By , April 13, 2015.

Perhaps one of the last individuals you’d expect a book on copyright to come from is Elizabeth Wurtzel.

But that’s indeed what the author of Prozac Nation has done with Creatocracy: How the Constitution Invented Hollywood. Through a breezy 121 pages from Thought Catalog Books, Wurtzel provides an interesting and provocative defense of authors’ exclusive rights and commercial culture.

Creatocracy unabashedly embraces American exceptionalism, describing the country as “one big huge accident” that nevertheless “was always cool.” Wurtzel writes,

The defining characteristic of America is our fanaticism: We dream big, we think large, we create granderu. We invented Hollywood, rock ‘n’ roll, blue jeans, the Gold Rush, cable TV with thousands of channels, a military that is larger than those of the next ten combined, the shopping mall, and a store that sells nothing but socks.

Against this backdrop, Wurtzel takes us to the beginning of the American republic to look at the development of copyright. And her thesis is this: the Founders chose to encourage art, science, and knowledge through the marketplace—rather than government subsidy or patronage—and this choice has proven successful, creating a vibrant commercial culture.

In establishing at the outset that all creative people would be at the mercy of the marketplace, the Framers invented a uniquely American form of creativity, which is commercial, widely appealing, and inevitably the stuff of empires. The Constitution is the force behind Hollywood and Silicon Valley, behind rock stars and rocket scientists, behind everything we love and everything we love to hate.

Wurtzel traces the path by which the Constitution established Congress’s authority to promote art and science through copyright. I was initially skeptical when I saw she would be taking us through history—much intellectual property (IP) scholarship has trouble with history. But Wurtzel’s recount of the history is adept. At the same time, she shows a canny ability of anticipating and responding to common criticisms of IP in academia. For example, she devotes one chapter to the IP views of Thomas Jefferson, who is often put forward as an arbiter of IP minimalism. But as Wurtzel notes, Jefferson’s views were far more nuanced than such proponents allow, and regardless, he had little to do with the shaping of the federal IP power.

When not recounting us with history, Wurtzel celebrates talent and pop culture, describing the mass market of culture enabled by copyright as producing “the most commercially inventive and artistic country ever.” Peppered throughout are observations about the nature of the creative process, no doubt drawn from Wurtzel’s own experience.

It has always been difficult to be a successful creative person, because talent is rare, but the rewards were good. They had to be. Consider how boring most people are. Consider how often you sit and talk to someone and wish you could leave because he is not interesting at all. Then think about a book you can’t put down and hope will never end: The author is not even in the room and is only holding your attention with words on a page, but he has you trapped and you don’t want to ever escape. Most people, using everything they have in real life, cannot take hold of you the way a talented writer can without even being there. Talent is the ability to mesmerize people when you are nowhere near. Talent is the ability to make something that is more stunning than human presence.

Wurtzel centers in on the market as an essential element in translating such talent into great works. In chapter 13, she writes that “The greatest of the great American art forms have been done in factory settings, with profit in mind.

[S]ongs written by teams in rows of rooms in the Brill Building or in cubicles in the Motown studios are as emotionally resonant and haunting as the dark part of the night when the sky is big and there are no stars, no moon, and all is terrifying. Talented people do not need atmosphere to work. They do not need inspiration. They just need time and payment. They need to treat what they do like a job. They need to show up. Writing the Great American Novel has more in common with coal mining than it does with keeping a journal—it is hard labor, long and intense.

The commercial creativity enabled by copyright is indeed successful, both economically and culturally. And it is not all pop songs and Transformer films, because of one of the benefits that emerges from successful creative industries: the subsidization of riskier, more challenging work.

To give one example: actress Kristen Stewart is best known for her role in the blockbuster Twilight films. She most recently starred in the decidedly non-blockbuster film Clouds of Sils Maria. Glenn Kenny of Rogerebert.com says of the role:

The young actor, who catapulted to worldwide fame in the “Twilight” series, has, like her co-star Robert Pattinson, been using the clout that such stardom brings to effectively branch out as a performer. In the contemporary movie business, the transaction works both ways: big young star stretches creative muscles by signing on to challenging, filmmaker-driven projects; challenging, filmmaker-driven projects get their financing because a young star who wants to stretch his or her creative muscles has signed on to it.

It is true that patronage or government subsidy can also fund challenging and artistically relevant projects, but nothing like on the scale that the market could provide.

Creatocracy is not perfect. Wurtzel meanders from the main point at times. These diversions are meaningful, don’t get me wrong, but with such a short book, they could stand to be more tightly edited perhaps.

But overall, it is an interesting and compelling defense of copyright from a perspective not typically seen in academic or policy circles. The result is a book that should appeal especially to lay audiences. You may not necessarily agree with absolutely everything Wurtzel says (I didn’t), but it an absolute delight to hear her say it.

By , April 03, 2015.

Is There a Fundamental Right to Intellectual Property? — Rob Merges says “yes,” beginning with John Rawls’ principles of fundamental rights. Merges argues that these principles justify property in general and intellectual property specifically. He concludes by pointing out that, consistent with his approach, the European Court of Human Rights recognizes intellectual property as a human right.

Letter from Register of Copyrights Pallante to Ranking Member Conyers — In a response to a request for views on the recent House Judiciary Committee hearing that focused on the functions and resources of the US Copyright Office, the Office writes that the nation’s long term copyright interests “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Judge Rules ‘Three’s Company’ Parody Play to Be Fair Use — A thorough court decision finding a play that critiques and subverts the characters and situations of the hit 70’s show Three’s Company not infringing. “The former has turned the latter into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

The Man Who Makes Hollywood’s Smallest Sounds — A fantastic portrait of 30 year film veteran Gregg Barbanell. “Barbanell is a Hollywood ‘Foley’ artist, a member of a small, highly-skilled group of experts who add custom sounds into television and film scenes in post-production, using a bevy of makeshift props. Named after one of film’s earliest sound pioneers, Foley is an antiquated craft—and in a digitized era of cinema, it is one of the last of the industry’s ‘low-tech’ jobs. These folks are responsible for recording nearly every footstep and prop sound in the movies—the things that you never really notice, yet bring a scene to life. It’s at once one of the most important elements in film, and the most overlooked. Unlike sound effects editors, Foley artists don’t rely on libraries of pre-recorded sounds: they perform them ‘ive,’ using creativity, intuition, and a small dose of physics.”

