Why does the rhetoric of copyright policy diverge so far from the practices and lifestyles of actual artists? Artists copy constantly, and rarely rely on copyright’s economic incentive. One explanation is that copyright really isn’t directed at promoting the creation of art; rather, it’s true objective is protecting the business models of publishers and distributors of copyrighted works. Media companies, however, are not as sympathetic beneficiaries of copyright legislation as individual artists, and thus hide behind artists when promoting their agenda.
To be sure, copyright plays a significant role in promoting the creation of works that are expensive to produce, such as motion pictures. But nuanced policymaking should not confuse the needs of movie studios with those of individual artists.
Moreover, because digital networks have dramatically lowered the cost of publishing and distributing works, copyright now is less critical to promoting these activities. While overly broad copyright laws may help large media companies preserve their profitability, they aren’t necessary to ensure that the public has access to creative works.
An excellent piece by Jonathan Band, The Gap Between Artistic Practice and Copyright Rhetoric, builds off Jerry Saltz's 33 rules on How to be an Artist. Band's conclusion is very much of a piece of what I've been expressing for years:
Bow down to your corporate overlords and accept that being cheated is merely the way consumer culture works.
Back in 2009, I wrote 2 guest posts (Part 1 & Part 2) for Karl Bayer's Disputing Blog about contractual arbitration clauses that deprive individuals of any realistic way of holding corporations responsible for ways in which those corporations cheat individuals. The clauses do so by requiring in virtually any purchase or loan--without any possibility of negotiating otherwise--that individual, rather than class, arbitration be used to resolve any disputes that might arise between the corporation and the individual. By eliminating the possibility of class action lawsuits, these arbitration clauses effectively deprive individuals of any legal remedy; the corporations always have enough money to make the process too expensive for the individual to pursue on his or her own.
In 2008, recognizing the injustices at work, courts were increasingly refusing to enforce those arbitration clauses. But in 2011 the Supreme Court stopped that trend in its tracks, upholding the legitimacy of contract clauses that require consumers to arbitrate individually any disputes over their transactions. The result, as I predicted and as the New York Times makes clear in a 2-part series (Part 1 & Part 2) this past weekend, is that there is no longer any legitimate opportunity to hold companies responsible for actions that cheat consumers. Even more alarmingly, as the Times discusses, "at stake are [also] claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death."
In Part 2 of my 2009 pieces I laid out at length the reasoning courts had engaged in prior to 2011 and that the Supreme Court rejected. As I wrote back then:
Fortunately, however, courts have very recently begun to refuse to enforce mandatory arbitration clauses in consumer transaction because they are recognizing, as the Pennsylvania Law Encyclopedia quoted above states, there are “grounds in law or in equity” for doing so. Two years ago, in Douglas v. Talk America, (9th Cir. 2007), the plaintiff challenged, by means of a class action complaint, the validity of an amendment made to the contract governing his telephone service. The amendment to the contract, among other things, required arbitration of all disputes arising under the contract. Moreover, the amendment was made unilaterally and without any notice other than the posting of the revision on the defendant’s web site. The U.S. Court of Appeals for the 9th Circuit, applying California law, held that the amended contract, including the arbitration provision, was unenforceable and dismissed the defendant’s motion to compel arbitration. The court rejected the reasoning applied by the New York courts that the plaintiff had “meaningful alternative choices for telephone service.” Id. at 8. The court also made clear that, absent the inclusion of the arbitration clause in the defendant’s unilateral modification of the original contract, a relinquishment of the right to bring a class action also “may be” unenforceable under California law, though it would be enforceable under New York law. Id. at 8-9. Douglas, however, may be of limited use as precedent in challenging mandatory arbitration clauses even outside of New York because the arbitration clause was added by means of the defendant’s unilateral amendment to the contract, an amendment that was unenforceable merely by virtue of the fact that a party can’t unilaterally change the terms of a contract; it must obtain the other party’s consent before doing so.” Id. at 4 (citations omitted).
