I’m not saying it would convince a reasonable jury. But the answer isn’t obviously not. It’d be a decent test case. Andy’s use, unfortunately for him, wasn’t close to that.

    So, that’s the whole thing, folks. You have to stop think it’s a college debate and will you impress the professor (unless you’re on appeal). Step back and ask yourself, “Does the argument really make *sense*?” (within the law).

    pax / Ctein

    • The parody discussion isn’t really a diversion — it’s the crux of Campbell v. Acuff-Rose (where 2 Live Crew’s derivative from Roy Orbison’s Pretty Woman was found to be fair use because it parodied the original, whether or not the artists using the copyrighted work intended their work to be a parody. The nature of the transformation of the original work here is clearly distinguishable from the Pretty Woman use, but the discussion of parody is not at all a diversion.

      • Dear Andrew,

        I’m very familiar with C v. A-R. It’s a wonderful and important case (especially if you grew up on vintage MAD Magazine, as I did). But parody’s a diversion here, because Terry’s article is inspired by Andy and Jay’s case, and any argument that Any’s use constituted parody would be very unlikely to prevail.

        pax / Ctein

    • Nicely writ Ctein. I agree with you completely.

  10. I guess you consider yourself a copyright geek, so that’s how you respond this this incident. If all you have is a hammer, everything’s a nail. But you’re missing the main point.

    I think people were angry about the amount of money demanded by Maisel and by the pain and stress that Baio and his family were put through. The punishment was disproportionate to any harm that Maisel was caused.

    I think Maisel outsources his enforcement to a law firm that is in the nature of a collection agency in how they behave. They probably get a percentage of fees collected. They use registration and statutory damages to allow them to extract high settlements, so cases never reach trial.

    Maisel should be supervising this more closely if he isn’t now, and he should be ashamed of himself in any case.

    • Dear Mandy,

      No, I’d say you’re missing the main point in the discussion, here, which is about the law. You want it to be about social morals. Fair enough conversation, but don’t go throwing nail and hammer references about when they can bounce back at you.

      Statutory and other sorts of damages were authorized by the Copyright act for two reasons. One is to compensate for loss. Which is what you’re concerned with. The other is to act as deterrence. It’s intended to be punishment.

      Andy, good guy though he is, is still firmly convinced he is in the right. He’s backed off because he can’t afford the damage. That’s what the damages are supposed to do. They’re not supposed to make you think you’re in the wrong, they’re supposed to make you STOP.

      Neither Jay nor Andy is poor, by most of our standards (dunno about Terry– he’s a lawyer [grin]). Absent information about their personal finances, which we are NOT entitled to (they are not on trial as people {except by internet trolls} and there is no reason their private lives should be internet fodder), I have no idea how large a fine needs to be to act as a deterrent to Andy. Do you?

      pax / Ctein

      P.S. And, yes, I am a copyright geek. But by trade I’m a photographer and writer (I’m Google-able, if anyone cares). Still, I love the law, especially IP and Consitutional Law. I am more expert in copyright law than most non-IP attorneys, more expert than some non-copyright-IP attorneys, and more expert than very few copyright-IP attorneys (thank god!).

      • Nice photos. Think I will use some for 8-bit cover art parodies.

        I would normally ask for permission, but, thankfully, because I am immunized by Fair Use it’s too bad for you.

        • Dear MLS,

          Guffaw! Love it!

          Actually, I’m pretty easy-going about this on my stuff, vis:

          http://ctein.com/copyrite.htm

          Sorry for the formatting– sooooo last-century.