Nigeria: ‘Copyright piracy is a cyber security matter,’ says President Goodluck Jonathan — “President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria’s entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter.”

Google admits it has huge influence in Washington as it tries to deny having influence — The Verge reports, “Last week, a Wall Street Journal report suggested Google tampered with an FTC investigation that was looking to see if the search giant was engaging in anti-competitive practices. While the FTC ultimately decided not to bring a lawsuit against Google, reports published by the WSJ indicated the commission was deeply divided on whether it should sue — and another report exposed the close ties that Google has with the Obama administration.” And Brendan Sasso reports that this development has caught the eye of Congress in Senate to Investigate White House Role in Google’s Antitrust Victory.

Cracker’s David Lowery updates his Silicon Valley relationship status: It’s complicated (interview) — Great interview from Lowery. “‘I’m seen as a digital critic, but I don’t think that’s really fair,’ he said. ‘I’m really a critic of how the digital realm pays artists. It’s more of a labor dispute. It’s like if we were the coal miners in the coal mine. It’s not that we’re against the coal mine. We just want to be paid better.'”

An Open Letter to Garbage from photographer Pat Pope over whether the band should pay to use his photos in new book — Says Pope, “No, you don’t have my permission to use my work for free. I’m proud of my work and I think it has a value.”

By , March 27, 2015.

Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91 — “But his central focus was intellectual property — copyright, patents and trademarks. He was the author of 48 laws in that area, 21 of them dealing with copyright. Many reflected technological advances. The landmark 1976 bill set rules governing radio, television, photocopying, tape recording, microfilming and computer storage, breaking a 15-year logjam on a subject that bored most lawmakers.”

Remapping a Broken Internet, Chris Ruen:

Putting authors at the heart of the digital economy — A new white paper from the Society of Audiovisual Authors looks at the rights and remuneration of authors in Europe. “Copyright is the moral link that connects the author to their work. It’s also their remuneration and creative financing tool. In a Europe of diverse cultures, traditions and languages, authors have fought to be able to express themselves in their own language, without being forced into exile in order to complete their projects.”

Beyond Free Trade vs. Protectionism — “In the 21st-century knowledge economy, this means agreements that allow for effective intellectual-property enforcement and prohibit new mercantilist practices (such as forced technology transfer, data-residency requirements, and standards manipulation). It also means our nation should neither be indifferent to its industrial mix nor try to preserve its existing mix indefinitely. Rather, trade policy should be a means to drive U.S. global competitiveness in the knowledge-based industries of the future. In other words, computer chips are more important than potato chips.”

By , March 20, 2015.

How Digital Filmmaking Destroyed Screenwriting — “Cheap digital production closed the doors of distributors to low-budget projects, in a way that didn’t exist in the days of film. The internet devalued content to the point that it was no longer possible to make a profit on an independent film. The DVD-premiere market collapsed and was replaced by VOD (that provides tiny returns on film in comparison). DIY distribution via social networking has failed to create careers, simply because everyone talks and nobody listens.”

Spain: Did the “Google Tax” really change the market? — Míchel Olmedo Cuevas writes, “it seems that the Spanish experience is closer to that of Brazil, where national newspapers amounting for 90% of the traffic dropped out of Google News almost three years ago, and do not seem to be looking to make a comeback since, according to the newspapers association, only 5% of overall traffic was lost, after 135 out of 154 newspapers decided to leave the news aggregation service provided by Google.”

Google v. Oracle: The Curse of Being Popular? — Thomas Young has a look at the “lock in” argument raised by Google in its petition to have the Supreme Court review a decision finding it liable for copying Oracle’s Java software. “The (perhaps unintended) thrust of Google’s argument is that downstream factors, such as how consumers interacted with the work, could impact whether copyright protection ever attached to the work in the first place. This notion would carry a steep price for copyright holders; namely, that user considerations, such as popularity or familiarity, could eventually invalidate their copyright interests and force their works into commons.”

Room for Debate: Robin Thicke, Pharrell Williams and a Blurry Copyright Law? — The Blurred Lines verdict continues to provoke discussion. This week, the New York Times published a series of short articles from copyright experts looking at the case from a variety of perspectives.

How the jury in the ‘Blurred Lines’ case was misled — And copyright luminary Wendy Gordon has her take on the verdict. She argues that the instructions provided to the jury did not adequately explain the law and wrongly supported the notion that any copying is infringement.

World IP Day 2015 – Get up, stand up. For music. — Mark your calendars, World IP Day is on April 26, and this year, the theme is music. “What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use” — This week, a number of visual arts organizations, representing thousands of professional creators, published a letter criticizing a recently published code of best practices for failing to collect input from a major segment of the visual arts community and coming to the unfortunate conclusion that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.”

By , March 16, 2015.

On March 9, a group of 31 advocacy groups and 13 academics sent a letter to members of the 114th Congress, “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” (which was a response to a previous letter from over 60 groups and academics calling for continued support of copyright protections). The letter called on Congress to “seek the appropriate balance in copyright law to unlock the innovative and creative spirit of all people to their fullest potential,” which sounds good in general. However, the specific points of the letter reveal that the signers embrace an impoverished view of copyright that would result, ultimately, in an imbalance.

One of the points made by the letter is as follows:

The U.S. Constitution grants Congress the right to create copyright laws “to promote the Progress of Science and useful Arts.” Congress’ power to enact copyright regulation is a limited power under the U.S. Constitution. In the words of the Supreme Court, “The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.” We strive to uphold the honored, privileged legal place granted to those who discover and create.

This particular strain of thought, establishing a dichotomy between an author’s reward and the promotion of progress, with the latter trumping the former, can be traced back to the Court’s earlier decision in Fox Film v. Doyal1286 US 123 (1932). (and is based on a misreading of that opinion). In US v. Paramount Pictures, the Court cited to Fox Film when it said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”2334 US 131, 158 (1948).

The letter fails to mention that the Supreme Court has expressly rejected this characterization of copyright.

Justice Stevens quotes Paramount in his dissent in Eldred v. Ashcroft, drawing a sharp rebuke from the majority, which said

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.”3537 US 186, 212 n.18 (2003).

The distinction between the two views is subtle but important. The view of balance expressed in the letter sees the rights of creators and copyright owners on one side of a scale and the rights of users and the public on the other.4See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.” In one sense, the view reveals an anxiety over property rights. It embraces a view of property that sees individual rights as separate from the public interest, with individual rights protected as property only to the extent they do not interfere with the public interest. In other words, individual rights are only begrudgingly tolerated.

