Welcome to the Game We’re Calling, “Is It Fair Use?”

I’m starting a new occasional series called, “Is it Fair Use?” where I set out the facts from an actual copyright or trademark decision involving fair use, and you get to guess how the court ruled.*

*  This idea is completely ripped off from one of my absolute favorite law blogs, The TTABlog.  It’s highly specialized and wonky, but it is up-do-date, erudite, witty and consistent.

For my inaugural “Is it Fair Use?” I’m going back to a fairly old case (March of this year) that has been in the news again because its interlocutory appeal has been approved by the Second Circuit (for obscure procedural reasons, this had been in doubt).* Some of you will recognize it immediately, even though I’ll suppress some of the more recognizable facts. Don’t spoil it for the others! Even so, it’s hard to resist starting with this case because everyone thought this was an easy, slam-dunk, open-and-shut fair-use case, but no one agreed on what the easy, slam-dunk, open-and-shut ruling should have been.

* This constitutes a perfectly good reason to dredge up an old decision. Really.

The defendant is an artist.  He actually calls himself an “appropriation artist,” the idea being that he takes materials he comes across and uses them in his own works.  He testified that he doesn’t treat public-domain materials any differently from copyrighted materials.  His only criteria is whether “he likes the image.”  He came across a book of photographs taken by the plaintiff.  Like most books, it had a colophon making it clear who the copyright owners were.  He tore out pages of the book and made several collages out of them.  Some of the photographs he used in their entirety, or nearly so, but others he tore out and used just the main elements.  Many of the “borrowed” photographs were enlarged, shrunk, tinted or over-painted (e.g., he painted a guitar across one figure, making it appear that the figure was playing the guitar).  Some of the collages consisted almost entirely of elements from the plaintiff’s photograph, while others included those elements admixed with collage elements.  The artist testified that his purpose in creating the collages was to make beautiful art and pay homage to great artists of the past. He didn’t intend to comment on the photographs themselves.*

* He gets points for honesty here.

It is rather difficult to find examples of the collages in question (which, alas, gives you major hint as to how the judge ruled!).  The best I could do are here, herehere and here (NTSFW). Don’t read the articles, though; they’ll ruin the surprise (well, what’s left of it).

The defendant displayed the collages in a fancy New York gallery (which is a co-defendant), with the intent of selling them.  In fact, he sold several of them for millions of dollars.  By some terrible timing, at the same time as the defendant’s collages were being exhibited, the plaintiff was negotiating with another New York gallery for the display of his photographs, including the very photographs that plaintiff had used.  When the gallery owner got wind of the defendant’s exhibit, she pulled out of the plaintiff’s exhibit (and apparently testified under oath to this effect) because she didn’t want be seen as derivative of defendant’s show.

Plaintiff sued in the Southern District of New York.  Cross motions for summary judgment, primarily on the issue of fair use.  How did the judge rule?

In case you’re unfamiliar with the law of fair use (in copyright), courts are supposed to take into account at least the following four factors:

1.  “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”  This factor, in turn, has developed several sub-factors, the most notable of which include:

a.  Whether the use is “transformative.”  Nobody really knows what this means.  The leading test is to ask whether the new work merely “supercedes” or “supplants” the original, or whether it “adds something new, with a further prupose or different character, altering the first with new expression, meaing or message.”  Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (the notorious 2LiveCrew/”Oh, Pretty Woman” case).

b.  Whether the use is commercial in nature.  This is more straightforward than “transformative use,” but even so, there are a substantial gray areas.  What if the defendant gains an indirect, even non-monetary, benefit? What if the defendant refuses to sell his work, but the work has intrinsic value?

c.  Whether the use parodies, satirizes or otherwise comments on the original work.  The key here is that original work must be the subject of the parody, satire or commentary, not a vehicle for parodying, satirizing or commenting on something else.  Thus, mocking O.J. Simpson in the style of Dr. Seuss’ One Fish, Two Fish, Red Fish, Blue Fish does not qualify.  But courts will take a very broad view of what the original work represents for this purpose.  Thus, 2LiveCrew’s turning “Oh, Pretty Woman” into a song about prostitution was held to be a criticism of the original song’s “white-bread” sense of romance.

d.  Whether the defendant used the original in “bad faith,” which is basically supposed to measure how brazen the use was.  The problem is that this factor can become circular: if the use is ultimately determined to be a fair one, then the use was, by definition, not brazen.  Some courts appear to limit this factor to instances where the defendant obtained the original work wrongfully (a kind of “unclean hands” equitable concept).  See NXIVM Corp. V. Ross Inst., 364 F.3d 471 (2d Cir. 2004) (both the majority and concurring opinion).

