Friday’s Endnotes – 01/19/24

By , January 19, 2024.

A New Nonprofit Is Seeking to Solve the AI Copyright Problem — “On Jan. 17, Newton-Rex announced a new type of effort to incentivize AI companies to respect creators. He launched a nonprofit, called ‘Fairly Trained,’ which offers a certification to AI companies that train their models only on data whose creators have consented. Elevating companies with better practices around sourcing their training data, he hopes, will incentivize the whole ecosystem to treat creators more fairly.”

When is a derivative work original and thus protectable by copyright? Classicist’s critical edition makes its way to Luxembourg in fresh Romanian CJEU referral — “So far, the CJEU has tackled derivative works from the perspective of infringement, not copyright subsistence. Examples of cases concerning derivative works abound: some concern actual transformations, e.g., Painer (photo-fit) and Deckmyn (parody); others relate to incorporation, e.g., Pelham (music sampling) and Renckhoff (downloading and use of photograph). When the CJEU decides Institutul G. Călinescu, it will be required to tackle the question of what makes a derivative work protectable and what ‘freedom’ and ‘creativity, both cumulative requirements under the EU originality test, mean in this context.”

4 More Contested Cases Before the Copyright Claims Board — “In the last three months, some 14 claim responses have been filed in 12 cases. While this isn’t a large volume for a regular court, for the CCB this represents a serious uptick in participation by respondents, in particular by businesses. As such, it’s worth taking a few minutes to examine some of these cases and see what kinds of claimants and respondents are before the CCB and what kind of issues the board is being asked to address.”

Anthropic fires back at music publishers’ AI copyright lawsuit — “The publishers asked the court in November for a preliminary injunction to block the use of their copyrighted material to train Claude and force the company to implement ‘guardrails’ against reproducing their lyrics. Anthropic responded on Wednesday that it already has guardrails to prevent Claude from generating copyrighted material. ‘If those measures failed in some instances in the past, that would have been a ‘bug,’ not a ‘feature,’ of the product,’ Anthropic said.”

GitHub Copilot copyright case narrowed but not neutered — “The judge overseeing the AI code-copying case filed against GitHub, OpenAI, and Microsoft has dismissed some but not all of the aggrieved developers’ claims, leaving the plaintiffs a more limited but still potentially potent opportunity to challenge the alleged algorithmic reproduction of their source code.”

Friday’s Endnotes – 07/28/23

By , July 28, 2023.

Scuttling Blackbeard’s Law — Plagiarism Today’s Jonathan Bailey notes a recent law enacted in North Carolina that repealed the 2015 law that effectively placed any audiovisual footage of underwater shipwrecks into the public domain. The law arose out of a dispute between the state and photographer Rick Allen which ultimately led to the Supreme Court, which issued a March 2020 decision addressing copyright infringement and state sovereign immunity. The litigation continues; following the Supreme Court decision, the district court allowed Allen to amend his original complaint.

The Pen Is Mightier Than The Large Language Model — “AI regulation that protects America’s creatives would also preserve the quality of its journalism, poetry, television shows, movies, stories and books that the U.S. is known and admired for around the world. Without our written culture, the ground we stand on as an exemplar of speech that is not only free, but also high quality, will substantially weaken.”

Off the Charts: Derivative Work Copyright Registers All Material in Derivative Work — “In a matter of first impression, the US Court of Appeals for the Ninth Circuit … agreed with other circuits that by registering a derivative work, an author registers all the material included in the derivative work, including any unregistered original works.”

YouTube Rippers’ Appeal of RIAA’s $83 Million Piracy Win Moves Forward — “While Mr. Kurbanov previously walked away from the U.S. court battle, he may choose to keep on fighting. In a new filing submitted yesterday, a challenge against the piracy liability ruling and damages award was docketed at the Court of Appeals for the Fourth Circuit. The appeal doesn’t come as a complete surprise. More than a year ago, Kurbanov’s legal team already signaled their intention to challenge the verdict. A notice of appeal was filed in March 2022, but it took more than a year before the case was formally docketed.”