          pax / Ctein

          • Hmzzzzz, Ctein,

            Copyright infrictions are bad enough, but thinking about it, being impolite is even worse. I think Andy’s a good guy to but was impolite to mr. Maisel. And in a big way. He simply should have asked. Demonstrated his point, his willingness to respect the other artist and his willingness to totally see the 8-bit concept through. Jay could then have made your decision on how far the pixelation could have continued. He knew he was using a picture that was not his own creation. It was not an unintentional error. But what if it would have been. That is the problem with case law. How many a photographer has a picture of the Eiffel tower or the Statue of Liberty or El Capitan. So were does the law draw the line, that grey area is the problem for any artist. I remember seing an exhibition called Braque and Picasso in the early nineties in a museum in Basel. George Braque and Pablo Picasso both playing hopscotsh in paintings, sometime Braque commented on a theme by Picasso and sometimes Picasso took a theme from Braque and ran away with it. All of these cases could have wound up in a court of law and now the artworld is pleased they didn’t. Or more recently when Gurksy took a shot a Jackson Pollock at the MOMA from a location that Struth already had used. Struth (reportedly, citation needed) was not to pleased but decided not to sue (and Mr. Pollock’s estate and the MOMA gave both top notch photographers permision). On the same note Thomas Ruff used .jpg internet porn and blew up thumbnails to giant proportions using an Lightjet and Elger Esser uses details from old postcards. As you state IP rights are important but they are dependent on case law. Case law itself is abolished largely on the European main land even in murder cases (and for good reason) but in IP debates case law can’t be abolished because everything is intwined in point of view. Could a porn producer sew mr. Ruff? Probably not since showing these pictures in a public space was not his intent (clearly) but what if Thomas’s picture winds up in a book about the Düsseldorfer Fotoschule? That’s why people react so harshly towards mr. Maisel, they may see things differently but mostly they are confused. Elliot Erwin won a German IP proces in which a photographer used the idea (not the actual image) of the little dog, lady in stockings, big dane photo in a Ford Ka advert. The dane was replace by a Ford Ka as I think since I have not seen the Ka picture (for obvious reasons). So were does it end. On the same account the Hundertwasser estate won a IP trial against a German photographer who had used a vantage point from an opposit building to take a picture of the Vienna Hundertwasser house. Now in Austria itself he could freely publish (Right of Panorama) but in Germany a law was made making it illegal to use diveces (such as ladders and long tele lenses) to take pictures of private property (in order to protect the privacy). Now taking a picture from the sidewalk would have been perfectly okay, but taking it from a balcony on the opposite side of street wasn’t. That is what people are confused about. Look if I take a picture of your website and stick it onto mine without asking, you have a point (and a big one) wether I make money of it or not. But what about if I travel to a night launch of the space shuttle and take a picture with a tele resembling yours (okay I’d have a hard time doing that now) but I could travel to Yellowstone, ask kind permission to take pictures there since professional photography is limited in the same way as filming in the park is, as the park not to clearly states on it’s website). Then I could travel to El Capitan and take the same picture Ansel has taken or go for Struth’s foto from a different location. What would happen then if I put that on my website. Do you know, do I know, does Mr. Hart know? Now if I was a walking ignoramous and I would never have heard of mr. Adams or Mr. Struth, what would happen then? What could happen then? That’s what Mandy is referring to. What if taking a picture means you are liable in a court of law, without you’re knowing. A 37.000 dollar fine may or may not hurt Andy, I don’t care but I can asure you it would hurt me. Not that I would duplicate a photo knowingly without the artists concent. But what if I did that unknowingly. Or even worse if some lawyer decided he could have a case and starts something bordering on extortion to everyone who has ever taken a picture of the sea with a long shuttertime on behalve of the estate of the first person who did that. That is what upsets Mandy, that is what upsets me. Intellectual property is very delicate, it is very fluid and needs to be protected against abuse. But it also needs to be protected against misuse because otherwise society as we know it, which in large effect is based on the spread of information, will stop existing. There would be no cars unless they were Mercedes, no plains unless they were build by Weisskopf and no stearable ones unless they were build by the brothert Wright. Rockets would only fly in China and the Italians wouldn’t eat spaggethi without paying a fee to China via the Marco Polo trading company. I know i’m hyperbolic now but that serves to make a point here (and yes I was a school debater). At some point even unfair use serves a purpose to society and I know the individual’s rights must be guarded but not at society’s cost.

            So in the case stated things are crystal clear but not in all cases lines are drawn this easy and that is what bugs Mandy and she’s right to be bugged by it. No matter what and she is right to do so.

            Greetings, Ed

  11. You say:

    . . . Baio’s artistic motivations for his cover do not justify his copying of Maisel’s photo as fair use. It is instead clearly a derivative work, a “translation” of the original into 8-bit language, if you will — the equivalent of the 8-bit cover versions of Miles Davis’s music that accompany the work.

