Court rules Harry Potter Lexicon infringed J.K. Rowling's copyright

I've been vindicated. I wrote on April 14 that I thought J.K. Rowling's claim for copyright infringement against the author of a lexicon would prevail because the case seemed materially indistinguishable from Castle Rock Entertainment Group v. Carol Publishing, Inc., in which the 2d Circuit Court of Appeals held that the compilation of a trivia book basead on the characters and events of the Seinfeld television series did not constitute fair use.

Yesterday, Judge Robert P. Patterson Jr. of Federal District Court in Manhattan wrote in his 68-page ruling blocking publication of a Harry Potter Lexicon written by Steven Jan Vander Ark that “Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling’s novels.”

These cases turn in large part on how much of the original work is merely being repackaged. In Castle Rock, the defendant had created a trivia game based on the Seinfeld series. The court held in essence that she had merely repackaged the "facts" of the series in a different way. Similarly, the Harry Potter Lexicon was merely a repackaging of material from the Harry Potter books. Apparently, the entries copied verbatim substantial parts of the book.

In the parlance of the four-part test of fair use, the infringing works in these two cases were "derivative" works. The copyright holder has exclusive rights to the derivative markets for his or her works. It is not often easy, however, to determine what is a derivative work. One could argue that any work that appropriates material from a copyrighted work is "derivative" of the copyrighted work, but plainly the derivative markets over which a copyright holder has exclusive rights cannot include the market for any appropriating work.

These cases turn, then, on two principal issues: how much is copied and how much does the work constitute original, "transformative," work rather than mere repackaging of already existing work. Thus, if one commenter to my April 14 post had been right -- that the Lexicon, as the defendants had claimed, had contained substantial amounts of commentary without substantial outright copying -- the Lexicon might have constituted fair use. As the decision now stands, however, the Lexicon seemed to be too much repackaged copying and too little independent work. Certainly, that is J.K. Rowling's view. She was quoted after the decision saying, "The proposed book took an enormous amount of my work and added virtually no original commentary of its own. ... Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them."

Appropriation

Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic Poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

Thus, copyright owners find it incredibly useful to interpret current copyright doctrine to mean that the default is that any use of an existing work infringes unless specifically excepted. The Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public. Harper & Row, 471 U.S. at 558, 105 S. Ct. at 2229 ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."). The Supreme Court has recognized that "[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public." Id. at 546, 105 S. Ct. at 2223 (quoting Sony Corp. of America v. Univ. City Studios, Inc., 464 U.S. 417, 477, 104 S. Ct. 774, 807 (1984) (Blackmun, J.,dissenting)). Without the limited monopoly, authors would have little economic incentive to create and publish their work. Therefore, by providing this incentive, the copyright law promotes the public access to new ideas and concepts.

Some legal institutions find much to recommend this interpretation. To begin with, there is ease of enforcement. Get a license or do not sample. These institutions do not see this requirement of a license as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another's work product.

This attitude has led to some remarkable lawsuits. Mike Batt is a British classical composer who put together a group called "The Planets" in 2001. Their first album was called Classical Graffiti. In it Batt included a track with one full minute of silence. He said it was a tongue-in-cheek dig at a John Cage piece called 4 minutes 33 seconds which was similarly a track of total silence, albeit somewhat longer. Batt, credited himself as well as Cage with writing the piece. There would be precious few other ways to identify who the dig was directed at. Unfortunately, Batt soon found himself on the receiving end of a lawsuit from the estate of John Cage, who had died several years previous. In the trustees' view "We do feel that the concept of a silent piece - particularly as it was credited by Mr Batt as being co-written by 'Cage' - is a valuable artistic concept in which there is a copyright."

As the term suggests, appropriation art borrows common images from advertising, the mass media and elsewhere, places them in new contexts and, thereby, aims to change the way we think about these images. Some appropriation art, such as Duchamp's use of found objects, doesn't implicate copyright at all. But when the borrowed image is copyrighted, appropriation art risks infringing the rights of the copyright owner.

But might conceptual appropriations provides new insights into the original? If so, we might think twice before legally condemning it. Still, it must be noted that the art community is itself divided on appropriation art, with some artists whose works have been appropriated viewing the appropriators as destroying art.