But the second view—the one embraced by the Supreme Court in Eldred—recognizes that prioritization of property rights not only does not come at the expense of the public interest but is in fact essential to promotion of the public interest.

The Public Interest of Property Rights in History

This concept has been recognized historically. In Wealth of Nations, Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.”5Book I, chap. 2, para. 2. In one of his most cited passages, Smith observes that the public interest emerges from self-interest. “By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.”6Book IV, chap. 2, para. 9. The promotion of the public interest is thus inherent to the pursuit of self-interest and not something solely external to it.

James Madison explicitly recalled Smith when discussing copyright. “The public good fully coincides,” he said of the Copyright Clause in the Federalist Papers, “with the claims of individuals.”7Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature. This is remarkable in that not only was the coincidence of public interest and individual property rights recognized since the founding of the US but that that recognition extended to intellectual property.

Turning back to Eldred, the majority reiterates this point, this time responding to a dissent by Justice Breyer:

JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.8537 US 186, 212 n.18 (2003).

Conceptual and Normative Role of Property and the Public Interest

More recently, scholarship has described how property rights serve public values both conceptually and normatively. In Property’s Ends: The Publicness of Private Law Values, Cornell Law professor Gregory Alexander covers both grounds. Conceptually, Alexander argues what Smith, Madison, and the Supreme Court has observed: that the private and public values of property “cohere rather than conflict.” Normatively, Alexander proceeds from the claim that the normative foundation of private property is human flourishing, which, “understood as morally pluralistic, includes both private and public values.” Thus, “the relationship between private property and public values should be seen as symbiotic rather than antagonistic.” Alexander concludes that “any account of public and private values that depicts them as categorically separate is grossly misleading. One important consequence of this insight is that many legal disputes that appear to pose a conflict between the private and public spheres or that seemingly require the involvement of public law can and should, in fact, be resolved on the basis of private law—the law of property—alone.”

In The Right to Include, Notre Dame Law professor Daniel Kelly provides an additional, seemingly counter-intuitive, insight to this narrative. Though the right to exclude is central to property, it does not, as many contend, lead to individualism and exclusion at the expense of public values. In fact, property promotes inclusion through a variety of mechanisms, including contracts and co-ownership. Without the protection of property and availability of inclusion mechanisms, owners of resources face opportunism by others, leading to less than optimal inclusion. To put it another way, resource owners won’t fully use their property in socially valuable ways without secure property rights and legal mechanisms for inclusion because they face the risk of being taken advantage of by others. Kelly argues that “By providing owners with a range of options by which to include others, these forms help to ensure that an owner’s private incentive to include converges with the socially optimal level of inclusion.” Says Kelly,

Some owners may misuse their property by imposing social costs on others, isolating themselves from others, or discriminating against others. But many owners decide to use their property not only as a “wall” to exclude others but also as a “gate” to include their neighbors, friends and family, colleagues and customers, and even strangers who need help. If so, property is capable of promoting human sociability, not merely atomistic individualism.

Privacy and Copyright

In addition to property, it is worth pointing out similar ideas in the context of privacy, since privacy shares historical and philosophical foundations with copyright.9See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”). Both provide an individual with some control over an intangible thing that originates from their self. Intuitively (and ostensibly) privacy would seem to protect a private right, shielding the individual from societal intrusions. However, noted privacy scholar Daniel Solove has argued that privacy is not necessarily “an individualistic right,” and points to others who have contended that “privacy harms affect the nature of society and impede individual activities that contribute to the greater social good.”10A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006). Elsewhere, Solove writes:

Society involves a great deal of friction, and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocating, and it might not be a place in which most would want to live. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating the kinds of free zones for individuals to flourish.11Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).

Promoting the Progress

The rights of creators and the public interest are not separate concepts that require balancing. Rather, they coincide through copyright. By securing the economic and moral rights of expressive works, authors will maximize the value of their creative labors, and companies will maximize their investments, creating and disseminating works which promote the progress of art, science, and knowledge. That’s not to say there is no need for limitations and exceptions to copyright in certain situations—there certainly is (as with any property right). But it is important to start from the correct baseline by recognizing the inherent public values of property and copyright.

References

References
1 286 US 123 (1932).
2 334 US 131, 158 (1948).
3 537 US 186, 212 n.18 (2003).
4 See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.”
5 Book I, chap. 2, para. 2.
6 Book IV, chap. 2, para. 9.
7 Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature.
8 537 US 186, 212 n.18 (2003).
9 See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”).
10 A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006).
11 Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).
By , March 13, 2015.

Harvey Weinsten, Matthew Weiner, Kurt Sutter Urge Congress to Support Strong Copyright System — They and over 1500 other creators and artists of all types sent a letter to Congress this week saying, in part, “Our copyright system is not perfect but, like democracy, it is better than the alternatives. It works. We urge Congress to resist attempts to erode the right of creatives to determine when and how they share their works in the global marketplace.”

Free trade benefits businesses here in Tennessee — David Macias, president of indie musician management, marketing, and distribution company Thirty Tigers, pens this op-ed in The Tennessean on the need to pass trade promotion authority and finalize negotiations on free trade agreements. Says Macias, “We have recently expanded our services to all of Europe and Australia, and the ease of which we can gain access to those markets, thanks to free trade agreements, helps not only my business but the artists who we represent. When my business grows, I employ more American workers. When my artists are able to grow their careers and tour in those markets, they employ guitar techs and road managers who live and pay taxes in Nashville.”

Turning a Profit From Music Mashups — More evidence that the current legal framework for remixes works. “Dubset Media Inc. has developed technology to track how much of each song is used in any given DJ-made track or mix. It can then calculate royalties owed to artists like Lady Gaga or Jay Z whose music was sampled. The New York-based startup is in discussions with the major record labels—Vivendi SA’s Universal Music Group, Sony Corp.’s Sony Music Entertainment and Access Industries’ Warner Music Group—to license music that DJs have mixed. Such deals could pave the way for Dubset to distribute such mixes to streaming services such as Spotify.”

ICLE White Paper: Broad fair use exceptions could discourage innovation worldwide — This week, the International Center for Law & Economics released a white paper arguing that “if broad fair use exceptions are infused into trade agreements they could increase piracy and discourage artistic creation and innovation — especially in nations without a strong legal tradition implementing such provisions.”

