In October, Judge Leval wrote the majority opinion affirming a finding of fair use in Authors Guild v. Google, based largely on his conception of fair use as hinging on transformation, a conception he himself first laid out over twenty years ago in Toward a Fair Use Standard. The Supreme Court’s adoption of that conception in 1992—it cited to Leval’s article over a dozen times in its Campbell v. Acuff-Rose opinion—is affirmation enough, but the quickness of courts to turn to the theory today in order to adjudicate cutting edge copyright issues definitely validates it.

Judge Leval is clear about the foundational principles that have animated his thinking. “The copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations,” he wrote in his 1992 piece. “It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts.”

Leval’s view of copyright is not new. In 1841, Thomas Babington Macaulay addressed the British House of Commons, saying,

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.

This utilitarian justification of copyright seems to predominate, at the very least, academic scholarship on the topic these days. We are indeed told by some that the Constitution itself dictates that our copyright law rests solely on utilitarian grounds. 1See, e.g., Tom Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good, pg 60 (Mercatus Center, 2014); Association of Research Libraries, “Copyright Timeline: A History of Copyright in the United States“; William Patry, “The Natural Rights Issue“, Patry Copyright Blog, Jan. 18, 2008.

But not everyone agrees with this view. In Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press), Randolph May and Seth Cooper argue that the drafters of the Constitution understood copyright as grounded in natural rights. 2Disclaimer: I received a courtesy copy of the book from Carolina Academic Press. They and early American jurists and legislators sought to protect the just claims that creators and innovators had in the products of their labor.

The book grew out of a series of essays May and Cooper wrote through the Free State Foundation. In it, May and Cooper argue that the Founders viewed copyright (and patent) as grounded in natural rights, and this is reflected in the Constitution. The argument proceeds from first principles that May and Cooper assert in the introduction. The first of these is that “every person has a natural right to the fruits of his or her own labor”—including the product of a person’s creative activity. The second is that the protection of “every person’s right to the fruits of his or her own labors through laws protecting private property” is one of the primary purposes of government. They acknowledge at the outset that a natural rights foundation for intellectual property does not necessarily mean such rights in civil society last indefinitely—”property law systems must be considered in the contexts of social institutions adjusted to various circumstances, including historical precedents, technological developments, plausibility of enforceability, and costs relative to benefits.” This is an important point almost universally overlooked by opponents of a natural rights view of copyright and intellectual property.

May and Cooper also argue that these principles are reflected in the US Constitution, including the Constitution’s Copyright Clause, which authorizes Congress to enact intellectual property legislation. They draw from the intellectual influences on the Founding Fathers—most notably John Locke and William Blackstone—along with contemporary writings of the Constitutional Framers. Chief among these are the Federalist Papers. Though the authors devote most of their attention to examining Federalist 43, where Madison describes the Copyright Clause specifically, they look at the entire set of essays to sketch a more comprehensive framework of Constitutional thought and show how intellectual property fits into that.

Pursuant to the Constitution’s Copyright Clause, the First Congress passed the 1790 Copyright Act. May and Cooper emphasize the importance of this legislation—noting that this Congress is sometimes called the “Constitutional Congress”, they write that “the proceedings of the First Congress inform our understanding of the underlying logic and significance of intellectual property (IP) rights in the American constitutional order.”

The book turns next to addressing common critiques of the natural rights view of copyright. In one chapter, they take a closer look at Thomas Jefferson’s views on intellectual property. In particular, a few scattered, brief mentions of skepticism toward IP expressed by Jefferson in private letters are often held up by critics as much more than they are, creating a “Jeffersonian mythology” in the IP world. May and Cooper respond that Jefferson’s influence on the actual Constitution, including the Copyright Clause, was peripheral at best—he was in Paris during the 1787 Philadelphia Convention. In addition, relying solely on those sentiments he expressed exaggerates his opposition to intellectual property rights in general. Jefferson, they observe, never publicly attacked patents or copyrights during his Presidency. Indeed, as president, he signed the 1802 Copyright Act, which expanded the scope of protection.

In another, they demonstrate that “intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights.”

