This blog (as explained in greater detail below in the right-hand column) constitutes an exploration of issues related to copyright and fair use in our contemporary digital culture.The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester.
Now, however, I will now be writing on fair use and copyright on my blog Ruling Imagination: Law and Creativity. On Ruling Imagination, I write about all the ways law affects creative endeavors and also about the way creativity informs legal practice. While that scope plainly is broader than the scope of this blog, it also plainly encompasses fair use issues. Also, as any regular reader of this blog will have realized, it is impossible to understand fair use and copyright without a much broader understanding of creativity than is often brought to bear on these areas.
I hope my regular readers will join me at Ruling Imagination. In the meantime, I will keep What is Fair Use? up. I hope its approximately 250 entries will continue to be a valuable resource to anyone concerned with copyright in our times. In addition, its first two months as a classroom project will, I hope, serve as a model and inspiration for teachers everywhere to engage their students with the material with which they are working. Others seem to have thought the same thing.
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.
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."
From TMZ (h/t Snapped Shot): "Ann and Nancy Wilson are pissed at the Republican Party and have fired off a cease and desist letter to the McCain/Palin campaign. Specifically, the Heart women are upset that the GOP has used their classic "Barracuda" as a theme song for Sarah Palin."
I wonder, though, whether the Repubican Party's use of the song isn't fair use. It's political, non-profit speech. As I recall, Reagan profited mightily off of Born in the USA back in 1984 despite Bruce's mighty protestations against the use. I'm Snapped Shot's worries that the RNC might be blowing money on defending a copyright infringement suit might be misplaced.
Addendum: my memory may be failing me. Reagan, apparently, did not use Born in the USA; he only mentioned it. From CNN.com:
In the heart of his 1984 re-election campaign, Ronald Reagan made a speech in Hammonton, New Jersey, and took the opportunity to invoke the name of one of the Garden State's favorite sons.
"America's future rests in a thousand dreams inside our hearts," the president said. "It rests in the message of hope in the songs of a man so many young Americans admire: New Jersey's own Bruce Springsteen."
Reagan -- or his speechwriter -- was likely thinking of one song in particular: "Born in the U.S.A.," the title cut from Springsteen's No. 1 album of the time. . . .
But look deeper, and there was another dimension to "Born in the U.S.A." The song was the ferocious cry of an unemployed Vietnam veteran.
"Down in the shadow of the penitentiary/Out by the gas fires of the refinery/I'm 10 years burning down the road/Nowhere to run ain't got nowhere to go," Springsteen sang in a working-class howl.
The singer wasn't amused by Reagan's appropriation of his work.
"I think people have a need to feel good about the country they live in," he later told Rolling Stone. "But what's happening, I think, is that that need -- which is a good thing -- is getting manipulated and exploited. You see in the Reagan election ads on TV, you know, 'It's morning in America,' and you say, 'Well, it's not morning in Pittsburgh.' "
The singer, who spent much of 1984 on a huge concert tour, dedicated "Born in the U.S.A." to a union local at one stop.
Collage: Assembling Contemporary Art is the first authoritative survey of the history of collage from its origins through to the latest work being produced by artists today. From the traditional ‘cut and paste’ method through to digital, three-dimensional and installation work, and in the incorporation of contemporary concerns such as environment and commercialism, collage is experiencing an exciting renaissance.
Collage: Assembling Contemporary Art is the first authoritative survey of the history of collage from its origins through to the latest work being produced by artists today. Collage has a relatively short, but incredibly rich history. Dating back to the early 1900s, it first emerged in the work of artists such as Picasso,Braque and, later, the Constructivists and has since proliferated through figures like Kurt Schwitters, Max Ernst and the Surrealists, branching out into a myriad of fine art practice that encompasses assemblage, montage and décollage. The popularity of collage is on the increase again, partly as a result of such postmodernist concerns as pluralism, multiplicity and hybridity. This art form is also flourishing in other areas, ranging from the traditional `cut and paste' method through to digital and installation collage. Featuring works by international artists Picasso, Schwitters and Ernst, through to Hannah Hoch, Martha Rosler, John Stezaker, Richard Hamilton, Layla Curtis, David Salle, Eduardo Poalozzi, Javier Rodriguez, Robert Rauschenberg, Mimei Thompson, David Thorpe, Fred Tomaselli and many more. Collage: Assembling Contemporary Art also includes texts, by both academics and artists, which outline the history of the medium as well as critically addressing how collage is being used throughout contemporary art today.