The Lines of Copyright Infringement Have Always Been Blurred — We’ve heard a lot about the Blurred Lines verdict this week. Here, Rick Sanders makes a number of important points about the trial and its outcome, many of which have been overlooked by the deluge of superficial analyses found elsewhere.

By , March 06, 2015.

Viacom Sues Operators of Online Channel Playing “Classic” Nickelodeon — The site “offers free 24/7 streaming plus a premium on-demand service with a tab of $35.99 for a year” of numerous Nickelodeon shows, but its website claims it can do so legally under fair use. Which means if you support Viacom, you must hate fair use.

These Charts Show Why The US Government Should Stop Setting Prices For Songs and Recordings — Music is unique among copyright subject matter in that the rates for many of its most popular uses are regulated by the government in some fashion. The Trichordist illustrates what happens as a result.

Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway — A great interview with copyright giant Paul Goldstein. “… it would be a serious mistake for policy makers (and I include the courts) to reflexively reach for a new exemption or an expanded fair use any time copyright appears to stand in the way of the roll out of some new technology. It would be a mistake because the characteristic impediment in all of these cases is not copyright, but the transaction costs associated with securing licenses under copyright.”

Who’s that girl? The curious case of Leah Palmer — “Ruth recently discovered that for the past three years somebody has been routinely lifting photographs of her, her family and friends from social networks, and setting up a network of fake media profiles of them – which all communicate with each other.” One of her only means of recourse is asserting her copyright interest in the photos to have them taken down, a reminder that copyright is not solely for commercial exploitation.

Annual USTR Notorious Markets Report Points Fingers, Includes Domain Registrars For First Time — “The fifth annual Office of the United States Trade Representative review of ‘notorious’ intellectual property infringing markets has been released, pointing out the world’s biggest problem commercial-scale markets. And for the first time, the report takes aim at internet domain name registrars.”

By , February 27, 2015.

Contrary to the impression that some—many, in fact—information technocrats would like to convey, the new world of information technology is simply not one of bits, bytes, and pixels that have somehow been born in some new, big-bang theory of intellectual creation and are floating around in the atmosphere until captured by the magical machine and delivered in some magical fashion to some public. Intellectual creativity, in the broad sense—encompassing both original authors as well as producers; and publishers’ coordination, packaging and rational distribution—remains the domain of human actors. Respect for their efforts, labors, investment, and assurance that they will continue, is the historical role of our intellectual property laws. The new technologies may well call for new ways to ensure that copyright continues to serve this function, but the humanity of the creative process must not be lost in awe of the devices.

Jon Baumgarten, 1986.1Joint Hearing on the Impact of Technological Change on the Legal System for the Protection of Intellectual Property, S. Jud. Subcomm. on Patents, Copyrights, and Trademarks & H. Jud. Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, pp. 52-53 (April 16, 1986).

The one copyright issue everyone should agree on — “The Copyright Office was first established in 1897 as primarily a ministerial entity.  Over time it has steadily acquired responsibilities and today is a crucial independent policy advisor to all three branches of the government and provides important guidance on copyright matters to the public. It is inconceivable that had all these responsibilities been envisioned at the time of its creation the Office would have been structured as it is now – without the political accountability and transparency leadership by a Presidential Appointee confirmed by the Senate would provide, and without independent control over its resources and planning.”

Surveillance-based manipulation: How Facebook or Google could tilt elections — “Psychological manipulation—based both on personal information and control of the underlying systems—will get better and better. Even worse, it will become so good that we won’t know we’re being manipulated.”

Nearly Half of YouTube’s Top Channels Are Music-Related… — As Paul Resnikoff notes, much of YouTube’s value derives from professionally created content rather than user-generated content.

References

References
1 Joint Hearing on the Impact of Technological Change on the Legal System for the Protection of Intellectual Property, S. Jud. Subcomm. on Patents, Copyrights, and Trademarks & H. Jud. Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, pp. 52-53 (April 16, 1986).
By , February 26, 2015.

Two hearings today will look at the current state of the US Copyright Office—one in front of the House Judiciary Committee on the Office’s functions and resources, and a budget hearing by the House Appropriations Legislative Branch Subcommittee looking at the Architect of the Capitol and the Library of Congress (The Copyright Office is a department within the Library of Congress). Besides the registration of copyrights and recordation of copyright transfers and assignments—and be sure to check out the Office’s report on Technical Upgrades to Registration and Recordation released earlier this month—the Copyright Office is more broadly responsible for copyright policy and education. However, it is currently underfunded, understaffed, and faces structural and technological impediments to its mission. The witnesses at the Judiciary Committee hearing will discuss the challenges under the status quo in more detail and offer suggestions for improvement, ranging from increasing the resources and autonomy of the Office to establishing the Copyright Office as an independent agency.

The Copyright Office has evolved tremendously since it was first created 118 years ago, and I think it’s commendable that its role and status, along with its functions and resources, are being fully examined.

Centralizing Copyright

When the delegates of the Constitutional Convention in 1787 drafted the plan for a federal government, they forewent a legislature with general, indefinite powers, such as the States enjoyed, for one that had authority only according to an enumerated list of under 20 powers. One of these powers was securing the property rights of authors at the federal level because, as James Madison would explain in the Federalist Papers, “the States cannot separately make effectual provisions for” this protection. 1Federalist 43.

For nearly a century afterward, Congress played a relatively hands-off role in copyright policy. It occasionally held hearings and amended the copyright laws, but otherwise remained passive. Copyright law did require registration, but this function was administered by federal district courts.

Copyright registration certificate for Walt Whitman's "Leaves of Grass."

Copyright registration certificate for Walt Whitman, “Leaves of Grass”, 1855.

That began to change in 1870, when Congress centralized copyright registration and deposit functions within the Library of Congress. 2Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16. Then Librarian Ainsworth Spofford was a staunch advocate of using copyright deposit as a means of building the Library’s collections; he lobbied heavily for bringing copyright functions entirely within the Library’s purview, saying,

Under the present system, although this National Library is entitled by law to a copy of every work for which a copyright is taken out, it does not receive, in point of fact, more than four-fifths of such publications.

The transfer of the Copyright business proposed would concentrate and simplify the business, and this is a cardinal point…. Let the whole business… be placed in the charge of one single responsible officer, and an infinitude of expense, trouble, and insecurity would be saved to the proprietors of Copyrights and to the legal profession. 3John Y. Cole, Of Copyright, Men & a National Library, The Quarterly Journal of the Library of Congress, Vol. 28, April 1971. See also A Visit to the Library of Congress.