The book is rounded out by taking a look beyond the Founding period. May and Cooper examine Antebellum jurisprudence, which, they state, reaffirms the foundations of intellectual property rights they’ve describe above. They find these principles reflected in legal treatises such as Joseph Story’s 1830 Commentaries on the Constitution, and Chancellor James Kent’s Commentaries on American Law. 3They could have added George Ticknor Curtis’s 1847 landmark Treatise on the Law of Copyright, which explicitly embraced a natural rights approach to literary property. They look at cases like Wheaton v. Peters, which, though it rejected the existence of a federal common law copyright, still relied on the justices shared recognition “that copyright is a property right rooted in a person’s right to the fruits of his or her labor.” And finally, they see these principles embraced in a number of legislative revisions to copyright law during the time between the War of 1812 and the Civil War.

Abraham Lincoln is brought in to conclude the book. May and Cooper observe that the Founders’ understanding of natural rights and Constitutional thought was embraced by Lincoln during the Civil War and Reconstruction era. They find resonance between the natural rights logic of intellectual property and the logic of “free labor” that underpinned antislavery arguments. Lincoln advocated for both—indeed, he himself was awarded a patent before becoming President of the US.

The natural rights approach that May and Cooper take has not disappeared entirely from copyright discourse these days. One hears hints of it in court opinions and policy statements, and a few intrepid academics write from such a perspective, including, for example, Adam Mossoff and Mark Schultz, who are mentioned in the book’s acknowledgements. But May and Cooper have written a thorough recitation of how copyright is justified under a natural rights theory and how that justification is reflected in US law—and a project of such a scope is increasingly rare.

Much of the history traced through the book will be familiar to US copyright scholars, though I found the discussion of the Antebellum and Reconstruction eras to cover new ground. If I had to identify a drawback, it may be that the book suffers from a bit of repetition. As noted above, it grew out of a series of previously written essays and could have benefitted from a bit more structural cohesion and a bit less redundancy. Nevertheless, May and Cooper have contributed an excellent primer on the natural rights justification for intellectual property rights in the US and its reflection in the Constitution and early American jurisprudence.

References   [ + ]

1. See, e.g., Tom Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good, pg 60 (Mercatus Center, 2014); Association of Research Libraries, “Copyright Timeline: A History of Copyright in the United States“; William Patry, “The Natural Rights Issue“, Patry Copyright Blog, Jan. 18, 2008.
2. Disclaimer: I received a courtesy copy of the book from Carolina Academic Press.
3. They could have added George Ticknor Curtis’s 1847 landmark Treatise on the Law of Copyright, which explicitly embraced a natural rights approach to literary property.

TPP, copyright, e-commerce and digital policy: a reply to Michael Geist — Barry Sookman: “Geist likes to use the emotionally super-charged metaphor of content being “locked up” or “locked down” because of copyright to garner maximum visceral reaction for his claim. It sounds from listening to him like all works that were scheduled to fall into the public domain will immediately be made inaccessible by being pulled from stores and libraries and be buried as radioactive waste at the Yucca Mountain Nuclear Waste Repository, or some similar facility.”

Goodbye “Incentive.” We Hardly Knew Ye. — John Degen: “Copyright protected works can be remarkably valuable. That value is a form of property, and we extend copyright terms past the death of the author in order to allow the author to leave said value to her heirs. If incentive comes into play at all in extended copyright terms, the incentive acts upon the living author to create yet more valuable property that can then be protected in her estate.”

Photographer Profile – Yunghi Kim: “I wanted to protect myself. And I wanted to empower other photographers” — “Kim’s holiday gift to photography underscores her commitment to the profession, but, moreover, her belief that there is a place in photography’s future for traditional notions of professionalism — for both intellectual property rights and creative ownership that places inherent value on work. ‘We’re not so helpless when it comes to all this,’ Kim says. ‘That’s the whole message behind the grants.'”

Music Publisher Gets $25 Million Jury Verdict Against Cox in Trailblazing Piracy Case — Following last month’s ruling that the ISP’s failure to reasonably implement a repeat-infringer policy, a jury found Cox liable for contributory infringement, awarding damages for willful infringement of nearly 1400 songs by its users.

Copyright Office Lays Out Technology Upgrade Plan, Pushes for Tech and Data Workers — “Pallante said the office would like to eventually ‘morph’ about a third of its employees (about 150 workers), into tech and data experts. ‘These experts should not merely be assigned or on-call from another part of the agency, but rather be integrated into the copyright office mission where they can work side by side with legal and business experts,’ Pallante said.”