Nevertheless, the claim that the concept of authorship in literature is intimately related to that which operates in law is principally an historical claim that copyright law, romantic authorship and the overpowering significance of the author were ‘born together’. That is, the link established in law between an author and a work, and the romantic conceptualization of the work as the organic emanation from an individual author, emerged simultaneously at the end of the eighteenth century. The consequence of this, it is claimed, is that the literary critique of authorship threatens the intellectual foundations of copyright law. If the legal walls establishing ownership of the text were built on the same intellectual foundations as romantic authorship, and those premises turn out to be sand rather than rock, copyright will sooner or later come tumbling down.

Moreover, while parts of the arts and legal communities might believe that any unauthorized appropriation runs up against the biblical adomonition, Thou shalt not steal," without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling -- without influences great and small in other words -- there is no " creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

I realized this forcefully when one day I went looking for the John Donne passage quoted above. I know the lines, I confess, not from a college course but from the movie version of 84, Charing Cross Road with Anthony Hopkins and Anne Bancroft. I checked out 84, Charing Cross Road from the library in the hope of finding the Donne passage, but it wasn't in the book. It's alluded to in the play that was adapted from the book, but it isn't reprinted. So I rented the movie again, and there was the passage, read in voice-over by Anthony Hopkins but without attribution. Unfortunately, the line was also abridged so that, when I finally turned to the Web, I found myself searching for the line “all mankind is of one volume” instead of “all mankind is of one author, and is one volume.”

My Internet search was initially no more successful than my library search. I had thought that summoning books from the vasty deep was a matter of a few keystrokes, but when I visited the website of the Yale library, I found that most of its books don't yet exist as computer text. As a last-ditch effort I searched the seemingly more obscure phrase “every chapter must be so translated.” The passage I wanted finally came to me, as it turns out, not as part of a scholarly library collection but simply because someone who loves Donne had posted it on his homepage. The lines I sought were from Meditation 17 in Devotions upon Emergent Occasions, which happens to be the most famous thing Donne ever wrote, containing as it does the line “never send to know for whom the bell tolls; it tolls for thee.” My search had led me from a movie to a book to a play to a website and back to a book. Then again, those words may be as famous as they are only because Hemingway lifted them for his book title.

In fact, from an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated "theft", "piracy", or "bootlegging". We reserve these terms for the unauthorized taking of whole works and reselling them for one's own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else's created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new "whole". This becomes a new "original", neither reminiscent of nor competitive with any of the many "originals" it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are "borrowed" from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone's music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material's avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

In fact, compliance with copyright law results in the guarantee of copyright to the author only for a limited time, but the author never owns the work itself. This has an important impact on modern interpretation of copyright, as it emphasizes the distinction between ownership of the work, which an author does not possess, and ownership of the copyright, which an author enjoys for a limited time. In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired. "The copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious." Pierre Leval, Towards a Fair Use Standard, 105 Harv. L. Rev. 1105, 1124 (1990).

We are not, however, a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers' backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

In order to strike the balance between the copyright owner’s property interest in his creation against society’s interest in being able to use that creation, there is a swing toward the view enunciated by Judge Pierre Leval in his article “Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990). In that article, Leval wrote that in order to constitute a non-infringing fair use, an unauthorized use of copyrighted material

must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

Thus, In perhaps the most influential case current case on the legitimacy of artistic appropriation, the court made clear that “[t]he test for whether [the appropriating art] is ‘transformative,’" and therefore non-infringing, “is whether it ‘merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’"

What does all this mean? Good question. Changing material conditions will almost always require the law on which they are based to change. And if anything is clear, it is that we are in a period in which the material conditions concerning the reproduction and dissemination of art are in flux. But one thing is clear: these questions will be asked and likely answered in the not-too-distant future. Hang on.

