The Bible Movie App Legals
This generation has arguably seen more changes to the use and re-use of content than the combined generations of the last 100 years. Whilst copyright law continues to re-address new issues emerging trends are well documented.This document argues that the source use that has taken place to produce the Bible Movie App has transformed both the product and the use. Numerous cases and examples are cited as defensive arguments.
Depending on the facts of any particular case, existing exceptions may apply to some transformative uses. Most obviously, the Copyright Act provides that fair dealing for the purposes of criticism or review; and parody or satire, do not constitute an infringement of copyright.
However, not all uses that might be classed as transformative will be parody, satirical or critical. Sampling, mash-ups or remixes will not usually fall within the scope of these exceptions and such uses will constitute infringement when a substantial part of the work or other copyright subject matter is used.
In EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (the Kookaburra case), for example, EMI”s recordings of the Men at Work song “Down Under” were found to have infringed the copyright in the song “Kookaburra Sits in the Old Gum Tree”. The Kookaburra case confirmed existing law that, in order to establish infringement of copyright in a musical work, it must be shown that a substantial part of it has been copied. Determining what is substantial in this context depends on whether what is reproduced is a “substantial, vital and essential part of the original”.
Australian law may not be as clear in articulating how the notion of a “substantial part” will apply to the sampling of sound recordings. In particular, there are concerns that courts may follow approaches in the US, which suggest that any copying of a sound recording may amount to an infringement of copyright.
Professor Kathy Bowrey observed that, while the Australian Copyright Act arguably lends itself to a similar narrow interpretation, the High Court of Australia has suggested a narrow and legalistic approach would lead to the over-protection of subject-matter other than works—including sound recordings. The High Court, in considering the appropriate scope of copyright protection of a television broadcast, reaffirmed the importance of keeping separate the concepts of substantial part and fair dealing. This means that copying does not constitute an infringement, and the defences of fair dealing do not come into operation, unless a substantial part is copied.
Finally, some transformative uses may infringe an author”s moral rights under pt IX of the Copyright Act. For example, in Perez v Fernandez, the Federal Magistrates Court held that a Mash-Up involving only a few words mixed into a song was prejudicial to the artist”s moral right of integrity. Allowing new transformative uses of copyright materials may lead to more frequent assertion of moral rightsi. The debate over adding an exception to the law or a “standalone use” is extensive and the use of the “Moral Rights” assertion has to be consideredii.
Phoenix Blue Productions Pty Ltd has produced a Bible Movie App (“product”). The completed
App links to extensively re-edited footage/clips of over 80 hours in total length split into the 66 “Books” or “Chapters” and further cut into approximately 1,189 individual chapters to enhance educational use, research and learning English for those who English is a second language.
The product has used a variety of stock film footage, Creative commons clips, Public Domain Films and Films with an “unknown” origin the Movie Book App has transformed the original clips from “on-subject” stories to word-for-word depiction of the biblical text. In all there are over 1,000 source Movies that have been cut up into over 40,000 “clips” and spread throughout the product.
On some occasions these re-editing transformations utilize sources relevant to the relevant Chapter. For example the edit of Chapter 01 (Genesis) utilizes over 20 movies based on this book and theme. The end result however is distinctly different to both the narrative and the sequence of images of any one of the source Movies.
This is in keeping with a Greek understanding of the word parodeia is “song sung alongside another,” the product could be considered a critical comment on bible films that are not biblically accurate. This is a timely and topical discussion in light of the production of “Noah” by Aronofsky “the least biblical bible film ever made”.
This is becoming such an issue that some Christian groups are boycotting recent release of the “Exodus – Gods and Men” Movie. The producer could argue that the overwhelming majority of “biblical” films used have strayed (in varying degrees) from the original biblical narrative. There are very few examples of Movies that claim a “word-for-word” adherence. For example the Cecil B De Mille Ten Commandments Movie is a famous “bible” movie yet it is so far from using the bible as a script that is cannot claim to be biblically accurate, nor does it do so. The bible is a historical educational resource and a simple line-by-line examination of any “bible film” simply shows where they have deviated from the text. If it were Shakepeare it would not be so! There are literally scores of word-for-word accurate Shakeperian movies, the most notable example being Baz Luhrmann”s Romeo and Juliet script maintaining a strict adherence to the original Shakespearian script despite being set in contemporary Mexico City.
This Bible Movie App “comments on the originals” by way of a word-for-word adherence to the original Bible script. An ironic use of “parody” one definition, however the legal defense is overwhelmingly supportive of the “Transformative Use” position and the “creation of something new” as opposed to a comment on the „(literal) biblical inaccuracy of previous “bible” movies”.
The Supreme Court (in the famous parody case of Acuff Rose v. Campbell over 2 Live Crew”s version of Roy Orbison”s Pretty Woman) said it this way:-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)”.
The Bible Movie App however, directly addresses the current expression of liberties being taken both today (and historically) in translating the bible from book to film. In using the word-for-word narrative the bible becomes the script and a narrator reads the bible “word-for-word” (while movie images play across the screen relating to the text being read). This form of visual book is a new and unique use that depicts the bible in a refreshingly new and innovative way opening up avenues for enjoyment by the visually impaired whilst also providing a resource to help contextualize meaning for those studying English as a second language.
Phoenix Blue Productions Pty Ltd is a registered Educational Institution therefore the completed Bible Movie App is presented as an English Language learning/teaching tool being translated into over 15 languages and allowing students from all over the world to learn English with the added assistance of movies to give the very necessary visual context.
The facility within the app to select to use movie, audio, text, captions (as viewing and/or listening options) assists in the facilitation of a greater understanding of the Bible with those who are hearing (or visually) impaired while providing a valuable educational tool. While the “App” context is not a legal defense the tools
available to select the combination of voice “+/-” text “+/-” video “+/-” subtitles “+/-” Audio translations provides a simple and effective management center for the delivery of the of the educational components. The argument that “the content creators may want to do that” is a mute point as the essential use is different. None of the original content producers will be able to offer their products as a word-for-word Bible Study/English Language educational tool. They could provide it as a XYZ
Bible movie study tool, but, as none are “word-for-word” they (the original content producers) would have to re-edit their films to fit this new model. If there were a case of a film that is “word-for-word” it would not be a “Bible” tool, more a singular “book-of” or “set of books”. At present there are many Bible Apps but none that provide a visual experience from Genesis to Revelation. The argument that a content producer may want to do this in the future is a moot point as the finances to create such a product in the “traditional” sense make any attempt at such a project nigh impossible.
A small sample of the more “biblically accurate” of those available in the list of bible films shows that in this sample, taken from a list of over 100 “Bible Movies” only 4 claim to be word-for-word accurate and a closer analysis would prove that even these contain omissions and edits. The point being that the concept of presenting the whole book of the bible in a word for word Movie has never been achieved, (or even attempted). The reason for this is simple. If a word-for-word product were to be produced and a budget was estimated from the chart below the minimum (for a TV series) would be $4,000,000 per episode (chapter) or $264,000,000. If however a movie studio on the level of Exodus, Gods and Kings were to produce the project it would cost $5+ Billion ($140,000,000 = 2 hours: $5,600,000,000). As the only publically released plan to attempt a faithful word-for-word production of the 4 gospels (Matthew, Mark, Luke, John) has been announced by the Lumo Project and the product that has the “closest” word-for-word depiction is Visual Bible International and their copyright status is difficult to ascertain as the company has gone into receivership.
|1961||King of Kings||$ 5,000,000.00||Thematically Accurate however not “word-for-word|
|1966||The Bible: In the Beginning||$ 18,000,000.00||Thematically Accurate however not “word-for-word|
|1973||Jesus Christ Superstar||Biblical Parody, Bible themes|
|1977||Jesus of Nazareth||$ 16,000,000.00||Thematically Accurate however not “word-for-word|
|1979||The Life of Brian||$ 4,000,000.00||Biblical Parody, Bible themes|
|1979||The Jesus Film||$ 6,000,000.00||“Word-for-word” accurate some edits, some omissions|
|1993||The Visual Bible: Matthew||$ 4,000,000.00||“Word-for-word” accurate some edits, some omissions|
|1994||The Visual Bible: Acts||$ 4,000,000.00||“Word-for-word” accurate some edits, some omissions|
|1995||Joseph||Produced for TV||Based on Bible Themes|
|1998||Prince of Egypt||$ 70,000,000.00||Based on Bible Themes|
|1999||Jesus||$ 20,000,000.00||A blend of the 4 gospels with extra-biblical additions|
|2000||The Bible – Paul of Tarsus||TV Film||Thematically Accurate however not “word-for-word|
|2000||In The Beginning||TV Film||Based on the Bible|
|2002||The Apocalypse||TV Film||Thematically Accurate however not “word-for-word|
|2003||The Visual Bible: The Gospel of John||$ 17,000,000.00||“Word-for-word” accurate some edits, some omissions|
|2004||The Passion of the Christ||$ 30,000,000.00||Based on Bible Themes|
|2006||The Nativity Story||$ 35,000,000.00||Based on Bible Themes|
|2007||The Ten Commandments||$ 1,000,000.00||(Animated) Thematically Accurate however not “word-for-word”|
|2012||Apostle Peter and the Last Supper||$ 750,000.00||Thematically Accurate however not “word-for-word”|
|2013||The Bible Collection||$14$ 20,000,000.00||Based on Bible Themes|
|2014||Exodus||$ 140,000,000.00||Based on Bible Themes|
|2014||Son of God||$ 22,000,000.00||Based on Bible Themes|
INTERESTS OF AMICI CURIAE
The undersigned Amici are law professors at universities around the country who take seriously this Court”s admonition that “the primary objective of copyright is not to reward the labor of authors, but „to promote the Progress of Science and useful Arts.” “Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991)
(quoting U.S. Const. art. I, § 8, cl. 8)
There are many factors that have impacted both copyright law and remix art. Existing copyright laws have been seen in a new light with the spread of remix art. The United States Copyright Law was initially designed to protect copyright holders from having their original works and intellectual property copied, distributed, and sold by anyone other than themselves the for a certain period of time (Packard, 2012). Copyright protection “lasts for the life of the author plus 70 years” on works established in and after 1978, but works made prior to 1978 but after 1923 are held to a different protection rule (Packard, 2012, p. 173). Current copyright law allows copyright holders to pursue liable lawsuits against those who have unlawfully shared, modified, or sold their works.
Although existing copyright law is designed to protect intellectual property and the copyright holders, the law is not as effective at preventing these works from being used for other purposes due to the widespread growth of technology. Advances in technology have made copyright laws, such as the Digital Millennium Copyright Act of 1998 (DMCA), ineffective in its ability to protect all copyrighted works and their creators. The DMCA states that owners of copyrighted works cannot share, reproduce, or sell those works, but with technology and the ability to override safeguards many people are able to share and reproduce media without permission (Packard, 2012).
The ease of accessing and using the internet and associated technologies has facilitated a rise in remix art. The masses are able to use various digital technologies to locate, obtain, modify, and share various types of existing media (Lessig, 2008). A remix culture was born as more and more people engaged in the construction of remix art. Remix culture can be defined as “a society that allows and encourages derivative works by combining or editing existing materials to produce a new product” (Wikipedia 1, 2013). Those who identify with the remix culture believe that it is acceptable to modify, integrate, or otherwise make use of others” copyrighted works for their own creations. To some, this idea is a positive cultural change that promotes innovation, creativity, and expression. To others, remixing opens the door to copyright law infringement.
The “4 Considerations”24
The fair use doctrine allows individuals to use and modify copyrighted materials without permission from the copyright holder under specific circumstances known as “the four considerations”:
The supreme court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law.”
Fair use protection has been commonly accepted with works that are used for criticism, comment, reporting, education, and research. Parodies are also protected by the fair use doctrine (Packard, 2012; U.S. Fair Use, 2012). It is argued that remix art can also be protected by this doctrine. For example, a mash-up is considered transformative (made from but compared to the originals) because a mash-up is a form of media in which portions from more than one source is combined or blended (Packard, 2012; Ryan, 2010).
The primary concern is whether or not remix art, such as mash-ups, are transformative and derivative enough from the original(s) to be considered a new piece of work.
Those who support remix art often argue that remix artists are protected by the derivative portion of the fair use doctrine (Ryan, 2010). The other side of the argument is that the doctrine hinders the copyright holders” legal rights over the use of their original works (Patry, 2011). Experts in this field have acknowledged points on both sides of this debate: “I have argued cases in court in favor of fair use applying. I have argued cases in court against fair use applying” (Patry, 2011,p. 213).
Due to the variable nature in the interpretation of remix cases, experts suggest that the laws change with the growth of technology and the popularity of remix art to better address this rapidly growing art form (Lessig, 2008; Patry, 2011).
It is important to understand two main points of copyright law and the fair use doctrine. First, copyright laws do not protect ideas, systems, or factual information; instead, it protects the nature in which authors have expressed their ideas, systems, or facts. Secondly, the definitions of copyright infringement and legal fair use are a bit gray.
The distinction between fair use and infringement is ambiguous because each “particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission” (U.S. Fair Use, 2012).
Although the doctrine lays out guidelines and provides protection for transformative works under certain circumstances, each piece of remix art must be considered separately and on its own merit.
Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn”t depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the “the four considerations”, the factors listed in section 107 of the Copyright Act:
1.The purpose and character of the use of copyrighted work
• Transformative quality – In this example the Bible Movie cannot in any way be considered “the same as” the copyrighted work, the original work has been thoroughly transformed in every way and is being used in a new and different way.
• Commercial or noncommercial – The Bible Movie App is intended for educational purposes.Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is educational.
2.The nature of the copyrighted work
• A particular use is more likely to be considered fair when the copied work is factual rather than creative. In this instance the Bible Movie App takes Movie interpretations of bible facts and reedits them into an exact (factual) representation of the bible text.
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The Forensic audit of the complete Bible Movie defines much of the copyrighted works have been used. The clips and the length. In some instances applicants may argue that the Bible Movie App copies “nearly all” of the original work, or, others may allege that the Bible Movie copies the “heart” of a clip. Applicants may allege that such alleged use may weigh against fair use. But the definition of “how much is too much” depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.
4.The effect of the use upon the potential market for or value of the copyrighted work
• A unique feature of the Bible Movie App is that there is no products on the market that present the text of the bible in the manner that the Bible Movie does. Whilst there are bible movies (of varying degree of biblical accuracy), a multitude of bible apps, Bible movies on bible apps there are no examples of a complete word-for-word bible movie in an App format or a movie format. This is a unique use and it would be impossible for any copyright holders to argue that their isolated “chapter” would be affected by the presentation of a complete word-for-word bible as none of the films exist in a word-for-word format. This is a bone-fide use of copyrighted material that serves a different audience and/or purpose. Because of this the project is far more likely to be considered “Fair Use”.
These factors are guidelines, and they are not exclusive. As a general matter, courts are often interested in whether or not the individual making use of a work has acted in good faith. As a commitment to a process of “good faith” the producer Phoenix Blue Productions Pty Ltd has requested permissions from any and all primary content producers. This “without prejudice” process (see: Appendix 13) will in no way impede the defendants “right” to edit and produce the content for the project.
(Appendix 4) Bill Graham (“BGA”) v. Graham Kindersley (“DK”) highlights an important case where permission had been sought for the use of images by DK, and denied by BGA. The final verdict however was that the use was a transformative one and that, because of this use, permission was not required.
DK had declined to pay BGA”s licensing demands after publication, and BGA sued. The District Court granted summary judgment to DK on their fair use defense. Bill Graham Archives appealed to the Second Circuit. DK, represented by copyright scholar William Patry, again asserted fair use, and the Second Circuit affirmed: “We agree with the district court that DK”s use of the copyrighted images is protected as fair use”
“Fair Use” V. “Transformative Use”
The Terms of Reference ask the Australian Law Reform Commission (ALRC) to consider whether new exceptions under the Copyright Act 1968 (Cth) should be introduced to allow „transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit”. There is much international consideration as to whether there should be a new exception specifically to allow “transformative” use of copyright materials.
The ALRC concludes that transformative use of copyright material should be considered under the fair use exception, rather than under a new specific exception, in determining whether copyright is infringed. The proposed fair use exception can be expected to allow individuals to use copyright materials more freely in some transformative uses.
Relying on a fair use exception to deal with uses that may be characterised as transformative, rather than introducing a specific exception, is preferable in view of the difficulties involved in framing such an exception.
These difficulties include defining whether a use is transformative, and determining the extent to which commercial uses of copyright materials should be covered. For similar reasons, the ALRC does not propose that any new specific transformative use exception should be introduced, even if a fair use exception is not.
The ALRC further concludes that the use of copyright material for the purposes of quotation should also be considered under the fair use exception, rather than under a specific exception. Further, “quotation” should be one of the illustrative purposes listed in the fair use exception.
If fair use is not enacted, the ALRC proposes that the Copyright Act should be amended to provide for a new exception for quotation. The Act should provide that in determining whether a dealing for quotation is fair, regard should be given to the fairness factors.
The term “transformative” is used generally to refer to uses of pre-existing works to create something new, that is not merely a substitute for the pre-existing work.Works that are considered transformative include those described as “sampling”, “mash-ups” or “remixes”. The Bible Movie App is not “sampling” or the act of taking a part, or sample, of a work and reusing it in a different work. The concept is most well-known in relation to music, where samples of one or more sound recordings are reused in a different composition. The legally accepted term for dealing with video or film is “mash-up”, or a “composite work comprising samples of other works”.
In music, a mash-up is a song created by blending two or more songs, usually by overlaying the vocal track of one song onto the music track of another. Remixes (on the other hand) are generally a combination of altered sound recordings of musical works.
For examples of the difference:
• The Grey Album by Danger Mouse, is a Mash-Up remixing music and vocals from Jay Z”s The Black Album and the self-titled The Beatles album, known as “The White Album”.
• Somebodies: A YouTube Orchestra, created by Australian artist Gotye, samples and remixes audio-visual material, combining YouTube covers and parodies of the hit single Somebody I Used to Know.
Many other instances of sampling, Mash-Ups and remixes of copyright material can be found on the internet, including musical compositions, new films, art works and fan fiction.
More broadly, “transformative use” can also refer to some appropriation-based artistic practices, (including collage), where images or object are “borrowed” and re-contextualised. Examples of appropriation art include Jeff Koons” sculpture, String of Puppies, and Shepard Fairey”s poster of Barack Obama (“Hope”), which were both based on photographs taken by others.
Stakeholders discussing this definition have been concerned about the possible definition of “transformative” for the purpose of any new exception. Screenrights, for example, stated that the term itself was “too broad and vague”, and that such an exception would have “a significant impact on the copyright owner”s market for derivative works, such as translations and adaptions (from a film to a game for example)”. The Law Council of Australia submitted that, by definition, a “transformative” use cannot be an “adaptation” within the present meaning of that term in the Copyright Act and rejected the idea that any use of a publicly available work in the creation of a new work should be considered transformative.
The Combined Newspapers and Magazines Copyright Committee observed that transformative uses can “potentially cover most of the exclusive rights of a copyright owner”.
The Arts Law Centre noted that uncertainty in determining whether a specific reuse of an existing work is transformative “illustrates the difficulty of framing an exception to permit the materials produced by appropriation techniques” to be more freely used.
The Copyright Council Expert Group stated that transformative implies something more than “just pasting two things together without any further modification”—for example, using a song as background to a home video posted to a video-sharing website is not “transformative”. Bowrey suggested that a “transformative work could be defined as a form of expression that, notwithstanding use of or reference to prior works in its creation, stands alone in terms of exhibiting its own artistic integrity and identity”. Similarly, the ABC suggested transformative use should cover “new works that combine pre-existing works in a way that indicates a level of curatorship or editorial judgement”.
To address concerns about uncertainty, NSW Young Lawyers suggested that, in framing an exception, a “list of circumstantial uses of a work that would be presumed to be transformative, in conjunction with a list of characteristics which may help identify transformative works” would be useful.
Stakeholders61 commented on the concept of copyright material that is “publicly available”—or “available to the public”, in the words used in the Canadian Copyright Law provisions. The Australian Football League stated that such a formulation was “illogical” in suggesting, for example, that content available on free-to-air television would be “more open for (mis)use than audio-visual content available behind a pay wall”. Foxtel also submitted that the concept of a “publicly available work” was problematic.
Rights holders rarely make their works freely available for unrestricted use. A concept of this nature may validate (incorrect) consumer perceptions that works accessible via digital technologies are freely available to consumers to use as they see fit, which is rarely the case
There has been no judicial interpretation of the meaning and scope of the Canadian provision. However, it appears to require only that the use of an existing work is in the creation of a “new work”. In Australian law, providing a later work is not a “mere slavish copy”, it will constitute “an original work in its own right if the author has expended sufficient independent skill and labour in bringing it into material form”.
Using the concept of an original work in an Australian exception would provide a very low threshold for what amounts to transformative use. Framing any higher threshold, however, would raise the problem of how to distinguish transformative use from the making of an adaptation; and how to define the extent to which a transformative work needs to be original or creative.
Another related issue concerns subsequent uses of the transformative work. APRA/AMCOS submitted that, even if there were to be a transformative use exception, it could only apply to the original use:
All subsequent uses are, by definition, not themselves transformative. Thus the communication of a work that includes a transformative use of another work is itself not a transformative use and could not be the subject of the exception
That is, a transformative use exception may permit the creation of a new work but not the communication of the work—for example, by making it available on a social networking website. However, it appears that the Canadian provision is intended to facilitate the communication of the new work, as discussed further below.
United States fair use doctrine permits limited use of copyright material without acquiring permission from the rights holders. The first of the fairness factors—both in the US fair use exception and the fair use exception proposed by the ALRC—is the „purpose and character of the use”. In US law, this essentially concerns whether
the use is transformative. It could be argued (in some cases), whether a use is transformative is the only question in US fair use doctrine.
A much greater emphasis on transformativeness in US case law followed the influential 1990 Harvard Law Review article by Judge Pierre N Leval, “Toward a Fair Use Standard”. The first fairness factor, the purpose and character of the use, Judge Leval said, “raises the question of justification”:
“I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. 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…. 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.
This transformative use doctrine was adopted by the US Supreme Court in 1994, in Campbell v Acuff-Rose, and may now be “the prevailing view in fair use case law”. In Campbell, the Court stated:
“Although such transformative use is not absolutely necessary for a finding of fair use,…..the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine”s guarantee of breathing space within the confines of copyright…..and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use”.
Professor Neil Weinstock Netanal”s review of several empirical studies and his own analysis of US case law led him to conclude that, since 2005, “the transformative use paradigm has come to dominate fair use case law and the market-centered paradigm has largely receded into the pages of history”.