Protecting artists from streaming piracy benefits creativity and technology — Although a viewer’s experience is essentially the same whether they download or stream a copyrighted work from a site, the potential criminal penalties for an infringing service vary widely based on this distinction. Here, CPIP’s Devlin Hartline and Matt Barblan argue that the distinction no longer makes sense, and Congress should harmonize copyright’s criminal penalties to better address wide-scale, online commercial infringement.

Streaming Now Consumes 70 Percent of Internet Bandwidth — Underscoring the above point, a new study shows that streaming has overtaken downloading—and, indeed, all other uses—in terms of consumption of internet bandwidth. Paul Resnikoff also observes that Netflix alone has grabbed an impressive 37.1% of bandwidth in North America using a paid-only model, which”raises some serious questions about Spotify’s ‘freemium’ approach.”

U.S. Copyright Office Deserves 21st Century Upgrade — “The Copyright Office’s administration of the law helps to support an industry that adds over $1 trillion to the U.S. economy every year. But it is currently subservient to the Library’s discretion, not just on IT, but budget, human resources, and every essential aspect of its operation. The result is that the systems of the Copyright Office are woefully outdated; stakeholders and policymakers unanimously agree that the Copyright Office must modernize. Congress has a perfect opportunity to give the Copyright Office the autonomy it needs to modernize according to its vision and the demands of its customers to better serve the American people and industry. That opportunity should not be missed.”

Facebook Stole My Work and All I Got Was This Hangover — A new cohort of creators have found success taking advantage of the opportunities provided by internet native platforms like YouTube to reach new audiences. But, unfortunately, they have not been immune to the harm of piracy that established media like film and television have long faced. Here, Ruth Vitale discusses the emerging problem of “freebooting”, where videos are ripped from one site, like YouTube, and reposted on another site, like Facebook, without permission or credit.

Downloading free stuff online comes with a cost – Malware — Ellen Seidler reports on a new study by Digital Citizens Alliance which shows that infringing sites pose an increased risk to consumers of being exposed to malware. As the study points out, many sites, in fact, make money primarily through the distribution of all forms of malware and use stolen content merely as bait to lure unwitting users to the site.

Finn on Deontological Justifications of Intellectual Property — Very broadly speaking, IP is justified on two grounds: effects-based, or consequentialist grounds, and rights-based, or deontological grounds. A recent Mark Lemley article attempted to argue that deontological justifications are illegitimate. Here, Finn responds that Lemley’s arguments are based on logical fallacies.

CPIP Publishes White Paper on Copyright Principles and Priorities to Foster a Creative Digital Marketplace — The Center for Protection of Intellectual Property’s white paper lays out principles that Congress should consider as it continues its review of copyright law as well as a number of priorities it should focus on. The paper is available here (PDF).

YouTube wants to compete with Netflix, seeks movie and TV show deals — But not user-generated content.

This Photographer is Paying it Forward with $10,000 from Copyright Infringers — “Yunghi Kim, a decorated photojournalist and 20 year member of Contact Press Images, is bringing more than turkey to Thanksgiving this year: she’s donating $10,000 to create ten one-time grants of $1,000 with money that she has received ‘from fees recovered from unauthorized use of my work.'”

Op-ed: John Degen on copyright and the authorship of Anne Frank — Degen responds to “what really should be a non-story”: a recent attempt by the Swiss foundation that holds the copyright in The Diary of Anne Frank to extend the duration of protection in the work, which caused a good deal of consternation among copyright skeptics. Degen explains why this is not a “terrible injustice.”

How YouTube Pays Artists by East Bay Ray — The Dead Kennedys co-founder writes, “YouTube is taking almost twice the “old evil” music companies’ cut, for basically doing no more than hosting on a server…  And if you leave it, the businessmen at Google still make big money because they do not have to get your consent to ‘monetize’ anyone’s files. Or photos. Or life. Yes anyone, including you. There’s a loophole in the law. That can be corrected.”

The Return of “In-Camera” Effects in Krampus & The Force Awakens — While not necessarily inferior to CGI effects, some filmmakers and fans do hold a particular reverence for practical effects. The Credits highlights two upcoming films that make heavy use of such effects.