2.  “The nature of the copyrighted work.”  Mainly, this inquiry measures how “creative” or “expressive”–as opposed to “factual” or “informational”–the original work is.  This factor tends to weigh against a finding of fair use, but courts will often limit its weight if it finds the plaintiff wasn’t exploiting the creative/expressive elements.  See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).  They will also limit its application in cases of parody on the theory that parody necessarily exploits the creative elements.  See Campbell, supra.  What do you think happens if the work is both “creative” and “factual,” like a documentary or (to take a completely random example) a photograph?

3.  “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  This one’s easy.  The more of the original work you use, and the more central your “borrowings” are to the original work, the less likely your use is a fair use.

4.  “The effect of the use upon the potential market for or value of the copyrighted work.”  This is a great factor because it goes to the heart of one of copyright law’s main purposes: to ensure there is enough of a market for original works to encourage further creation.  Alas, this factor also encourages a tremendous amount of speculation. It’s pretty rare where a plaintiff can show an actual reduction in revenue resulting from infringement. Not all authors fully exploit their work: how can we tell what the “potential market” is? Does licensing count? Does there need to be a pre-existing market for this kind of license?

These factors are not supposed to be weighed in any type of mechanical fashion.  Indeed, each factor and sub-factor is supposed to be assessed on a case-by-case basis.

Maybe the hardest thing about applying these factors is squaring them with this basic tenant copyright law: judges are not to pass artistic judgment on either the original work or the derivative work.  Go back over the factors.  Do you see how hard that is? A really crude parody is supposed to receive equal treatment with an insightful and clever parody.  But what if the parody is so inarticulate that it’s hard to discern the commentary? What if the parodist sincerely meant to parody the original work but was so lacking in talent that she just blew it?  Take a look at the second factor: aren’t the terms “creative” and “expressive” judgement-laden?

Have you decided yet? Wait! Before you answer, consider the Second Circuit’s decision in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), involving bad-boy artist Jeff Koons’ work Niagara.  This painting consisted of four shapely pairs of women’s legs (from the calf down) suspended over pastries and confections.  He was trying to “comment on the ways in which some of our most basic appetites–for food, play and sex–are mediated by popular images.”  Whatever that means.*  The problem was that the legs were copied from a magazine advertisement for Gucci sandals shot by the plaintiff, Andrea Blanch.  In her pictures, though, the legs were placed horizontally in the lap of an unidentified man.  The Second Circuit affirmed the trial court’s ruling that Koons’ use of Blanch’s photographs was a fair use.  In so finding, the court relied most heavily on two factors.  First, the court found that Koons’ use was “transformational” because Koons’ purpose for using the feet (social commentary?) was different from Blanch’s purpose for creating them (advertising).  Second, the court accepted Koons’ own explanation for how his borrowing was a social commentary on the type of materialism that Blanch’s advertisements allegedly promoted.  As Koons explained, he could have painted the legs out of his own imagination, but he deliberately chose to paint legs he had seen in the Gucci ads because that help make his point about mediation or whatever.  In addition, because Blanch’s photographs were used for advertising, there really wasn’t a practical market for those works beyond their initial use.

Actually, I was graduate student in English in the early 1990’s, when literary theory was king, so I know exactly what this means.  It means absolutely nothing.  Never ask an artist to explain her work.  If she could explain it in words, what’s the point of creating the art in the first place?  As Ursula LeGuin put it, in the introduction to The Left Hand of Darkness (my favorite novel by the by), “The artist deals in what cannot be said in words.  … The novelist says in words what cannot be said in words.”

OK, you’ve had enough time to ponder.  I even gave you lengthy aside to give you extra time.  What do you think?  Fair use or no fair use?  The answer is here.