Today, the key question for judicial determination of fair use is not whether the copyright holder would have reasonably consented to the use, but whether the defendant used the copyrighted work for a different expressive purpose from that for which the work was created
Other commentators, though noting this trend, find the results less clear. Ginsburg and Gorman have written that under the first fair use factor,the courts have indeed given great weight to the transformative aspects of an otherwise infringing work, but the decisions do not form an altogether coherent pattern. Moreover, contradictions have come to riddle the assessment of whether a work is transformative.
William Patry states that finding a use is “productive” or “transformative” is not “essential for a fair use determination, nor is it necessarily the most important factor. The key issue in every case is whether the use is beneficial to society.
United States copyright academic Professor Pamela Samuelson has distinguished US fair use cases concerning transformative uses as falling into three categories:
• transformative—creating new works that “draw upon pre-existing works and transform expression from them in creating new works that criticize, comment upon, or offer new insights about those works and the social significance of others” expressions”, including parody and satire;
• productive—for example, quoting from an author”s writing in a critical biography or taking photographs of sculptures on which an author will be writing a commentary; and orthogonal—using copyright material in ways different in purpose from the original, for example, copying a photograph in order to generate or report controversy about an event, or copying a book in connection with litigation concerning the author.
These “productive” and “orthogonal” uses, in Samuelson”s taxonomy, appear to concern uses that have a transformative purpose. Ginsburg and Gorman state that “recent cases evidence a drift from “transformative work” to “transformative purpose”; in the latter instance, copying of an entire work, without creating a new work, may be excused if the court perceives a sufficient public benefit in the appropriation”.
Some important transformative purpose uses of copyright material are considered in the context of “non-consumptive” uses, in. The two concepts overlap. Many non-consumptive uses may also have a transformative purpose. However, some transformative uses that have been found to be fair in the US courts do not appear to be “non-consumptive”, for example, using digital copies of books to facilitate access for print-disabled persons.
The Hathi Trust Orphan Works Project furthered the cause of works dedicated to the print disabled whilst also addressing the use of “orphan works”:Finally it (The Hathi Trust Orphan Works Project) analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.
Another instructive example of a transformative but consumptive use of copyright material may be displaying “thumbnail” images of copyright photographs in search engine results. In 2007, a US District Court considered this use in Perfect 10 v Amazon, and held that Google”s use of thumbnails was “highly transformative”:
“Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. … [A] search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work,while a parody typically has the same entertainment purpose as the original work”.
That Google incorporated entire images into its search engine results did not, the Court said, diminish the transformative nature of the use. The Court concluded that “the significantly transformative nature of Google”s search engine, particularly in light of its public benefit, outweighs Google”s superseding and commercial uses of
the thumbnails in this case”.
As under US fair use doctrine, some broader concept of transformative use can be expected to emerge from the application of the fairness factors under the ALRC”s proposed fair use exception. Whether Australian courts should follow the recent trend in US case law to put “transformativeness” at the heart of fair use is an important question, on which the ALRC hopes to receive further submissions.
“Commercial” V. “Non-Commercial”
Another area of focus in litigation over the Bible Movie App is the relevance of distinctions between commercial and non-commercial uses of copyright source materials and how any such distinction should be framed. The commercial or non-commercial nature of uses needs to be considered in relation to both the original use and subsequent uses of the new work. A transformative use exception could be sought on the grounds of “Educational Use” however, distinguishing between commercial and non-commercial uses of copyright material has become increasingly complex.
Changes in the digital economy have “substantially increased the opportunities for the creation of user-generated “non-commercial” copyright materials”. For example, the Australian Competition and Consumer Commission (ACCC) reflected that “technology to splice or intersperse video with other content, such as TV clips, photos, and
audio recordings is much more widely and cheaply available, and allows the creation of a wider range of productions by consumers for their private use”.
At the same time, however, the sharing and distribution of such material involves commercial entities. While many users of Facebook communicate copyright material for non-commercial purposes, Facebook, as an advertising-funded business model, is dependent on its members producing these materials. Further, while some copyright material may be created without an intention to commercialise the work, digital platforms provide an opportunity for creators subsequently to commercialise their work.
For example, users who post content on YouTube can apply to partner with YouTube to monetise that content both before and after the video has been posted.
John Wiley & Sons Inc observed that social media platforms “cannot be accurately described as commercial free zones, with the plethora of advertising and monetisation options available”. Rather, to create a transformative use exception would “prejudice copyright holders by withholding their ability to participate in this new area of
the digital economy; whilst still allowing online social platforms, software companies and commercial users to benefit without restrictions”.
APRA/AMCOS submitted that “whatever the intentions of the maker of user generated content, once it is released to the public online it enters the commercial arena” and strongly opposed the introduction of a new exception on this basis. Similarly, the Arts Law Centre stated that “social networking websites (such as Facebook) and video aggregation sites (such as YouTube) are intrinsically commercial operations”. Copyright Agency/Viscopy stated that, if a new exception were to be introduced,it should be confined to private and domestic use, not apply where there is a licensing solution available to the user, be subject to the other fair dealing criteria in section 40(2), and not apply to the uploading to an online platform, or other forms of “sharing”.
The Australian Copyright Council submitted that, while there may be limited scope for an exception for “non-commercial or private and domestic” transformative uses, “a licensing regime would need to apply in relation to commercial entities hosting that material online”. The Council stated that, alternatively, “it may be possible to
address this issue through a license it or lose it model whereby uses are allowed unless there is a licence on offer”.
APRA/AMCOS opposed the suggestion that a licensing scheme “for the communication of copyright material created pursuant to a transformative use exception on a license it or lose it basis” was necessary or desirable, as this would interfere with existing markets.
The Producer of the Bible Movie App considers that any transformative use exception should not be strictly limited to non-commercial use74. For example, Nicolas Suzor stated that the scope of a transformative use exception “should be based primarily on demonstrable harm to the direct licensing interests of copyright owners—the core of copyright”. Accordingly, the exception should “clearly permit uses which are not substitutes for (or do not directly compete with) the copyright material”.
The Internet Industry Association submitted that commercial transformative use should be permitted, at least where the use does not conflict with normal exploitation or unreasonably prejudice the legitimate interests of the owner of the copyright.
Google observed that the “Australian fair dealing tradition has long recognised that commercial uses of copyright materials can be „fair” and submitted that there is no „public policy justification for limiting an exception for transformative uses by automatically excluding any uses with a commercial purpose”.
The Canadian provision limits the scope of the exception to circumstances where the use of, or authorisation to disseminate, the new work is solely for non-commercial purposes; and the use, or authorisation to disseminate, does not have a substantial adverse effect on the exploitation of the existing work.
It is not entirely clear how this provision is intended to operate. However, it appears that, while the creator of the new work is prohibited from receiving a commercial benefit, an online platform such as YouTube may benefit from disseminating it—without remunerating the owners of copyright in either the original or the new work. That is, while the authorisation to disseminate must be done solely for non-commercial purposes, actual dissemination can be for the commercial purposes of, for example, an internet intermediary, provided only that the authorisation itself does not have a substantial adverse effect on the exploitation of the existing work and the new work is not a substitute for the existing one.
This may not provide adequate protection for the owner of copyright in the original from the possible effects on that owner”s interests of dissemination of the new work by the internet intermediary. The application of the Canadian provision means that the creation and authorisation to disseminate the new work does not infringe
copyright. Removing primary copyright infringement in this manner seems to rule out any possibility of liability on the part of the intermediary to the original copyright owner. Many stakeholders who favoured some additional leeway for transformative use considered that such uses of copyright material should be covered by a fair use exception, rather than under a new specific exception. A fair use exception would be expected to allow individuals to use copyright materials more freely in transformative uses.
In some cases, this position was influenced by the problems involved in determining whether a transformative use should be considered commercial or non-commercial. For example, Google acknowledged that „a user”s commercial purpose would be relevant to whether a particular use should be permitted”, but considered that it would be more appropriate for the commerciality of the use to be considered „as part of a broader assessment of whether that use is fair”.
Similarly, the Copyright Advisory Group—Schools stated that fair use is the best model, rather than “an exception which arbitrarily excludes all commercial transformative uses of copyright materials from being considered to be fair”. The Australian Communications Consumer Action Network noted that:
There is little to be gained from having courts applying themselves to assessing “mash-ups” or a “re-mix” to ascertain whether they fall within a tightly-worded exception, when the real issue is whether the use is fair and the extent of the harm to the creator/owner.
The Australian Digital Alliance and Australian Libraries Copyright Committee considered that „adopting a flexible fair use-style exception, rather than attempting to prescribe the scope of a purpose-based transformative exception” would better cover the range of current transformative uses83. Robert Xavier submitted:
It would be best to use transformative use in the same way as it is used by US copyright law, where it is a legal concept, with a special meaning, that can form part of the basis for fair use. Repurposing the concept for a separate exception for derivative works would just be confusing.
“Mash-Up” V. “Remix”
A 2005 court case, Bridgeport v. Dimension, deemed the unauthorized use of even one second of a sample to be copyright infringement. A Mash-Up is a form of music in which portions from more than one music source is combined or blended (Ryan B, 2010; Wikipedia 6). The legality of Mash-Ups is questioned, as some believe it to be sampling. Those who created the Mash-Ups are, therefore, guilty of copyright infringement for the unauthorized use of the original works, in part or in whole. Others say that the remix, or blending of music, transforms the original songs into a new piece of creative expression. Those who believe a Mash-Up can be transformative argue that Mash-Up artists are protected by the derivative portion of the fair use doctrine (Ryan B, 2010).
Mash-Ups that are determined to be substantially transformative, or derivative enough, from the original(s) can be protected by the fair use doctrine (Ryan B, 2010; Packard, 2012). Fair use protection has been commonly accepted with works that are used for criticism, comment, reporting, teaching, and research. Parodies are also protected by the fair use doctrine (U.S. Fair Use; Packard, 2012).
It is important to understand two main points:
1. Copyright laws do not protect ideas, systems, or factual information; instead, it protects the nature in which authors have expressed their ideas, systems, or facts;
2. The law defining copyright infringement and fair use is a bit gray: “The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines,or notes that may safely be taken without permission” (U.S. Fair Use).
Considering this, it would be safe to assert that some, but not all, Mash-Ups could and should be considered legal, as determined by the transformative level of individual Mash-Ups and the originality of the context in which it is used. As long as “such works are „transformative” of original content, they may find protection from copyright claims under the „fair use” doctrine of copyright law” (Wikipedia 6).
A well known example of a music Mash-Up creator is DJ Greg Gillis, aka Girl Talk. In his Mash-Ups, he blends together multiple songs and artists. Some say he is a “lawsuit waiting to happen” (Mullin, 2010). Girl Talk relies on both fair use and derivative doctrines as protection for his Mash-Ups. It is surprising that a lawsuit,
if not several, has not been directed at Girl Talk. Perhaps lack of legal pursuit is a way of silently accepting Mash-Ups as original creative expressions, transformative enough from the originals.
Due to the ease of using the internet and associated technologies, the remix culture was created. The internet allows people to easily share their remixes or samplings of various types of media with others. For example, a relatively popular phenomenon is the creation of Mash-Ups, which are created by transforming songs, videos, and photographs. Those who make Mash-Ups can share their work on social media sites, such as Facebook, Twitter, and YouTube. This is desirable to some because “the internet allows distribution of remixes to the masses,” which in turn increases exposure to their creative expression (Wikipedia 6).
Mash-Up artists frequently splice up samples while editing the pitch, tempo, and the mix of the original work. At the end of the day, however, samples are usually meant to be recognizable. As a result, the extent of these edits is typically held within limits.
Nonetheless, Mash-Up can be incredibly transformative for another important reason. By pairing up samples from different songs, Mash-Up can provide an entirely new context for the original works. In this way, Mash-Up artists can provide critical commentary on those works, expressing their own perspectives on the songs being utilized. This can spur valuable conversations that construct new perspectives, a similar process to that triggered by an SNL parody, for example. As a result, Mash-Up can yield the sort of first amendment expression that the fair use doctrine was meant to protect.
Those who believe a Mash-Up can be transformative argue that Mash-Up artists are protected by the derivative portion of copyright law”s fair use doctrine (Ryan, 2010).
Ultimately, each Mash-Up requires individual consideration when copyright infringement is in question because of the many gray areas in the interpretation of the law.
To see this argument in action, consider the Mash-Up artist, Milkman”s song “All About It,” which samples the vocal track from Pitbull”s “Go Girl” (listen below; the Pitbull vocal track starts about fifteen seconds in to Milkman”s song). Pitbull originally blended his vocal track with an instrumental that had a dirty feel through its use of a base drum and a repeating flute line. Milkman, however, eliminated this “dirty” sound entirely by pairing up Pitbull”s vocal track with a 90s pop song, Real McCoy”s “Another Night.” The pop context that Milkman provides the Pitbull vocal track reveals how silly Pitbull”s lyrics really are. In this way, Milkman”s sampling of Pitbull”s song acts as a sort of critical commentary on that work, and therefore could be considered worthy of the type of first amendment protection that the fair use doctrine was intended to offer.
Current copyright laws allow copyright holders to pursue liable lawsuits against those who have unlawfully shared, modified, or sold their works. Although existing copyright law is designed to protect intellectual property, they are not effective at preventing sampling. Sampling is considered to be the act of taking part of a sound recording and reusing in a different work, but in such a way that is not transformative. Sampling differs from remixing in that it is those pieces of digital media that is not considered derivative enough from the original (Wikipedia 1; Wikipedia 7).
Remix art encompasses many forms, including audio, video, and illustrations. For example, musicians can fundamentally change another musician”s beat to create a new song, which in turn is a remixed version of the original source (Ferguson, 2012). Another example of remix art is a relatively popular form called a Mash-Up. Mash-Ups are the transformation of songs, videos, and/or photographs into a new piece of work through combination or blending. The copyright holders of the original works used in Mash-Ups often have legal concerns, but others do not contest the use of their works in Mash-Ups.
DJ Greg Gillis, aka Girl Talk, is a fairly popular example of a music Mash-Up creator. He blends together multiple songs and artists to make his Mash-Ups. For example, Girl Talk created “Oh No,” which blends together Black Sabbath”s “Crazy Train” and Ludicrous” “Move Bitch,” among other songs, for a Mash-Up of popular songs (Mash-Up Breakdown, 2010). Some believe that he is a “lawsuit waiting to happen” (Mullin, 2010). Girl Talk depends on both the fair use and derivative doctrines as protection for his Mash-Ups. It is surprising that lawsuits have not been aimed against Girl Talk. Perhaps lack of legal pursuit is a way of silently accepting Mash-Ups as original creative expressions that are transformative enough from the originals to be considered a new, original piece. Another reason legal claims may not have been directed against Girl Talk is that the original musicians may view his Mash-Ups as free, positive publicity and exposure for their songs, and therefore beneficial to the original sources (Ferguson, 2012).
Although information and legal debate regarding remix art relates largely to the current digital age, some consider the act of remixing as a long standing practice that is not new at all (Ferguson, 2012; Remixology). An early example of artwork that may be considered as remix art is Andy Warhol”s series of prints of Marilyn Monroe. He used and transformed her photograph to create a series that was a derivative of the original photograph, thus making it a new piece of art (Remixology).
Remix art has become more commonplace in recent years due to technological developments and the widespread access people have to the internet. Programs that may be used to create remix art, such as Apple”s Garage Band program and Adobe”s Creative Suite products, are typically not expensive and fairly easy to use (Ferguson, 2012).
These factors have increased the prominence of remix art among a variety of people, which in turn has raised legal debate. The main legal question that revolves around remix art is whether or not the act of modifying original works for a new purpose should be protected by the derivative aspect of copyright law”s fair use doctrine.
According to this doctrine, there are ways to legally create remix art, but not every example of remix art fits the bill (U.S. Fair Use, 2012).
In the “Copyright Policy, Creativity, and Innovation in the Digital Economy “copyright green paper produced by the USA Department of Commerce Internet Policy Task Force the policy states in section 6. Other Issues a) Remixes:
There has been considerable discussion in recent years of the value and copyright treatment of “remixes” – works created through changing and combining existing works to produce something new and creative. Often, these works are part of a growing trend of “user-generated content” that has become a hallmark of today”s Internet, including sites like YouTube. Advances in digital technology have made remixing existing works easier and cheaper than ever before and provided greater opportunities for enhanced creativity (the Grey Album). But because remixes typically rely on copyrighted works as source material – often using portions of multiple works – they can raise daunting licensing issues.
Under current U.S. law, some remixes may qualify as a fair use of the copyrighted material they draw on. They are likely to be considered transformative, taking parts of the original work and altering it with new meaning or purpose, so the key questions will ordinarily be whether they are commercial, how much they use from any given work, and the extent to which they can serve as a substitute in the market. A body of precedent already exists with respect to fair use claims for quoting the works of others in new works of art. One line of cases involves parody; others deal with “appropriation art.” The results have turned in large part on the extent to which the second artist was either transforming or commenting on the source. Music sampling, however, has generally not been excused as fair use.
Although courts generally proclaim that notions of judicial restraint bar their engagement in artistic criticism in the cases, current fair use jurisprudence effectively makes this non-engagement impossible. In determining the transformative quality of the alleged infringing artwork, courts often engage in artistic criticism in making that judgment. This in itself in understandable— the standard for transformation has become one in which the court examines the use as it would appear to the “reasonable observer,” and the court cannot help but engage in artistic criticism to determine whether the use will manifest a distinct aesthetic. See, e.g., Cariou , 714 F.3d at 711 (“ Lozenges painted over the subject” s eyes and mouth . . . the subject appears anonymous, rather than as the strong individual who appears in the original.” ); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir.1998) (“ Because the smirking face of Nielsen contrasts so strikingly with the serious expression of the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original.” );
Mattel , 353 F.3d at 802 (“ Forsythe conveys a sexualized perspective of Barbie . . . .” ).
The current interpretation of the fair use doctrine, a common law creation subsequently codified in the Copyright Act of 1976, attempts to solve this quandary by asking to what extent the new work is “transformative.” This question is allegedly subsumed within the inquiry into the first factor of the statutory prescription—“the purpose and character of the use.” The problem is that when an artist invocates the fair use defense, there is no singular definition of “transformative.” And the specific interpretation used is often of paramount importance, since many applications of the term appear conclusory for the overall finding—i.e.,“label[ing] a use „not transformative” as a shorthand for „not fair,” and correlatively „transformative” for „fair.”” This is not pure conjecture, as recent empirical studies have shown that “the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today.”
The recent Second Circuit decision in Cariou v. Prince continues this conclusory use of “transformation” in the fair use inquiry and further enlarges the importance of the concept in the overall fair use inquiry. In doing so, the court seized on Campbell”s focus on the audience reception as indicative of the transformativeness of a work and stated the focus of the inquiry was on the work itself and not the author”s intent. Although at first glance this holding invites praise for recognizing postmodern concepts of authorship, it buries the recognition beneath an insistence on judging the manifestation of new and distinct expression through physical alteration.
This reliance on physical alteration leaves a creator unsure of just how much alteration is needed before a court will find a new work has altered the original”s expression sufficiently to manifest new and different meaning. In expounding physical change as the genesis for transformation, the court betrays a lack of understanding for the conceptual underpinnings of (post)modern art Using audience reception as a signifier for transformation invites difficult questions when presented with works generally categorized as appropriation art.
At the start of the twentieth century, a number of artists began to explore the possibilities of using ready-made objects as material for “creation and as a method for articulating social criticism.” Within this nascent period, Marcel Duchamp created Fountain, an existing urinal he signed “R. Mutt.” Duchamp then submitted the sculpture to galleries as a work of art, begging the fundamental question: what is art?Modern artists such as Andy Warhol, Robert Rauschenberg, and Sherri Levine are but a few who have continued to challenge society”s understanding of itself, appropriating the materials and objects created by others to comment on the values embodied in those existing works.
Few contemporary appropriation artists are more notorious or celebrated than Richard Prince. Throughout his career, Prince has pushed the boundaries of ownership,
using rephotography and appropriation to represent and therefore alter the meaning of the common. His appropriation and representation often function as an exploration of what the original work imagined. Prince”s work has explored modern popular presentations of gender, race, and cultural appropriation. To inquire whether one subscribes to a favorable view of Prince”s work, or whether one finds it lacking in creativity and substance, misses engaging the critical inquest: Prince”s work, and that of many other appropriation artists, has value because a “discursive” community has formed around his work. Whether the critical reception is positive or negative is almost beside the point.
Although not the exclusive method, the existence of discursive communities can demonstrate the societal value, and thus arguably the transformative nature, of a single work of art. The question for a fair use inquiry then becomes how to incorporate this evidence to simplify this inquiry and give greater clarity to authors on both sides of the fair use divide.
Presentational context can alter an audience”s reception of the work, and if audience reception is to be a determining factor as to whether a secondary work is transformative, a test that can adequately capture this reception is necessary. This test is not the one proposed in Cariou v. Prince, where the court held the two
works side-by-side to determine the expressive qualities of the physical differences. In certain instances, especially those implicating First Amendment rights and authorial interests of cultural progression, the market can reflect audience reaction and provide a gauge to help a court determine the true transformative nature of a work. If courts look to market indicators to assist them in determining whether a work is transformative, judges will no longer need to assess the artistic value of a work. And instead of allowing a subjective view of a work”s “transformation” to drive an ex-ante analysis of the potential market harm, courts can limit their inquiry to an ex-post determination of any realized market harm using principles from other, more appropriate legal principles.
The process in producing the Bible Movie App has been first to examine the common-law basis for the Copyright Act and the fair use doctrine, and then the judicial interpretation of the idea of transformation in fair use analysis. Second Circuit decision in Cariou v. Prince111, revealed a view towards the court”s analysis in determining transformation and the resulting effect on the market. Finally the producer has considered the economic theory of fair use, and then examined how this theory can be colored by social science theory to produce a more appropriate test of transformation.
The fair use defense codified at § 107 exists as a “First Amendment accommodation” to moderate the tension between property theories underpinning copyright law and free speech interests. The Copyright Act distinguishes between copyrightable expression and uncopyrightable facts and ideas. But whereas the copyrighted expression is otherwise inviolate, fair use permits its use in service of the public”s interest in the progress of science. It “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Section 107 provides four factors for a court to consider when a defendant claims fair use. The first of these statutory factors is the “purpose and character of the use.” In Campbell v. Acuff-Rose Music, Inc., the Court characterized the “central purpose” of the inquiry into this factor as determining to what extent the secondary use is “transformative.”In adopting the term that Judge Pierre Leval had proposed in his 1990 article, Toward a Fair Use Standard, the Court made a slight but significant alteration to the meaning of the word, and shifted the focus from the author”s purpose in creating the work to the audience”s reception of the work. In focusing the inquiry in this manner, the Court instituted a framework that placed judicial consideration of the expressive differences at the forefront of any fair use claim.