The Impact of the Supreme Court’s Goldsmith Decision on Copyright Enforcement Against AI Tools — “The U.S. Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith sent ripples through the legal and artistic communities. Months later, legal scholars and art journalists continue to debate whether the decision opens the door for federal courts to act as ‘art critics.’ Many, however, downplay how the Supreme Court’s decision impacts the ways in which copyright owners may enforce their rights against generative AI tools.”

Cariou v Prince: Transforming the Fair Use Inquiry

By , August 12, 2013.

A number of interesting and potentially important fair use decisions have been released by courts in the past several months. I had originally planned on discussing all in one fell swoop, but as I started writing about the first of these decisions, Cariou v. Prince, released last April, the article started getting a bit long, so I’ll save discussion of other recent fair use decisions for later.

Fair Use and Transformativeness

As many readers know, fair use is a central concept in U.S. copyright law, and is recognized in the Copyright Act at 17 U.S.C. § 107. The doctrine was originally developed by courts as a rule of reason to allow privileged use of copyrighted works under certain circumstances.1See H.R. REP. NO. 94-1476, at 65 (1976). As stated in § 107, those circumstances can include “criticism, comment, news reporting, teaching…, scholarship, or research.” Whether a use is fair or unfair also generally requires a look at four factors: (1) the purpose and character of the use, (2) the nature of the work being used, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market of the original work.

In 1990, Judge Pierre Leval, formerly a federal judge in the Second Circuit Court of Appeals, wrote Toward a Fair Use Standard, which has since become highly influential in shaping the fair use inquiry into one that focuses primarily on “transformativeness.” Judge Leval wrote:

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely “supersede the objects” of the original. If, on the other hand, the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings– this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

The existence of any identifiable transformative objective does not, however, guarantee success in claiming fair use. The transformative justification must overcome factors favoring the copyright owner. A biographer or critic of a writer may contend that unlimited quotation enriches the portrait or justifies the criticism. The creator of a derivative work based on the original creation of another may claim absolute entitlement because of the transformation. Nonetheless, extensive takings may impinge on creative incentives. And the secondary user’s claim under the first factor is weakened to the extent that her takings exceed the asserted justification. The justification will likely be outweighed if the takings are excessive and other factors favor the copyright owner.

The Supreme Court would adopt Leval’s transformative framing in Campbell v. Acuff-Rose Music, 510 US 569 (1994), and it has continued to serve as a jumping off point for discussions of fair use by courts and commentators since, including the Second Circuit in Cariou.

Cariou v. Prince

Cariou began with the use, without permission, of a set of photographs by appropriation artist Richard Prince. The photos at issue come from a 2000 book Yes Rasta, and were taken by Patrick Cariou over the course of six years as he lived and worked among Jamaican Rastafari. Prince happened across the book and began using dozens of them to create new works by, for example, pasting other pictures on top or painting colored “lozenges” over certain portions. Boom. Art.

Cariou sued, and the district court rejected Prince’s fair use defense, specifically his argument that using copyrighted works as “raw ingredients” to create new works is per se fair use. To the contrary, said the court, fair use requires some form of transformative comment on the original work — “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.” The precedent is also consistent with the language of the fair use provision in the Copyright Act itself. As the district court noted, “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.” A work which merely “transforms” an existing work, with nothing more, is a derivative work, the creation of which is exclusive to the copyright owner of the existing work.217 U.S.C. § 106(2).

The transformative inquiry fell under the district court’s analysis of the first fair use factor; the court also found that the commerciality of Prince’s use and his bad faith — Prince had neither sought permission nor licensing from Cariou — meant the first prong weighed heavily against fair use. Prince did not fare better under the other fair use factors: Cariou’s photos were highly creative, Prince copied substantially more of Cariou’s photos than necessary (including, in some cases, the entire work), and his secondary use unfairly damaged the original market for Cariou’s photos.

The Second Circuit reversed the district court’s decision, pulling what one commentator called “a complete about-face from traditional transformative use analyses.” It rejected the requirement that the first factor requires some sort of connection to the original work. Said the court, “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.” Instead, it is enough that the new work merely “alter the original with ‘new expression, meaning, or message.'”

The Second Circuit also rejected the district court’s holding on the fourth factor, the effect of the new use on the potential market of the original work. Richard Prince sells his works for millions of dollars to people like “Tom Brady… Gisele Bundchen… Robert DeNiro, Angelina Jolie, and Brad Pitt,” remarked the court, while Cariou has sold prints of his photos primarily to family members and acquaintances.