Unfortunately, of course, I was wrong. By a 5-4 vote in 2011 in ATT Mobility LLC v. Concepcion, 533 U.S. 333, the U.S. Supreme Court ruled that the Federal Arbitration Act of 1925 was inconsistent with the court decisions I had commented favorably upon in 2009 and held that an arbitration clause contained in a contract necessarily limited to the consumer to individual, rather than class, arbitration. Since there is rarely enough money at stake in consumer purchases to warrant taking on a company in an expensive (as well as secret and non-appealable) arbitration, the result is that consumers are left in most situations with no legal course of action to take in response to being cheated in those purchases. As a result, as the Times points out,
For companies, the allure of arbitration grew after a 2011 Supreme Court ruling [that is, ATT v. Concepion] cleared the way for them to use the clauses to quash class-action lawsuits. Prevented from joining together as a group in arbitration, most plaintiffs gave up entirely, records show.
Citizens United was an alarming empowerment of corporations over individuals. But perhaps nothing has done for harm to individuals in their struggles with the corporate "persons" who sell them everything they must buy as the 5-4 decision of the Roberts' Court in ATT Mobility LLC v. Concepcion.
:Samuel Whitesell does a service in summarizing several instances of the political use of pop songs without permission, but is entirely misleading in 2 respects. First, he implies that in each instance the "cease and desist letter" sent by the pop artist has some legal force in and of itself. As I've previously explained:
A cease and desist letter has no force in and of itself: all it does is declare the copyright holder's belief that a work infringes a copyright and his threat to enforce that belief by means of a lawsuit if the alleged infringer doesn't stop what he is doing. The threat, however, is often an empty one.
It should go without saying, of course, that not only is the threat often an empty one; the mere fact a lawsuit is filed proves nothing regarding the legitimacy of the lawsuit's claims.
More importantly--and I can't say it often enough--copyright is not "property" in the sense your car or your home is; copyright does not give its owner the right to extract every last bit of economic value that inheres in the copyrighted work. We are not 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 Constitution's Copyright Clause calls specifically for such a law. The First Amendment gets government o speakers' backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.
Whitesell, unfortunately entirely ignores these issues in discussing whether the political use of pop songs might constitute fair use, but balancing the conflict between copyright and free expression is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Miin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001). In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The court ordered the lawsuit dismissed because The Wind Done Gone's use of the characters and story line from Gone with the Wind constituted fair use. In doing so, the court made clear that "First Amendment privileges are . . . preserved through the doctrine of fair use" and that to hold otherwise would jeopardize "over 200 years" of the constitutional "guarantee that new ideas, or new expressions of old ideas, would be accessible to the public."
Political speech, of course, is at the heart of the First Amendment protection of free speech. It should be no surprise, therefore, that Whitesell cannot point to one single court decision that has ever ruled the political use of a pop song to be illegal. In fact, in the only case I am aware of that is remotely similar to the situations in which, as Whitesell points out, pop artists sent cease and desist letters, is Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 00 Civ. 6068 (GBD) (S.D.N.Y. 2004). In that case, the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign advertisement that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright.
Are some of the political uses of pop songs non-infringing? I honestly don't know. I do know it's a question that is unresolved. I know too that, as Dan Kennedy puts it here in connection with a situation Whitesell does not mention,
[T]here’s an argument to be made . . . that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; [and] it’s not taking a penny out of [the artist's] pockets, the most important element in the four-part fair-use balancing test . . . .
Once you realize copyright does not give its owner the right to extract every last bit of economic value that inheres in the copyrighted work, it's pretty obvious there's no good reason to stop the Google Library Project.
The United States Court of Appeals for the Second Circuit has affirmed the trial court's decision (pdf) that the Google Library Project does not infringe the copyrights of the books it has copied and made available for electronic search. The decision is being described as a "powerful" one, and I think that's right. But I think too that attitudes have changed considerably since the Library Project was first announced in 2005. There is a growing understanding of copyright's limitations, of the fact that copyright is not a property right of the sort one has in personal or real property. And once you realize copyright does not give its owner the right to extract every last bit of economic value that inheres in the copyrighted work, it's pretty obvious there's no good reason to stop the Google Library Project. Set forth below are my sentiments to that effect back in 2008. Herb Mitgang, the first named plaintiff among the authors who claimed the Project infringed their copyrights, died in 2013.