The Court”s adoption of “transformation” instituted a sea change, moving fair use jurisprudence into a regime where the consideration of “transformation” was paramount in the overall determination of fair use. After Campbell, circuit court opinions started to address whether an alleged infringing work was transformative approximately five hundred percent more often than pre-Campbell. The effect was profound in the overall outcomes in fair use litigation. A recent empirical study has concluded that although a favorable finding of transformation under the first factor is not necessary for a finding of fair use, it is generally sufficient to do so.
With the Supreme Court having declined to grant certiorari to another fair use case addressing transformative uses, the evolution of the legal application of the concept is seen in the United States Court of Appeals. Post-Campbell (and pre-Cariou), Blanch v. Koons illuminated the change Campbell wrought in fair use jurisprudence involving appropriation art. The Second Circuit examined the physical manifestation of the changes Koons made to the original copyrighted work and determined the outcome of the first factor—”the purpose and character of the use”—and resultantly, the overall fair use test, based on whether these physical differences embodied a sufficient transformation. Although this current construction of the test may appear to sanction widespread appropriation of copyrighted material, the focus on the physical ignores the fundamental reality that, although physical alteration may be sufficient for transformation, it is not necessary.
Fair use “permits and requires courts to avoid rigid application of the copyright statute, when on
occasions, it would stifle the very creativity which that law is designed to foster.Under the Copyright Act of 1976, the owner of a copyright possesses the exclusive right to reproduce the copyrighted work in copies and to prepare derivative worksvii. Section 107 of the Copyright Act of 1976 provides a fair use exemption for works that infringe on those exclusive rights specified in § 106.
At its most basic, fair use allows for the copying of part or the whole of a copyrighted work without the permission of the copyright owner. In conjunction with the idea/expression dichotomy, fair use is crucial to protect First Amendment interests by “allowing the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.
In recognizing the fair use defense in § 107 of the 1976 Copyright Act, Congress noted that the four enumerated factors were simply a codification of the common law.
It was Justice Story”s 1837 Folsom v. Marsh opinion that provides much of the original principles that Congress codified into statue (See Appendix 7 Folsom v Marsh Summary.docx). Arguably the most important contribution of Justice Story”s opinion was the maxim that each case presents unique factors and must be addressed on balance of the purpose of the doctrine. But although the specific language in the statute allows for a non-exclusive inquiry of the four factorsviii and suggests that courts retain the ability to adjust the inquiry as they see fit, modern courts have generally engaged in formalistic examinations of the fair use defense.
The preamble to the statute lists six favored uses: criticism, comment, news reporting, teaching, scholarship, and research.Of these, interests in criticism and commentary both implicate First Amendment principles of free speech and expression, as well as authorial interests in promoting the ongoing creation of new works and ideas. Fair use protects these interests in two ways: first, by providing an essential safeguard for resolving conflict between
copyright owners” exploitative rights and the free speech and expression interests of the public, and second, by providing authors with the freedom to make productive use of another”s work.
In his seminal article, Towards a Fair Use Standard, Judge Leval argued that the primary inquiry into whether the challenged use should qualify for the fair use exemption should be to what extent the use is transformative. This inquiry, Judge Leval believed, should drive the analysis of the first statutory factor. He further argued that, in contrast to courts” previous consideration of the fourth factor (the market harm) as paramount in a fair use case, the first factor was the “soul of fair use. Judge Leval recognized two crucial facts with regard to creativity: first, no creative activity is wholly original, and second, much of the creative product is explicitly referential. Fair use protects this “secondary creativity” by protecting the creation of transformative works that draw upon existing works for inspiration or raw materials. In articulating his construction, Judge Leval remained true to the statutory formulation of “the purpose of the use” and whether the use “fulfill[s] the objective of copyright law to stimulate creativity for public illumination.” In doing so, Judge Leval drew upon property theories of creation and found authorial intent to be important. In appropriating Justice Story”s words asking whether the second work “supersedes” the original work,
Judge Leval removed this question from the inquiry of the monetary harm to the original artist or author and altered it into supporting an inquest into the “purpose” of the use. Judge Leval went further in rendering the question of market harm subservient to the requirement of transformation:
The fact that the secondary use does not harm the market for the original gives no assurance that the secondary use is justified. Thus, notwithstanding the importance of the market factor . . . it should not overshadow the requirement of justification under the first factor, without which there can be no fair use.
This formulation contradicts the common law precedent that formed the basis for the 1976 statutory language. The focus on sufficient transformation of the derivative work has led to a regime in which judges are left to their own devices in assessing whether the challenged use is productive and “employ[s] the quoted matter in a different manner or for a different purpose from the original.” But what is manner and what is purpose? Judge Level illuminated little beyond that which is derivative from the facts of the two cases that prompted his commentary on the doctrine.
ROGERS V. KOONS
The first major case to grapple with statutory fair use in the context of appropriation art was Rogers v. Koons. Jeff Koons, a notable contemporary artist, used a postcard image of a smiling couple holding a litter of puppies as source material for a sculptural representation of the photograph. Koons”s artwork made a few minor alterations to the colors in Rogers”s original photograph, but otherwise requested his artisans to reproduce the reality of Rogers”s photograph. The court”s opinion was influenced by its inability to discern any successfully parodic element in Koons”s String of Puppies, an element the court required for a favorable finding under the first factor of the fair use inquiry. Describing the photograph Koons used as the basis for his sculpture as the “expression of a typical American scene—a smiling husband and wife holding a litter of charming puppies,” the court found it “difficult to discern any parody of the photograph „Puppy” itself.”
To evaluate the basic copyright infringement claim, the court must decide whether (a) the plaintiff has a valid copyright and (b) the defendant”s work is “substantially similar” to the plaintiff”s work. “Substantially similar” means that an average person viewing the two works would recognize that the “artistic expression” in one was copied from the other. “Artistic expression” means the specific artistic choices and details that go into a work, such as composition, rendering and colors.
From an alternative perspective though, where the court saw charm in Rogers” idyllic photograph, Koons saw the embodiment of a society in thrall to the “mass production of commodities and media images.” Thus, in selecting that specific photograph as his subject, Koons was arguably commenting not only on society at large, but also critiquing and parodying Rogers”s unknowing photographic expression of that idea.
In Rogers v. Koons, the court had no trouble holding that Mr. Rogers” photograph qualified as copyrighted subject matter. Indeed, since 1884 courts have consistently held that photographs are copyrightable forms of artistic expression. Photographs reflect artistic choices of the photographer, including posing, lighting, perspective, and composition. In my experience, many visual artists are not clear on this. They think photographs are available for anyone to copy. This is not the law, however, and as this case demonstrates, it can be very risky to copy a photograph without permission.
The market possibly recognized the distinct purposes behind the two pieces, valuing “String of
Puppies in excess of $100,000 while Rogers sold the original photograph to the commissioning couple for $200. Although, admittedly, it is unknowable to what extent the physical alteration from photograph to sculpture contributed to the price discrepancy, the contribution of certain other factors to the differing valuation of the two
works can be explored. Although, as with the changing medium, the contextual factors cannot be priced with specificity, as forces driving the valuation of Koons”s sculpture they are incontrovertible. First, the market would have viewed Koons”s sculpture through the lens of his previous work. In other words, Koons”s history of
biting commentary on popular culture was integrated into String of Puppies. Second, the presentation of the sculpture in a show entitled Banality Show at Sonnabend Gallery, a high-end New York art gallery, added a contextual imprimatur of validity and importance to the artwork. Regardless of a person”s individual affection for String of Puppies, the
audience as a whole inarguably distinguished between Koons”s sculpture and Rogers”s photograph. Although the court found that Koons copied Rogers”s expression and not simply the idea, it misunderstood a crucial point: Koons was not copying Rogers”s expression or his idea, he was directly commenting on Rogers”s expression of Americana. Although the court missed this distinction, the audience did not, as partly evidenced by the price discrepancy between the two works.
Although the Supreme Court”s decision in Campbell clarified certain aspects of the § 107 inquiry, most notably explaining that a commercial use does not make a use dispositively unfair, in other aspects it simply created more confusion, such as distinguishing parody from satire and crucially requiring a secondary use to comment
successfully on the physical formulation of the original work. In holding that parody was entitled to a fair use exemption, the Court shined little additional light on the specific requirements for a work to qualify as commentary.
The Court held that 2 Live Crew”s parody of Roy Orbison”s “Pretty Women” was entitled to fair use protection, and the song”s commercial nature did not preclude it from protection as a parody. In approving parody as a legitimate form of criticism protected under § 106, the Court conferred institutional legitimacy upon Judge Leval”s term of art, “transformative.” However, in doing so, the court subtly recast the question from an intent-based inquiry into an audience-based one. Although the Court retained the focus on the purpose of the use, it found the answer to be discernible through the audience”s reaction. This was a logical shift, for if the constitutional purpose of copyright is furthered by the public”s greater access to and interaction with transformative works, and the existence of separate discursive communities can indicate the presence of transformation, then the answer to the question underpinning fair use, whether a work is “transformative, is inseparable from the public audience”s reception of the new work.
Addressing potential market harm, the Court allowed the commerciality of the derivative work to inform a presumption of substantial market harm only in cases involving mere duplication of the original in its entirety.
Conversely, to the extent the secondary use is transformative, “market substitution is less certain.” However, the Court demurred from clarifying a general conception of market harm in a matter other than critical works, simply choosing to restate much of the accepted doctrine. The market for derivative works consists only of those markets that the original creator would likely develop, including licensing markets. As an artist is unlikely either to lampoon her own work or license another to do so, the Court was able to short-circuit this inquiry into a theoretical analysis of the derivative market for rap music. This then allowed the Court to sidestep the issue of conceptualizing the parameters of derivative frameworks.
BLANCH V. KOONS
Post-Campbell, the Second Circuit revisited the fair use doctrine in another case involving Jeff Koons, this time finding in favor of the defendant. In 2000, Koons created seven works for a commissioned show at the Deutsche Guggenheim Berlin. To produce these works, Koons scanned appropriated advertisements and other images into a computer, superimposed them over pastoral landscape backgrounds, and printed them to be used as templates for his assistants to paint onto large canvases. One of these resulting works, Niagara, contained images from a photograph the plaintiff had taken for a fashion magazine advertisement. In presenting his defense, Koons told the court that he used the image as “fodder for his commentary on the social and aesthetic consequences of mass media.”88 Thus, the “Niagara”painting qualified as transformative.
It was important that Koons did not argue merely that Blanch”s work is a photograph while his was a painting, or that Blanch”s photograph was in a fashion magazine while Koons” painting was displayed in museums. Such arguments would not be persuasive. As the court said, “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.” Koons did not just repackage Blanch”s “Silk Sandals,” but rather used it “”in the creation of new information, new aesthetics, new insights and understandings.
The test for whether a work is “transformative” is whether it “merely supersedes the objects of the original creation, or instead uses the original work as “raw material,” and “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Koons argued that his painting had a completely different purpose and character from Blanch”s fashion photograph. Blanch said she wanted her photograph to have an erotic character. In contrast, Koons said he wanted the viewer “to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.” The court was persuaded that Koons used Blanch”s image as fodder for his commentary on the social and aesthetic consequences of mass media. Thus, the “Niagara”painting qualified as transformative.
It was important that Koons did not argue merely that Blanch”s work is a photograph while his was a painting, or that Blanch”s photograph was in a fashion magazine while Koons” painting was displayed in museums. Such arguments would not be persuasive. As the court said, “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.” Koons did not just repackage Blanch”s “Silk Sandals,” but rather used it “”in the creation of new information, new aesthetics, new insights and understandings.
In finding that Koons”s work qualified for the fair use exemption, the court appeared to have hedged on whether the author”s intent was relevant to the question of transformation: “Koons”s appropriation of Blanch”s photograph in „Niagara” was intended to be—and appears to be— „transformative” . . . .” However, a close parsing of the opinion indicates that the court might have found Koons”s work transformative notwithstanding his statements of purpose. In proposing that “[t]he sharply different objectives that Koons had in using, and Blanch had in creating, „Silk Sandals” confirm[ed] the transformative nature of the use,” the court exposes that its inclusion of Koons”s purpose in creating his work is merely an ex-post justification for an already transformative use. And although the court deferred to Koons”s explanation of his purpose, it appeared prepared to rely on its own conclusion if Koons had neglected to supply a justification, stating that “[a]lthough it seems clear enough to us that Koons”s use of a slick fashion photograph enables him to satirize life as it appears when seen through the prism of slick fashion photography, we need not depend on our own poorly honed artistic sensibilities.” At the same time it was disavowing its own artistic sensibilities, however, the court was clearly employing a notion of transformation that involved consideration of the physical manifestations of Koons”s claimed intent.
How is the Blanch decision consistent with the Rogers and Odie decisions? I believe there are two basic reasons Blanch v. Koons was decided in Koons” favor.
First, this case was not presented as a matter of parody. The court was persuaded that instead of a “parody,” “Niagara” was better characterized as a more general “satire”: “its message appears to target the genre of which Silk Sandals” is typical, rather than the individual photograph itself.” Under the line of cases that deal with “transformative fair use, the question then became not whether Koons was commenting specifically on Blanch”s work, but whether Koons had sufficient “justification” for using Blanch”s particular work to achieve his transformative or satirical purpose. Koons articulated his justification for using Blanch”s photograph as follows:
“The ubiquity of the photograph is central to my message. The photograph is typical of a certain style of mass communication. Images almost identical to them can be found in almost any glossy magazine, as well as in other media. To me, the legs depicted in the Allure photograph are a fact in the world, something that everyone experiences constantly; they are not anyone”s legs in particular. By using a fragment of the Allure photograph in my painting, I thus comment upon the culture and attitudes promoted and embodied in Allure Magazine. By using an existing image, I also ensure a certain authenticity or veracity that enhances my commentary—it is the difference between quoting and paraphrasing—and ensure that the viewer will understand what I am referring to.”
The court accepted this explanation, even though it was very similar to the reasons Koons had given for using “Puppies” and “Odie” in the previous cases. But in this “transformative use” context, the court gave the explanation much more deference.
“Another important consideration was the third fair use factor: “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
Under this factor, the court asked whether Koons copied “Silk Sandals” excessively, or whether his use was “reasonable in relation to the purpose of the copying.”
The court decided that Koons” copying of “Silk Sandals” was indeed reasonable when viewed in light of his stated purpose. Koons” choice to extract the legs, feet, and
sandals from the background of “Silk Sandals” was critical. Blanch had testified that the background reflected her key creative decisions in the shoot: the choice of an airplane cabin as a setting and her placement of the female model”s legs on the male model”s lap. Thus, Koons had not taken the creative heart of her work, and he had used only what was necessary to achieve his own creative purpose—the typical glossy magazine depiction of women”s legs—to exemplify a certain style of mass communication.
Thus, unlike the “String of Puppies” and “Wild Boy and Puppy” sculptures, the “Niagara” painting did not copy the plaintiff”s entire work. Also, “Niagara” was essentially a collage—it combined the legs from “Silk Sandals” with several other image fragments. “Wild Boy and Puppy” also combined several figures, but apparently that work was defended only as a parody. Perhaps Koons subsequently learned that transformative fair use is a better defense for appropriation artworks. Or perhaps his multiple litigations have ultimately helped the courts to better appreciate the creative purpose of satirical art in our culture.
CARIOU V. PRINCE
In 2013, the Court of Appeals for the Second Circuit found that the artist Richard Prince was not liable for copyright infringement on twenty-five pieces of his Canal Zone series of works177. In finding that Prince”s work was permitted under fair use, the court identified the relevant inquiry under § 107 as neither the author”s intent to comment on the original nor the author”s intent to transform the work with new expression. Rather, the court held that the question is whether the new work has been sufficiently physically transformed so as to impart new meaning or expression to the viewer.
In 2000, Patrick Cariou published Yes Rasta, a book containing a series of photographs Cariou had taken during a six-year stint living among Rastafarians in Jamaica.
The series was comprised of a number of classical landscapes and portraits attempting to portray the dignity of Rastafarians and their natural environment. Cariou”s publisher printed seven thousand copies of Yes Rasta. Sales figures of the book were minimal. As for the photographs themselves, excepting a handful of private sales to personal acquaintances, Cariou did not exhibit or sell them. Seven years later, Richard Prince exhibited works at a hotel in St. Barth”s, including Canal Zone
(2007), a collage work comprised of thirty-five images torn out of Yes Rasta. Prince arranged the altered images of landscapes and Rastafarians in a large grid and tacked them to a single piece of plywood. Prince subsequently created thirty additional pieces in the Canal Zone series, with all but one incorporating images Prince appropriated from Yes Rasta. In late 2008, Prince showed twenty-two works from Canal Zone at Gagosian Gallery in New York.
Cariou allegedly first learned about Prince”s show from Cristiane Celle, a New York gallery owner. On December 30, 2008, Cariou filed suit against, Prince, Gagosian Gallery, and Lawrence Gagosian, claiming copyright infringement. Prince and his co-defendants asserted a fair use defense, arguing that Prince”s use of the photographs was transformative. Each party subsequently filed a motion for summary judgment.
In its ruling, the Southern District of New York found Prince”s use of the photographs was “not fair use under the Copyright Act.” After finding that Cariou”s photographs were sufficiently creative to be worthy of copyright protection, the court conducted a standard four-factor fair use inquiry. The court started its analysis of the first factor—the purpose and character of the use—by explaining that the central question was to what extent Prince had infused Cariou”s original photographs with new expression, meaning, or message. In other words, the court asked to what extent Prince”s works were transformative. First, the court rejected Prince”s argument that using copyrighted materials as “raw ingredients” should be considered per se fair use, declaring the lack of any precedent allowing for fair use absent “the new work in some way, comment[ing] on, relat[ing] to the historical context of, or critically refer[ing] back to the original work.” Instead, Prince”s works would only be transformative to the extent that they commented on Cariou”s photographs. Without commentary, Prince”s works would be infringing derivative works.
In determining whether Prince”s works met this standard, the court focused much of its inquiry on his intent in creating Canal Zone, believing Prince”s statement that he did not “really have a message” inherent in his art to indicate that “his purpose in using Cariou”s Rastafarian portraits was the same as Cariou”s original purpose in taking them: a desire to communicate to the viewer core truths about Rastafarians and their culture.” In viewing the twenty-eight photographs as a unified whole, the court found the transformative content of Prince”s works to be “minimal at best” and weighed heavily against a finding of fair use.
The court then examined the commerciality prong of the first factor of § 107, which asks whether the use of the copyrighted material is “of a commercial nature or for nonprofit educational uses.The court noted that the importance of the commerciality of the alleged infringing use is inversely proportional to the extent of the use”s
transformativeness. And given its perception of Prince”s works as of low transformative value, the court found this prong of the first statutory factor to weigh against a finding of fair use. In sum, although the court wrote that it “recognize[d] the inherent public interest and cultural value of public exhibition of art, it found this interest paled in comparison to the substantial commerciality of Prince”s “use and exploitation” of Cariou”s photographs.
The court then worked through an analysis of the second and third factors—the nature of the copyrighted work and the portion of the first work used in the second work—finding both to weigh against Prince”s asserted defense of fair use.Under the second factor, Cariou”s photographs were “highly original and creative artistic works and considered to be at the heart of that which copyright was intended to protect. The analysis of the third factor was, similar to the commerciality prong of the first factor, considered in relation to the transformative value of Prince”s works. And given its determination that the works were of low transformative value, the court concluded there was little justification for Prince to have appropriated the “central figures of Cariou”s photographs.
Then, turning to the fourth factor—”the effect of the use on the potential market for or value of the copyrighted work”207—the court again found the facts weighed against a finding of fair use. First, the court dismissed as irrelevant Prince”s argument that Cariou had not marketed his works more aggressively, reasoning that Cariou was entitled to have the potential market available should he later decided to exploit the commercial monopoly granted by his copyright. The court then focused on two specific points in its analysis of the market harm caused by Prince”s works.
First, relying on testimony of New York gallerist Celeste Celle that she had planned on showing Cariou”s Rastafarian photographs until she learned Prince had shown Canal Zone at Gagosian Gallery, the court found it “clear that the market for Cariou”s photos were usurped by Defendant. This constituted harm to the actual market for Cariou”s original works. Second, the court considered the harm to Cariou”s potential licensing market for derivative works. The court believed that allowing Prince to use Cariou”s photographs without procuring a license demonstrated that widespread similar practice would destroy the general ability of artists to license their works for others to use. Therefore, in addition to suffering damage to the actual market for his works, Cariou had suffered the loss of potential licensing fees from Prince”s unauthorized use of his photographs.
After examining each of the four statutory factors, the court concluded that none favored a finding of fair use. Thus, the court felt “the purposes of copyright are best served by extending protection to Cariou”s photos,” and held that the defendants were not entitled to a fair use defense. The court then ordered Prince to “deliver up for impounding, destruction, or other disposition, as Cariou determines, all infringing copies of the Photographs, including the Paintings, and unsold copies of the Canal Zone exhibition book.
Prince appealed the district court”s decision, and in April 2013, the Court of Appeals for the Second Circuit reversed in part, holding that twenty-five of the thirty works were protected under the fair use doctrine and remanding to the district court for a determination under the proper legal standard as to whether the five remaining works were entitled to the same defense.
In addressing the first statutory factor and the inquiry “at the heart of” the fair use inquiry, the court noted that the district court had conducted its analysis upon a substantively incorrect legal premise. The court clarified that, in contrast to the district court”s belief, “[t]he 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.
Although many of the seminal “fair use works” did appropriate copyrighted work for the direct purpose of commenting on the culture those images represented, a work can still be transformative in the absence of such expressed purpose: it simply “must alter the original with ,new expression, meaning, or message.”
The court conducted its analysis by holding Prince”s work side-by-side with Cariou”s and observing the physical differences between the two works, finding twenty-five of them to be “transformative as a matter of law.” The court explained that Prince”s composition and his use of color and mixed media altered the fundamental physicality of Cariou”s photographs. Describing Prince”s works as “crude,” “jarring,” “hectic,” and “provocative,” the court concluded that Prince imbued Cariou”s photographs with new expression—“looking at the artworks and the photographs side-by-side, we conclude that Prince”s images . . . employ new aesthetics with creative and communicative results distinct from Cariou”s.” Perhaps understanding that its analysis could be taken to suggest that any physical alteration would be sufficient for fair use, the court pulled back to note that its holding applied only to those changes that presented the images with a “fundamentally different aesthetic,” and that its conclusion should not be interpreted to mean that any cosmetic changes to Cariou”s photograph would be sufficient.