Mitigating the effect of the second prong of the fair use inquiry, and dialing back the district court’s emphasis on the “amount and substantiality” that Prince used, the Second Circuit held that 25 of Prince’s works that used Cariou’s photos were fair use. It remanded five photographs to the district court for further inquiry, deciding that they presented too close a question of fair use on the test it used. This last act drew a dissent from Judge Wallace, who wrote that once the Second Circuit stated its new legal test for transformative uses, it should have sent all thirty photos back to the district court to determine if the uses were ultimately fair. Said Wallace, “Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case.”

Altering Campbell v. Acuff-Rose with “new meaning”

Regardless of your feelings about whether the outcome of the Second Circuit’s new test is good or bad, it must be noted that it directly contradicts Supreme Court precedent — ironically, the same precedent the Circuit uses to justify its holding. In Campbell v. Acuff-Rose Music (mentioned earlier), the Supreme Court did not hold, as the Second Circuit said it did, that it is sufficient under the first fair use factor for a new work to merely “alter the original with ‘new expression, meaning, or message.'” Instead, the Court said — in holding that parody has transformative value — “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” (emphasis added). The Court continued:

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 above passage makes it clear that the Second Circuit disregarded the Supreme Court’s direction on transformativeness. That Prince was using Cariou’s photos as raw materials to “avoid the drudgery in working up something fresh” rather than building upon them seems readily apparent, especially given Prince’s own testimony during the trial 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.'”

Note that Campbell‘s definition of transformativeness isn’t an aesthetic judgment — there is nothing wrong with using existing works as raw materials in creating new works, and appropriation art is no less capable of respect or meaning than original works; it’s just that permission or licensing is required to use the existing work.3Indeed, Laura Gilbert of The Art Newspaper has reported that since the 1960s, most well-known appropriation artists (including Andy Warhol) have been in the practice of licensing the underlying works they rely on. See also Thomas W. Joo, Remix Without Romance, 44 Connecticut Law Review 415 (2011), who explains that licensing of digital samples has been the prevalent industry practice in the music business for decades.

The Second Circuit did not just ignore Supreme Court precedent on the major point of transformativeness, it also ignored it when it looked at the third fair use factor, which considers the amount and substantiality of the original work taken. Citing to the Supreme Court’s Campbell decision, the Second Circuit said, “the law does not require that the secondary artist may take no more than is necessary.” To the contrary, the Campbell absolutely said this. The caveat being that, because of the nature of parody, this “no more than necessary” taking may include a substantial portion or the “heart” of the work — “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.”

But the requirement that the secondary artist take no more than necessary is still there. As the Court went on to say (and consistent with the requirement that a transformative use have a focus on the original work to be fair), “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.” The Supreme Court agreed that the copying of lyrics was fair precisely because “no more was taken than necessary.” But, it should be pointed out, it remanded to the lower court to determine whether 2 Live Crew’s copying of the bass riff in the original work was excessive. According to a contemporaneous article on the decision in the Memphis Commercial Appeal, the two parties settled after the Supreme Court ruling, with both parties agreeing to a license.

Toward a Fair Use Standard?

At its core, fair use is a necessary aspect of copyright, playing a critical role in maintaining the right’s proportionality and public benefit. The Copyright Office wrote in its 1958 copyright law revision study on fair use:

It has often been stated that a certain degree of latitude for the users of copyrighted works is indispensable for the “Progress of Science and Useful Arts.” Particularly in the case of scholarly works, step-by-step progress depends on a certain amount of borrowing, quotation and comment.4Alan Latman, Fair Use of Copyrighted Works, Copyright Office, Copyright Law Revision Study No. 14, pg. 7.