Postscritpt: This post steals its method from Jonathan Lethem's essay, "The Ecstacy of Influence, A Plagiarism. As Open Source explains, “[n]early every word of [Lethem's] essay about cultural borrowing and reworking was stolen — er, appropriated — from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole.” So too does this post cobble together, albeit with very little of my magic, other sources in an effort to make a cohesive, if open-ended, whole. The pieces (which include, among many other sources, Lethem’s essay, Open Source’s discussion of it, and my own What is Fair Use? blog) are all indicated by the hyper-links beginning each appropriation.

Redlasso's clipping service is shut down

Hulu partners NBC and Fox have sued Redlasso, alleging that Redlasso's service that provided clips of copyrighted network programs to blogs violates the plaintiffs' copyrights in those programs. As a result, Redlasso "announced today that it has no alternative but to suspend blogger access to its video search and clipping Beta site for the immediate future." Redlasso argues that its search and clipping service is not infringing because it makes possible commenting and criticism by bloggers, uses that are fair uses. As Redlasso's press release puts it (pdf):, "The now-suspended Beta site provides bloggers with online broadcast content tools that enables them to exercise their first amendment rights to comment on newsworthy events, by searching blogger-selected TV and radio segments and creating limited duration clips for usage in blog posts."

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, argues that Redlasso's position that "it's enabling third-party users to engage in fair use" is not likely to prevail because "[f]air use doesn't provide coverage for the intermediary." Goldman bases his reasoning on UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 349 (S.D.N.Y. (2000), in which the court ruled that MP3.com was not engaged in fair use in providing online access to recordings its users already owned CDs of. The court reasoned that "although defendant recites that My.MP3.com provides a transformative 'space shift' by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation."

The services provided by MP3.com, however, were not entirely analogous to those provided by Redlasso. MP3.com's users were merely using the online recordings for precisely the same purpose as the CDs they already owned: entertainment. Redlasso, on the other hand, provides clips of copyrighted shows for bloggers who, as mentioned above, comment on and criticize those clips. As an intermediary for these legitimate, non-infringing uses, Redlasso may be more like the defendant, an internet search engine, in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2001). Arriba, the defendant, provided online thumbnails of the plaintiff's photographs that were linked to web pages containing those images (much like Google's image search does). The court held that Arriba's use was non-infringing and distinguished MP3.com:

Although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly's original images. Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the internet and their related web sites. . . .

Kelly [the plaintiff-photographer] asserts that because Arriba reproduced his exact images and added nothing to them, Arriba's use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. [citing MP3.com and Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)]. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs.

Arriba Soft, 336 F.3d at 819-820. As with Arriba, Redlasso's clips of network broadcasts are intended for a different purpose than the original broadcast. The blogs that use the clips are not doing so merely to re-broadcast the clips but, rather, to comment on them, a use that is at the core of fair use. Redlasso too is not clipping the entirety of the original programs but, instead, selected segments of them.

Then again, these segments can be used illegitimately for the same purpose as the original clips; without comment or criticism, mere posting of the clips would serve the same purpose to a viewer as wouldt viewing that segment on TV. In that sense, Redlasso is not like Arriba or Google Image Search, which only reproduce low-resolution thumbnails of copyrighted images.

All that is certain to me is that the matter is not as clear as indicated by the quotes from Professor Goldman.

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Copyrighted recordings are subject to fair use too, but too few act that way

Finally, perhaps, the RIAA and ASCAP's reign of overclaiming copyright by asserting the fee simple ownership of every last component of every last copyrighted recording and song is coming to an end.

I've never understood why recording artists tolerate a regime in which they pay to use the sample of another recording, no matter how brief. Art thrives on recognizable quotation. It would be pointless for art to quote something unrecognizable. Recognizable notes carry meaning and connotations that are the very product of their recognizability, and art depends on evoking large meanings from small pieces. Nor can anyone argue that the brief sample of one recording in another deprives the original of sales; if anything, bringing the old song back into consciousness through the effective "quotation" of one of its recognizable parts could only conceivably help sales of the original.

Then again, perhaps I do understand the toleration of the licensing system that exists for the use of prerecorded samples. They bow to the RIAA, which (mis) states that "generally speaking, the use of any part of a song requires a license." (emphasis added) Thoughtless court decisions have endorsed the RIAA's position. As previously noted on this blog, paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie's third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn't satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney's office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed."