But Spofford underestimated the amount of work that would go into administering copyright registrations. Before the end of the century, Congress created (through an appropriations bill) a Copyright Office as a separate agency within the Library, headed by a Register of Copyrights. 4Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.

The Copyright Office Grows

The Copyright Office’s importance quickly grew. The first Register, Thorvald Solberg, proved ambitious, and established the Office as a legislative and policy expert, writing recommendations and drafting legislative proposals that would eventually become the Copyright Act of 1909. 5Abe Goldman, The History of USA Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1, pp. 1-3 (1955). Thorvald Solberg recommendation for copyright law revision.

The Office played an even more critical role during the 1955-1976 copyright law revision effort in producing the current Copyright Act. As Bob Brauneis explains in his testimony, the legislative process

began with a series of 34 studies prepared by the Copyright Office over a five-year period addressing every corner of copyright law and of the economics of the copyright industries. Building on the insights of those studies, Register of Copyrights Abraham Kaminstein prepared in 1961 a comprehensive “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.” Register Kaminstein then held a series of public meetings with copyright stakeholders to discuss the recommendations of that report, and gathered written comments as well. Having gathered that input, the Copyright Office then issued a “Preliminary Draft for Revised U.S. Copyright Law” in late 1962, and in 1963 held a series of public meetings discussing sections of that draft in detail. That led to the first bill introduced in Congress in 1964, which was used as the basis for another series of public meetings held by the Copyright Office. Finally, after a second bill was introduced in 1965, Congress itself began to hold hearings on the proposed legislation.

Since the Copyright Act of 1976, the Copyright Office has played a central role in copyright law and policy: advising Congress and the Executive Branch; providing guidance to courts, copyright practitioners, and the general public; and administering copyright registrations, recordations, and deposits. It has also taken on new substantive roles, such as recommending exceptions for the circumvention of technical measures under 17 USC § 1201. And copyright policy has increasingly been addressed at an international level in venues such as WIPO and the WTO, expanding the scope of the Copyright Office’s work.

A Look at the Copyright Office

In recent decades, there have been a number of looks at the structure of the Copyright Office and administration of the copyright system. (Although it’s worth noting that Benjamin Kaplan suggested a regulatory commission with power to “adapt the statute to changing realities” when “congressional responses are apt to be late or inadequate” in his 1967 work, An Unhurried View of Copyright.)

In 1986, the Congressional Office of Technical Assessment (OTA) released a report on “Intellectual Property in an Age of Electronics and Information,” which sought to examine “the impact of recent and anticipated advances in communication and information technologies on the intellectual property system.” Among the report’s recommendations were institutional changes, ranging from intermediate changes—increasing research, coordination, regulatory, or adjudicatory functions of existing agencies, for example—to the creation of a new intellectual property agency. A joint Congressional committee held a hearing on the report on April 16, 1986, but no further legislative action resulted.

On February 16, 1993, Rep. William Hughes introduced H.R.897, the Copyright Reform Act of 1993. Among other things, the proposed bill would have made the Register of Copyrights a Presidential Appointee. This would have allowed the Register to make rules rather than requiring rules to be adopted by the Library of Congress. The Librarian of Congress, James Billington (who still serves in that capacity), opposed this move. He said in Congressional testimony,

At a time when publishing and communication are experiencing technological breakthroughs, it is particularly critical that the interests of the Library, the Copyright Office, and their constituents, be treated as mutual and complementary. The Library must be able to work hand in hand with the Copyright Office to ensure the continued collection, preservation, and protection of published and unpublished materials, including the new electronic information media that are making an increasingly important contribution to the nation’s intellectual heritage. 6Statement of James Billington, Hearings on H.R. 897: Copyright Reform Act of 1993, pg. 191, before the House Judiciary Comm. Subcomm. on Intellectual Property and Judicial Administration, 103rd Congress (March 4, 1993).

Hughes encouraged Billington to study further the effects his bill would have on the Library’s functions, and in response, Billington created an Advisory Committee on Copyright Registration and Deposit (ACCORD) to analyze these issues. Although the 20 member Committee (which included current Register of Copyrights Maria Pallante, then serving as Executive Director of the National Writers Union) did not examine the institutional changes contained within the Copyright Reform Act, it did look at registration and deposit issues.

The report of the ACCORD co-chairs presciently observed

As the communications revolution gathers momentum and the information superhighway is in its early stages, a comprehensive and reliable copyright database, available freely to the general public, is an enormous asset for a number of purposes. These matters were addressed during the ACCORD deliberations and by the individual authors of the working papers prepared for ACCORD discussions. There was consensus among ACCORD members that information obtained through registration-information bearing on authorship/dates of creation and publication, the ownership and duration of copyright, and the like can be extremely valuable not only for business transactions such as transferring rights, and obtaining permissions or licenses, but also for resolving legal disputes, providing biographical information, and so forth.

The Senate subsequently held a hearing on its companion bill, but while the legislation passed the House, it did not go any further. The issues raised by the report, however, did not disappear.

In 1996, Senator Orrin Hatch introduced an omnibus patent act which would have established a single government corporation to formulate policy and administer all forms of intellectual property: patent, trademark, and copyright. During a hearing on the bill, Hatch explained the motivation behind the change. First, he said, “The locus of copyright policymaking has shifted to the executive branch primarily because the international dimension of copyright has become dominant,” so the Copyright Office needs to be in the executive branch if it is to continue to play a leading role in policymaking. Second, Hatch noted the potential for increased rulemaking authority for the Copyright Office in the digital age—”For example, it has been suggested that the Copyright Office might administer a system of virtual magistrates for fair use and Internet access provider liability.” Increased executive powers, said Hatch, would cause problems given the Office’s current “anomalous position in the legislative branch.” Finally, Hatch said, the shift would “free the Copyright Office from the lengthy and cumbersome hiring practices of the Library of Congress.”

Register of Copyrights Marybeth Peters sharply criticized the proposal during her testimony, calling it “hasty and radical” and spoke on a number of issues such a change would raise. The move “first and foremost” would require a “fivefold increase” in registration fees, leading, consequently, to a decrease in registrations and Library of Congress deposits. Second, the move has “the potential to politicize copyright policy.” Under the Library of Congress, said Peters, the Copyright Office is not “influenced by political agendas or subject to interagency clearance.” Third, the combination of copyright with patent and trademark raises “conceptual concerns” because of fundamental differences between the two. Copyright has strong cultural, educational, and expressive policies not present in patent and trademark, and “These values may be slighted if copyright policy is wholly determined by an entity dedicated to the furtherance of commerce.”