The Second Circuit’s decision in Cariou, aside from ignoring Supreme Court precedent, loses sight of that purpose. One observer remarked:

Regardless of how little is necessary to transform a work into something new, though, the purpose of copyright law and the very incentive it gives to originators to create would be lost if another entity could take a whole work, add a mustache, sell it as the entity’s own, and evade copyright infringement.5Jennifer Gilbert-Eggleston, Cariou v. Prince: Painter or Prince of Thieves? 11 U. Denv. Sports & Ent. Law J. 117, 124 (2011). See also Zehra Abdi, Morris v. Guetta: Are Appropriation Artists Getting A Free Pass by the Second Circuit?, CDAS Blog (May 28, 2013): “the Second Circuit has expanded the meaning of transformative use in the area of appropriation art so greatly that it essentially gives one artist permission to use even a substantial body of another artist’s work as in Cariou, merely for convenience.”

Fair use should be called upon when requiring permission would impede the progress of the useful arts. Cariou flips this long-standing principle on its head by simply asking whether unlicensed use would promote the progress of the arts. It’s a subtle yet fundamental distinction.

In June, the Second Circuit denied Cariou’s petition to rehear the case. It remains to be seen whether Cariou will try to take his case to the Supreme Court, which would put the issue of fair use — and transformativeness — in front of the Court for the first time in almost thirty years. Getting to the Supreme Court, of course, is always a long shot, so it may be that the Second Circuit’s decision will remain the law.

References

References
↑1 See H.R. REP. NO. 94-1476, at 65 (1976).
↑2 17 U.S.C. § 106(2).
↑3 Indeed, Laura Gilbert of The Art Newspaper has reported that since the 1960s, most well-known appropriation artists (including Andy Warhol) have been in the practice of licensing the underlying works they rely on. See also Thomas W. Joo, Remix Without Romance, 44 Connecticut Law Review 415 (2011), who explains that licensing of digital samples has been the prevalent industry practice in the music business for decades.
↑4 Alan Latman, Fair Use of Copyrighted Works, Copyright Office, Copyright Law Revision Study No. 14, pg. 7.
↑5 Jennifer Gilbert-Eggleston, Cariou v. Prince: Painter or Prince of Thieves? 11 U. Denv. Sports & Ent. Law J. 117, 124 (2011). See also Zehra Abdi, Morris v. Guetta: Are Appropriation Artists Getting A Free Pass by the Second Circuit?, CDAS Blog (May 28, 2013): “the Second Circuit has expanded the meaning of transformative use in the area of appropriation art so greatly that it essentially gives one artist permission to use even a substantial body of another artist’s work as in Cariou, merely for convenience.”

Creative Commons Celebrates Ten Years

By , December 17, 2012.

The Creative Commons organization is celebrating its 10th anniversary this week.

Founded in late 2001 by Lawrence Lessig, Hal Abelson, and Eric Eldred (of Eldred v Ashcroft fame), the organization sought a techno-utopian “legal insurrection” that would “provide an alternative to traditional copyrights by establishing a useful middle ground between full copyright control and the unprotected public domain. Today, the organization struggles for relevance as interest in the principles it embraces continue to decline. 1See, for example, Anil Dash, The Web We Lost (Dec. 13, 2012); Brian Proffitt, GPL, copyleft use declining faster than ever, ITWorld (Dec. 16, 2011).

Perhaps the most visible output of the Creative Commons organization are its various licenses. These licenses are drafted by, but not administered by, the Creative Commons organization. All the licenses require attribution, or credit, of the original author by licensees. The six licenses offer some combination of whether or not the creator allows commercial usage of her works, derivative uses, and a “share alike” provision (where downstream uses must be licensed under the same terms as the original license). Creative Commons also provides marks to indicate that a creator waives all rights to her work, or that a work is in the public domain.

The Creative Commons licenses are just one of many public copyright licenses. Such licenses owe their origins to, and are most often used for, free and open source software. Though there are distinctions between “free”, “open source” and “public”, it is likely that the majority of such licenses are public. 2See Jordan Hatcher, Open Licenses vs Public Licenses, Open Knowledge Foundation Blog (Oct. 15, 2010), “I haven’t done a full survey, but the majority of open licenses (in terms of popularity) probably also fit the definition of public licenses”. The distinctive feature of public copyright licenses — what sets them apart from negotiated or private licenses — is that permission to use the work under the terms of the license is given ex ante to anyone in the public. In this fashion, public copyright licenses are similar to “clickwrap” or “browsewrap” license agreements.