Google’s DMCA Publicity Stunt — “A ‘game changer?’ Not even close. This new program really changes nothing since you can count on one hand the people who might benefit from it. The new policy is really nothing more than a publicity stunt, designed to encourage more people to upload to YouTube videos of dubious legality, while at the same time acting as an intimidation tactic to discourage the filing of valid takedown notices. Google takes this action for one reason only: to protect its bottom line.”

Industry-Wide Survey Reveals 67% of Professional Photographers Are Affected by Unauthorized Use of Photos — “According to a recent industry survey by Professional Photographers of America (PPA) on the prevalence and impact of copyright infringement among professional photographers, 67% of the nearly 2,000 respondents said they have had photographs used without their permission. Of that group, more than half estimate unauthorized uses of their images totaled five or more in the past five years.”

The Hunger Games: Mockingjay – Part 2‘s Production Designer on Creating the Capitol — A look at the efforts that went into translating the scenes from the book into physical sets for the final installment of the Hunger Games series.

Google’s continued do-si-do around its piracy pledge — Ellen Seidler: “Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts. Google still has a very long way to go when it comes to fighting piracy.”

YouTube to Pay Fees for Some Video Makers to Fight Takedowns — The most powerful company on the planet says it may offer help to as many as four of its users.

‘All You Need to Know About the Music Business’ Author Donald Passman on ‘Freemium’, New Realities — Highlights from the latest edition of the guidebook to the music industry, with thoughts on the vinyl boom, consent decrees, and freemium.

Previously on Copyhype — On Wednesday, both parties in Fox News v. TVEyes told the court they intended to appeal the case to the Second Circuit. Fox News is appealing the court’s September 9, 2014 order, which I wrote about in Fox News v TVEyes: Fair Use Transformed.

Judge Restricts Sharing of Fox News Clips Through Email and Social Media — Following an extraordinarily broad fair use decision last year and a second, narrower fair use decision last summer, Judge Hellerstein this week ordered a somewhat surprisingly broad permanent injunction against news clipping service TVEyes, which had been sued by Fox News for copyright infringement. The injunction prohibits: “Enabling users to download to their own computers video clips of content telecast on the Fox News Channel or Fox Business Network. Enabling users to view FNC or FBN content by searching by date, time and channel. Enabling users from sharing video clips of FNC or FBN content on social media websites rather than by personally directed emails, with further limitations.”

FilmOn Can’t Use Compulsory Copyright License, Judge Says — The Aereo clone won a victory in a California court last July when a judge ruled that it could qualify for a cable compulsory license under the Copyright Act. But this week, in parallel litigation, a DC court judge ruled the opposite. The sealed ruling sets up a potential circuit split on the interpretation of 17 USC § 111.

Music piracy, copyrights and royalties in Ivory Coast — Music Africa reports: “Piracy does not only stifle distribution houses and producers. The entire chain of the music industry is affected. Recording studios no longer generate income, since there are very few albums produced. Musicians are given no contracts to sign. Graphic designers who make the covers of CDs and especially the Ivorian Office for Copyright (BURIDA) are all experiencing the downfall. Since 2006, for example, according to BURIDA figures, the number of musical registrations fell from 870 000 to 320 000.”

Google-chaired think tank says Google’s No.1 for digital rights — Orlowski: “Just fancy that! A Washington think tank chaired by Eric Schmidt, Alphabet Inc’s executive chairman, has given Alphabet Inc. an award for ‘protecting your digital rights’.”

YouTube is a hosting provider, but one with extensive duties of care, say two German Courts — The German word for “take down, stay down” is “Stoererhaftung”. “Stoererhaftung requires that YouTube has breached its duty of care after having been notified of an infringement. This duty of care (arising with notification) does not only include a mere takedown of the infringement notified, but also a stay down and the prevention of other infringements of the same kind which are also obvious. This concept applies to YouTube according to the Hamburg court.”