Peters concluded by raising questions concerning the need for change and potential consequences, and said

Answering all of these questions requires consultation with the affected communities to determine their needs and to weigh their perspectives. That process has not taken place. There has been no open, public debate of the issues involved. Neither the Copyright Office nor members of the private sector participated in formulating these proposals. No representative of the author, copyright owner, or copyright user communities were given the opportunity to testify today and no further hearings are scheduled.

William Patry testified in support of the bill on a following panel, calling the current placement of the Copyright Office in the legislative branch a “historic anomaly” and arguing that if the agency is to engage in executive functions, it should reside in the executive branch. But overwhelmingly the sentiment from participants in the hearing was against the move. Statements from other copyright groups almost universally agreed with Peters’ assessment. The bill did not make it out of committee nor reemerge during later Congressional sessions.

A New Great Copyright Agency?

The challenges facing the Copyright Office only continue to grow as technology advances and copyright policy becomes more central to society. As I noted in 2015 in Copyright Law and Policy, Register Pallante has said “Evolving the Copyright Office should be a major goal of the next great copyright act.” She elaborated on the staffing, funding, and technological challenges of the Office in a 2013 lecture and a 2014 House IP Subcommittee oversight hearing.

The House Judiciary Committee hearing today will focus not only on those challenges but also look at potential solutions. These include increasing the Copyright Office’s administrative authority, shifting it to the Department of Commerce, or creating a freestanding, independent agency outside the Library of Congress. Though there is no clear consensus yet on which avenue to take, the witnesses are in remarkable agreement about the critical role the Office plays, the need to modernize it, and the deficiencies in the status quo. The benefits of modernizing the Office would be shared by authors, users, and the general public. That means that Congress is presented with a rare opportunity to take a bold step in improving the law that would not likely be divisive—something presently rare in the world of copyright.

References

References
1 Federalist 43.
2 Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16.
3 John Y. Cole, Of Copyright, Men & a National Library, The Quarterly Journal of the Library of Congress, Vol. 28, April 1971. See also A Visit to the Library of Congress.
4 Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.
5 Abe Goldman, The History of USA Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1, pp. 1-3 (1955).
6 Statement of James Billington, Hearings on H.R. 897: Copyright Reform Act of 1993, pg. 191, before the House Judiciary Comm. Subcomm. on Intellectual Property and Judicial Administration, 103rd Congress (March 4, 1993).
By , February 23, 2015.

On January 12, photographer Michael Kienitz asked the Supreme Court to review the Seventh Circuit’s decision in Kienitz v. Sconnie Nation. Sconnie Nation waived its brief, though the Media Institute filed an amicus brief in support of Kienitz.

The issue is fair use, specifically whether the Seventh Circuit split with the Second Circuit on the application of the “transformative use” test with its decision.

Kienitz takes place in the town of Madison, Wisconsin, where, several years ago, the Mayor sought to shut down an annual block party. Sconnie Nation, a novelty t-shirt maker, printed up a handful of t-shirts with a photo of the mayor and the phrase “Sorry for partying.” The photo was originally taken by Kienitz, a journalist and conflict photographer, and used without permission. Kienitz sued Sconnie Nation for copyright infringement.

Sconnie Nation asserted fair use, and the district court agreed, granting summary judgment in favor of the defendant.

On appeal, the Seventh Circuit affirmed the lower court’s judgment but criticized its reasoning. Specifically, it took aim at the court’s reliance on the “transformative use” test, saying, “That’s not one of the statutory factors, though the Supreme Court mentioned it in Campbell v. Acuff-Rose Music.” It observed that the Second Circuit has embraced this test, most recently in its decision in Cariou v. Prince, where it “concluded that ‘transformative use’ is enough to bring a modified copy within the scope of §107.” Writing for the Seventh Circuit, Judge Easterbrook said,

We’re skeptical of Cariou‘s approach, because asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2).

The court nevertheless found the use fair, saying the t-shirts have not “reduced the demand for the original work.”

While Cariou’s approach to transformative use has been criticized before,1See, e.g., Patricia Cohen, Photographers Band Together to Protect Work in ‘Fair Use’ Cases, New York Times, Feb. 21, 2014. Kienitz represents the first Circuit Court decision to do so.

Recall, Cariou involved the unauthorized appropriation of photographs of working-class photographer Patrick Cariou by celebrity artist Richard Prince.2Cariou v. Prince, 714 F. 3d 694 (2d. Cir. 2013). The Second Circuit held that 25 of Prince’s paintings were fair use, despite “Prince’s deposition testimony that he ‘do [es]n’t really have a message,’ that he was not ‘trying to create anything with a new meaning or a new message,’ and that he ‘do[es]n’t have any … interest in [Cariou’s] original intent.'” The court said that “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute.” The Supreme Court subsequently denied to review the Cariou decision.

I think Cariou was wrongly decided. But whether or not Kienitz represents a good vehicle for Supreme Court review, I think the occasion does provide a good place to reiterate the importance of necessity to fair use.

Judge Easterbrook raises this point, though it is ultimately of no help to Kienitz. Easterbrook observes:

[D]efendants did not need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills as a photographer or his artistry in producing this particular photograph. 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. (Many copyright owners would block all parodies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)

Fair Use and Necessity

I’m not the first to describe fair use in terms of necessity. Alan Latman, going all the way back to his seminal 1958 study on fair use as part of the Copyright Law Revision process leading to the current Act, wrote:

Practical necessity is at times the rationale of fair use. Thus article 10 of the law of Argentina requires that an excerpt be “indispensable” to the purpose of the later work. The modus operandi of certain fields requires that the rights of each author yield to a step-by-Âstep progress. This consideration is often linked to the constitutional support for fair use as an indispensable tool in the promotion of “science.” Practical necessity and constitutional desirability are strongest in the area of scholarly works.