The court succinctly addressed the second factor, finding that although it was clear that Cariou”s photographs were creative and published, thus weighing against an overall finding of fair use, this factor is of “„limited usefulness where,” as here, „the creative work of art is being used for a transformative purpose.”
Examining next the amount and substantiality of Cariou”s photographs that Prince used in his works in relation to the whole of Cariou”s works, the court expressed confusion as to how the district court concluded that Prince”s “taking was substantially greater than necessary. Additionally, the court noted, there is no legal prohibition that the secondary artist takes no more than necessary.
And, although Prince appropriated essential portions of Cariou”s photographs, in twenty-five of the thirty works, Prince “transformed those photographs into something new and different. This fundamental alteration in the materials” meaning is crucial to informing the weight given the third factor, and the court found this factor to cut heavily in Prince”s favor for the twenty-five works the court deemed transformed. Turning to an examination of the effect of the use on the potential market for the copyrighted work, the court dismissed the district court”s focus on whether Prince”s use had damaged both the actual and potential markets for Cariou”s original work. The court noted that it had previously addressed this issue in Blanch v. Koons—the question is not whether the potential market is damaged, but whether the secondary work usurped the market of the original work.
The court found the audience for Prince”sworks to be distinct from Cariou”s potential audience and that there was “no evidence that Prince”s work ever touched—much less usurped—either the primary or derivative market for Cariou”s work.
With regard to the remaining five works, the court found Prince”s alterations not significant enough to allow the court to make a judgment as to whether the works were transformative: “Although the minimal alterations that Prince made in th[e]se instances moved the work in a different direction from Cariou”s classical portraiture and landscape photos, we can not say with certainty at this point whether th[e]se [five] artworks present a „new expression, meaning, or message.” The court then remanded those five pieces to the district court for a determination under the correct legal standard as to whether the works were transformative or whether they Writing in partial dissent, Judge Wallace noted the inconsistency in remanding only five of the thirty works to the district court for a further determination as to whether they were fair use. Although he agreed with the majority that the district court had incorrectly required that Prince”s works comment on Cariou”s photographs to be entitled to a fair use defense,
Judge Wallace favored remanding the entire case to the district court. Much of his dissent was tied to his reticence to make an artistic determination of the transformativeness of Prince”s works, pointedly noting his “limited art experience. Additionally, and in contrast to the majority, Judge Wallace considered Prince”s testimony to be relevant to the transformativeness analysis.
The holding in Cariou continues the shift away from authorial intent informing a finding of fair use. In examining the nature of transformation, the court explicitly clarified the relationship between the fair use inquiry and authorial intent:
What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince”s work could be transformative even without commenting on Cariou”s work or on culture, and even without Prince”s stated intention to do so. . . .
The focus of our infringement analysis is primarily on the Prince artworks themselves . . . .
After examining the question of transformation, the court examined the other three factors as dependent on the answer to the former question. And even within the analysis of the first factor—addressing “whether [the] use is of a commercial nature”—the court defaulted to the formulation in Campbell.
Since Campbell recognized that commercial uses were not presumptively unfair, the more transformative a work, the less commercialism weighs impermissibly infringed on Cariou”s copyright. against a finding of fair use. Therefore, in Cariou “[a]lthough there is no question that Prince”s artworks are commercial, [the court did] not place much significance on that fact due to the transformative nature of the work.” The second factor was dealt with in much the same manner: although Cariou”s photographs were creative, “this factor,may be of limited usefulness where,” as here, “the creative work of art is being used for a transformative purpose.” The third factor—the amount and sustainability of the copyrighted work used—follows as well: “the third-factor inquiry must take into account that the extent of
permissible copying varies with the purpose and character of the use. In other words, the amount of permissible copying is dependent on what the artist does with the material. If the use is transformative, then copying, both in quality and in substance, is generally more permissible.
Although the shift towards a visual comparison of two works will likely result in a more permissive atmosphere for appropriation artists in all mediums to create heterodox works, it falters when a court is asked to address works that gain their transformative nature from new expression that is intrinsically linked to the exact copying of an original work.
In the context of this Note, the most appropriate examples might be Prince”s untitled cowboy works. Prince”s commentary on the hyper-masculine image of the American male would arguably have been lost in the process of substantially altering the images. Prince”s images, though, would run afoul of the Cariou standard, where the
question of transformation is intertwined with sufficient alteration of the physical. It is the height of irony that in formulating a test that at first glance appears to create a standard allowing almost any substantive physical modification to an original work to influence a fair use determination, the court has in fact laid down a reductive and restrictive doctrine that removes from protection those works that are arguably most transformative in their emotional effect on the audience.
The court”s consideration of the relationship of transformativeness to the fourth factor is similar. Although not explicitly driving the consideration of the market harm, the court clarifies that the question of market usurpation versus market suppression turns in large part on the question of a finding of transformation. Citing precedent for the importance of examining whether the target market of the secondary use is the same as the target market for the original, the court remained “mindful that the more transformative the secondary use, the less likelihood that the secondary use substitutes for the original, even though the fair use, being transformative, might well harm, or even destroy, the market for the original”.
In addressing the harm to Cariou”s market, the court bifurcated what one would consider the market for Cariou”s work into two distinct camps—those persons with the financial means to acquire Prince”s work, and those without. The court recited a list of celebrities invited to a dinner the Gagosian held in concert with the Canal Zone opening. It used this as evidence that “Prince”s work appeals to an entirely different sort of collector than Cariou’s” and that the markets were distinct.
Although the logic in this statement fails, by happenstance, the court”s conclusion that Prince”s work did not displace Cariou”s holds. The crucial query is whether the derivative work acts as partial substitution for the original. Absent an evidentiary finding that this is the case, it then logically follows that the consumer views the two products as distinct and thus serving a different purpose. And although the court obsessed over the low selling price of Cariou”s work as indicative of Cariou”s work existing in a separate market from Prince”s, the true importance of this evidentiary inquiry lies elsewhere. The court touched upon it when it wrote, “nothing in the record suggests that anyone will not now purchase Cariou”s work, or derivative non-transformative works (whether Cariou”s own or licensed by him) as a result of the market space that Prince”s work has taken up. The problem with this analysis is exposed not by the twenty-five works found to be transformative, but by the five works remanded to the district court. If we assume those five works are derivative non-transformative works, then, by
the court”s analysis, these five works should substitute in the market for Cariou”s works.
But in predicating the fourth-factor market analysis on the different values placed on the two artists” respective works, the court committed itself to a market analysis that viewed the respective audiences as distinct simply because of the prices of the artists works. This cannot hold. If Prince”s work is non-transformative and thus acts as a substitute for Cariou”s photographs, it, by definition, touches the same primary market for Cariou”s work.
Reframing the analysis of the fourth-factor market inquiry to inform, rather than follow, the determination of transformation would give a court substantive findings upon which to ground its analysis of the purpose and character of the use. Rather than a court inferring insignificant market harm because a work is transformative, a work should be considered transformative precisely because there is insignificant actual market harm.
This follows because insofar as the fourth factor turns on the distinction between complementary and substitutional copying253—i.e., transformative and superseding copies—a lack of market impairment can indicate that the audience has determined that the secondary use is complementary254. The question that remains is how to determine when there is market harm. Here, theories ported from the social sciences can indicate when the public views a work as omplementary—i.e., insignificant market harm—and when it views a work as substitutional—i.e., significant market harm. Although reversing the direction of implication appears to be a subtle shift, it is one that could have profound effects on how fair use is analyzed.
Prior to Campbell, the Supreme Court had unambiguously stated that the fourth factor—the effect upon the potential market—was “undoubtedly the single most important element of fair use.”255 And although, post-Campbell, the fourth factor has remained the single factor most closely correlated with an overall finding of fair use, it has been for a markedly different reason.
Rather than informing the outcome of the overall inquiry by informing the analysis of the other three factors, the fourth factor “essentially constitutes a meta-factor under which courts integrate their analyses of the other three factors and, in doing so, arrive at the outcome not simply of the fourth factor, but of the overall test.
In arguing that the first factor is the “soul of the fair use, Pierre Leval also contended that the Supreme Court had overstated the importance of the market factor.
He argued that, although in cases where the secondary use substantially interfered with the market for the original work the fourth factor should weigh heavily against a finding of fair use, “the inverse does not follow. Leval”s article was persuasive. In Campbell, the Court repudiated its earlier language in Harper & Row, writing,
“All [four statutory factors] are to be explored, and the results weighed together, in light of the purposes of copyright. The effect on fair use jurisprudence was considerable. Prior to Campbell, over half (fifty-nine percent) of the fair use opinions explicitly cited Harper & Row for the proposition that the fourth factor—the effect of the use on the market—was “undoubtedly the single most important element of fair use. After Campbell ruled that all the factors were to be explored holistically, only around one quarter of opinions continued to state the fourth factor was the most important.
Underlying the market inquiry of the fourth factor is the basic theory of supply and demand. Copyright effectively grants an individual a monopoly over the market for her work. The right to exclude others from the market through the rights granted in § 106 ensure that additional supply neither impinges the copyright owner”s ability to profit from her creation, nor decreases the incentive for an individual to create future works.
Economic theory characterizes copyright law as a cure for market failure that stems from the existence of “public goods” characteristics inherent in artistic expression. The problems associated with these characteristics, most notably the inability to exclude free riders, result in public goods being under-produced if left to the mechanics of an unregulated market. When a transaction that would be beneficial to both parties does not occur, this breakdown is known as market failure. In totality, the legal system often establishes parameters intended to limit occurrences of market failure.
In this economic system, fair use exists as a corrective to inefficiency in copyright transactions. There are three main circumstances where the fair use doctrine comes into play. First, it provides a remedy for situations where high transaction costs exist and normalized market forces are inadequate to effect an agreement between two parties. Fair use is also important for matters where implied consent—for example, the industry practice of book reviews quoting part of the original material—indicates an acceptance of the need for greater consumer information and the confidence that, in not needing to gain the favor of the author to reprint passages, the reviewer remains objective.
Finally, fair use exists to allow the creation of “productive uses. This productive use can take many forms—for example, parody or satire—and rests on the transformation of the original work into a work that is unlikely to substitute in the market for the original work or create substantial harm to what otherwise would be a lucrative licensing market. There can be substantial overlap between the three categories, but any one is justification for fair use existing to create a more efficient and rational market.
The examination of the market harm under the fourth statutory factor focuses on two markets: the immediate market for the work in question and the secondary market.
The test for harm in the primary market rests on the alleged infringing work superseding the first work. Harm resulting from the destruction of the market for the original work is different; there is no privilege for the original artist to capitalize on her product being in the market, only the right to access the market free of
a substitute work diminishing the size of the market.
The secondary market is more complicated, since it necessarily involves a hypothetical projection of the likelihood of that work being the subject of licensing desires. The secondary market implicates a circular analysis—a work has licensing value if it is used in the secondary work, but the value is dependent on the transformativeness of that secondary work. Additionally, the use in a secondary work is often dependent on the absence of licensing costs associated with the use. And in the absence of a standard licensing practice such as those employed by AP or Getty Images, calculating the lost licensing cost can be nearly impossible. Finally, the identity of the secondary artist can significantly alter the potential value of the secondary work, and thus alter the negotiations between the copyright holder and the potential licensee. Although this may simply engender an economic solution based on principles of supply and demand, the likely outcome in most cases is the overvaluing of the original work by the copyright owner, thus resulting in market failure.
In many ways, an economic approach to copyright would allow appropriation art to flourish in much the same way that a robust fair use regime based upon social context theories of reception would. However, this is mainly an ex post analysis of the economic rationale for preferences society has already approved. In some cases, the economic analysis fails to account for societal preferences for expression, while in others it fails to account for an irrational market. The former will be explored in the following section; for the latter, Rogers v. Koons194 provides a useful example. Although a pure economic exploration indicates that the outcome should have been avoided by Koons paying a small fee to license the image he used as basis for his sculpture, this contention often does not hold up when confronted with standard real-world barriers. If economic theory is to provide assistance in favorably adjusting the current fair use inquiry, it will only be as a supplement to additional theories.
If the underlying goal of the fair use exemption is to further the progress of the arts by providing the public with greater access to transformative works, then the audience”s reaction can be instrumental in determining whether a work is transformative. If it is granted that the audience is composed of divergent evaluations, it is inarguable that it will contain varied opinions of what a work is expressing. This implies that everything is variably transformative; logically, then, the concept of transformation cannot be a binary. Instead, the relevant question in a fair use inquiry is not whether an alleged infringing work is transformative or not, but to what degree the work is transformative, and whether this is sufficient to favor fair use. Returning to Campbell for an example, the relevant question was “whether a parodic character may reasonably be perceived. If the relevant responder to that question is properly considered the public, and not the judge substituting her own beliefs for the public, then social science theories can assist in discerning the public”s reaction to the artwork in question.
Divorcing the audience”s understanding of the existence and purpose of this examination from an analysis of the transformativeness of a work reduces the inquiry to a facial examination of the physical differences between two works. Although this differentiation between the physical can provide a window into the transformativeness
of a work, it is not necessary, nor should the law consider it sufficient.
Adjusting the inquiry from one that attempts to divine purpose though authorial statements to one that focuses on audience interpretation will still allow authorial intent to influence the examination. But rather than burden judges with the task of discerning intent by holding two works side-by-side, the audience can accept either the stated rationale of an artist or infuse a work with a new collective meaning. This ability to infuse a work with a meaning different from the artist”s original intent recognizes the power of the audience to determine a work”s true transformative nature. Meaning is arguably contextual, and a judge experiences a work in a different context than any other individual. This then implies that the judge”s experience of the work is unique, and potentially not representative of the larger audience. Consider, for example, Koons”s Banality show. Removing his sculpture, String of Puppies, from the context of an exhibition entitled Banality diminishes the meaning of the work as a critical object. The same is true of Prince”s use of Cariou”s photographs—audience engagement is predicated on the context of the encounter with the work. It is within this context that the meaning of the work is transmitted from author to audience. The context can amplify, diminish, or simply distort the author”s intent. Although the author can place her artwork within a certain context—for example in a gallery or on the sides of buildings—much of the time the work is
subject to engagement in myriad circumstances. Divorcing the work from the artist alters the discourse that exists surrounding that work, and recasts the audience”s interaction with the work in view of what the audience perceives to be the new “truth. But under the test set forth in Cariou, a court should give no weight to this fact.
Extrapolating theories of contextual engagement to a fair use inquiry will only assist if the court can discern some method of measurement. To this end, the market can provide a guide. As shown in Cariou, the values the market placed on the two artists” respective works differed greatly. But where the court in Cariou determined the absence of market usurpation followed from the transformative nature of Prince”s artworks, examining the issue from a theory of contextual engagement changes the form.
Instead, a court examining the same case under the new proposal to reinvigorate the market harm inquiry as the dominant factor in a fair use inquiry would determine that the transformative elements of Prince”s work could only have followed the creation of a dialogue around the work that was distinct from the one that formed around Cariou”s photographs. The different market values for the works provide evidence that Prince”s work was not acting as a substitute for Cariou”s work. If it had, economic theory would suggest that the prices of the two works would be identical, or close to identical.
The court”s suggestion that the market segments for the two artists were distinct from one another fails to understand that an artwork does not form distinct from the author. Although the author has limited control over how the audience engages with her work, the audience can ascribe an artist”s brand onto a creation. This
understanding is essential to a conceptualization of the alteration of expression through appropriation. When Richard Prince appropriates an existing work, he imbues that work with his brand, one that has been cultivated through his career and is recognized by the public as distinctive. The market value of his work is partially a
simple representation of that recognition. Prince”s work is distinct, and therefore transformative, because the market—i.e., the public—has recognized it as so.
This Note does not purport to imply that monetary value is the only true representation of the true worth of a work of art. Quite often, the most influential works are those that are initially rejected by the public. But, as Justice Holmes warned, judges should not be the arbiters of taste. In all but a very small subset of cases, which we can assuredly count on judicial common sense to sniff out, the copyright holder is not harmed by a secondary use that implicates First Amendment concerns or authorial interests. In the vast majority of fair use litigation, it is best to listen to what the public is indicating it values.
In 2014, courts gave us some wonderful cases that determine a solid base for “Fair Use”, including several dealing with creation of searchable databases. In Authors Guild v. HathiTrust, for example, the Second Circuit strongly affirmed the right of fair use, finding in favor of HathiTrust‘s creation of a full text search database and provision of accessible formats for the print disabled. In the long-awaited opinion White v. West Publishing, the Southern District of New York affirmed that ingesting briefs into a search database was a new use with a different character from the original briefs.
Second Circuit rightly concluded that HDL”s activities are protected by fair use, ensuring the “safety valve” of fair use is well-functioning and providing meaningful balance through limitations on the copyright holder”s rights. Fair use has long been relied upon to provide important protections for the public and promote new and transformative uses of copyrighted works, such as those facilitated by HDL.
Fox News v. TVEyes provided yet another case in which aggregating copyrighted works into a searchable database, this one dealing with video and audio works rather than text, was affirmed as fair use. For more fair use cases from last year, Dan Nabel, guest posting on Eric Goldman‘s blog, has a great roundup of the top ten cases in 2014.
Just weeks into 2015, the Central District of California has already decided at least two new cases with fair use components (both cases involved several other copyright and contractual issues), finding largely in favor of fair use.
ROSEN V. EBAY
This case involves a lawsuit by Barry Rosen, a professional photographer, against eBay asserting, among other issues, that photographing physical magazines containing his images and posting them on eBay‘s auction site violated his copyright. eBay argued that a photograph of the physical magazine was fair use.
The district court found that the photographs of the magazine “as used to represent physical magazines for resale, constitutes fair use.” It found that the use was transformative because while the original photographs were created for artistic purposes, the photographs of the magazines were used to provide information as to the condition and content of the magazines being sold. The court noted that, “the public also benefits greatly from being able to evaluate the magazines offered for sale legitimately under the first sale doctrine.” The court also found thatphotographing the magazine was necessary for its purpose and that the effect on the market was minimal.
Furthermore, the court rejected Rosen‘s claim that fair use applies only to certain types of infringement and “the fair use doctrine applies to all forms of use of copyrighted works.” Holding otherwise, the court stated, “would drastically limit the ability of any person to resell any visual copyrighted work except to those in the physical presence of the work.”
FOX V. DISH
Dish Network offered services that record television shows and skip over commercials, asserting that such technology was fair use, and was subsequently sued by various networks. The case involved a number of copyright and contractual issues; while the court found largely in favor of fair use for time-shifting and place-shifting technology, it also found that Dish Network may be liable for breach of contract.
The district court found that the “PrimeTime Anytime” service, which allowed users to record prime time television shows and skip over the commercials, constituted fair use under Universal Studios v. Sony (the “Betamax” case in which the Supreme Court ruled that videotaping a television broadcast was fair use). The district court summarized, “Sony
established that it is fair use for users to make individual copies of television shows from broadcast television for purposes of noncommercial, nonprofit time-shifting.” The district court found that even though a market exists in which Fox licenses its programming to third parties to be distributed commercial-free, DISH‘s PrimeTime Anytime service constituted fair use because the service did not compete with this market.
The court noted that DISH subscribers had access to other services to record programming manually using other DVR technologies and that the recordings through the PrimeTime Anytime service was only available for eight days unless the subscriber affirmatively saved the recording in another folder. The district court then concluded that “The potential for market harm to the secondary market for Fox‘s program caused by PTAT alone is simply too speculative to defeat a finding of fair use by a time-shifting technology which enhances consumers‘ non-commercial private use of recorded programming.” While finding in favor of fair use of the PTAT technology, however, the court ruled against fair use for the copies DISH made as “quality assurance” copies finding that they were non-transformative.
After ruling in favor of DISH‘s time-shifting technology, the court also noted that place-shifting is fair use: “Hopper Transfers is a technology that permits non-commercial time- and place-shifting of recordings already validly possessed by subscribers which is paradigmatic fair use under existing law. See Recording Indus. Ass‘n of Am., 180 F.3d at 1079 (making copies ‗in order to render portable or ‗space shift‘ those files that already reside on a user‘s hard drive . . . is paradigmatic noncommercial use.” While this use is itself a fair use, however, DISH may have violated its contractual agreements with Fox.
These first fair use cases of 2015 involve vastly different circumstances, but highlight the importance of the fair use right. Fair use, working in tandem with the first sale doctrine, can provide information to the public about the quality of an item being sold. It can also provide valuable services with new technologies to consumers. As these cases demonstrate, fair use is relied upon every day and the doctrine helps balance copyright law. Of course, fair use extends far beyond the scope of these cases.
TRANSFORMATION V. PARODY
In the Australian Copyright Council paper; “Does transformative use = fair use?293″ The article outlines the 2004 case where a number of universities allowed Google to scan millions of books in their collections. This was done without the permission of the owners of copyright in the books. These scanned books were later used as the basis for a consortium known as the Hathitrust Digital Library (HDL). HDL allows three uses of its database:
1. The general public may perform a full-text search, however, the results only provide page references rather than snippets of text;
2. Member libraries may provide full-text copies to people with a print disability;
3. Members may create a replacement copy where their original copy is lost destroyed or stolen.
In 2011, the Authors‘ Guild and other authors‘ organisations including the Australian Society of Authors issued proceedings against HDL for copyright infringement. In a controversial decision in 2012, Justice Baer of the United States District Court held that the mass digitisation of copyrighted books in the HDL collection was a fair use and did not constitute an infringement of copyright.
The Court held that the full text search and print disability uses of the HDL amounted to fair use. It did not make a determination in relation to use for the purposes of preservation.
In reaching its decision, the Second Circuit analysed each of the four fair use factors. In relation to search, the Court concluded that “the creation of a full‐text searchable database is a quintessentially transformative use”. However, in relation to the print disability use it held that “providing access to the print‐disabled is still a valid purpose under Factor One even though it is not transformative.
In the paper “Fair Use for the Rich and Fabulous?295″ Appendix 5 Andrew Gildent and Timothy Greene highlight pressing issues with problems with defining fair use:
In two recent decisions concerning copyright‘s fair use doc-trine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince1 and Salinger v Colting, US District Judge Deborah Batts en-joined similar activity using nearly identical reasoning. But on appeal, the Second Circuit found fair use in the former and likely infringement in the latter. In The writers welcome the Cariou decision‘s shift away from the singular, subjective in-tent of the putative fair user towards a more audience-focused inquiry. When Cariou is compared with Salinger, however, there is concern that this shift introduces a new set of distributional problems into the fair use analysis.