The Peanuts Movie‘s Animation Supervisor on Getting the Gangs into 3 Dimensions — I admit to being a bit skeptical after seeing trailers for the new Peanuts Movie, but this sounds very interesting. “We obviously started out just by studying Schulz’s wobbly pen line, his cartoon line, and the four panel strip. We definitely looked at the Christmas and Halloween specials as the Hallmark classics of the Peanuts. We studied the movies as well. We had access to every single comic, movie, special, even the commercials that they did way back before they did the specials. We studied Bill Melendez [Schulz’s trusted animator on the televised specials] and Bill Littlejohn [the lead animator with Melendez].”

Using intellectual property system to harness African creativity — “Also included are the copyright systems that reward writers, artists, musicians and other creators and allow them to market their work around the world. IP helps ensure that the product of your mind belongs to you, so that you and your family will benefit. But governments need to put in place legal, regulatory and other frameworks to maximise human creativity and assure it can be shared across boundaries.”

Will Buckley works to unite artists and fix a broken DMCA — Ellen Seidler sits down with Fareplay founder Will Buckley about his efforts advocating on behalf of artists and creators. “Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail. And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent. If that doesn’t change the creative community may come away empty handed from the proceedings.”

Previously on Copyhype —This week, the final text of the Trans-Pacific Partnership, which includes a chapter on intellectual property, was publicly released. For background on how copyright came to be included in trade agreements, see Copyright and Trade.

Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation — Jiarui Liu:

Even though musicians seem to primarily create music for music’s sake, copyright law could still supply powerful incentives for music production in a way that not only caters to market demand, but also allows for broader artistic freedom. Copyright piracy that does not necessarily affect musicians’ intrinsic motivations could nevertheless affect music creation in terms of the time spent on music creation, the volume of investment in music creation and, ultimately, the quality of music creation. Most importantly, copyright incentives do not function as a reward that musicians consciously bargain for and chase after, but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs and maximum artistic autonomy during the creative process.

Wil Wheaton is right: Stop expecting artists to work for free — or worse, for “exposure” — After Huffington Post asked actor Wil Wheaton to republish an article he had written for free, Wheaton went public with the story and an exhortation to fellow writers, artists, and creators to value their work and think twice about offers to work for free, even when “free exposure” is promised. As Scott Timberg observes here, “when ‘free’ becomes the way creative work gets assessed, it undercuts the market for everyone, famous and obscure alike. We end up with a race to the bottom.”

Google Books and Fair Use: From Implausible to Inevitable? — Eminent copyright scholar Jane Ginsburg on the Second Circuit’s recent decision in Authors Guild v. Google. She asks, “How did the fair use doctrine go from a safety valve to enable second authors to create new works that productively incorporate reasonable portions of prior works, to a free (in both senses of the word) pass for mass commercial digitization – at least so long as the outputs from the commercial database communicate no expression or insufficient expression to infringe?”

New Tech Plans Aim to Take Copyright Office out of the 1970s — “According to the document, the office plans to revamp its website, Copyright.gov, by improving the site’s organization and boosting its interface to make it easier to use. This overhaul would also include enhancing the public records search engine to allow users to save their queries and receive unlimited results. The office is also looking to finish digitizing its pre-1978 copyright records, according to the document.”

Protecting Authors and Artists by Closing the Streaming Loophole — “Congress has a long history of modernizing copyright law to account for ever-changing technologies. Now that the internet has advanced to where streaming is a dominant method of illicitly disseminating copyrighted works, the time has come to close the streaming loophole and to harmonize the remedies for criminal copyright infringement.”

Can economic and historical analyses end copyright law’s property/monopoly disputes? — Tom Sydnor: “We can now resolve 300-year-old debates about whether copyrights are monopoly rights or property rights. Modern law and economics provide no basis for distinguishing copyrights from other private property rights that also tend to promote imperfect competition by innovation among producers of differentiated goods, services, and works.”

95% of YouTube Views Come from Just 5% of Videos — “Of [YouTube’s] 1.1 billion videos, just 5.3 percent (roughly 58.6 million) of videos on YouTube have 10,000 views or more. These videos have generated a cumulative 7.4 trillion views, or about 95% of all views.”

Three More Reasons Why the Supreme Court Needs to Clean up the Mess of Transformative Use — Those three reasons, according to Stephen Carlisle, are the recent decisions in Author’s Guild v. Google, Inc., Katz v. Google, and Galvin v. Illinois Republican Party.