Similarly, in reviews of a work, a certain amount of reconstruction is often necessary; and in burlesque, the user must be permitted to accomplish the “recalling or conjuring up of the original.” Of more questionable necessity is the use of an earlier work in the preparation of a compilation. However, extensive use of earlier works as guides and checks appears to be common in this type of work which, although perhaps not achieving the intellectual aims inherent in the constitutional objective of copyright, does produce useful publications.3Alan Latman, Fair Use of Copyrighted Works, pp 30-31, Copyright Law Revision Study No. 14, US Copyright Office (1958).

More recently, David Fagundes ruminates on the idea in a 2011 post, South Park & a Necessity Theory of Fair Use’s Parody/Satire Distinction:

Parody/satire may not track well onto the idea of transformativeness, but I do think it tracks well onto the idea of necessity. Necessity is a familiar defense to property torts. In the context of trespass, for example, emergency can entitle yachters stranded on a stormy lake to tie up at a stranger’s dock without permission, on the theory that avoiding the loss of their lives is more important than respecting the owner’s negative liberty (remember Ploof v. Putnam?).

And there are others who have looked at the idea of necessity in fair use, either favorably4E.g., David Lange & Jessica Lange Anderson, Copyright, Fair Use and Transformative Critical Appropriation (working paper) (2011) (arguing that “fair use must be understood to make deliberate room for transformative appropriation of copyrighted work whenever the appropriation and transformation are necessary steps toward the realization of significant social criticism”). or critically.5E.g., John Tehrenian, Infringement Nation: Copyright 2.0 and You, p. 41 (Oxford Univ. Press 2011) (“The Supreme Court’s distinction between satire and parody in the application of the fair use test is ultimately unsatisfying. Such a formulation reduces fair use to a test about necessity. Thus, where use is necessary to produce a form of speech (parody), it will be reluctantly tolerated as fair. But, where use is unnecessary to produce a form of speech (satire), it will not be tolerated. Such a conceptualization of fair use is highly propertized, allowing borrowing only when conditions require it. Such a view casts fair use as a privilege, not a right—a stark contrast to the former view of copyright itself as a privilege rather than a natural right. Under a utilitarian vision of copyright, progress in the arts rather than a necessity calculus should drive the fair use doctrine. As a consequence, there is no inherent reason why satire should be subject to different fair use rights than parody.”)

Fair Use Justifications

Necessity derives from the justifications for fair use.

The earliest justification for fair use is grounded in the goals of copyright law itself. That is, “that a certain degree of latitude for the users of copyrighted works is indispensable for the ‘Progress of Science and useful Arts.'” 6Alan Latman, Fair Use of Copyrighted Works, pg 7, Copyright Law Revision Study No. 14, US Copyright Office (1958); accord Campbell v. Acuff-Rose Music, 510 US 569, 575 (1994) (“From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . .'”).

In one of the earliest law review articles on fair use, Judge Yankwich concludes:

[T]he earnest scholar and student, be he reviewer, critic or scientist in the same field, should have reasonable access to the work of others, lest we put—in the words of Lord Ellenborough—”manacles upon science.” On the whole, the law of “fair use,” as evolved by the courts, is a wise synthesis of conflicting rights which, while safeguarding the author, avoids injury to the progress of ideas which would flow from an undue “manacling” of others in the reasonable use of copyrighted material.7Leon R. Yankwich, What is Fair Use? 22 Univ. of Chicago Law Review 203, 215 (1954).

More recently, fair use has also been justified on free speech grounds. The Supreme Court has said on several occasions that fair use is one of copyright’s “built-in First Amendment accommodations”; it, along with doctrines like the idea-expression dichotomy, is “generally adequate” to address “First Amendment concerns.” 8Eldred v. Ashcroft, 537 US 186, 219 (2003). In Eldred v. Ashcroft, the Court said fair use “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” When the expression itself is essential to a further purpose, such as news reporting or commentary, then fair use may allow copying. When it’s not essential, fair use should not apply, as the Supreme Court said in Harper & Row v. Nation Enterprises, where it held the unauthorized, verbatim copying of 300 words from an unpublished manuscript was not fair use:

Nor do respondents assert any actual necessity for circumventing the copyright scheme with respect to the types of works and users at issue here. Where an author and publisher have invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication. The fact that the words the author has chosen to clothe his narrative may of themselves be “newsworthy” is not an independent justification for unauthorized copying of the author’s expression prior to publication. To paraphrase another recent Second Circuit decision:

“[Respondent] possessed an unfettered right to use any factual information revealed in [the memoirs] for the purpose of enlightening its audience, but it can claim no need to ‘bodily appropriate’ [Mr. Ford’s] ‘expression’ of that information by utilizing portions of the actual [manuscript]. The public interest in the free flow of information is assured by the law’s refusal to recognize a valid copyright in facts. The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” [Emphasis added.] 9Harper & Row v. Nation Enterprises, 471 US 539, 557-58 (1985).

Taken together, these justifications suggest that throughout the history of fair use, there has been this idea that some overriding purpose is required to privilege a use that would otherwise be infringing. And the use of the original work must be necessary to the new work.

Campbell v. Acuff-Rose

This is precisely what the Supreme Court held in Campbell v. Acuff-Rose. In Campbell, the publishers of “Oh Pretty Woman,” written and recorded by Roy Orbison and William Dees, sued 2 Live Crew after it released “Pretty Woman,” a take-off on the Orbison classic that incorporated numerous elements from the song, including the famous bass riff, and added ribald rap lyrics. The district court had found the 2 Live Crew song to be a parody of the Orbison song, and the case made it to the Supreme Court on the issue of fair use.

This was the first time the Court would weigh in on whether parody may be fair use. It held that it could, saying, “Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” In doing so, it drew a sharp distinction between parody and satire, defining the former as a work that comments on an existing work through mimicry while the latter copies for a non-related purpose.

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments 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), and other factors, like the extent of its commerciality, loom larger.

The Court went on to point out that this distinction hinges on necessity.

Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [Emphasis added.]

The necessity requirement makes sense in light of the underlying justifications of fair use. If copying of expression is necessary for some speech purpose, fair use may excuse it so that copyright protection does not overextend and impinge on free speech interests.

When, however, copying expression is not necessary to a new work, there is no free speech issue, since the copyright owner cannot prevent others from communicating the facts and ideas conveyed by her work.

This distinction is illustrated in the Ninth Circuit’s 2012 Monge v. Maya Magazines decision. 10688 F. 3d 1164. Maya, a gossip magazine, had published photos taken of a clandestine wedding of a young pop singer, one who maintained being single as part of her image. Maya argued fair use, characterizing the publication as news reporting and claiming, in part, that its “publication transformed the photos from their original purpose—images of a wedding night—into newsworthy evidence of a clandestine marriage.” It relied on the First Circuit’s decision in Nuñez v. Caribbean Int’l News Corp. as support.