It's no secret that both the MPAA and the RIAA have created so-called "educational campaigns" for students about copyright. These educational programs are incredibly one-sided, of course, and it's amazing that many schools actually allow this sort of corporate propaganda to masquerade as educational material. Even more problematic is when an entirely separate organization, supposedly offering a non-biased educational campaign, starts parroting the propaganda. The nonprofit National Center for State Courts, whose charter apparently is as an "organization dedicated to improving the administration of justice by providing leadership and service to court systems in the United States," has done just that. As part of that, it created a set of "graphic novels" (more like a pamphlets) designed to teach students how the court system works. Except the first such graphic novel actually teaches a bunch of RIAA propaganda about file sharing that is mostly flat-out false.
I wrote recently that Universal was resting its case on a "weak reed" in arguing that it need not consider whether the use of its copyrighted materials is fair use before sending a DMCA takedown notice. The case, of course, involves the YouTube video of a baby dancing for 29 seconds to Prince's "Let's Go Crazy." US Judge Jeremy Fogel agrees: he ruled 2 days ago that content holders must consider the fair use premise before sending takedown notices to video sites. In his decision (pdf), Judge Fogel writes:
[I]n order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.” Sen. Rep. No. 105-190 at 21 (1998).
It’s simple reality (and good business): lawyers and judges cut and paste from one another’s documents every day, and it would be absurd to impose a regime of copyright designed to promote original creativity if it undercut a legal regime designed to promote effective representation. Similarly, it is absurd to accuse lawyers of “plagiarism” in the documents they produce as lawyers. There have been cases which have spoken in terms of lawyer plagiarism, but they all can be better understood as fraud (charging clients for research that was nothing but the copying of pre-existing work) or malpractice (excessive copying that produces a document that bears little relationship to what the specific representation demands, as opposed to effective cutting and pasting of pre-existing work into newly written work) than as plagiarism.
Plagiarism is passing off someone else’s work as your own. But, again, in legal practice (as opposed to legal scholarship or law school work), the point of the work is its effectiveness, not its source or its originality.
In other words, all you students of mine, plagiarism in school is not allowed. It is an unethical act that can and will result in expulsion and disqualification from the practice of law. But let’s not confuse contexts: some contexts, specifically academic practices, produce in their audiences the expectation of originality; in others, specifically legal practice, originality can be effective, but effectiveness is the bottom line.
I disagree with the first part of this quote, from Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. I agree with the second:
(1) "Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work."
(2) "What you can't do is substitute someone else's creativity for your own."
And considering how original Girl Talk is, I think it unlikely anyone will sue them. It's far more likely a record company will sue some much more ham-fisted appropriator who has not created something original out of pre-existing pieces.
"Universal Music told a federal judge . . . Friday that takedown notices requiring online video-sharing sites to automatically remove content need not consider whether videos are protected by the 'fair use' doctrine." The case involves Stephanie Lenz's 29 second video of her son dancing to Prince's "Let's Go Crazy," which Universal sought to remove via a DMCA takedown notice at Prince's insistence that he has total control over all uses of his music. Lenz is now seeking damages on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz's video was infringing. Since it is difficult to believe anyone involved in the music industry (other than, perhaps, Prince) would believe the video was infringing, I guess Universal has no argument left other than the one they made: fair use is irrelevant when considering the propriety of sending a takedown notice. It seems a weak reed on which to rest its case.
The world is a very strange place. If you know the origins of this blog (see sidebar), you might laugh as hard as I did at this (and wonder even more about Kid Rock):
The death of Scrabulous on Facebook may have been a sad event for many, but at least it was a short-lived one. Scrabulous is back, but under a new name and with some minor tweaks to avoid any copyright issues. And thus Wordscraper was born.