In particular, why does a substantial reworking of Catcher in the Rye interfere with J.D. Salinger‘s “right not to authorize derivative works” while Patrick Cariou‘s photographs are the “raw material” for the “well-known appropriation artist” Richard Prince?
Is a use fair only if Anna Wintour, Brad Pitt, and Beyoncé are there to see it? The courts must have a means of distinguishing “transformative” uses from “market substitutes,” but in doing so we all hope that courts do not convert the right to rework, comment on, or otherwise engage with creative works into a privilege largely reserved for the “rich and famous”.
In both Salinger and Cariou, Judge Batts rejected a fair use defense for creative endeavors that she found insufficiently critiqued and commented on earlier copyrighted works. In Salinger, Fredrik Colting‘s novel, 60 Years Later: Coming Through the Rye, featured a number of storylines and characters from J.D. Salinger‘s Catcher in the Rye.
In the previously mentioned Cariou, Richard Prince incorporated photos taken by Patrick Cariou of Jamaican Rastafarians into a series of thirty paintings, titled Canal Zone, that was exhibited in 2008 at the Gagosian Gallery in Manhattan. In both cases Judge Batts issued an injunction—preliminary in Salinger, permanent in Cariou—solely based on the merits, without considering the additional requirements for injunctive relief.
In Salinger v Colting, Judge Batts rejected Colting‘s argument that his novel was a “parody” of Catcher and therefore a permissible “transformative use.” Considering the purpose and character of the use, Judge Batts stated that parody includes “only those elements which criticize or comment upon the source author’s work and concluded that 60 Years “contains no reasonably discernable rejoinder or specific criticism of any character or theme of Catcher.
Even though the novel, according to literary expert Martha Woodmansee, “critically examined the character Holden, and his presentation in Catcher as an authentic and admirable (maybe even heroic) figure,” Judge Batts observed that the themes in 60 Years were “already thoroughly depicted and apparent in Salinger’s own narrative about Caulfield.
Moreover, given earlier statements by reviewers and the defendant himself that 60 Years was a “marvelous sequel” and “tribute” to Catcher,18 “it [was] simply not credible for Defendant Colting to assert now that his primary purpose was to cri-tique Salinger and his persona.”
Regarding the effect of the use upon the potential market for the copyrighted work, Judge Batts concluded, “the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works.” It didn‘t matter that Salinger “ha[d] not demonstrated any interest in publishing a sequel or other derivative work of Catcher,” because he “ha[d] the right to change his mind” and was “entitled to protect his opportunity to sell his [derivative works].” Moreover, “[j]ust as licensing of derivatives is an important economic incentive to the creation of originals, so too will the right not to license derivatives sometimes act as an incentive to the creation of originals.”
Judge Batts‘s decision two years later in Cariou employed a remarkably similar analysis. Judge Batts reiterated, “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.” Relying principally on Prince‘s testimony that he didn‘t “really have a message,” Judge Batts concluded, “Prince did not intend to comment on any aspects of the original works or on the broader culture.” Additionally, as in Salinger, “Defendants‘ protestations that Cariou has not marketed his Photos more aggressively . . . [were] unavailing.”
Judge Batts reiterated that it is the “potential market” for derivatives that matters for purposes of fair use, “even if the author has disavowed any intention to publish them during his lifetime.”
Accordingly, Judge Batts
(1) granted summary judgment to Cariou;
(2) barred defendants from selling, displaying, and marketing the Canal Zone paintings; and
(3) ordered them to “deliver up for impounding, destruction, or other disposition . . . all infringing copies of the Photographs.”
Despite the similar analyses in each case—defendants had not intended to comment on plaintiffs‘ work, and it was legally irrelevant that plaintiffs had not actively pursued derivative markets—on appeal the two Second Circuit panels reached opposing results.
In Salinger, the court‘s decision focused primarily on the appropriate standard for issuing a preliminary injunction, and it remanded to the district court to apply the correct test. The court ordered the district court to consider the defendant‘s “First Amendment interest in the freedom to express him or herself” and the “public‘s interest in free expression,” but also noted “a copyright holder might also have a First Amendment interest in not speaking.”
Although the court vacated the preliminary injunction, it nonetheless “in the interest of judicial economy” noted that “there is no reason to disturb” the district court‘s consideration of the merits.
The Second Circuit mentioned the district court‘s observations that “parody must critique or comment on the work itself,” and the panel found no clear error in Judge Batts‘s de-termination that it was “simply not credible for Defendant Colting to assert . . that his primary purpose was to critique Salinger and his persona.”
The panel acknowledged that it “may be ”that fair use could favor a defendant without a “transforma-tive purpose,” but it concluded that in light of “the District Court‘s credibility finding together with all the other facts in this case[,] . . . Defendants are not likely to prevail in their fair use defense.”
In Cariou, the Second Circuit took a different stance to-wards the accused infringer‘s stated intentions and the copy-right owner‘s right not to authorize derivatives. Under the purpose and character of the use, the court declared, “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative.”
Instead “if the secondary use adds value to the original—if [the original work] 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.”
Because at least twenty-five of Prince‘s paintings ―manifested an entirely different aesthetic from Cariou‘s photographs, they were “transformative as a matter of law.”
2. Copyright Act 1968 (Cth) ss 41, 103A.
3. Ibid ss 41A, 103AA
4. EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444.
5. Ibid, –.
6. B Fitzgerald and D O‘Brien, ‗Digital Sampling and Culture Jamming in a Remix World: What Does the Law Allow?‘ (2005) 10(4) Media and Arts Law Review 279.
7. In Bridgeport Music Inc v Dimension Films Inc, the US Court of Appeals held that even where a small part of a sound recording is sampled, then the part taken is something of value, and will therefore infringe copyright: Bridgeport Music Inc v Dimension Films Inc, 410 F 3d 792 (6th Cir, 2005).
8. K Bowrey, Submission 94.
9. Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273, .
10. The three moral rights in Australian law are: the right to be attributed as the author; the right against false attribution; and the right of integrity, that is, the right not to have one‘s work treated in a derogatory way: Copyright Act 1968 (Cth) pt IX.
11. Perez v Fernandez  FMCA 2 (10 February 2012).
15. See: Big Screen Bible Lore By John Howard Reid, a film-by-film analysis of biblical accuracy in the
history of Western film.
18. Phoenix Blue Productions Pty Ltd is a ―Educational Institution pursuant to Part VA of the Copyright Act 1968 (the Act), Phoenix Blue Productions Pty Ltd has lodged the relevant notice in compliance with the Copyright Act Part 5(b) – Division 6 Reproducing by educational (and other) institutions and Reproduction and Communications assisting those with Print Disability. Phoenix Blue Productions Pty Ltd provides dual-language applications and applications with multi-language translations as English teaching tools for those where English is not the first language,
20. For a full list of films based on the bible see: http://en.wikipedia.org/wiki/ListoffilmsbasedontheBible
22. http://ntweblog.blogspot.com.au/search/label/Gospel%20of%20Mark%20film Visual Bible International produces film adaptations, on a word-for-word basis, from popular versions of the Bible. Projects include The Gospel of John and The Gospel of Mark, for which the company has a distribution agreement with Disney’s Buena Vista Home Entertainment. Visual Bible International in 2005 was placed under court-ordered interim receivership to protect the assets of the company while it is marketed for sale on a going-concern basis. Later that year, real estate firm Red Brook Developments (also a debt holder) made an offer to acquire Visual Bible International.
24. An Educational Website on Copyright Law and Remix Art http://people.sunyit.edu/~bugyij/fairuse.html
25. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L. Ed. 2d 500 .
26. For a list of projects that have been recognized as ―Fair Use See Appendix 10
28. The Macquarie Dictionary Online.
29. The Macquarie Dictionary Online.
30. See The Macquarie Dictionary Online; APRA/AMCOS, Submission 247.
31. ADA and ALCC, Submission 213.
32. See examples cited in Ibid.
33. See Rogers v Koons, 960 F 2d 301 (2nd Cir, 1992), in which the US Court of Appeals found Koons liable for copyright infringement.
34. Screenrights, Submission 215. See also, SPAA, Submission 281.
35. Law Council of Australia, Submission 263.
36. Combined Newspapers and Magazines Copyright Committee, Submission 238.
37. Arts Law Centre of Australia, Submission 171.
38. Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011), 2.
39. K Bowrey, Submission 94.
40. Australian Broadcasting Corporation, Submission 210.
41. NSW Young Lawyers, Submission 195.
42. AFL, Submission 232.
43. Foxtel, Submission 245.
44. Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [7.103].
45. APRA/AMCOS, Submission 247.
46. P Leval, ‗Toward a Fair Use Standard‘ (1989–1990) 103 Harvard Law Review 1105, 1111.
47. N Weinstock Netanel, ‗Making Sense of Fair Use‘ (2011) 15 Lewis and Clark Law Review 715, 746.
48. Campbell v Acuff-Rose Music Inc (1994) 510 US 569, 579 (citations omitted).
49. N Weinstock Netanel, ‗Making Sense of Fair Use‘ (2011) 15 Lewis and Clark Law Review 715, 768.
50. Ginsburg and R Gorman, Copyright Law (2012), 187.
51. W Patry, Patry on Fair Use (2012), 115.
52. P Samuelson, ‗Unbundling Fair Uses‘ (2009) 77 Fordham Law Review 2537, 2544; P Aufderheide and P Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (2011), Kindle locations 553–555.
53. P Samuelson, ‗Unbundling Fair Uses‘ (2009) 77 Fordham Law Review 2537, 2548–2549.
54. In Australia, some such uses may be covered by the fair dealing exceptions, eg, fair dealing for criticism or review: Copyright Act 1968 (Cth) s 41.
55. In Australia, some such uses may be covered by the fair dealing for reporting news and judicial proceedings exceptions: Ibid s 42, 43.
56. J Ginsburg and R Gorman, Copyright Law (2012), 187.
57. The Authors Guild Inc v HathiTrust, WL 4808939 (SDNY, 2012).
59. Perfect 10, Inc v Amazon.com, Inc, 508 F 3d 1146 (9th Cir, 2007).
60. Ibid, .
61. Ibid, .
62. APRA/AMCOS, Submission 247.
67. John Wiley & Sons, Submission 239.
68. APRA/AMCOS, Submission 247.
69. Arts Law Centre of Australia, Submission 171.
70. Copyright Agency/Viscopy, Submission 249.
71. Australian Copyright Council, Submission 219.
73. APRA/AMCOS, Submission 247.
74. Internet Industry Association, Submission 253; Universities Australia, Submission 246; Pirate Party Australia, Submission 223; Google, Submission 217; N Suzor, Submission 172; K Bowrey, Submission 94.
75. N Suzor, Submission 172.
76. Internet Industry Association, Submission 253.
77. Google, Submission 217.
78. Copyright Act 1985 (Can) s 29.21(1)(d).
79. For example, EFA, Submission 258; R Burrell and others, Submission 278; Universities Australia, Submission 246; Copyright Advisory Group—Schools, Submission 231; Google, Submission 217; ADA and ALCC, Submission 213; ACCAN, Submission 194; M Rimmer, Submission 163; R Xavier, Submission 146.
80. Google, Submission 217.
81. Copyright Advisory Group—Schools, Submission 231.
82. ACCAN, Submission 194.
83. ADA and ALCC, Submission 213.
84. R Xavier, Submission 146.
86. Pit Bull – Go Girl http://www.youtube.com/watch?v=469cXOUk0Ig Versus: Milkman – All About It http://www.youtube.com/watch?v=50PFzoUfVxI The Milman example does seem to show that a Mash-Up could be worthy of fair use protection under certain circumstances. As a result, the Bridgeport decision, which deems all sampling to be copyright infringement regardless of the particular use, seems to be going too far.
87. DJ Earworm – United State of Pop 2012 (Shine Brighter) www.youtube.com/watch?v=6q0dsG8fTHY Girl Talk – Oh No www.youtube.com/watch?v=4bMM7tGV9MI Pop Danthology 2012 Music and video mashed-up by Daniel Kim www.youtube.com/watch?v=If5MF4wm1T8
88. Appendix 2 http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf
89. This document also refers to the terms ―Mash-Ups or ―samplings as inclusive
90. KEMBREW MCLEOD & PETER DICOLA, CREATIVE LICENSE: THE LAW AND CULTURE OF DIGITAL SAMPLING (2011); LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY (2009) (arguing that the health, progress, and wealth creation of a culture are tied to a participatory remix process); Lawrence Lessing, Freeing Culture for Remix, ,2004 UTAH L. REV. 961 (2004); Electronic Frontier Foundation, Fair use: Remix Mash-ups, and Copyright, available at http://www.teachingcopyright. org/curriculum/hs/3.
91. The Grey Album by Danger Mouse mixes Jay Z‘s Black Album with the Beatles White Album.
The remix itself, assuming a modicum of creativity, should qualify as a derivative work protected by copyright law, but the copyright will not extend to any part in which the preexisting material is used unlawfully. 17 U.S.C. § 103(a).
93. Whether, and to what extent, a new use is transformative ―is not absolutely necessary for a finding of fair use, but ―the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. , 510 U.S. 569, 579 (1994). Ultimately, ―the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
94. 147 ,Cariou v. Prince 714 F. 3d 694 (2d Cir. 2013); Blanch v. Koons , 467 F.3d 244, 251-59 (S.D.N.Y. 2006); Bill Graham Archives v. Dorling Kindersley Ltd., , 448 F.3d 605, 608-615 (2d Cir. 2006); Rigers v. Koons, 960 F.2d 301, 310 (2d Cir.1992), cert denied, 506 U.S. 934 (1992).
95. Appendix 6 On Appropriation Cariou v Prince http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2033&context=btlj
96. 17 U.S.C. § 107 (2012).
97. Campbell, 510 U.S. at 579 (―[T]he goal of copyright, to promote the sciences and the arts, is generally furthered by the creation of transformative works.).
98. See 17 U.S.C. § 107(1) (2012).
99. The term ― transformative was first used in the context of fair use by Judge Pierre Laval in Toward a Fair Use Standard , 103 Harv. L. Rev. 1105 (1990).
100. 4 MELVILLE B. NIMMER & DAVID NIMMER , NIMMER ON COPYRIGHT § 13.05[A][b] (2013).
101 Neil Netanel, Making Sense of Fair Use , 15 LEWIS & CLARK L. REV . 715 734 (2011); see also Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 , 156 U. PENN . L. REV . 549, 605– 06 (2008); infra note 32 and accompanying text.
102. Cariou v. Prince, 714 F.3d 694, 711 (2d Cir.), cert. denied , 134 S. Ct 618 (2013).
103. E. Kenly Ames, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation, 93 COLUM . L. REV . 1473, 1477 (1993).
104. Only a photograph exists of the original object, taken by the modern photographer Alfred Stieglitz. (Stieglitz likely disposed of the original work after he had finished.) Stieglitz’ s photograph was later exhibited in the avant-garde magazine, The Blind Man , accompanied by an anonymous manifesto reading in part, “ Whether Mr. Mutt with his own hands made the fountain or not has no importance. He CHOSE it. He took an ordinary article of life, placed it so that its useful significance disappeared under the new title and point of view— created a new thought for that object.” THE BLIND MAN , no. 2, May 1917, available at http://www.toutfait.com/issues/issue3/Collections/girst/Blindman2/5.html. Ironically, the versions reproduced decades later for placement in some of the world’ s most important public collections (including the San Francisco Museum of Modern Art, the Centre Georges Pompidou, and the Tate Modern) were carefully crafted handmade facsimiles of the original readymade. Martin Gayford, Duchamp’s Fountain: The practical joke that launched an artistic revolution, THE TELEGRAPH , Feb. 16, 2009, http://www.telegraph.co.uk/culture/art/3671180/Duchamps-Fountain-The-practical-joke-that-launched-an-artistic-revolution.html.
105. Jeff Koons, both celebrated and reviled for his work, might be one of the few artists that are equally notorious and celebrated. Koons is also of legal fame for being sued multiple times for copyright infringement. See, e.g. , Rogers v. Koons, 960 F.2d 301 (2d Cir.1992); Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).
106. NANCY SPECTOR , GLENN O’BRIEN , JOHN DOGG & JACK BANKOWSKY , RICHARD PRINCE (2007).
107. Id. at 31 (quoting Prince on his rephotography).
108. See generally id. (examining multiple instances of Prince exploring gender roles through replacement of advertising copy, as well as appropriation of iconic sex symbols such as the American cowboy).
109. See Laura Heymann, Everything is Transformative: Fair Use and Reader Response , 31 COLUM . J.L. & ARTS . 445, 449 (2008).
110. See Cariou v. Prince, 714 F.3d 694, 707 (2d Cir.), cert. denied , 134 S. Ct 618 (2013).
111. Id. at 711.
112. Golan v. Holder, 132 S. Ct. 873, 890 (2012); see NIMMER & NIMMER, supra note 9, § 13.05 (suggesting that the Court has recognized the principles of fair use as a constitutional necessity); see generally U.S. CONST. art. I, § 8, cl. 8 (securing exclusive property rights to exploit the fruits of one‘s intellectual labors).
113. See 17 U.S.C. § 102(b) (2012). The Supreme Court has noted this idea/expression dichotomy also moderates the tension between copyright protection and the First Amendment. Golan, 132 S. Ct. at 890.
114. As noted above in note 6, supra, ―science refers to the creative arts.
115. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)).
116. 17 U.S.C. § 107 (2012).
118. 510 U.S. 569 (1994).
119. Id. at 579.
120. Pierre Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990).
121. Heymann, supra note 18, at 452.
122. Beebe, supra note 10, at 605. For modified data for cases involving criticism or comment, see supra note 32.
123. Campbell , 510 U.S. at 577 (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)).
124. See 17 U.S.C. § 107.
125. See 17 U.S.C. § 106.
127. Facts and ideas are protected under §102(b). 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea . . . principle, or discovery . . .”).
128. Elder v. Ashcroft, 537 U.S. 186, 219 (2003).
129. NIMMER & NIMMER, supra note 9, at 1; see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549 (1985).
131. WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 3 (2d ed. 1995).
132. Folsom, 9 F. Cas. at 344 (“In many cases, indeed, what constitutes an infringement of a patented invention, is sufficiently clear and obvious, and stands upon broad and general agreements and differences; but, in other cases, the lines approach very near to each other, and, sometimes, become almost evanescent, or melt into each other.”).
133. Beebe, supra note 10, at 561– 64 (concluding from statistical analysis of fair use opinions from 1978 through 2005 that courts shifted from a more flexible inquiry towards a rhetorically formal treatment that roughly coincided with the Supreme Court‘ s 1985 opinion in Harper & Row , 471 U.S. 539).
135. Samuelson, supra note 29, at 2544 (noting that criticism, commentary, and news reporting are often evident in fair-use cases that implicate First Amendment principles).
136. Id. at 2546– 47. Pamela Samuelson also identifies three main policies— (1) promoting free speech and expression interests of subsequent authors and the public, (2) the ongoing progress of authorship, and (3) learning— that underpin the six purposeful uses set forth in the preamble to 17 U.S.C. § 107. Id. at 2546– 47.
137. Id. at 2540.
138. See generally Leval, supra note 29.
139. Compare Leval, supra note 29, at 1116 (― Factor One is the soul of fair use. A finding of justification under this factor seems indispensible to a fair use defense. The strength of the justification under this factor must be weighed against the remaining factors . . . . ), with Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 567 (1985) (― [The fourth] factor is undoubtedly the single most important element of fair use. ).
140. Leval, supra note 29, at 1109.
141. Id. at 1109– 1110.
142. See id. at 1111.
143. Arguably the formulation of the first factor is contradictory, as ― purpose implies authorial intent and ― character implies audience understanding. It is not clear why Congress chose to word the statute this way; needless to say, the Supreme Court and current case law have effectively dispensed with looking to the purpose of the use and instead focus the fair use analysis exclusively on the character, with the attendant problems noted in Section I.C.1. 61. Compare Leval, supra note 29, at 1111 (using the quotation as asking whether the use of the copyrighted material employs it in a different manner or for a different purpose than the original) with Folsom v. Marsh, 9 F. Cas. 342, 348 (1841) (writing that the court must look to ― the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work ).
144. Compare Leval, supra note 29, at 1111 (using the quotation as asking whether the use of the copyrighted material employs it in a different manner or for a different purpose than the original) with Folsom v. Marsh, 9 F. Cas. 342, 348 (1841) (writing that the court must look to ―the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work).
145. Leval, supra note 29, at 1124.
146. Id. at 1111.
147. Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), rev‘d , 811 F.2d 90 (2d Cir.); New Era Publ‘ ns Int‘ l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1998), aff‘d on other grounds , 873 F.2d 576 (2d Cir. 1989).
148. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
149. Id. at 305.
151. Id. at 310.
152. Id. (― It is the rule in this Circuit that . . . the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work. ).
153. Id. at 303, 310.
155. Id. at 309.
156. Id. at 305 (― Three of the four copies made were sold to collectors for a total of $367,000; the fourth or artist‘ s copy was kept by Koons. ).
157. Id. at 304. Rogers also licensed the photograph for reproduction on note cards and postcards— it was through this licensed printing that Koons encountered the work he subsequently used as material for his sculpture. Id.
158. Id. at 308 (― [H]ere, Koons used the identical expression of the idea that Rogers created. ).
159. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (internal citation omitted) (― If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities are generally conducted for profit in this country. ).
160. See id. at 580. Additionally, the focus in the opinion on issues specific to parody limited the reach of the opinion to other areas. Inherent in parody and satire is commentary, but moving beyond those specific categories, the Court touched little on what constitutes a productive use and did not address some of the other factors Leval relies upon in his formulation of transformation. See H. Brian Holland, Social Semiotics in the Fair Use Analysis , 24 HARV . J.L. & TECH . 335, 350 (2011).
161. Campbell , 510 U.S. at 593.
162. Heymann, supra note 19, at 449.
163. Campbell , 510 U.S. at 583 (noting that 2 Live Crew‘ s song ― reasonably could be perceived as commenting on the naïveté and white-bread sentimentality of Orbison‘ s original).
164. Id. at 579.
165. Id. at 591.
167. See id. at 590– 94.
168. See id. at 592– 93.
169. As neither party submitted evidence addressing the effect on the potential market for a non-parodic rap version of Orbison‘ s tune, the Court indicated this question would be filled on remand. However, before the lower court re-examined the case, the two parties settled. Id. at 594.
170. Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).
172. See id. at 256.
173. Id. at 252.
174. See id. at 255.
175. Id. at 235 (describing the use of Blanch‘s Silk Sandals image by noting the ―changes in its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the object‘s details) .
177. The Appendix to this Note contains two pairs of images. One pair is comprised of a Cariou photograph and the subsequent Prince work, Graduation , that the Second Circuit Court of Appeals was unable to determine made fair use of Cariou‘s photograph and therefore remanded to the district court. The second pair is again a Cariou photograph and the subsequent Prince work, here Prince‘s Back to the Garden . The reader is invited to make up her own mind on the extent to which each of Prince‘s works alters Cariou‘s classical portraiture photographs with ―new expression, meaning, or message , as required by the
transformative test put forth in Campbell . See Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 579 (1994).
178. Cariou v. Prince, 714 F.3d 694, 699 (2d Cir.), cert. denied , 134 S. Ct. 618 (2013).
180. Id. at 698– 99.
181. Id. at 699.
182. Id. Prince altered some of the images by drawing lozenge and primitive facemasks on some of the Rastafarians‘ faces, and drawing o ver other features with magic marker, crayons, pencil, and white acrylic paint. He obscured the faces of others with various other techniques. Affidavit of Richard Prince, Defendant, in Suppor of Motion for Summary Judgment ¶ 48, Cariou v. Prince, 714 F.3d 694 (May 14, 2010) (No. 11-1197-cv) [hereinafter Prince Aff.].
183. Cariou , 714 F.3d at 699. In sum, to create the Canal Zone series, Prince appropriated forty-one images from Cariou‘s Yes Rasta , images from two adult books published by Taschen, images from contemporary music magazines, images from anatomy books Prince had purchased, and a single image from a publication on Bob Marley. Prince Aff., supra note 98, ¶ 24. For a detailed description of Prince‘s process in creating each individual work, see id. ¶¶ 32– 61.
184. Cariou , 714 F.3d at 703.
185. Id. at 704.
189. Cariou v. Prince, 784 F. Supp. 2d 337, 342 (S.D.N.Y. 2011), rev‘d , 714 F.3d. 694 (2d Cir.), cert denied , 134 S. Ct. 618 (2013).
190. The district court went beyond the standard breakdown of the four factors in considering the propriety of Prince‘s conduct as a relevant sub -factor in determining the ―purpose of the use under the first factor. The court found Prince‘s bad faith evident under the factual circumstances that were presented and considered this to further weigh against Prince under the first factor. Id. at 351. On appeal, this conduct was not considered relevant under the proper legal standard. Cariou , 714 F.3d at 694.
191. Cariou , 784 F. Supp. 2d at 347.
193. Id. at 348.
194. Id. at 349.
197. Id. at 350.
198. 17 U.SC. § 107 (2012).
199. Cariou , 784 F. Supp. 2d at 350.
201. Id. at 351. The court discussed in some detail the specific commercial environment of Prince‘s Canal Zone show at Gagosian Gallery, including the monetary valuation of the included works, and noted that there was no evidence establishing that Prince‘s works were available for public view in advance of them being offered for sale. Id. at 350– 51.
202. See 17 U.S.C. § 107(2)– (3).
203. Cariou , 784 F. Supp. 2d at 351– 52.
204. Id. at 352. For an interesting discussion of the accuracy of this contention, see
generally Justin Hughes, The Photographer‘s Copyright—Photograph as Art, Photograph as Database ,
25 HARV . J. LAW AND TECH . 339 (2012).
205. See Cariou , 784 F. Supp. 2d at 352.
206. Id. at 352.
207. 17 U.S.C. § 107(4).
208. Cariou , 784 F. Supp. 2d at 353.
209. Id. at 353.
210. Id. at 353.
211. Id. at 353.
212. Id. at 353.
213. Id. at 354– 55.
214. Id. at 355.
215. Cariou v. Prince, 714 F.3d 694, 712 (2d Cir. 2013), cert denied , 134 S. Ct. 618 (2013).
216. See id. at 705– 06.
217. Id. at 706.
218. See id. (noting that Warhol‘ s Campbell‘ s soup can series and Marilyn Monroe portraits comment on consumer culture and celebrity).
219. Id. (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
220. See id. at 708. In addition to focusing on the differences in image, the court also discussed the physical difference in the form in which the images were presented. Cariou‘ s black and white images were printed in book form; Prince presented his works on large canvases, often incorporating color and other additional images to create his collage pieces. Id. at 706.
221. Id. at 707.
222. Id. at 706.
223. Id. at 707– 08.
224. See id. at 708.
225. Id. at 710 (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006)).
230. Id. at 708.
231. Id. (quoting Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006)).
232. Id. at 709.
233. The remaining works are titled Graduation , Meditation , Canal Zone (2008), Canal Zone (2007), and Charlie Company . Id.
234. Id. at 711 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
235. Cariou , 714 F.3d at 713 (Wallace, J., dissenting) (― I fail to see how the majority in its appellate role can ‗ confidently‘ draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination. ).
236. Id. at 712.
237. See id. at 714.
238. Id. at 713.
239. Id. at 711 (majority opinion) (internal citations omitted).
240. Id. at 710– 11. Upon remand to the district court, the parties reached a settlement and dismissed the action. The settlement provides that Prince shall own the disputed works ―free and clear of any claim by [Cariou]. . . . Stipulation of Voluntary Dismissal with Prejudice, Cariou v. Prince, 784 F. Supp. 2d 337, (S.D.N.Y. 2011), rev‘d , Cariou v. Prince, 714 F.3d. 694 (2d Cir.), cert denied , 134 S. Ct. 618 (2013) (No. 1:08-cv-11327), ECF No. 141.
241. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
242. Cariou , 714 F.3d at 708.
243. For an interesting exploration of photography and copyright, see Hughes, supra note 119.
244. Cariou, 714 F.3d at 710 (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d. Cir. 2006)).
245. Id .
246. One could also imagine a counterfactual history in which Duchamp had chosen to not sign The Fountain and simply submit the work as it was. The contextual presentation of the work in the gallery might still affect an understanding of the urinal as more than simple utilitarian object, which was arguably Duchamp‘ s exact point. See supra note 13 and accompanying text.
247. Cariou, 714 F.3d at 709 (internal citations omitted).
248. Id. For the curious, the guest list included, among others, musicians Jay– Z and Beyonce Knowles, artists Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen, Vanity Fair editor Graydon Carter, Vogue editor Anna Wintour, authors Jonathan Franzen and Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt. Id.
250. Bifurcating or, more accurately, stratifying a market into segments based on the wealth of the those persons purchasing artwork in that market ignores the fact that those purchasing Prince‘ s works also have the means to purchase Cariou‘ s work. Although a cursory appropriation of income distribution models indicates that Cariou‘ s customers are likely unable to possess the means, assuming there exists a desire, to purchase Prince‘ s work, there is no resulting implication that the markets are distinct.
251. Cariou, 714 F.3d at 709 (emphasis added).
252. This is simply the contrapositive to the idea that ― the more transformative the secondary use, the less likelihood that the secondary use substitutes for the original. Id.
253. See Ty, Inc. v. Publ‘ ns Int‘ l Ltd., 292 F.3d 512, 518 (7th Cir. 2002).
254. See id. at 522 (― Factor (4) at least glances at the distinction we noted earlier between substitute and complementary copying, since the later does not impair the potential market or value of the copyrighted work . . . . ).
255. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).
256. Beebe, supra note 10, at 617.
257. Leval, supra note 29, at 1116.
258. See id. at 1124.
259. Id. (―The fact that the secondary use does not harm the market for the original gives no assurance that the secondary use was justified.).
260. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
261. Beebe, supra note 10, at 616– 17 (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985)).
262. See Campbell , 510 U.S. at 578.
263. Beebe, supra note 10, at 617.
264. See Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors , 82 COLUM . L. REV . 1600, 1610 (1982). A public good contains two general defining traits: first, supply is effectively inexhaustible; and second, persons cannot readily be excluded from use of the good. Id. at 1610– 11.
265. See id. at 1611.
266. See generally id. ; William M. Landes, Copyright, Borrowed Images and Appropriation Art: An Economic Approach , 9 GEO . MASON L. REV . 1 (2000– 2001); Richard Posner, When Is Parody Fair Use? , 21 J. LEGAL STUD . 67 (1997); William Landes & Richard Posner, An Economic Analysis of Copyright Law , 18 J. LEGAL STUD . 325 (1989).
267. See Landes, supra note 182, at 10.
268. Id .
269. See id .
271. The Campbell Court defined both parody and satire. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). But see Archer Vice: Southbound and Down (FX television broadcast Feb. 24, 2014) (arguing that ― nobody really knows what satire is).
272. See Landes, supra note 182, at 10.
273. See Campbell , 510 U.S. at 590– 93; Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 568 (1985) (― Th[e fourth factor] inquiry must take account not only of harm to the original but also of harm to the market for derivative works. ).
274. Campbell , 510 U.S. at 590– 93.
275. This differentiates between full substitute works, which, by being identical to the original work, will infringe and partial substitute works, which are more likely to be transformative.
276. For a real-world example of the issues in determining licensing harm, consider the suit brought by French photographer Henri Dauman against Andy Warhol‘ s estate for allegedly infringing a photograph of Jackie Kennedy that first appeared in Life Magazine in 1963. Although Warhol had used the image as source material a few months after her husband‘ s assassination in November 1963, Dauman only became aware of the use in the mid-1990s, when one of Warhol‘ s Jackie works sold at Sotheby‘ s for $418,000. Although the case settled before a judicial ruling, Dauman‘ s complaint asked for a finding of copyright
liability and for damages. Dauman v. Andy Warhol Found. for Visual Arts, Inc., No. 96 CIV.9219, 1997 WL 337488, at *1 (S.D.N.Y. June 19, 1997). This elicits two questions. First, is the value of the license determined at the moment of infringement, or at post-sale of the work? If the former, then any loss of licensing revenue to Dauman would likely have been extremely minimal, as, although Warhol‘ s works sell for millions today, in 1964 they were of little value. If the license value is determined upon sale of the work, then we are effectively punishing an artist for creating a secondary work that the public believes to exist independently from the original work.
277. SeeLandes, supra note 182, at 11.
278. See Heymann, supra note 19, at 449.
279. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
280. See SPECTOR ET AL ., supra note 15.
281. See William W. Fisher III, Frank Cost, Shepard Fairey, Meir Feder, Edwin Fountain, Geoffrey Stewart
& Marita Sturken, Reflections on the Hope Poster Case , 25 HARV . J.L.& TECH . 243 (2012).
282. It is difficult to believe that a person walking into the show would find Koons‘ s piece to have developed a similar meaning to Art Rogers‘ s photograph. Simply the name of the show would likely give some indication that Koons was commenting on the banality of Rogers‘ s puppy photograph.
283. For example, Koons‘ s Banality show at Sonnabend Gallery.
284. For example, Banksy‘s street art.
285. One notable example of a work adopting divergent meanings in different contexts is Shepard Fairey‘ s Hope poster. Adopting an image from an Associated Press (―AP) photographer, Fairey cropped the image, made color and other adjustments to the image, and eventually ended up with the iconic image that spread across the country in 2008. Its lasting impact on culture will be its influence as a political poster, but within that context it resonates deeply with cultural interaction with the political. The poster draws upon various sources of inspiration— including Soviet agitprop political posters, Warhol‘ s pop-art
exploration of celebrity, traditional notions of photographic dignified power, and 1980s populist street art— to create a singular image that harmonized these disparate meanings. The contextual presentation of the poster can highlight one or more of these influences, allowing the viewer to ascribe his own thoughts into the meaning, and transforming the piece accordingly. This can also be examined in the subsequent adoption of the image into a textual reference for numerous other images— positive and negative, sincere and ironic— all of them referencing Fairey‘ s poster and not the underlying AP image. For a comprehensive treatment of the poster and the litigation surrounding it see Fisher et al., supra note 198.
286. For an example, consider the case of The Education of Little Tree , discussed in Heymann, supra note 19, at 459.
287. See Cariou v. Prince, 714 F.3d 694, 707 (2d Cir.), cert. denied , 134 S. Ct 618 (2013) (― Rather than confining our inquiry to Prince‘ s explanations of his artworks, we instead examine how the artworks may reasonably be perceived in order to address their transformative nature. The focus of our infringement analysis is primarily in the Prince artworks themselves . . . . ).
288. Consider the case of Damien Hirst‘ s The Physical Impossibility of Death in the Mind of Someone Living . Ostensibly nothing more than a shark submerged in formaldehyde, in 2004 the piece sold for $12 million. To understand the sale price, it is instructive to examine what differentiated Hirst‘ s work from any other shark submerged in formaldehyde. Hirst‘ s shark was not the first: in 1989, two years prior to Hirst creating Physical Impossibility , a man named Eddie Saunders displayed a shark on the wall of his electrical shop in London. When, in 2003, Saunders displayed his shark at the Stuckism International Gallery and advertised his shark for sale at a steep discount from the price for Hirst‘ s piece, he received no offers. Saunders displayed his piece under the title, A Dead Shark Isn‘t Art . And the market decided
that in his case, he was correct. Hirst‘ s shark was evaluated differently. Even at the genesis of the piece in 1991, Hirst already possessed a reputation as a leading figure in what would be known as the Young British Artists, having curated multiple lauded exhibitions and impressed the influential Charles Saatchi with his installation piece A Thousand Years . When Cohen purchased Hirst‘ s shark in 2005, he was buying not only a shark or the expression of Hirst‘ s idea of this single work, but also what Hirst as a brand contributed to the public‘ s valuation of the work. For more information on the creation and subsequent history of Hirst‘ s work, see DON THOMPSON , THE $12 MILLION STUFFED SHARK : THE CURIOUS CASE OF CONTEMPORARY ART (2008).
289. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 351 (1903).
291. http://policynotes.arl.org/?p=37 & http://www.librarycopyrightalliance.org/bm~doc/article-hathitrust-analysis-7jul2014.pdf
296. Cariou, 714 F3d at 706.
The First moral rights case brought before the Swiss Federal Supreme Court was decided in 1932 and involved a tort scenario.238 The plaintiff was an
architect who had entered a competition for the design of a building by submitting two separate proposals. He did not win the competition, but one of the central features of one of his proposals was ultimately incorporated into the winner‘s proposal at the request of the property owner, the defendant. The plaintiff first filed a complaint with the prosecutor alleging criminal copyright infringement, but the courts adjudicating the matter ultimately decided in favor of the defendant on the basis that the copyright in the plans had been transferred to the defendant. The plaintiff then filed a civil suit based on copyright infringement and general tort law that went up to the Federal Supreme Court. The Federal Supreme Court also ruled that the copyright had been transferred and dismissed the architect‘s copyright claim, but then the Court explained that authors have (i) a right to insist that their names are a fixed to their works and that nobody else‘s name appears on their works, and (ii) a right to object to any deformation, mutilation, or other modification of their works that is prejudicial to their honor or reputation—all based on the general rules governing the right of personality. The Court then held that while the architect did not have any cause of action based on the combination of his work with that of a third party because the final product actually improved his work, he was, nevertheless, entitled to monetary compensation for not being credited for his contribution. This case demonstrates that civil law countries can protect the author‘s interest in attribution on the basis of legal concepts that are not part of the moral rights orthodoxy. The same is true for the right of integrity. For example, Charlie Chaplin‘s right of personality was held to be violated when, without his permission, his silent movie Gold Rush was offered for public performance in an altered version that omitted a few scenes and that was accompanied by a soundtrack authored by a third party. In this case however the individual sources have been credited and the request for permission (and attribution) details has been made for each and every clip used.
A Stand-Alone”Transformative Use” Exception
While there are”other” uses such as displaying “thumbnail‘ images of copyright photographs (in search engine results) , or using digital copies of books to facilitate access for print-disabled persons , (which have been held to be fair use under US law), a range of reasons have been put forward for introducing a transformative use exception in Australia,
• a transformative use exception is needed to encourage cultural production and to legitimise current artistic practices ;
• existing exceptions are not broad enough—for example, because not all transformative use is parodic, satirical or critical ;
• a transformative use exception, properly framed, would not prejudice the legitimate interests of copyright holders .
Stakeholders observed that transformative use is an important part of creative practice, and is likely to become increasingly so in the digital environment . In the words of one stakeholder, copyright law should allow certain fair transformative uses to be freely permitted to encourage creativity and provide Australian artists with the confidence to experiment and engage with different ways of using copyright material that don‘t damage the commercial use of the original .
The Internet Industry Association observed that, in the “world of digital media, there is a wide range of content shared by millions of people, many of whom have the tools to record, edit and manipulate the content being consumed‘. It submitted that it would be “an ordinary natural development to permit non-commercial transformative uses in order to enrich the way we communicate‘ . NSW Young Lawyers considered that a transformative use exception would “potentially reflect common consumer expectations and behaviours‘ and, if carefully drafted, would “not be at odds with similar positions being explored internationally‘ .
Similarly, Google observed that, in an increasingly media-saturated age, it is more and more natural for individuals to create “Mash-Ups‘ or “remixes‘ [of] the media around them for expressive purposes. While some of these creative acts would be permitted by existing fair dealing exceptions, many would not. As a result, transformative uses of existing material may be unduly hampered .
Those opposing a transformative use exception did so for a range of reasons, including on the basis that existing exceptions and licensing adequately cover legitimate cultural and artistic practices . A transformative use exception would, it was suggested:
• create complexity and uncertainty in relation to its coverage;
• prejudice the legitimate interests of copyright holders and interfere with the existing markets for derivative works;
• conflict with the three-step test in international law ; and
• legitimise interference with the moral rights of creators ;
Many stakeholders commented on complexities and uncertainties that would be involved in framing a transformative use exception. These difficulties, and in particular, those concerning distinctions between commercial and non-commercial uses of copyright material, are what are currently shaping draft changes to international copyright law80.
Some stakeholders questioned whether there are any significant “socially beneficial‘ transformative uses of works that cannot be enabled by existing exceptions and available licensing solutions . For example, Copyright Agency/Viscopy observed that the current Australian copyright framework enables transformative uses in a number of ways, including where the use is: of part of the work, but not a substantial part; licensed; for the purposes of parody, satire, criticism, or review; for the purposes of reporting news; allowed by other exceptions or statutory licences .
The Arts Law Centre stated that, in its experience, there is no “demand within the artistic community for a greater freedom to engage in appropriation techniques‘, and artists that use appropriation techniques can operate within existing fair dealing exceptions or get permission from the rights holders .
Australian Film and TV Bodies considered that the introduction of a transformative use exception has the capacity to “disrupt legitimate markets for”mash-ups”,”collages” and other related products incorporating protected works‘. For instance, Movieclips.com is a legitimate site where consumers can use clips from popular
movies free of charge without resorting to movie piracy. In exchange for licensing film content free-of-charge, Movieclips advertises a site where consumers can rent or purchase the full length feature. It is also the case that online providers, such as YouTube, are working with the film industry to allow for authorised streaming and use of copyright material .
A number of stakeholders suggested that any transformative use exception would be likely to conflict with the “three-step test‘ under the Berne Convention and other international copyright conventions . However, the Australian Copyright Council stated that there may be “some scope for certain productive or”transformative” uses of copyright material by individuals to amount to a special case‘ under the three-step test, based on the promotion of “innovation and social discourse, rather than a practical inability to regulate such activities‘ .
Finally, concerns about the possible adverse effects on the moral rights of creators were raised by some stakeholders . The Small Press Network, for example, suggested that, if copyright law were amended to allow transformative uses, “such uses should be introduced in the context of safe harbour or take down provisions‘, so that authors (or copyright holders) would “have the option to request the take down of transformed works which breach the author‘s right to maintain the integrity of the work‘ . APRA/AMCOS anticipated more litigation involving infringement of authors‘ moral rights .
The Music Council of Australia commented that “the potential requirement for a consequential amendment of moral rights highlights the degree to which the existing rights of authors and copyright owners would have to be qualified for there to be an introduction of a general exception for transformative use‘ .
A number of law reform and other bodies in Australia and overseas have recommended changes to copyright laws that would provide broader exceptions permitting transformative use of copyright materials. These generally apply only to non-commercial use, however defined.
In Australia, the Copyright Council Expert Group recommended, in 2011, an exception for transformative use of copyright works. The Group highlighted that this exception is particularly relevant in light of the rise of user-generated content. It suggested that an exception “permitting private, non-commercial, transformative uses would preserve the balance in copyright law between interests of creators and users, and preserve public respect for the relevance and integrity of copyright law‘ .
The Group argued that such an exception would legitimise a large number of practices that are already occurring, without harming copyright owner interests —in particular, creative uses on the internet characterised as being part of a new “remix‘ culture .
The most important existing model of such an exception is in Canada, where the Copyright Modernization Act 2012 (Can) created a new exception for content generated by non-commercial users (the Canadian provision) . The Canadian provision is entitled “Non-commercial User-generated Content‘ and has also been referred to as the “UGC‘ (user-generated content) or “mash-up exception‘ , and as the “YouTube clause‘ .
The Canadian provision applies to the use, for non-commercial purposes, of a publicly available work in order to create a new work. In full, it states:
(1) It is not an infringement of copyright for an individual to use an existing work or
other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual—or, with the individual‘s authorization, a member of their household—to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source—and, if given in the source, the name of the author, performer, maker or broadcaster—of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter—or copy of it—or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
Rejecting A Stand-Alone Transformative Use Exception
In the ALRC’s view, there is no case for introducing a stand-alone transformative use exception. The reasons for rejecting a transformative use exception are that:
• transformative uses of copyright material would be better considered under a fair use exception where a range of factors can be balanced in determining whether a particular use is permitted; and
• framing such an exception presents numerous problems, notably in how to define transformative use, and in determining the extent to which commercial uses of copyright materials should be covered.
Transformative uses of copyright material would be better considered under the fair use exception, rather than under a specific exception, in determining whether copyright is infringed.
As under US fair use doctrine, some concept of transformative use can be expected to emerge from the application of the fairness factors under the ALRC’s proposed fair use exception. However, the issue should be whether a use is fair, given the extent of any interference with the interests of the copyright holder, rather than whether use falls within a narrowly drafted specific exception.
Under fair use, the extent to which a use is transformative, in view of the purpose and character of the use, and the commercial aspects of a use—that is, the effect of the use upon the potential market for, or value of, the copyright material—can be considered as part of a broader inquiry into fairness.