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer's incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus, as Jonathan Lethem has written, "[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. "

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court).

Maybe, however, times are beginning to change:

Just when it seems like mashups are played out — or playing dead, thanks to litigious record labels — along comes Girl Talk (nee Gregg Gillis). For last year's album Night Ripper, the laptop mixologist used more than 250 samples from 167 artists. Raps by Ludacris rub up against a Boston riff, the Ying Yang Twins whisper over the Verve's "Bittersweet Symphony." As the album became an indie sensation, Gillis resigned himself to the inevitable cease-and-desist order. But it never materialized. "Labels are starting to realize that something like Night Ripper isn't going to hurt their artists," Gillis says. "If anything, it will promote them."

Yes, it's smart business. But business should not define the rights of artists and writers to use the resonant pieces of our culture to express their own points of view. It is absurd to repeat the oft-repeated canard that "[i]t is well established that using just a few seconds or bars of a musical composition violates the copyright in a work if the piece taken was the "hook'' or 'essence' of the original song." If the sample does not in fact evoke the original, there's no point in using the sample. It's the sample's very recognizability and its cultural resonances that make it a usefully compressed sign in the appropriating work.

If we depend on business to determine when sampling is permissible and when it is not, we'll never have samples in works the original artists don't like. If you support the teaching of intelligent design and you leave it to business to define your rights to sample music, you'll never, ever be able to use a John Lennon piece, no matter how seminal you believe it is in expressing the views you abhor. If you are Biz Markie creating a new work that rejects the sentiment and sappiness of Gilbert O'Sullivan's ouevre, you'll never be able to sample a Gilbert O'Sullivan work.

I wish I could tell Judge Kevin Duffy that "Thou shalt not steal" does not exhaust Old Testament wisdom.

The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. -- Ecclesiastes 1: 9 (KJV)

Court denies injunction against use of Imagine in film advocating for intelligent design

Last week the United States District Court for the Southern District of New York denied the request for a preliminary injunction by Yoko Ono against further showing and distribution of the movie Expelled, which, as I wrote last month, criticizes evolution, promotes the teaching of intelligent design, and in the process uses 15 seconds of John Lennon's song "Imagine."
In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. As I wrote, If the filmmakers had tried merely "to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable." The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to
to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607. Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of "Imagine" by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and "Imagine" in particular, are being misrepresented. Lennon's song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that's not a view many can find tolerable, even in the U.S. of 2008, and they'll resort to misrepresentation to support their intolerance. Today, the Wall Street Journal ran a story with the headline The Case Against John Lennon. The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is "Nothing to kill or die for" and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

"Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against 'Imagine,' Lennon's anthem to a world with 'no countries . . . nothing to kill or die for/And no religion too.' For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that's a vision that smacks too much of the professed beliefs of the ex-Beatle's near namesake, Vladimir Ilyich.'

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here's Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, where I now teach, speaking on intellligent design, evolution, and religion:

A little change can make a great transformation

Henry McKervey and Declan Long, in "Makers and Takers: Art and the Appropriation of Ideas:

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon's 24 Hour Psycho, for instance, there is in one sense very little of the artist's 'own' work (Hitchcock's classic thriller being merely re-played at a radically slowed-down pace) yet Gordon's intervention makes for a powerful, transformative artistic statement. The question of "knowing originality when you see it" is almost beside the point in cases such as this: artists' strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Artistic intent, money, etc.

What were Cauty and Drummond's intentions in their "art"? Why did they abandon a successful pop music career as "The Justified Ancients of Mu Mu" ('The JAMs'), "The Timelords", "The Kopyright Liberation Front" ('The KLF'), "The Forever Ancients Liberation Loophole ('The FALL') and found the "K Foundation"? At least one point of view is that "[w]hat Cauty and Drummond were primarily concerned with was money: money as art, art as money. The possibility of meaning beyond money. To challenge the power of money. And if none of that makes sense, maybe that was the intention." That hardly seems far-fetched to me. Drummond himself, speaking of his and Cauty's plan to burn a million pounds of cash, stated that "'We had nothing better to do with the money. Even if it's not art, it's the most important statement we can make,' said Drummond. 'We needed to express something about money and we wanted to push it through art.'"