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 usefulto 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 accessto 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.
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 lawresults 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 wrotethat 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.
The new endeavor referred to in the title of this post will be a blog named Ruling Imagination, which I will begin writing on August 4, 2008 and in which I will address broadly speaking, both the law as it affects creative endeavors and creativity within law itself. While Ruling Imagination will, quite plainly, overlap in subject-matter with What is Fair Use?, I will continue to maintain this site; this site, however, will be confined, as it has since its beginning, primarily to questions of copyright and fair use and will continue to be aimed at an audience seeking a fairly high level of legal sophistication and technicality in its discussions. Ruling Imagination, on the other hand, will address a far wider range of subjects and will seek to engage a broader audience, in particular an audience within the creative community.
I’m proud to announce that Peter Friedman, associate professor at Case Western Reserve University School of Law, will join our roster of bloggers starting Monday, Aug. 2.
Peter, who specializes in legal analysis and writing at Case Western Reserve University and is currently a Visiting Professor at the University of Detroit Mercy Law School and at the University of Windsor, also teaches at the Universiteit van Amsterdam. He will write for Geniocity.com about the creative cutting edge of the legal profession.
For those of you who think the law and creativity are separated by continents, if not galaxies, let me point out that technology, government policy, social trends and other forces constantly require the law to adapt in unforeseen ways. Look what Internet access has done to copyright law: How will artists get paid for their work if everyone can find music, pictures, writing and video for free on the Internet? Consider the questions that surveillance technology - security cameras, satellites, GPS-equipped cell phones and cars - raises about our constitutional right to privacy. And which locker room - men’s or women’s? - should an as-yet-surgically-unchanged transsexual be required to use?
A furiously changing world demands some pretty inventive thinking about the rules we live by. Peter will explore that thinking and unveil the latest, fascinating twists reshaping our legal landscape and our lives.
So look to Geniocity for briefs of a different cut.
Carolyn Jack, the former arts writer for the PD has joined forces with artist and critic Dan Tranberg to create Geniocity.com, an online home for creativity. Inspired by a 7-part newspaper story she wrote on creativity, Jack has honed in on an underappreciated fact: creativity in all its variations is embedded in all walks of life. Their new site, Geniocity.com, is part objective news portal, relating the latest advances in science, research, commentary and inventions, and part marketplace for creative work. Their Geniocity Shop will represent global artists, including Clevelanders Robert Thurmer of CSU, and Tracey Lind of Trinity Cathedral. They officially open for surfing on Thu 6/12, so get creative, and contact them to submit your work and reach an international audience.'
There is, on the one hand, having a legal right to one's intellectual property. On the other, there is the question: does it make business sense to assert that right to shut down an infringer?
Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro has sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.
Hasbro, the Rhode Island company that owns the trademark to the 60-year-old board game, Scrabble, on which Scrabulous is closely based, has also asked Facebook to remove the game under the Digital Millennium Copyright Act, saying that it infringes the company’s intellectual property. Facebook has not yet responded to or commented on the request.
As Josh Quitner writes, "[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?" And Mike Masnick observes:
The Scrabulous/Hasbro situation is a perfect example of Matt Mason's thesis that "piracy" is almost never about "theft." It's almost always a market indicator that the market is unhappy with what's being offered. It's the market showing companies what they want.
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.
This blog is an ongoing exploration of issues related to copyright and fair use in our contemporary digital culture.The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. The students wrote cross-motions for summary judgment in a fictional lawsuit brought by the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the real-life creators of an actual recording entitled "K Cera Cera."K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The second half of the students, of course, represented the Defendants.In the course of the students' work in researching and writing their summary judgment briefs, the professor and the students posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense.The relevant documents the students had to work from were the following:
In light of the timeliness and open-endedness of the issues raised by the fictional lawsuit, the blog will continue despite the completion of the project and of the school year.