But the organization, which has raised around $30 million over the past decade, 3Tax returns from 2002-2010 show total contributions and grants of $25,994,142. Though I was unable to find more recent returns, adding the average yearly contributions and grants for two years to this total would put the estimated total through 2012 at $31,770,618. does more than just draft these licenses. Creative Commons is involved with a number of initiatives to provide greater public access to scientific research, educational tools, and government data.

But today I want to focus on the licenses and how they have been handled in courts.

Creative Commons in Courts

The Creative Commons wiki includes a page devoted to case law from all over the world involving Creative Commons licenses. Several of these cases only involved Creative Commons licenses collaterally. 4These include SGAE v. Luis and SGAE v. Fernandez. One would note the small number of cases across the globe in the past 10 years. The dearth of litigation over Creative Commons licenses should not be surprising, as their very nature suggests that the majority of licensors are uninterested in pursuing legal remedies for uses of their works.

Commentary on cases involving Creative Commons licenses seem to indicate a concern over whether courts would have trouble enforcing the terms of the licenses, but as the cases below indicate, courts have had no such trouble, treating the licenses the same as any other copyright license.

Curry v. Audax — In one of the first cases confronting the enforceability of a Creative Commons license, a Dutch court enjoined a tabloid in 2006 from future reproduction of photos taken by Adam Curry, a former MTV VJ, which had been uploaded to his Flickr account. The BY-NC-SA license was accepted as valid by the court without discussion, and despite the tabloid’s argument that it was misled by the notice “This photo is public” accompanying the images. However, the court denied monetary damages to Curry. It found that the tabloid had failed to disclose a copy of the Creative Commons license with the photo, but since it had included a traditional copyright notice (“Photos © Adam Curry”), there was no evidence of harm arising from the failure of disclosure. The court also did not find harm arising from the commercial use of the photos in part because the photos are freely available online.

Jacobsen v. Katzer — Though this 2008 US case did not involve a Creative Commons license — it instead dealt with the free and open source Artistic License — the Federal Circuit’s decision is likely applicable to Creative Commons licenses. Indeed, the court referred to CC licenses at several points in its opinion. What’s notable about this decision is that it is one of the few court decisions involving public licenses that includes substantive discussion of their enforceability. Here, Jacobsen had written software that allowed model train enthusiasts to control their trains via computer and released the software under the Artistic License. Katzer was alleged to have copied portions of this software for his own non-free software program in violation of the terms of the License. Jacobsen moved for a preliminary injunction against Katzer, which was denied by the District Court after it held the violation was a breach of contract rather than copyright infringement, which creates no presumption of the irreparable harm necessary for a a preliminary injunction. The Federal Circuit reversed the District Court’s ruling, finding that violating the terms of the Artistic License was copyright infringement, not breach of contract. Broadly speaking, this holding is better for creators, as the remedies for copyright infringement better align with their goals.

Chang v. Virgin Mobile — The black eye of the Creative Commons organization, this litigation began when mobile phone company Virgin Australia used a photograph taken from Flickr in an advertising campaign. The photo was of a minor girl and uploaded by her church counselor, who published it under a CC BY license. Creative Commons itself was named in the complaint for negligence regarding its license, but they were voluntarily dismissed from the action. The District Court ultimately dismissed the suit for lack of personal jurisdiction. Nevertheless, the suit raises significant questions. Chang alleged invasion of privacy alongside copyright infringement; had the suit gone forward, Virgin may have faced liability under this cause of action even if it had complied with the CC license. I say “black eye” because this case highlights the ease one may find one’s works being used contrary to one’s wishes under a CC license. In addition, it showcases the pitfalls of the license, namely, the absence of any help from the Creative Commons organization and the lack of a forum selection clause.

Gerlach vs. DVU — A German court granted a preliminary injunction in October 2010 against a “German far-right” political party for copyright infringement. 5See German court enforces Creative Commons license for more background. The copyright owner had uploaded a photo to Wikipedia under a CC BY-SA license. The political party copied the photo onto its own website but did not include attribution or a copy or link to the license deed. The court accepted the enforceability of the Creative Commons license without comment. The Creative Commons wiki notes that presumably, had the political party complied with the license terms, the use would have been legal.