    Here, you seem to be making a claim that I’ve seen elsewhere in discussions of this case—namely that a work cannot be both derivative and transformative. I don’t think this distinction is borne out in either the Copyright Act or the case law.

    To the contrary, even outright duplication of a work may be fair use given the right circumstances (excerpts for teaching purposes, perhaps). Indeed, and as I’m sure you’re aware, the fair use defense only even becomes an issue after the plaintiff has made a showing of per se infringement. I doubt that Baio would deny that the Kind of Bloop cover is a derivative work (defined in the Copyright Act as a work that is “based upon one or more preexisting works. . .”). Rather, he contends that despite its derivative status it is entitled to protection under the defense of fair use.

  12. This may be a side issue, but how does copying a work without permission, and often without acknowledgement, for purposes of parody, square with the Universal Declaration of Human Rights requirement to protect the ‘moral’ interests of artists? I think it is generally accepted that the ‘moral’ interests of an artist include the right to be given due credit for their work, but do they go beyond this to give the artist some right to prevent their work being used in abusive or offensive ways? Since ‘parody’ is often (of course not always) derogatory towards the work being parodied, I would argue that the artist’s moral interest is greater in the case of parodies than in that of straightforward copies.

  13. …I checked the position in UK copyright law (as I live in the UK), and it does indeed give artists the right to object to ‘derogatory treatment’ of their work: see here http://www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm and section 80 of the Copyright Act as linked to on that page.

    Is there anything corresponding to this in US law? The judgements of American courts in ‘parody’ cases seem to go the other way, but I am no expert on this.

    • Generally speaking, there is no “moral right” in American copyright law which is similar to the moral rights granted under many other countries’ copyright systems. However, the irrepressible Terry Gilliam et al (of Monty Python fame) sued ABC (see: Gilliam v. American Broadcasting Companies, Inc. 538 F.2d 14 (2d Cir. 1976) ) quite some time ago under a very clever trademark law theory (the case was brought under the terms of what we generally call a Lanham Act violation.) The theory was accepted by the courts, and at least in many commercial situations an artist can assert what is, essentially, a moral right to not have his work messed with by others. Litigation on the theory is fairly rare (not least because most license agreements now contain language which addresses the issues raised by the case.) But it remains, AFAIK and without Shepardizing it, good law. I’ve always liked that case.

      In any event, the US has not ratified the UDHR and therefore is not subject to its requirements, even if they were to specifically require the recognition of extensive moral rights. (IIRC it does not go into great detail as to what moral rights comprise.) I suspect we will eventually end up with explicit moral rights protection of some kind as harmonization continues, but First Amendment limitations will form much more of a problem for the enforcement of such matters in the US than are usually encountered in other countries.

      • Darn it, premature submission.

        I meant to add, the US *does* have a moral rights statute called the Visual Artists Rights Act, which extends some of the same protections that moral rights laws in Europe do, but it is much more limited (e.g. it only applies to, obviously, works of the visual arts.) US courts don’t seem to like it very much and they usually find some reason that it doesn’t apply if they can. And it is subject to First Amendment limitations. But to be fair, it is on the books and it is a moral rights statute. It even makes the moral right inalienable (which is one of the reasons US courts don’t like it) which is a key attribute of most other moral rights protection regimes.

        • …aaaand I should really have also added that “work of the visual arts” is a very limited category, much more limited than it might first appear to the layman. For instance VARA would NOT have applied here, as for multiple reasons the original work is not a “work of the visual arts” as defined by US copyright law. VARA is a real thing (and at least one artist has won a >$1M trial judgment under its provisions) but generally speaking, the broad moral rights protection afforded under many European regimes does not exist in the US, VARA notwithstanding.

          Sorry. Been having a rough week, not as focused as I might be. :)

  14. it’s fair use but i guess he doesn’t have pockets deep enough to convince a judge of that.

    • Original post: (Long and detailed explanation, with citations, as to why the use in question is probably not a Fair Use.)

      You: Nuh-uh, it’s because he’s not rich.

      Me: Uh-huh, and yes, he is rich. He’s not rich enough to afford a LOBBYIST to get the law changed, which is what it would take to make this a Fair Use.

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