More than one person I respect was horrified at the stunt. Think of the good that money could do in building projects to bring water to villages in Kenya without access to that most basic of human needs?

K Cera Cera may not be about money, but the question of intent certainly does relate to whether that song constitutes art or theft and, more generally, to the point I raised earlier today: are we to ground our determination of whether a work is "transformative" in the "artist's" own expressed purposes? As previously noted on this blog, "[w]hether [Jeff] Koons will be seen in time as a critical commentator in the tradition of the Dadaists and a genuine leader in the controversial tradition of the avant-garde, or merely as a fashionable purveyor of meaninglessness and banality, remains to be seen."

I simply cannot fathom the Second Circuit's reliance in these determinations on the artist's expressed intent.

And yet I feel (and may well be wrong) that Koons' Niagra and the K Foundations K Cera Cera do not constitute copyright infringements. Why? Aye, there's the rub. One point, I suppose, is that neither has any conceivable impact on any commercially valuable primary or derivative markets for the copyrighted work. K Cera Cera has not and will not stop anyone from licensing the rights to cover Q Sera Sera. Pink Martini has done their own "dark" interpretation of the song, and it remains a valuable product for licensing to this day. Moreover, the KLF's K Cera Cera is so obscure and seems intended to express such an abstruse point that I can't imagine it's devalued Que Sera Sera for licensing in a commercially valuable market for music mashups. Similarly, Niagara cannot conceivably have an impact on the value of the commercial photograph it appropriated. But is it all about economics? Surely, U.S. law doesn't give the artist such control over her creation that she can keep it from being used in ways she doesn't like merely because she doesn't like them. The First Amendment seems to preclude such "morala rights." As the Second Circuit stated in Blanch v. Koons, Copyright law must in part protect the ability of authors, artists, and the rest of us to express them or ourselves by reference to the work of others. 467 F.3d at 250. Que Sera Sera is much more than a song. It is a part of our culture and the feelings and thoughts it evokes as part of our culture are far, far larger than anything created by its composers. Why in the world would we be prevented from using it as a symbol to evoke those feelings and thoughts as long as we are not diminishing the incentive of the composers to compose the song in the first place?

So is it all about the money? That would be ironic, given that the KLF and the K Foundation are the genesis of this blog's ongoing discussion. Is it about the artist's intent? I cannot make sense of that. And who, after all, are we protecting?

Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want 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.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The non-transformative commercial use of the entirety of a creative work is an infringement even without proof of damage

In referring to non-transformative appropriations of entire creative works for commercial purposes, Judge Leval has made clear that the failure to show damage will not make the appropriation into a fair use:

Quotation of the original may substantially augment its value and yet be a clear infringement. This would occur, for example, if a famous disc jockey, without authorization, regularly used an obscure song as the theme melody of her program. The value of the copyright for the song would be greatly enhanced. But such use would unquestionably be an infringement. No serious argument can be made that fair use should be found because the value of the copyright was increased, rather than harmed.

Pierre Leval, Fair Use Rescued, 44 U.C.L.A. L. Rev. 1449, 1459 (1997)(Westlaw)

The relationship between factor 3 and factors 1 and 4

Some have suggested that even if KLF’s version of K Cera Cera (1) is a genuinely creative and original work (i.e., a “transformative work”) and (2) has no effect on the primary or derivative markets for Que Sera, Sera, the fact that it appropriates virtually all of Que Sera, Sera militates against a finding of fair use. This argument, grounded in the third first use factor – “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” – is, in essence, as follows:

K Cera Cera could have evoked the meaning it draws from Que Sera, Sera (a distinctly American naïve and fatalistic optimism expressed both in the song’s lyrics and in its identification with Doris Day’s public persona) by simply appropriating one chorus, not the entire work. Since K Cera Cera instead used virtually the entirety of Que Sera, Sera, it fails the third fair use factor and therefore cannot be fair use regardless of its originality and market impact