The ALRC does not propose that any new specific exception should be introduced, even if a fair use exception is not enacted, or that transformative use be included as an illustrative purpose in the fair use exception.
There are many difficulties in framing a stand-alone transformative use exception. These problems include how to distinguish transformative use from the making of an adaptation; and the extent to which a transformative work needs to be original or creative.
Transformative use would need to be distinguished from the making of an adaptation, which is the subject of a specific exclusive right under the Copyright Act, in the case of original literary, dramatic and musical works. An adaptation is a new and original work in its own right. Some dividing line would need to be drawn between an adaptation, which should be the subject of a licence, and a work that is transformative.
The Canadian provision requires only the creation of a ‘new work’. Such a low threshold would have a serious impact on the principle of acknowledging and respecting authorship and creation (Principle 1). On the other hand, drafting some new threshold of originality would be problematic—for example, if two works are simply pasted together without any further modification, this should not constitute a transformative work—but what else should be required? Any new standard of originality would likely be novel, in Australian law and internationally, and produce a level of uncertainty.
For example, where only part of copyright material is used, as in the case of sampling, the fact that this is incorporated in a new work will not prevent the use from being an infringement because ‘substantial part’ is assessed in relation to the copyright material used, rather than the new work in which the sample has been incorporated. Arguably, it would be a radical step to propose an exception that might mean that the substantial part requirement is to be overridden in the case of transformative use.
Limiting any transformative use exception to non-commercial purposes is problematic because the boundary between non-commercial and commercial purposes is not clear given ‘a digital environment that monetises social relations, friendships and social interactions’. In particular, a creator may create a transformative work for a non-commercial purpose, but later opt to receive payments from advertising associated with a website, and many online business models now rely on views of user-generated content to make revenue.
An exception that allows those who disseminate works created for a non-commercial purpose to profit may, in the words of one stakeholder, ‘prejudice copyright holders by withholding their ability to participate in this new area of the digital economy; whilst still allowing online social platforms, software companies and commercial users to benefit without restrictions’. Such an exception would also cut across the way rights holders currently work with internet platforms to manage copyright content uploaded by users. For example, in the case of YouTube, rights holders may choose to ‘monetize, block or track’ the use of their content.
Proposal 10–1 The Copyright Act should not provide for any new ‘transformative use’ exception. The fair use exception should be applied when determining whether a ‘transformative use’ infringes copyright.
Prior to the Supreme Court’ s decision in Campbell , Circuit Courts of Appeals referenced” transformative use” (or the doctrine under the guise of” productive use” ) in seven of forty-five cases, or 15.6 percent. Post-Campbell circuit courts referenced the doctrine in thirty-five of forty-three cases, or 81.4 percent. The ratio was similar when examining district court decisions temporally divided by Campbell— nine of ninety-two cases (9.8 percent) prior and seventy of 119 (58.9 percent) after Campbell . Beebe, supra note 10, at 604– 05.
Campbell , 510 U.S. at 579 (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984)). Barton Beebe’ s conclusion in his study of fair use opinions was similar. He found that because” 25 (or 36.8%) of the 68 post-Campbell opinions that found fair use made no reference to transformativeness and 4 explicitly found that the defendant’ s use was not transformative.” Beebe, supra note 10, at 605. However it is important to note that Beebe’ s data included a number of fair use cases that were outside the scope of uses where transformation is important. Limiting Beebe’ s data to cases in which he determined the court had characterized the Defendant’ s use as either parodic/satirical or for criticism/comment alters the results. Out of thirty total cases, only six (twenty percent) made no reference to transformation. (All six were district court opinions, and three of the six came down within the first eighteen months of Campbell .) Of the twenty-four opinions to discuss transformation, one case was unclear as to whether the use was transformative. The remaining twenty-three broke down as follows: fifteen of the seventeen that found the defendant’ s use was transformative found in favor of fair use, and six of the six that found the defendant’ s use was not transformative did not find fair use. (Beebe’ s data-driven approach can also be criticized in certain manners for how he categorized the cases. For example, he declined to categorize Blanch v. Koons as involving either comment or criticism. See id. at 623– 24 (explaining Beebe’s collection and coding process of the opinions). Data set and coding form are available at www.bartonbeebe.com.
In the context of fair use, transformative uses can be roughly divided into three main groups: parodies (see, e.g. , Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)); other transformative critiques (see, e.g. , Suntrust v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir. 2001)); and transformative adaptations (see, e.g. , Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)). Pamela Samuelson, Unbundling Fair Uses , 77 FORDHAM L. REV . 2537, 2548– 55 (2009). 35. 467 F.3d 244 (2006).
Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (noting that Koons’s adaptation differed from the original in” its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details” ); Cariou v. Prince, 714 F.3d 694, 706 (2d Cir.), cert. denied , 134 S. Ct. 618 (2013) (― Prince’ s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs.” ).
See 17 U.S.C. § 106(2) (2012). In the context of determining the”transformativeness” of a work in furtherance of the fair use inquiry, the statutory definition of what constitutes a”derivative work” can cause confusion. Section 101 defines a derivative work as one”based upon one or more preexisting works . . . in which [the original] work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Roughly differentiating between the two,”transformation” in the context of a derivative work enco mpasses works that are a shift in kind and not necessarily meaning, while”transformation” in the context of fair use indicates an alteration of something more fundamental in the essence of the original work. For more detailed exploration of the term as applied in the two inquires, see generally R. Anthony Reese, Transformativeness and the Derivative Work Right , 31 COLUM . J.L. & ARTS 467 (2008); Mary Wong,”Transformative” User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use , 11 VAND . J. ENT . & TECH . L. 1075 (2009).
The text of the statute informs that a determination of fair use”shall include” indication that the four statutory factors are non-exhaustive, and courts may adopt other forms of analysis so long as the inquest is taken in light of the overall goal of
copyright. See 17 U.S.C. § 107 (2012); see also NIMMER & NIMMER, supra note 9, § 13.05[A][b][ (noting that the factors are”illustrative and not limitative,” and that a number of”fifth factors” have popped up at times); Leval, supra note 29, at 1105 (―[A]lthough leaving open the possibilities that other factors may bear on the [fair] use] question, the statute identifies none.”).
It is also unclear whether Leval viewed these two inquires as conjunctive or disjunctive. In attempting to encompass both formulations, Leval appears to be uncertain exactly how to characterize the genesis of the creativity— whether the protection is to protect creativity already expressed or to protect creativity still to come. If the former, then the focus should be on the purpose of the use since that is the clearest expression of intended creativity; if the latter, then the focus should be on the character of the use, since that protects the ability of the audience to experience creativity and” stand on the shoulders of giants.” Arguably, this is a bit of a circular progression. He does seem to hint at the latter being dominant:” the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Leval, supra note 29, at 1110.
66.16 Appendix 0 Asserting Moral Rights.pdf
66.16 Appendix 0 Quotation exception.docx
66.16 Appendix 0 Hathi Trust.pdf
66.16 Appendix 0 Analysis of the JESUS The Movie.docx
https://www.rapidnet.com/~jbeard/bdm/Psychology/ccc/jesusfilm.htm See: Big Screen Bible Lore By John Howard Reid, a film-by-film analysis of biblical accuracy in the history of Western film.
66.16 Appendix 1 Amicus Brief of Capitol Records vs Vimeo.pdf
http://www.newmediarights.org/ & http://www.newmediarights.org/sites/newmediarights.org/files/AmicusBriefofCapitolRecordsvsVimeo.pdf
66.16 Appendix 2 USA copyright green paper.pdf
66.16 Appendix 3 False Youtube Infringements and ID Claims.docx
66.16 Appendix 4 Bill Graham v Graham Kindersley.pdf
66.16 Appendix 5 Fair Use for the Rich and Fabulous.pdf
66.16 Appendix 6 On Appropriation Cariou v Prince.pdf
66.16 Appendix 7 Folsom v Marsh Summary.docx
66.16 Appendix 8 Court of Appeal Patrick Cariou v. Richard Prince,
66.16 Appendix 9 Carou v. Prince Decision
Appendix 10 Types of use that have been found to be fair:
Criticism & Commentary A book publisher used several stills from the famous 1963 Zapruder footage of President Kennedy’s assassination for the historical book Six Seconds in Dallas. Time Inc., the owner of the footage, sued the book publisher for copyright infringement. In Time Inc. v. Bernard Geis Associates, the court ruled that the publisher’s use of the stills was “fair and reasonable,” in part because the use was based on a factual and historical news event.3
Parody An episode of the TV cartoon “Family Guy” made fun of comedian Carol Burnett’s image and signature characters from her 1960’s comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show’s use was fair, in part because the “Family Guy” episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market.4
News reporting The Washington Post newspaper used three brief quotations from Church of Scientology texts that were posted on the Internet. In Religious Technology Center v. Pagliarina, the court found the use to be fair, in part because the newspaper excerpted only a small portion of the work and the purpose was for news commentary.5
Art American artist Jeff Koons used a portion of a designer photo advertisement (a model’s legs in Gucci sandals) amongst a collection of iconic images in his painting, “Niagara.” In Blanch v. Koons, the court held that the painting’s use of the copyrighted images was a transformative fair use, in part because it commented on fashion and consumer culture.6
Scholarship and Research A biographer of author Richard Wright quoted from six of Wright’s unpublished letters and ten unpublished journal entries. In Wright v. Warner Books, Inc., the court found that the biographer’s use was fair, in part because the biographer’s purpose was to educate and inform the public, and his use constituted less than 1% of Wright’s unpublished letters. 7 A researcher at a nonprofit foundation used quotations from an unpublished, historical literary work in her academic presentation. In Sundeman v. The Seajay Society, the court ruled that the researcher’s use was fair and noted that the work was transformative and was used solely for the purpose of scholarly
Time-shifting A major electronics manufacturer developed a video tape recording device that allowed the consumer to “time-shift”—record a complete TV program in real-time and hold the show for a later viewing. Several major film studios filed a copyright infringement suit against the electronics manufacturer claiming the device could be used for copyright infringement. In 1984’s Sony v. Universal Studios (aka the Betamax case), the Supreme Court held that time-shifting with a VCR qualified as fair use. The courts noted that the private, non-commercial home taping of free television programs for later viewing was not infringing and did not hurt the market value of the copyrighted material.9
Search Engines A Google search engine turned the photos on a subscription-only website into thumbnail images for its search results. In Perfect 10 v. Amazon.com et al, the court ruled that Google’s use of thumbnail photos was “highly transformative,” since the search engine changed the image’s original purpose of entertainment and aesthetics into providing Google’s users with links to images.10
1. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L. Ed. 2d 500 .
2. MoveOn, Brave New Films v. Viacom.
3. Time Inc. v. Bernard Geis Associates.
4. Carol Burnett v. Twentieth Century Fox, 491 F.Supp.2d 962, 967, 975 (C.D.Cal. 2007).
5. Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).
6. Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).
7. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).
8. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
9. Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
10. Perfect 10 v. Amazon.com et al, 487, F.3d 701 (9th Cir 2007).
66.16 Appendix 11 ASIC Educational Institution Registration.pdf
“Audiovisual Copyright Licence Administrators Phoenix Blue Productions Pty Ltd lodges this notice in compliance with the Copyright Act Part 5(b) – Division 6 Reproducing by educational (and other) institutions and Reproduction and Communications assisting those with Print Disability. Phoenix Blue Productions Pty Ltd provides dual-language applications and applications with multi-language translations as English teaching tools for those where English is not the first language”,
——————————-CSM Recut Reframe Recycle report———————————–
Program on Information Justice
and Intellectual Property
A Future of Public Media Project, funded by the Ford Foundation
As online video burgeons, so do questions about what kinds of uses of copyrighted works are legal online. Inevitably, those questions will be settled at least as much by practice and private negotiation as by legal action. Recent discussions of filtering and monitoring practices for platform providers show the importance of identifying lawful uses, while meeting industry concern to limit unauthorized use of copyrighted material. This study showcases user practices in use of copyrighted works within their own online videos at the dawn of this process. It identifies nine common kinds of re-appropriation practices, including satire and parody, criticism, and video diaries. It shows that a substantial amount of user-generated video uses copyrighted material in ways that are eligible for fair use consideration, although no coordinated work has yet been done to understand such practices through the fair use lens.
Thus, a significant set of creative practices is potentially both legal and at risk of curtailment by currently discussed ways to control online piracy and theft of copyrighted works.
Short-form, streaming video is growing rapidly on a variety of digital platforms and being interwoven into the fabric of daily life, politics, and commerce. According to the measurement company comScore, by May 2007 nearly three-quarters of American Internet users were watching online video, averaging 2 ½ hours’ worth a month—about two short videos a day. Perhaps the most-watched online video ever, The Evolution of Dance, has been watched almost 70 million times.
Online video is a lively site of emergent popular culture. As cultural studies scholar Henry Jenkins recently noted in Convergence Culture, technological possibility is triggering a creative tsunami. Yesterday’s fan culture is now today’s popular culture, as evidenced by much-shared videos like the impassioned plea by Chris Crocker in Leave Britney Alone, or the many home-made variations on the Saturday Night Live appearance by Justin Timberlake singing “Dick in a Box” (“Box in a Box,” “Puppet Dick in a Box”)—themselves proliferating into mini-genres.
Online video has also become the latest marketing tool for large and small business enterprises. For instance, the maker of a child’s bulletproof backpack claims, in the Wall St. Journal, to have sold a thousand packs within weeks of launching his home-made YouTube video, which was his only marketing tool. Political online videos play large and sometimes decisive roles in political battles—consider the “macaca” video that derailed George Allen’s Senate campaign.
Online videos could even become vehicles for nonprofessionals to engage others in what until now has been the preserve of marketers and political consultants, as popular election sites such as 10questions.com suggest. The political importance of participatory culture has barely begun to be imagined, as legal scholar Yochai Benkler notes in Wealth of Networks.
While creative practices are nascent at this early moment in online video production, decision-makers are shaping the emergent environment with private regulation and legal actions. They are doing so largely without information about creator practices in this unprecedentedly participatory popular culture.
Online video has, like much new digital creation, drawn upon and incorporated segments of surrounding popular culture. This practice is legal if it falls within the definition of fair use, although this doctrine and its applications are not well known among new makers. Fair use, an important part of copyright law for more than 150 years, is a right to reuse copyrighted works without a license in some circumstances—most broadly, when the value to society is greater than the value to the copyright owner. This feature of the law is grounded in the purpose of copyright itself in U.S. law: to encourage the production of culture. Thus, new cultural production can be encouraged both by providing such incentives as limited ownership rights and such exemptions as fair use. The Supreme Court has made it clear that fair use reconciles the copyright system with First Amendment freedom of expression. Today, fair use is the major way that new makers can get unlicensed access to the cultural production of their own society.
The provisions of the Copyright Act codifying fair use were intentionally made nonspecific, an acknowledgement of the constantly changing state of cultural production. The statute refers to four considerations that should, at a minimum, be taken into account: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the potential market for or value of the copyrighted work. As the duration and intensity of copyright protection have expanded, courts have come to a new understanding of the importance of the doctrine. Over the last 15 years, they have placed particular emphasis on the “transformative” quality of the use. Moreover, court decisions rely on an understanding of the four “factors” referred to in the copyright statute as they are understood within the specific cultural practice in which the use occurs.
Courts analyze fair use on a case-by-case basis after the fact, but communities of cultural practice can and do make predictive judgments on a more systematic basis. Thus, each community evolves over time a shared understanding of fair use for its own practices. For instance, in more traditional, television-oriented documentary video production, where great care is typically taken to observe copyright law, the establishment of a community-designed code of practice—the Documentary Filmmakers’ Statement of Best Practice in Fair Use — has made it relatively easy to assess what uses are fair. Documentary filmmakers, who are peers with other content producers in many ways, but with particular needs motivated by the particulars of their craft, established shared principles, with limitations, to guide their choices for fair use. They identified the needs of their creative practice and protected them, while distinguishing those needs from laziness and cost-cutting. The fact that their statement has proven persuasive with lawyers, broadcasters, cablecasters, and insurers is powerful testimony to the power of interpretation of fair use by a creative community.
Fair use may be far more relevant than has previously been assumed in discussion of user-generated content, even though the community of online video makers is sprawling and protean. In some cases, these creators use copyrighted material in ways that have long been seen in filmmaking as fair use—for media critique, for example, or when copyrighted material is incorporated into a moment being documented for another purpose, or for short illustration. In other cases—in mashups, among others—video makers may quote extensively. Even extensive uses may well be legal and within fair use under certain circumstances, if analyzed within context. (It is possible to argue that since most online videos are not produced for profit, their quotations should be dealt with leniently in fair use analysis. However, most video comes to the audience’s attention on commercially supported, ad-sponsored sites, which compromises this argument.)
Although fair use is legally available to makers of new videos that use copyrighted works, they now find themselves unintentionally entangled in content providers’ longstanding concerns about piracy and theft. The Digital Millennium Copyright Act requires “takedowns,” or removals from the site, of material to which a copyright owner objects. But this resort has not proven sufficient to allay the concerns of copyright holders about the proliferation of unlicensed copyrighted works online.
In the attempt to address unauthorized copying, content providers and online video platform providers have established guidelines that articulate how platform providers can accommodate content providers’ piracy concerns through filtering of content. These provisions acknowledge but leave vague how to address or assess fair use. At the same time, nonprofit organizations led by the Electronic Frontier Foundation have asserted alternative guidelines, intended to leave room for new content creation using copyrighted works while honoring the concerns of copyright holders. These guidelines, however, do not yet have industry support. Although both sets of guidelines acknowledge and seek to protect fair use, neither attempts to define it in this new media context.
Finding out how new creators are quoting copyrighted works, for what purposes and uses, clarifies the difference between quoting for new cultural creation and simple piracy. It also clarifies the significance of the legal doctrine of fair use within the online environment.
American University’s Program on Information Justice and Intellectual Property (PIJIP) and Center for Social Media (CSM) conducted an environmental scan of online video practices between September and December 2007. Researchers used the definition of user-created content in an Organisation for Economic Co-operation and Development (OECD) study:
i) content made publicly available over the Internet
ii) which reflects a certain amount of creative effort, and
iii) which is created outside of professional routines and practices.
Researchers identified major video platforms, including YouTube, Revver, Google Video, Current, Live Video, MySpace, GodTube, Bebo, and Searchles, and manually sampled freely within them, looking for works that used copyrighted material. They viewed about 75 Web sites and thousands of Web links, searching for them using key phrases, random generation tools, and regularly updated “most popular” lists to search and sort through the massive amount of available online video. They also drew upon existing practice, benefiting from links contributed by Revver.com senior staff, who regularly search out quotations of copyrighted works and analyze them for fair use, and by the Electronic Frontier Foundation.
The researchers’ focus was on a minority of the user-generated video that they encountered. They noted the predominance of videos online that use no discernible copyrighted material. Among those that do use copyrighted material and can be identified without elaborate or software-assisted searches, many appear to be simple copying in order to make available entertaining material online—a so-called “DVR to the world” approach. Finally, however, there was a significant body of work that incorporated copyrighted works into new creations. These were the focus of the researchers’ attention and this report.
They identified hundreds of such videos between mid-October and mid-November 2007 and established inductively a set of likely purposes, described below. They then selected examples that they believed best exemplified each type of purpose for which creators quoted copyrighted works. Highlights from their searches are available in the Appendix, and a fuller list of examples is available at centerforsocialmedia.org/recutvideos.
TYPES OF USES OF COPYRIGHTED WORKS IN ONLINE VIDEOS
• Parody and satire
• Negative or critical commentary
• Positive commentary
• Quoting to trigger discussion
• Illustration or example
• Incidental use
• Personal reportage or diaries
• Archiving of vulnerable or revealing materials
• Pastiche or collage
Online video making is part of a much larger process in which the people formerly known as audiences of mass media or consumers of popular culture are asserting themselves as participants in culture-making. This is a profound shift in role, as Jenkins and many others have noted, and one that is being welcomed in many arenas, since it is creating enormous new business opportunities as well as challenges.
The makers whose work surfaced in this study demonstrated a comfortable and often, seemingly, unconsidered sense of ownership over the meanings that popular cultural performances and products created in their lives. This was expressed in the wide range as well as the sheer volume of videos quoting copyrighted works. It was also expressed in comments surrounding videos. Authors often expressed pride and pleasure in showing their work, or their discoveries, to their networks and the wider Internet viewership. Viewers’ posts, whether sentimental or raucous, also bespoke an active sense of participation in the popular culture referenced in online videos.
This is of course a result of the way culture becomes “popular.” It comes to have meanings beyond its immediate utility and is used by the people once known as consumers to express their own identities through association and transformation. Thus, it is no surprise that, in order to use and express the meanings and associations popular culture has come to have in their lives, online video creators turn to its performances and products. These copyrighted works have effectively become a part of these makers’ vocabularies.
At the same time, makers often seemed to revel in the opportunity to gain agency in the creation of popular culture by commenting on it. The mashup, a common video phenomenon in which two or more kinds of copyrighted works are mixed to create new meaning, often features an obstreperous or impudent attitude toward the copyrighted popular culture from which it draws. Mashups commonly feature improbable combinations that may provide not only pungent but funny political or social commentary. Other mashups add new value not by commenting on existing culture but by adding new, personal meaning to it. All their makers express thereby a zest for participation in culture-making.
This participatory spirit explains the transformativeness that marks so much quoted copyrighted material. Most online video makers incorporating copyrighted works (as opposed to those simply copying them) do not seek to replicate the services provided to them by mainstream media providers. They are sampling in order to comment, critique, illustrate, express. They are salvaging, rescuing, celebrating, heralding, bonding. They are expressing vital connections both to popular cultural expressions and also to others who share their passions and the meanings that they have created around those expressions.
A summary of some of the most popular kinds of uses follows, with a brief analysis of the relationship of each category to the fair use doctrine of copyright law.
Types of Purposes
Satire and Parody
One of the most common uses of copyrighted works within new ones, CSM/PIJIP researchers found, was for parody or satire. This may genuinely be one of the most common uses or simply an artifact of the fact that because of their popularity such videos easily rise to attention on video Web sites. Makers, some of them enthusiastically experimenting with digital tools that permit the altering of existing works, used this approach to poke fun at popular mainstream media, popular celebrities, and politicians. These videos were often highly rated and found in the “most popular” sections of platform Web sites; some circulate widely on e-mail. They point to a popular current phenomenon of using digital media, not only to react to, but to diminish the perceived mass-media power of mainstream media and celebrities.