Lichôdmapwa v. L’asbl Festival de Theatre de Spa — In October 2010, a Belgian court held a theater company liable for infringing the copyright of a musical work licensed under Creative Commons. As in the above case, the Judge upheld the validity of the CC BY-NC-ND license without discussion, noting only that Dutch, Spanish and American courts have upheld their validity. It found that the theater had violated three of the license’s terms: the use was commercial since the company used the work in an advertisement, the company had modified the work contrary to the prohibition on derivative works, and the company had failed to provide attribution.

Avi Re’uveni v. Mapa inc. — An Israeli court, in 2011, found a book publisher liable for copyright infringement of photographs uploaded to Flickr and released under a CC BY-NC-ND license. However, it appears (I’m unable to locate an English version of the opinion) that there was no discussion of the license’s text; according to one report, the court concluded “It was simply an infringement of copyright. Period.” What’s more, the court noted that failure to attribute was a violation of moral rights, making any fair use defense inapplicable.

No. 71036 N. v. Newspaper — This little discussed case originates from a Rabbinical court in Israel in 2011. I’m not familiar with Rabbinical law, and no English translation of the court decision seems to be available, so I’m relying solely on the Creative Commons wiki for the facts. The dispute here was between a photographer who had posted photos online under a CC BY-SA license and a newspaper which had reprinted them without attribution. The court treated the CC license as any other copyright agreement and found that the newspaper was liable because of a religious/moral obligation to adhere to the license’s terms and the copyright laws of Israel.

Using Creative Commons licenses

Should creators use Creative Commons licenses? The idea behind the licenses is a good one: copyright gives creators the choice of how and when to exploit the products of their labor. But unfortunately, despite the ease in using the licenses — or perhaps because of this ease — creators and users should take note of some concerns raised about them that urge caution.

Noted copyright scholar Jane Ginsburg raises some of these concerns in her 2009 article Public Licenses: The Gift That Keeps on Giving. In 2007, ASCAP addressed some of the defects in the licenses in its article 10 Things Every Music Creator Should Know About Creative Commons Licensing. Others who have examined these licenses include the Copyright Alliance in What is a Creative Commons License? and attorney Chris Castle, who has written on specific concerns for musicians and co-writers.

Chief among the concerns raised in these articles is the fact that Creative Commons licenses are irrevocable, that the licenses allowing derivative works remove the ability of copyright owners to prevent objectionable derivative works (for example, modification of works by political parties or interest groups that a creator disagrees with), and the fact that the Creative Commons organization merely provides licenses and does not help in any way with enforcement or administration of the licenses. Other licensing entities and collecting societies do indeed monitor uses of specific licenses they administer to ensure compliance and administer royalties.

There are concerns for users of Creative Commons licenses as well. As noted above, the licenses have a number of terms, like the requirement that the license language itself is copied or linked to, that many currently do not comply with. And several of the cases dealing with CC licenses have involved situations where these conditions have not been met. Second, the onus is on the user to ensure that the work is indeed licenseable. Though the terms of the CC licenses include a warranty that the licensor is authorized to release the work under the license, the organization itself does not verify this. There is nothing stopping someone from slapping a CC license on a work without authority, or ensuring that any underlying works can be licensed in such a manner. Finally, a CC license only covers copyright. Works may require other permissions — for example, photographs or videos that include people may implicate rights of publicity or privacy that are not covered by the license.

In the end, creators should approach Creative Commons licenses with the same amount of diligence as any other deal offered to them. Whether or not the license is appropriate is a decision for the individual creator.

References

References
↑1 See, for example, Anil Dash, The Web We Lost (Dec. 13, 2012); Brian Proffitt, GPL, copyleft use declining faster than ever, ITWorld (Dec. 16, 2011).
↑2 See Jordan Hatcher, Open Licenses vs Public Licenses, Open Knowledge Foundation Blog (Oct. 15, 2010), “I haven’t done a full survey, but the majority of open licenses (in terms of popularity) probably also fit the definition of public licenses”.
↑3 Tax returns from 2002-2010 show total contributions and grants of $25,994,142. Though I was unable to find more recent returns, adding the average yearly contributions and grants for two years to this total would put the estimated total through 2012 at $31,770,618.
↑4 These include SGAE v. Luis and SGAE v. Fernandez.
↑5 See German court enforces Creative Commons license for more background.