In Nuñez, a newspaper had reprinted, without authorization, risqué photographs that had surfaced of a Miss Universe winner. The discovery of the photographs had sparked an inquiry into whether the model was fit to retain the Miss Universe title. The court disagreed that Nuñez supported Maya’s fair use argument.

Although Nuñez also involved news reporting, the similarities end there. The controversy there was whether the salacious photos themselves were befitting a “Miss Universe Puerto Rico,” and whether she should retain her title. In contrast, the controversy here has little to do with photos; instead, the photos here depict the couple’s clandestine wedding. The photos were not even necessary to prove that controverted fact—the marriage certificate, which is a matter of public record, may have sufficed to inform the public that the couple kept their marriage a secret for two years. [Emphasis added.]

Similarly, some use of expression may be necessary for commentary, criticism, quotation, or parody—all purposes that further the underlying goal of copyright in advancing art, science, and knowledge. Here, it bears repeating that, as a general rule, the protection of copyright will serve the purposes of copyright. When the original work is fungible to the new work—when there are alternative sources of raw materials for the second creator to draw upon—then the creation of the new work is not blocked.11Credit to Jasmine Abdel-khalik, from whom I got the idea of “fungibility.” The second creator can “work[] up something fresh”,12Joseph Fishman explains how this furthers copyright’s purpose in his forthcoming article, Creating Around Copyright. turn to the public domain for material, or find a work with more favorable licensing terms. 13In fact, entire industries providing stock photos, footage, and music have grown up to meet this demand. Copyright’s purpose is to create a commercial market for creative works, and these outcomes are consistent with a functioning marketplace. When fair use privileges uses of original works that are not necessary to the creation of new works, it undermines this market, and, consequently, undermines copyright.

Toward a Fair Use Standard

Focusing on the necessity of the original work to the new use also puts the other factors into sharper focus. Take, for example, the third factor, which looks at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” If there is no connection between the original and new works, what standard guides courts in weighing this factor? How much use of a work is “fair” when it is not necessary to a new work? In this case, the inquiry becomes redundant with a substantial similarity analysis.

But when there is a connection between new and original works, courts have a standard to guide analysis of the third factor. Campbell provides a clear application of this principle in the context of parody.

Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable. What makes for this recognition is quotation of the original’s most distinctive or memorable features, which the parodist can be sure the audience will know. 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. But using some characteristic features cannot be avoided.

In fact, it’s often forgotten that the Supreme Court did not hold that 2 Live Crew’s use was fair. It instead remanded to the district court to determine fair use, and in its discussion, it continues to be clear that a necessity requirement underlies fair use.

Suffice it to say here that, as to the lyrics, we think the Court of Appeals correctly suggested that “no more was taken than necessary,” but just for that reason, we fail to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original’s “heart.” As to the music, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.

The two parties settled following the Supreme Court decision, agreeing to a license.

In recent decades, fair use has categorically expanded to include the copying of entire works for new purposes rather than new works—for example, time-shifting, 14Sony Corp. of America v Universal City Studios, 464 U.S. 417 (1984). mass digitization, 15Authors Guild v. Hathitrust, 755 F.3d 87 (2nd Cir. 2014). or image search. 16Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9th Cir. 2003). In these situations, necessity may not play the same role, if it plays one at all. But in its historical application—as a privilege for the incorporation of expression from an existing work into a new work—courts should look at necessity. Whether necessity is an essential element of fair use is a separate question, but at the very least, it should play a key role in any fair use inquiry to ensure that the doctrine remains consistent with copyright’s ultimate goals.

References

References
1 See, e.g., Patricia Cohen, Photographers Band Together to Protect Work in ‘Fair Use’ Cases, New York Times, Feb. 21, 2014.
2 Cariou v. Prince, 714 F. 3d 694 (2d. Cir. 2013).
3 Alan Latman, Fair Use of Copyrighted Works, pp 30-31, Copyright Law Revision Study No. 14, US Copyright Office (1958).
4 E.g., David Lange & Jessica Lange Anderson, Copyright, Fair Use and Transformative Critical Appropriation (working paper) (2011) (arguing that “fair use must be understood to make deliberate room for transformative appropriation of copyrighted work whenever the appropriation and transformation are necessary steps toward the realization of significant social criticism”).
5 E.g., John Tehrenian, Infringement Nation: Copyright 2.0 and You, p. 41 (Oxford Univ. Press 2011) (“The Supreme Court’s distinction between satire and parody in the application of the fair use test is ultimately unsatisfying. Such a formulation reduces fair use to a test about necessity. Thus, where use is necessary to produce a form of speech (parody), it will be reluctantly tolerated as fair. But, where use is unnecessary to produce a form of speech (satire), it will not be tolerated. Such a conceptualization of fair use is highly propertized, allowing borrowing only when conditions require it. Such a view casts fair use as a privilege, not a right—a stark contrast to the former view of copyright itself as a privilege rather than a natural right. Under a utilitarian vision of copyright, progress in the arts rather than a necessity calculus should drive the fair use doctrine. As a consequence, there is no inherent reason why satire should be subject to different fair use rights than parody.”)
6 Alan Latman, Fair Use of Copyrighted Works, pg 7, Copyright Law Revision Study No. 14, US Copyright Office (1958); accord Campbell v. Acuff-Rose Music, 510 US 569, 575 (1994) (“From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . .'”).
7 Leon R. Yankwich, What is Fair Use? 22 Univ. of Chicago Law Review 203, 215 (1954).
8 Eldred v. Ashcroft, 537 US 186, 219 (2003).
9 Harper & Row v. Nation Enterprises, 471 US 539, 557-58 (1985).
10 688 F. 3d 1164.
11 Credit to Jasmine Abdel-khalik, from whom I got the idea of “fungibility.”
12 Joseph Fishman explains how this furthers copyright’s purpose in his forthcoming article, Creating Around Copyright.
13 In fact, entire industries providing stock photos, footage, and music have grown up to meet this demand.
14 Sony Corp. of America v Universal City Studios, 464 U.S. 417 (1984).
15 Authors Guild v. Hathitrust, 755 F.3d 87 (2nd Cir. 2014).
16 Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9th Cir. 2003).