There quite plainly are statements by courts that the third fair use factor suggests that appropriation of copyrighted works must be limited to the amount necessary to accomplish the purpose of the appropriating work. Thus, for example, in Bill Graham Archives LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330 (S.D.N.Y. 2005), the court stated that “[t]his ‘inquiry must focus upon whether “the extent of . . . copying” is consistent with or more than necessary to further 'the purpose and character of the use.’ Castle Rock Enter. v. Carol Publishing Group, 150 F.3d 132, 144 (2d Cir. 1998), citing Campbell, 510 U.S. at 586-87, 114 S. Ct. 1164, 127 L. Ed.2d 500.”

I would suggest, however, that, once if it is conceded that K Cera Cera appropriates the heart of Que Sera, Sera, whether it quotes one verse, half the song, or the entire song is irrelevant as long as K Cera Cera is (1) genuinely transformative and (2) has no impact on Que Sera, Sera’s primary and derivative markets.

If in fact K Cera Cera is genuinely transformative and has no impact on Que Sera, Sera’s markets, it makes no difference to Que Sera, Sera’s copyright holders whether one verse or the entire song is appropriated. If it makes no difference, why should the amount matter?

I think too my view is confirmed by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994)(emphasis added), in which the Court stated:

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story's words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character *587 of the use. See Sony, supra, 464 U.S., at 449-450, 104 S.Ct., at 792-793 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row, supra, 471 U.S., at 564, 105 S.Ct., at 2232 (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir). The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123.

Finally, I know of no case holding that a work constituted an infringement based on the appropriation of too great a portion of the copyrighted material in which that appropriation did not have an impact on the markets for the copyrighted work. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), and Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987), are two examples of such cases. In both, the infringing use plainly hurt the copyrighted work’s primary market. In Harper & Row, The Nation published the chapter of President Ford’s autobiography that discussed his pardon of Richard Nixon. Since the public had by far more interest in that aspect of Ford’s life than any other, the publication hurt the sales of the autobiography. Why buy the book when the magazine gives you everything you’re interested in at a much lower price? In Salinger, a biography quoted long portions of J.D. Salinger’s letters. The infringement was not merely a result of the fact the excerpts from the letters far exceeded what was necessary to supporting the book’s biographical points. It was because there was an audience of Salinger fans so hungry for any new writing by Salinger (who had not published a word since 1965) that they would buy the book simply to read new Salinger. The biography, in short, was exploiting Salinger’s primary market for his own copyrighted works.

The implications of allowing creative appropriation art

In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)(pdf), the Second Circuit did seem to adopt a version of the reasoning in the preceding post: a work that appropriates the heart of another copyrighted work constitutes fair use as long as it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work. As previously noted on this blog, the Second Circuit concluded that Koons' painting, Niagara, passed the "transformative test" “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.” Thus, the court concluded, “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.” The court, of course, concluded Koons did have such a genuine creative rationale.

Obviously, too, the court had to conclude that Niagara had no impact on the market for the original copyrighted photo Koons had appropriated. Reaching that conclusion in Blanch v. Koons was easy; Koons' painting was directed at a market for fine art that bore little economic relationship to the market at which the original photograph was aimed -- commercial advertising. Nevertheless, it is important to remember that in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court did not actually find that 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" constituted fair use. Rather, Justice Souter required the trial court on remand to determine whether or not 2 Live Crew's song had an impact on the primary or derivative markets for Roy Orbison's song:

In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., "parody pure and simple," supra, at 22). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, 471 U.S., at 568 ; Nimmer 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they nor Acuff-Rose introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of "Oh, Pretty Woman." And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record "whatever version of the original it desires," 754 F.Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.

(citations and footnotes omitted).

In this day and age, a day and age that literally is no more than 2 to 5 years old, the implications of the Second Circuit's decision in Blanch v. Koons are potentially profound and problematic. The technological ease of ease of creating pieces of "appropriation art" and instantly disseminating them worldwide means that we will have an infinite number of creations that beg the question: do they affect the primary or derivative markets of the copyrighted works they appropriate? Could the courts (or any other institution) possibly cope with the burden of making those decisions?