Is Google Books leading researchers astray? — “By not taking into account the relative popularity of texts, Google Books leaves itself open to disproportionate influence from less widely recognized sources. ‘It’s as if you’re giving every work in a library the same weight,’ Dodds said. When an author publishes numerous books about a single character, for example, that character’s name may appear to be far more central to an era’s discourse than it actually was. Dodds pointed me to the example of Star Trek novelizations, which made names like Spock appear with improbable frequency. By contrast, Dodds noted, a long-standing best-seller like A Tale of Two Cities has trouble making a dent at all, even in eras when everyone was reading it.”

CPIP 2015 Fall Conference — The Center for Protection of Intellectual Property has now posted videos of all the panels from its recent fall conference, The IP Platform: Supporting Invention and Inspiration. A must watch!

On Friday, the Second Circuit published its long-awaited decision in Authors Guild v. Google, holding that the Google Books project was fair use. The litigation has extended over a decade, and the court’s opinion ably recounts the factual and legal background so there is no need to repeat that here. Surely it will provide fodder for plenty of commentary over the coming months, but for now, I wanted to highlight an ancillary point: the court’s apparent overlook of its fair use holding in Cariou v. Prince.

Cariou involved the appropriation, without permission, by celebrity artist Richard Prince of over thirty photos taken by professional photographer Patrick Cariou, to create a series of new works. Prince asserted a fair use defense after Cariou sued him for copyright infringement. The district court rejected the fair use defense. 1Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011). Key to its holding was its response to Prince’s assertion that “use of copyrighted materials as raw materials in creating ‘appropriation art’ which does not comment on the copyrighted original is a fair use.” The court disagreed, saying it was “aware of no precedent holding that such use is fair absent transformative comment on the original.”

To the contrary, the illustrative fair uses listed in the preamble to § 107—“criticism, comment, news reporting, teaching […], scholarship, [and] research”—all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

On appeal, the Second Circuit reversed, finding all but five of Prince’s works to be fair use (the remaining five were remanded to the district court on the issue). 2Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013). In doing so, the Second Circuit disputed the above statement from the lower court, saying, “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative … Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”

The New York Times noted that the decision was criticized by copyright experts and photographers. I also criticized the decision, and later wrote that it ignored a long-standing principle that fair use requires that the use of the original work is essential to the new work for some purpose related to those listed in the statute (“criticism, comment, news reporting, teaching […], scholarship, [and] research”). 3See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”). This necessity principle, I observed, can be derived from the underlying justifications of fair use—which include furthering the goals of copyright itself and providing First Amendment safeguards.

My discussion was motivated by the Seventh Circuit’s 2014 decision in Kienitz v. Sconnie Nation, which, after criticizing the Second Circuit’s holding in Cariou, touched briefly upon the necessity requirement. 4766 F.3d 756 (7th Cir. 2014). There, Judge Easterbrook said,

There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.

Following the Supreme Court’s denial of cert in Sconnie Nation, it seemed like we’d be stuck with a bit of a circuit split between the Seventh Circuit and the Second (and Ninth) Circuit. Until Authors Guild.

Judge Leval, who authored the opinion, began his fair use analysis by exploring what it means to be “transformative” in the fair use context (a term he himself introduced into copyright jurisprudence). 5See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). It “does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use.” To explain the distinction, Leval turned to the same passage from the Supreme Court’s opinion in Campbell v. Acuff-Rose that I relied on to describe the necessity requirement. There, the Court explained (as quoted by Leval),

[T]he heart of any parodist’s claim to quote from existing material . . . is the use of . . . a prior author’s composition to . . .comment[] on that author’s works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish). . . . Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s . . . imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Leval drives this point home, saying,

In other words, the would-be fair user of another’s work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.

This would appear to contradict Cariou—there, Prince did not have any justification for using Cariou’s photos; indeed, he did not articulate any reason at all for using them, but the court nevertheless held that to be a fair use. I say appear to contradict since a panel court cannot overrule prior holdings by the same court, so we are left with a state of tension between the holdings in Cariou and Authors Guild.

Nevertheless, and setting aside other aspects of this decision, the Second Circuit’s recognition of the necessity requirement of fair use is a welcome one.

 

References   [ + ]

1. Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011).
2. Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013).
3. See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”).
4. 766 F.3d 756 (7th Cir. 2014).
5. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).