Photos are worth more than the paper they’re printed on

By , October 04, 2012.

Like many couples, Brian Edwards and Thomas Privitere of New York celebrated their engagement by taking engagement photos. They hired photographer Kristina Hill in March 2010 and shared the photos on a blog that documented their upcoming wedding for friends and family.

This past summer, the now-married couple learned that an anti-gay organization known as “Public Advocate of the United States” (“PAUS”) had misappropriated one of the photos, showing the two kissing, to use as the background for, in the words of the Denver Post, “ugly campaign fliers” in Colorado, advocating against a candidate who had supported civil unions in that state. A second mailing, directed at another candidate, was also mailed out by the group.

Last week, Hill, Edwards, and Privitere filed a lawsuit against PAUS, alleging copyright infringement and appropriation of personality and likeness. The photograph, they argued, was not only exploited without permission, it was done to advocate for a position they are diametrically opposed to.

Mike Masnick recently wrote about the case — Why it’s tempting, but troubling, to use copyright as a stand in for moral rights — admitting that the use is likely infringing, but like with any enforcement of creator’s rights, found reason to criticize the lawsuit. Said Masnick:

 I’m worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have “moral rights” or “droit moral” on photographs, but we don’t in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.

And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.

This is reminiscent of his reaction decrying the Ninth Circuit’s decision in Monge v. Maya Magazines a few weeks ago, where the court held that fair use didn’t protect a tabloid that had published, without permission, private wedding photos that had been stolen from a couple.

Masnick is correct insofar as US Copyright law doesn’t protect “moral rights.” In copyright law, “moral rights” is a term of art, with a specific meaning. Also referred to as “droits moraux”, the term encompasses certain noneconomic rights, such as the right to attribution and a right of integrity. 1The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Generally speaking, these rights are not recognized in the US. 2The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).

But in a broader context, Masnick is incorrect. Copyright does recognize noneconomic interests — and the economic interests it recognizes go beyond a simple economic interest in commercial exploitation. Copyright, after all, gives creators the right to control a work, or “the right to say no“, and this right can often serve as a proxy to broader moral rights. In a sense, moral rights are “baked into” US copyright law.

We can turn to the courts to see what I mean.

The Copyright Act gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 317 USC § 106(3). This right of distribution, among other things, gives authors the right of first publication.

The right of first publication, long an absolute in the common law (though that has been tempered in recent decades), is anything but an economic right. Rather, as the Supreme Court noted in Harper & Row v Nation Enterprises, “The right of first publication implicates a threshold decision by the author whether and in what form to release his work.” 4471 US 539, 553 (1985). The Court noted earlier that “Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public.”

This example shows that author’s right to control her work through copyright is just as vital as her right to remuneration. This right extends beyond just first publication. The Second Circuit wrote in Castle Rock Entertainment v Carol Publishing Group:

Although Castle Rock has evidenced little if any interest in exploiting this market for derivative works … the copyright law must respect that creative and economic choice. “It would … not serve the ends of the Copyright Act — i.e., to advance the arts — if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.” 5150 F.3d 132, 145-46 (2nd Cir. 1998).

Courts have also been clear that this right to control only applies as protection against commercial exploitation. In Sony Corp v Universal City Studios (the “Betamax” case), the Supreme Court stated, “Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” 6464 US 417, 450 (1984). It goes on to point out that these rewards are not limited to monetary payments:

The copyright law does not require a copyright owner to charge a fee for the use of his works, and as this record clearly demonstrates, the owner of a copyright may well have economic or noneconomic reasons for permitting certain kinds of copying to occur without receiving direct compensation from the copier. It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights.

Other courts have endorsed this characterization of the rewards due authors.

In a 2000 case, the Ninth Circuit noted that the defendant’s distribution or an unauthorized version of plaintiff’s work harmed plaintiff’s “goodwill by diverting potential members and contributions.” It disagreed with defendant’s argument that plaintiff’s failure to exploit the work showed that the work had no economic value that unauthorized dissemination would adversely affect. Said the court, “Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the ‘potential market’ and, second, because he has the right to change his mind.” 7Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).

