Parody ≠ Transformative Use
I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:
Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation
So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.
Is his Case More Appealing Than his “Art”?
Let’s play … Read More»
April 3, 2013 by Rick Sanders | Category: Blawg, Blog, Online Music Series | Tags: #onlinemusicseries, consumer-technology disconnect, copyright, digital content, fair use, first sale, phonorecord problem, ReDigi, space shifting, Vernor
But is the Cake a Lie?
As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.
* I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.
I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.
Background: Is ReDigi’s Cake Just Mostly Frosting?
Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs you want … Read More»
Ed Sullivan vs. the Jersey Boys
A long time ago, about 50 years ago, in the 1960′s, there was a band from New Jersey called the Four Lovers. When they failed at a 1960 audition to be the lounge singers at a New Jersey bowling alley called the Four Seasons, they re-named the band after the bowling alley, just so they could get something out of audition. In just a few years, they were the United States’ second-most popular band after the Beach Boys. They were the sort of band my mother (who grew up pretty close by in Philadelphia) loved: handsome, blue-collar, immigrant (the members were all Italian-American), smooth, well-groomed, a rock n’ roll band that was more pop than rock.
Even if you’re in your 20′s, you have heard of their songs, and you recognize Frankie Valli’s astounding falsetto, in songs like “Big Girls Don’t Cry,” “My Eyes Adored You” and “Rag Doll.” Ironically, the Four Seasons came from tough backgrounds, but worked hard to appear clean-cut, whereas later rock bands affected the kind of street-tough backgrounds the Four Seasons tried to hide.
Even after the Beatles arrived, the Four Seasons remained immensely popular. Indeed, they were … Read More»
Part III, No. 2: Larry Gardner & the Missing 25% Copyright Ownership Interest
This really is the last part of my annotated final exam that I gave to my Vanderbilt Law copyright class last term. I decided to split the long essays into two parts because of: length issues. Feel free to start at the beginning, or return to the first long-essay topic, or even jump somewhere in between.
Anyway, here is my homage to/satire* of the Harry Potter novels, inspired partly by Rich Burlew’s Larry Gardener and the Angry Half-Orc. Only I’d never kill Harry off like that. I’ll defend books 1-3 to the end, no matter how badly mangled the Latin is, and I’ll defend the series as a whole to a lesser extent (except book 5—never book 5).
* Very post-modern, no? It’s a parody of Harry Potter, in which the parody is, in-topic, “straight,” and there’s also (1) an in-topic “parody” (well, is it really? You decide.) and (2) an in-topic “straight” rip-off of the “straight” original, which really a parody of the real original. Between you and me, I think I’d rather watch Georgina Henderson.
Lurking behind this fact … Read More»
Part II: Short Essays
Last time, I explained my philosophy informing the way I constructed the final exam I gave to my copyright class last semester at Vanderbilt University Law School (which happens to be where I went to law school), plus Part I of said exam which consisted of 12 short answers.
Here, now, is my annotated Part II, complete with my comments about how the essay topics should have been addressed.
Preliminary note: The students were presented with eight short-essay topics a week before the exam period began. Of those, I chose four, and each student chose three of those to answer. That’s why the topic numbers go 1, 2, 4, 7. So, on the one hand, the students got to prepare in detail. On the other hand, there were diminishing returns in over-preparing. I chose to do this because of the three-hour time constraint. The idea is that the students would be able to address the topics in less time if they were able to prepare for specific topics. As a side-benefit, they were also forced to prepare for a wider range of topics than could actually be crammed into a three-hour exam.*
* The idea … Read More»
Part 1: The Important Details
If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.
And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.
One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. … Read More»
When History Really Just Commercial Nostalgia?
Last week I wrote about a copyright lawsuit involving the Baltimore Ravens, and in so doing, managed also to mention the San Francisco 49ers*. They both won their respective games and will now meet in the Super Bowl. In the future, I will charge for this sort of thing.
* Because I digressed into the history of the Ravens, who kind of used to be the Cleveland Browns, who used to be in the rival All-American Football League, until it folded and the Browns were invited into the NFL, along with … the 49ers. It’s not very a very direct connection, but I never let directness or the lack thereof interfere with my discussions about professional football, which I discuss with the sort of passion reserved only for kids who were always about 20 pounds too light and a half-step too slow to have a reasonable chance at ever starting.
I also mentioned, in connection with said copyright lawsuit, that a recent decision in that lawsuit (only the latest of many) yielded not one but two separate fair-use rulings.* And that both of these rulings were worthy of inclusion in Is it Fair Use?… Read More»
There’s been some talk on this Martin Luther King day about the availability of the video of King’s immortal “I Have a Dream” Speech. The removal of the video from the Vimeo site has stirred enough outrage to launch another march on Washington. Or maybe even another SOPA-type revolt.
There is so much to talk about regarding the copyright issues in this Speech that this blog could turn into a volume in a hurry (I’ve tried not to let that happen). One of the many vexations, I think, is that we’re talking about two different pieces of material. One is the speech itself, which has been the subject of a controversial lawsuit which we’ll break down in a minute. As a result of that lawsuit, the copyright in the speech belongs to the King Estate and is administered by EMI (which has been recently bought by Sony/ATV, but who can keep up?) The other is the CBS video.*** Both are at issue when the speech is posted on YouTube or Vimeo by a third party who isn’t either EMI/Sony, CBS, or the King Estate.
***I have only read that CBS owns the copyright in the video. I haven’t … Read More»
A Case that Just Keeps Giving to Copyright Lawyers
It’s been a long time since our last edition of the fast-paced game that’s sweeping the nation, Is It Fair Use? Yes, I’ve been busy, but the real reason is that there just haven’t been any really fun fair use cases in a while. It may turn out that 2011 was just a banner year for fair use cases, what with Elf off the Shelf (twice), Green Day’s screaming icon and the Rasta-rip-off case. And who could possibly forget the “What What in the Butt”/South Park case, which piled weirdness upon weirdness? 2012? Eh, not so much.
Bouchat v. Baltimore Ravens is one of the most vigorously litigated copyright cases of all time. No fewer than seven published opinions have emanated from the case, including three published appellate opinions. I was a little surprised and delighted to find that it’s still going strong. What’s better is the most recent opinion involves not one but two issues of fair use, which went different ways. The opinion (which I’m not linking to now) provides handy insight into the sticky question of what is fair use.
September 19, 2012 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, DMCA, economic theory, fair use, free speech, Google, internet, market dynamics, safe-harbor, secondary liability
Heh, He Said “Dicta”
Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.
So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:
Are Wieners Copyrightable?
1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.
* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them … Read More»