Parodies and satires spoof popular mass media in ways that demonstrate makers’ power over the material. In Lord of the Rings Was Too Long, interpolated scenes rewrite a key moment in the story. In this version, the men refuse to listen to the sensible suggestions of a young woman and doom themselves to a long tortuous adventure rather than resolving the ring problem efficiently. In Twenty-four Seconds, the image of Jack Bauer, the lead character of the TV show 24, is used in a skit showing him getting arrested for drunk driving. Sometimes the parody is done to amuse by contrast. A parody of the song “Baby Got Back” is made in the video Baby Got Book, a Christian video suggesting that Bible-reading girls are sexy. In The Soprano Wars, the images of popular television and movie figures are posed on animated popsicle sticks, where they complain about their declining position as mass-media icons now that online video is rising in popularity. The video satirizes popular mass media through some of its most well-known icons.
In other cases, parodies and satires sometimes make political comments. In Bush vs. the Zombies, video of President Bush at a press conference is re-edited with added comments from a fake journalist, to make it seem as though Bush is talking about zombies instead of terrorists. Genuine press conference footage is re-edited into a parody of a press conference in order to make a political criticism of the president. In Victory in Iraq, the movie Star Wars is quoted to evoke the notion of empire, employing movie footage to satirize the administration. This movie footage is mashed up with altered video from Pres. Bush’s “mission accomplished” speech on the Iraq invasion. If Dick Cheney Was Scarface combines Cheney press conference news footage with the voice and images of the mouth of Al Pacino, in order to satirize the vice president as a criminal.
In conventional copyright law, parody is among the most common and uncontroversial examples of “transformative” fair use. It also is near the core of the fair use doctrine as an Victory in Iraq enabler of free expression. When a parodist quotes existing text, image, or music to comment upon it, this practice is really nothing more than criticism carried on by other means. Many of the mass-media spoofs researchers found for this study would easily pass a lawyer’s scrutiny as fair uses.
Negative or Critical Commentary
Also common was video quoted in critique, whether political or cultural. For instance, a DailyKos entry, Fox News: Oil and Adventure in the Arctic!, includes embedded videos in its criticism of the Fox News coverage of the melting ice caps. The blog post excoriates Fox News for its current and past coverage of global warming. A liberal blogger carefully documents how a Fox news anchor misrepresented a segment quoted from the Colbert Report by showing both segments side by side, in Fox News Edits a Democrat to Make Him Look Worse. Fred Thompson Stammers edits together segments in which the presidential candidate hesitates, implying his unreadiness for public speaking and, potentially, public office. In Coffee With Chou: First Paris Hilton Interview After Jail!, a Paris Hilton interview is woven into a video where a pet rabbit is asking questions about her promiscuity and lack of intelligence. Thus the maker provides an implicit commentary about Hilton’s celebrity-worthiness.
Another common form of critique is the mashup that quotes copyrighted works in order to create a meta-commentary. For instance, in Clint Eastwood’s “The Office,” clips from the TV show The Office and the movie Evan Almighty are used to show, in the movie preview format, what The Office would be like if it had been directed by Clint Eastwood. Thus, the maker offers a simultaneous analysis of several cultural products and demonstrates his or her mastery of their implication.
Makers also create works that make far less direct kinds of critique or commentary. In Re-Inventing Culture, a video artist mixes clips from 24 artists’ music and hundreds of images drawn from popular culture sources—such as classic films, music videos, television performances, scientific films, and advertisements—to make a comment about popular culture and its creative capacities.
In some cases, online creators commented directly on the media objects they quoted. Critique need not be overt, however. Reframing or juxtaposing content can make a powerful point by implication. Whatever the form of commentary, use of unauthorized copyrighted material for this purpose has longstanding legal recognition as fair use. A similar analysis may apply to other videos in this category that use existing media material to aim a critique elsewhere (for example, at a politician or public figure, as in Fred Thompson Stammers). Here, too, creators repurpose the borrowed clips and add significant value to them—the two characteristics that are the hallmarks of “transformativeness.”
This kind of work, including fan tributes, shows the flip side of negative or parodic impulses toward popular commercial culture, while evincing the same desire to participate, contribute, and make one’s mark upon it. Internet People is a celebration of online video creations themselves. The celebrated 7 Minute Sopranos (eventually blessed by HBO, which also hired its creator) provides a punchy, condensed version of the dark, twisted plot lines of the TV series. A Tribute to Ghostbusters assembles choice moments from the popular film, with the title song as a soundtrack. Ain’t No Other Man uses a relevant but otherwise unrelated popular song as soundtrack for a tribute to the male actors in recent movies based on Jane Austen novels. Not So Innocent: A new approach to Animaniacs also uses popular music to accompany its re-imagining of once-popular children’s cartoon characters as grown-ups (accomplished by manipulating scanned images from various copyrighted sources). The Steve Irwin Fan Tribute quotes from shows and celebrity photos of the wildlife television star, upon the occasion of his accidental death.
Unauthorized quotation of copyrighted material for celebratory purposes may be just as defensible under fair use as it has been in analog environments, depending most importantly on its transformativeness. Thus, videos offering comments motivated by fan enthusiasm, celebration, mourning, or admiration are easier to understand within traditional fair use terms than those that merely provide collections of “best of” moments, at least if those moments are intended solely for the enjoyment of those moments. One common technique presents a challenge to traditional fair use analysis—use of unrelated third-party music to accompany a video. Copyright law discourages unauthorized uses that compete with a core market of the copyright owner, and licensing of soundtrack represents such a market for music publishers. In these latter situations, fair use claims are likely to turn on the degree to which the videos can convincingly be characterized as noncommercial.
Quoting to Trigger Discussion
Many makers quoted clips from or entire segments of copyright material without altering it, but framing it within a Web site where the creators provided a commentary and solicited other comments to start a discussion. Video of a new, government-sponsored sexual abstinence public service announcement was posted on the blog Feministing, for example, within a critical discussion of federal legislation and policy. Launched with the word “Yuck,” it spurred a vigorous discussion with much condemnation of the video and one comment in support.
Many makers drew viewers by posting “worst ever” videos, promising both a laugh at ridiculous video and the chance to offer an opinion. For instance, Worst Music Video Ever quotes in full a music video that appears to come from Scandinavia, featuring bland pop music with quaint choreography. The post drew a wide range of comments. At the Swing State Project, a political blog site, a weekly open thread was titled Worst Political Ads Ever? The blogger embedded two examples of badly conceived political ads and requested readers to contribute more examples. The readers then posted dozens of additional candidates.
Under existing fair use precedents, this popular strategy (“worst” is a keyword that yields riches online) is problematic. The admittedly meager case law is marked by skepticism about how much value really was added by posting copyrighted material to electronic bulletin boards where they could be discussed by others. Some of that judicial doubt, however, was related to the fact that the postings in question were both extensive and systematic, and done without any judgment on the quoted work by the poster.
So creators who copy work occasionally to start discussion still may be able to claim that their use is transformative, and therefore fair. To do so effectively, they need a reason why it is important to post the work in question as a whole, rather than just a quotation from it. Finally, they may be able to claim that they are making a comment (much like those making positive or negative comments) by their quotation. To the extent that a posting expresses its own judgment on the material it offers for comment by others (as the work researchers found in this category typically does), the media maker’s fair use position is likely to be stronger.
Illustration or Example
The use of copyrighted material for illustration or as an example was pervasive in all kinds of videos. In some cases, quotation for illustration was at the core of the video’s meaning. Internet People, for instance, an animated montage of every major viral video that acts as tribute to online video itself, quotes many online videos (as well as animating some) to chart online video history. Evolution of Dance quotes popular music from a succession of fads, matching them with dance styles of that moment. All the quoted music in Evolution is quoted as illustration of the maker’s point about the evolution of popular music over time. The 10 Most Ridiculous Things about the Beyoncé Experience quotes throughout from The Beyoncé Experience to illustrate the argument.
In other cases, images and video are used to illustrate independent arguments of some kind. For instance, one man’s rant against Oprah Winfrey’s choice of other online video makers (rather than himself or his favorites) to feature on her television show, What the Buck—to Oprah with Love, includes photographs of Oprah, other celebrities, and related images captured from YouTube to illustrate his remarks.
One of the contributions of the Documentary Filmmakers’ Statement of Best Practices is its assertion that, in appropriate circumstances, “quoting copyrighted works of popular culture to illustrate an argument or point” can be fair use. Since 2005, this general proposition has been borne out in court. Documentary filmmakers also noted that illustrations should be no longer or more ample than is necessary to make the point, that wherever possible attribution be given, and that examples where possible be drawn from a range of different sources. The same considerations should be relevant in online video.
Copyrighted material sometimes appears in online videos that record something else—for instance, Let’s Go Crazy #1, a video of an18-month-old child dancing to Prince’s song “Let’s Go Crazy.” (This video became the subject of a takedown notice and then a counter-lawsuit.) Another example of incidental quoting is Fat Cat watching TV SITTING on the couch. A fat cat sits like a person on a couch and watches television; the viewer can hear the soundtrack to several commercials. The online environment abounds with the incidental use of the copyrighted song “Happy Birthday,” as families celebrate the occasion (for instance, “My Birthday Party/Moonbounce”). Sometimes copyrighted material is deliberately quoted in order to make another point. For instance, in Loud Neighbors, a disgruntled apartment dweller grimly records the music emanating from her upstairs neighbors’ apartment, commenting, “The people above me are CLUELESS!”.
For such uses, once again the Documentary Filmmakers’ Statement has clarified acceptable fair use. Documentary filmmakers asserted that “capturing copyrighted media content in the process of filming something else” can be fair use—something that long as been clear to copyright specialists but seems to have been disputed among practitioners. Documentarians stipulated that the quoted material should not have been prearranged by the film’s director, and they also expected attribution. To the extent that online makers who include incidental copyrighted material are working within the framework established by the documentary filmmakers, the resulting videos would be strong candidates for fair use.
Personal Reportage or Diaries
One common use of online video is sharing the record of an event in which the maker participated in some way. Typically, such a video provides value, not as evidence of the event as such, but as a reflection of its meaning for the individual maker—a part, so to speak, of his or her video scrapbook. For instance, in Me on Stage with U2…AGAIN!!, the maker proudly shows how Bono pulled him onstage and allowed him to play piano with the band. I Was on “American Idol” is a plea for viewers to vote for the maker’s friend; the maker was in the audience when his friend was—as we see in clips from the TV show—a contestant. Me and Madonna is the record of a fan’s encounter with Madonna, in which he testified to her importance in shaping his identity.
Videos in this category share the characteristic that they are not primarily about whatever material they quote. Instead, they are concerned with the personal experiences of the maker. They use copyrighted content to set the scene or establish the context for those experiences. As a result, many such uses of copyrighted material can be seen as transformative. This would, obviously, not be true of a video that is nothing more than a passive and uninflected record of a cultural event that the maker merely attended.
Archiving of Vulnerable or Revealing Materials
In some cases makers clip out sections of or reproduce entire works in online video as an act of rescue, because the makers believe that unavailability of this material is effectively an act of censorship or is simply wrong. For instance, most of British journalist Adam Curtis’s documentary The Power of Nightmares, which otherwise has been unavailable in the United States, has been uploaded in a variety of places (a practice Curtis has encouraged with this and other work of his, including The Trap). The documentary, which draws connections between the rise of neoliberals in the United States and Muslim extremists worldwide, was originally shown on the BBC after an internal controversy. It has been taken up as a cause célèbre by some critics of U.S. and British geopolitics around the Iraq war. Similarly, after journalists criticized comedian Stephen Colbert’s performance at the White House Correspondents’ Dinner, copies of segments of C-SPAN’s video coverage of the performance appeared in many places online. Many people posted clips of performer Kanye West’s post-Katrina indictment of George Bush, after his accusation that “George Bush doesn’t care about black people” became news. In other cases, people post material that is revealing or scandalous in some way. For instance, Bush Gives the Finger circulates feed video of Pres. Bush making a crude hand gesture to the camera before a television appearance.
Often media material is endangered precisely because no copyright owner cares enough to bother about it. In such instances, a copyright challenge to the sort of guerrilla archiving that occurs online is unlikely as a practical matter. Online archivists may in some cases be able to invoke the public interest in cultural progress against the strong rights of copyright holders. In general, online archivists are exposing the grey zone that analog archivists have been in for some time. Conventional archiving has occurred mainly beneath the radar of copyright, going unnoticed or unchallenged by copyright owners—although archivists often do not know how much access they can provide to such materials. In the online setting, because of its greater susceptibility to linking and copying, copyright owners could choose to press the issue of whether simple copying of material can sometimes nonetheless be transformative fair use.
Pastiche or Collage
Much contemporary pastiche is “blank parody,” largely devoid of critical bite. Thus, online media makers often imitate or reproduce and remix material in their videos without any clear intent to comment on the original. Instead, they express their own identities by advertising their frames of cultural reference and affinity.
One common use of copyrighted material in online video is as soundtrack to personal performance of some kind. For instance, in Me singing “Unwritten” by Natasha Bedingfield, a young woman uninhibitedly sings a copyrighted song to display her own singing talent, apparently for an online audition. (The woman has since been offered a recording contract.) In enC-girls – dance on pussycat dolZ – Dont cha, the Pussycat Dolls song “Don’t Cha” appears to have been selected as the song to which a nine-year-old girl dances, perhaps for family and friends or perhaps to attract talent scouts. The music is popular with pre-teens and thus may have been chosen because it had meaning to her; it may also have been chosen simply with an eye to show off her talents. Daft Hands entertainingly uses finger gestures (with words written on the fingers) to accompany the song “Harder, Better, Faster, Stronger.” This video showcases the skill of the performer while making positive reference to the song itself.
In some fan videos, entire songs are used as soundtracks to evoke the viewer’s relationship with the material. For instance, in Apple Commercial, images of an Apple iTouch are mixed with a song to make a fan pastiche, which was posted on YouTube. (Apple discovered it and liked it so much that the company purchased it from the creator.) A tribute to characters in the TV show The Office is accompanied by the tune “The Very Thought of You.” In some mashups, music and sound effects are freely quoted in order to create or enhance meaning. For instance in one of the most widely viewed online mashups, the 5-second Dramatic Chipmunk video of a prairie dog (itself copied out of a children’s television program) is accompanied by horror movie music to create an audio-visual joke. The maker Buffalax has made more than a dozen videos based on foreign programs or advertisements (including Crazy Indian Video… Buffalaxed!), typically using English subtitles with often scatological lyrics that sound like the original language.
These quotations may then multiply, as a video becomes an online meme. When Chris Crocker posted his tearful reaction to the backlash against Britney Spears, it inspired hundreds of YouTube videos reworking his presentation. Dramatic Chipmunk (a.k.a. Dramatic Prairie Dog) has also inspired hundreds of isomorphic variations. One Web site dedicated to hosting the different versions (dramaticprairiedog.com/category/dramatic-prairie-dog-videos) contains 92 versions. The song “Chocolate Rain” was mimicked in dozens of videos, featuring other Internet stars, such as Chad Vader.
Storytellers often add sound effects, soundtrack elements, or both to enhance their performances. An example is an advice segment on enjoying Halloween, Hollow’s Eve, by the widely viewed youthful videographer DaxFlame.
There cannot be a “one size fits all” approach to fair use analysis of videos in this category. Some collage or pastiche videos may imply critique of the quoted material. Other rationales for fair use may apply as well, depending on the video. Pastiche and collage videos that cleverly recombine existing elements to produce new meaning will be defensible even if their approach to preexisting material is respectful rather than transgressive. On the other hand, extensive quotation that does little or nothing to reframe quoted material is certainly vulnerable to copyright infringement claims—unless it can be justified on the grounds that it is strictly private and noncommercial.
The culture that is emerging can be channeled, encouraged, even deformed, but it cannot be cut off. The people formerly known as the audience are not returning to their previous state. Tomorrow’s makers will continue to use the popular culture they interact with as raw material for their own work.
Certain online video uses of copyrighted works can be assessed according to conventional fair use doctrine as it applies to criticism and commentary. This is so despite the fact that many videos that incorporate copyrighted work range far from conventional media critiques. Some are the enthusiastic, adulatory work of fans, who have traditionally had a contentious relationship with mainstream media critics. Some embed their criticism or comment within a new work that materially builds on the work commented upon. Some comments are little more than a gesture—a verbal equivalent of finger pointing (“Yuck”). In this new environment, many creators add meaning without bringing the copyrighted material itself under critical scrutiny, but instead by quoting selectively and purposively from the preexisting work. Some of these practices also fit comfortably into the evolving pattern of fair use jurisprudence. By contrast, other video makers appropriate material wholesale and without context or comment, in ways that clearly are not fair use. In all these cases, informed judgment on fair use, following established precedent, should be relatively straightforward.
Many times, however, for instance within the category that our researchers called “pastiche or collage,” creators are developing practices that are at or near the boundaries of contemporary fair use analysis. Traditional fair use analysis would neither definitively exclude nor include them—at least until there is a better understanding of motive, context, circulation, and use of the new works. Since fair use doctrine evolves with creative practice, these borderline cases provide important areas for future research and analysis.
It is important to clarify the application of fair use to online video making if this new medium is to continue contributing to our collective social and cultural life. As always, it will be important to keep the doctrine’s flexibility while doing so, so that clarifications do not become rigid limits on future cultural expression. We suggest three interlocked activities:
• This report’s typology can act as a springboard for a wider discussion of ways to understand creators’ behaviors within a fair use analysis, both by creators and by corporate representatives concerned with regulating creators’ behavior. The discussion itself, propelled among other places at the Center for Social Media’s fair use blog (centerforsocialmedia.org/blogs/fair_use), will inform future work.
• In addition, a survey of social scientific and participant-observation research of online user practices, as well as further interview-based research with creators (such as previous work by these authors has modeled on a small scale ) will inform next steps.
• Finally, a code of best practices around fair use in online video needs to be articulated, both to educate new makers and to provide guidance for regulators private and public. Some creative communities have been able to establish best practices in fair use themselves. By contrast with filmmakers, musicians, or teachers, however, online media makers do not represent a mature, bounded community of practice. Thus, online video creators cannot develop a community consensus on fair use—at least not in these early days of the practice. Nor are corporations struggling with the challenge of maintaining and creating business models motivated to investigate fair use implications of today’s anarchic practices. Legislative intervention to re-tailor the delicate fabric of fair use could do more harm than good. And yet guidance on fair use, both for makers and for businesses, is a critical tool to nurture expression within law.
In these circumstances, a deliberative body, made up of practicing lawyers, legal scholars, and scholars in communications, sociology and related fields may be able to provide needed guidance. They would be tasked to provide best practices on fair use, grounded in law and precedent but also supportive of emerging free-speech practices. This “blue ribbon” group’s recommendations could then help to shape regulatory practices, both private and public, for a participatory media era.
The effervescence of this moment at the dawn of participatory media should not be mistaken for triviality. The practices of today’s online creators are harbingers of a far more interactive media era. Today’s makers—feckless, impudent, brash, and extravagant as they often are—in fact are the pioneers of an emerging media economy and society. Recognition of the importance of fair use, within the copyright law toolkit for cultural creation, is both prudent and forward-looking for those concerned with maintaining an open society.
1.NYU Press, 2006.
2.Yale University Press, 2006.
3.Peter Jaszi, “Copyright, Fair Use and Motion Pictures,” 2007 Utah L. Rev. 715.
5.Pat Aufderheide and Peter Jaszi, “Fair Use and Best Practices: Surprising Success,” IP Today, October 2007, available at http://wwwcenterforsocialmedia.org/files/pdf/IPTodaySuccess.pdf.
8.The research team was coordinated by Center for Social Media fellow Neil Sieling, and included Ashley Gordon, Alison Hanold, Colleen Mulcrone, and Winn Phillips. The research forms part of the PIJIP-CSM joint project, Copyright and Fair Use in Participatory Media. It follows PIJIP and CSM’s April 2007 convening Unauthorized: The Copyright Conundrum in Participatory Video (centerforsocialmedia.org/resources/publications/unauthorized/) and builds on the two organizations’ success in coordinating best practices for fair use by documentary filmmakers (centerforsocialmedia.org/fairuse).
9.Participative Web: User-Created Content, Organisation for Economic Co-operation and Development, April, 2007 (oecd.org/documentprint/0,3455,en_21571361_38620013_39428648_1_1_1_1,00.html )
11.Especially L.A.Times v. Free Republic, 54 U.S.P.Q.2D (BNA) 1453 (CD Cal. 2000).
12.A prime example is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir.), involving the unauthorized reproduction of concert posters in a book about the career of the Grateful Dead.
13.The term is from Frederic Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism (Durham: Duke UP, 1991).
14.Pat Aufderheide and Peter Jaszi, The Good, the Bad and the Confusing: User-generated Video Creators on Copyright, Center for Social Media, April 2007, 20 pp.
RESEARCHERS TOP FIVES
Parody and satire
Baby Got Book
Bush vs. the Zombies
George Bush Don’t Like Black People
The Soprano Wars
Victory in Iraq
Negative or critical commentary
Fred Thompson Stammers
Fox News Edits a Democrat to Make Him
Clint Eastwood’s “The Office”
Coffee with Chou: First Paris Hilton
Interview After Jail!
7 Minute Sopranos
Steve Irwin Fan Tribute
Ain’t No Other Man
Not So Innocent: A new approach to
Quoting in order to start a discussion
Abstinence PSA on Feministing
She Wants It
Open Thread Ron Paul on the War in Iraq
Worst Political Ads
Worst Music Video Ever
Illustration or example
Evolution of Dance
What the Buck? To Oprah – With Love
The 10 Most Ridiculous Things About the
Britney Is Bald
Prisoners Dance to Thriller
Let’s Go Crazy
Fat Cat watching TV SITTING on the
My Birthday Party/Moonbounce
Me on stage with U2..AGAIN!!!
Arcade Fire – Wake Up pt. 2 – Porchester –
I Was on American Idol
Me on Letterman!
Me and Madonna
Archiving of vulnerable or revealing materials
Power of Nightmares
Stephen Colbert’s speech at the Whitehouse
Bush Doesn’t Care About Black People
Bush Gives the Finger
Pastiche or collage
Dax Flame’s Hallow’s Eve
Me Singing “Unwritten” by Natasha
Crazy Indian Video… Buffalaxed!
Links to these videos and others discussed
in the report are available at
The Program on Information Justice and Intellectual Property, led by Professor Peter Jaszi, promotes social justice in law governing information dissemination and intellectual property through research, scholarship, public events, advocacy, and provision of legal and consulting services. The program is a project of the Washington College of Law at American University in Washington, D.C.
Feel free to reproduce this report in its entirety. For excerpts and quotations, depend upon fair use.