This is obviously a very brief survey of how copyright law is not limited to purely economic rights. It isn’t “troubling”, as Masnick puts it, nor is it in any way novel, to use copyright to protect an image even though there is no “plan or intent to license the image or exploit it economically in any way.” What’s more troubling, in my opinion, is to strip the law of its humanity, place a dollar sign on everything, and view harm through the lens of a financial ledger. Copyright is more than just a right to remuneration; it “is deeply rooted in our conception of ourselves as individuals with at least a modest grade of singularity, some degree of personality.” 8Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993). “It is also a source of human liberties.” 9Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

References

References
↑1 The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
↑2 The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).
↑3 17 USC § 106(3).
↑4 471 US 539, 553 (1985).
↑5 150 F.3d 132, 145-46 (2nd Cir. 1998).
↑6 464 US 417, 450 (1984).
↑7 Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).
↑8 Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993).
↑9 Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

Kind of Bamboozled: Why ‘Kind of Bloop’ is Not a Fair Use

By , July 11, 2011.

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

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

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

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

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

But it’s not.

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

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

Transformative Purposes and Derivative Works

Baio’s argument is as follows:

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

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

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

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

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

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

Baio is incorrect for one simple reason:

“[C]opying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, is not fair use.” (Emphasis added.) 1Ty, Inc. v. Publications Intern., 292 F.3d 512, 517 (7th Cir. 2002).

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

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

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

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

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

17 U.S.C. §§ 101, 106(2) (emphasis added). Although derivative works that are subject to the author’s copyright transform an original work into a new mode of presentation, such works — unlike works of fair use — take expression for purposes that are not “transformative.” 2Castle Rock Entertainment v. Carol Publishing Group, 150 F. 3d 132, 143 (1998).

If you want to understand what courts mean by “transformative purposes”, reading through the case law on the subject might not prove terribly enlightening. But in the last few years, three empirical studies of the fair use doctrine in case law have provided a greater depth to understanding its application — Barton Beebe’s An Empirical Study of US Copyright Fair Use Opinions, 1978-2005, 3156 University of Pennsylvania Law Review 549 (2008). Pamela Samuelson’s Unbundling Fair Use, 477 Fordham Law Review 2537 (2009). and Matthew Sag’s Predicting Fair Use. 5Unpublished, July 6, 2011.

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

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

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

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

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

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

But Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the original purpose for which they were created”).

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.'” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative.

The test for whether “Niagara’s” use of “Silk Sandal” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative. (Some citations removed.) 6Blanch v. Koons, 467 F.3d 244, 252-53 (2nd Cir. 2006).

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

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

If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use — without insuring public awareness of the original work — there would be no practicable boundary to the fair use defense. Koons’ claim that his infringement of Rogers’ work is fair use solely because he is acting within an artistic tradition of commenting upon the commonplace thus cannot be accepted. … Of course, while our view of this matter does not necessarily prevent Koons’ expression, although it may, it does recognize that any such exploitation must at least entail “paying the customary price.” 7Rogers v. Koons, 960 F.2d 301, 310 (2nd Cir. 1992).

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

Protectable Elements of a Photograph

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

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

The protectable elements of a photograph are those elements derived from the photographer’s creativity and expression, as opposed to factual or functional elements. Admittedly, no bright line exists between protectable and non-protectable elements, but courts have listed protectable elements as including things like subject matter and posing of subjects; layout, positioning, and arrangement; selection of angles, lighting, shading, and coloring. 8See e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 US 53, 60 (1884); Ets-Hokin v. Skyy Spirits, 225 F.3d 1068, 1077 (9th Cir. 2000); Rogers v. Koons at 308; Eastern America Trio Products v. Tang Electronic, 97 F.Supp.2d 395, 417-18 (SDNY 2000).

Comparing the two images with these protectable elements in mind, it’s difficult to point to any protectable elements of the original photograph that weren’t copied. There’s certainly little argument that a substantial portion of them were copied — this is the key factor in infringement and fair use questions; it’s not a defense to show how much someone didn’t copy from the original work. 9Harper & Row v. Nation Enterprises, 471 US 539, 565 (1985), quoting Sheldon v. Metro-Goldwyn Pictures, 81 F.2d 49, 56 (2nd Cir. 1936).

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

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

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

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

Kind of Unfortunate

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

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

References

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