What are you thinking, Herb Mitgang? August 7, 2008
Many university and scholarly presses have participated enthusiastically in the Publisher program, which allows their print publications to be indexed and displayed to an appropriate extent through Google's beta online index of print materials while protecting their own, their authors' and third parties' rights. The Library program has proven controversial, as Google plans to scan, digitize, and copy not only public domain works from ve world-class research libraries, but also the in-copyright collections of at least some of those libraries. The libraries are the Bodleian at Oxford University, Harvard University Library, the University of Michigan Library, the New York Public Library, and Stanford University Library.
It is important to understand that Google is not merely copying the libraries' collections in order to make them available electronically to the world. Instead, Google Book Search allows its users to search the entire database of what Google has thus far scanned. For works by authors who have granted Google permission, a user of the Book Search can scan read the entire text. But for those who have not expressly provided that permission, a search through Book Search will turn up only books containing the searched terms along with snippets of approximately 3 lines around the searched terms. In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their research in libraries they could not possibly ever have visited. They then can obtain the books, either through inter-library loans or through online purchases. Without Google Book Search, in other words, myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast majority of people with interest in them.
"One of the surest of tests is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest."
--T.S. Eliot, “The Sacred Wood.”
This is one of the quotes that opens Steal Like An Artist, and I go back to it occassionally to remember that Eliot had it all laid out almost 100 years ago. It’s actually quite different than the “good artists copy, great artists steal” quote that is usually (mis)attributed to Picasso. What Eliot is talking about is transformation — not just taking things out of context, but re-contextualizing them. (Godard put it, “It’s not where you take things from — it’s where you take them to.”) Actually, as Eliot points out, it does matter where you take things from — a good poet borrows from poems “remote in time, or alien in language, or diverse in interest.” So: steal from the past, steal from another language or culture, or steal from someone who’s writing about another subject.
Sometimes I get things right. And sometimes, of course, I get them wrong. But I'm happy when I get them right, and I like to remind people that once in a while I am. Back on August 27, 2008, I wrote the following about the lower court's decision in Lenz v. Universal Music Group, which, recently, the U.S. Court of Appeals for the Ninth Circuit essentially affirmed (pdf) and is being commented upon in terms remarkably similar to those I used 7 years ago, though I have not among the commentaries I have read seen much emphasis on the real problem the decision addresses--copyright overclaiming:
The uses and abuses of the differences between the law on the books and the law in action (with a particular emphasis on copyright overclaiming) (2008-08-27 00:17)(original links omitted)
It's pretty obvious law and behavior often diverge. In some cases, that divergence arises from ambiguity
and the realities of human relationships. How do you respond when a valued customer arguably breaches his contract with your client? Quite possibly, if not likely, your client will be better served by ignoring the breach of the written obligation and keeping the customer satisfied. As Charles L. Knapp, Nathan M. Crystal, and Harry G. Prince write in the preface to the casebook I use in my Contracts course:
[I]n real life there is likely to be not just one answer to a clients problem but a whole range of possible answers, some of which are clearly wrong, but many of which are at least plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering the niceties of citation form.
Some lawyers and clients, however, abuse this gap between law and behavior. I am not referring to
the everyday, harmless disregard of the "rules." How often do you strictly obey the speed limit? But, as Judge Richard Posner writes, this "dichotomy long noted by legal thinkers between the law on the books and the law in action" is a particular problem in copyright law. Often the mere threat of an infringement
action can extract money from someone using copyrighted material in a legitimate way. The problem, of
course is exacerbated considerably because the copyrights to so much of our media are owned by corpo-
rate conglomerates. Who is going to ght Disney, even if he's right? Another problem is the widespread
ignorance in the media about copyright. As Posner writes:
The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn't want to encourage such uses by permitting his own authors to copy from other publishers' works. So you have a whole "law in action" law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.
Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of
copyright overclaiming. Universal sought to remove Stephanie Lenz's 29 second video of her son dancing
to Prince's "Let's Go Crazy" from YouTube via a takedown notice under the Digital Millennium Copyright Act (the "DMCA"). Lenz in turn sued Universal on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz's video was infringing. Remarkably, Universal argued that a copyright holder need not consider whether the use of copyrighted material is legitimate fair use before sending a takedown notice. The DMCA provides, however, that a copyright owner can send a takedown notice only if he has 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. If use of copyrighted material constitutes fair use, it is "authorized by the law." And there is no question that determining fair use can be a difficult and complicated determination. But not in not in Stephanie Lenz's case. Thus, it should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected Universal's argument that, before sending a takedown notice to YouTube, it did not need to even consider whether the presence of Prince's "Let's Go Crazy" in the video was a fair use . Accordingly, the judge refused to grant Universal's motion to dismiss Lenz's case. In his decision [in 2008] Judge Fogel wrote:
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 sucient to state a misrepresentation claim pursuant to . . . 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.
Not everyone has the guts of Stephanie Lenz. That's a problem. The Universals of this world have all the
money. Recently, the Electronic Frontier Foundation noted that another "federal judge denied copyright
infringement allegations from Universal . . . arming an eBay seller's right to resell promotional CDs
that he buys from secondhand stores."
Professor Paul Campos gives an excellent explanation of today's Supreme Court decision in King v. Burwell upholding the Obama administration's interpretation of the Affordable Health Care Act. I agree with him wholeheartedly--it was an easy case that, under normal political circumstances, would not have been brought in the first place and, even if it had been, would have been dismissed swiftly in a trial court and never again been disputed. I have to say too that Chief Justice Roberts wrote a terrific opinion (pdf), briefly (for a Supreme Court opinion) setting forth the reasoning and precedent supporting the correct outcome. Another good explanation here.
From any lawyer's perspective (and the clients on both sides of the actual lawsuit), having the court rule that you are "right" but award no damages or other relief is losing.
The decision finding that the play 3C is a non-infringing fair use of the 70's sitcom Three's Company is more interesting to me from a lawyering standpoint than it is as a decision on fair use (with respect to which, I think, the outcome was fairly obvious).
What is striking to me is that the playwright, David Admji, brought the lawsuit as a declaratory judgment action against DLT Entertainment Ltd., the owner of the copyright in Three's Company. Typically, I would not advise a client to instigate litigation to resolve whether a work is non-infringing. The fact that DLT Entertainment had sent a "cease and desist letter" to Adjani and that the lawyers for DLT continued, in subsequent correspondence to insist that 3C infringed the copyright in the sitcom would not typically change the content of my advice. A cease and desist letter has no force in and of itself: all it does is declare the copyright holder's belief that a work infringes a copyright and his threat to enforce that belief by means of a lawsuit if the alleged infringer doesn't stop what he is doing. The threat, however, is often an empty one. Even if the threat is genuine, however, the recipient of the cease-and-desist letter gains little, if anything, by initiating a lawsuit rather than continuing what he is doing and waiting to see whether in fact the copyright holder will sue. In short, it's the same as far as the alleged infringer is concerned if he's the plaintiff in a lawsuit in which he is asking a court to rule that his work is non-infringing or he's a defendant in a lawsuit brought by a copyright holder seeking a court order that his work is infringing. Given that the threat of a lawsuit often is often just so much posturing, there's nothing to be gained and plenty to be lost (if only attorney's fees) by initiating the lawsuit.
The mistake of overreacting to a cease-and-desist letter is, I think, at the heart of the never-resolved lawsuit between Shepard Fairey and the Associated Press over Fairey's Obama Hope poster. Fairey had displayed the poster and, as a result, received a cease-and-desist letter from AP. In response, he sued AP in the United States District Court for the Southern District of New York. There was no real reason for Fairey to sue, however. AP might never have brought the lawsuit; moreover, if it did, Fairey would be in no worse a situation as a defendant than as a plaintiff. The case eventually settled after more controversy than it ever deserved, primarily because of Fairey's destruction of digital evidence in his possession that would have made identification of the photo on which he had based the poster's image easy (a move that was stupid but really of no great significance vis-a-vis the fair use question). The terms of the settlement have never been disclosed, so the cost to Fairey of having brought the lawsuit is unclear; nevertheless, there was, at one point, the real possibility that no lawsuit would have ever been brought, a possibility Fairey himself foreclosed by initiating formal legal proceedings.
Adjmi, however, was in a different position than Fairey in a significant respect. As Judge Preska stated in the first paragraph of her opinion, Adjmi wants to publish 3C and license others to use material from it and "therefore brings this action seeking a declaration that 3C does not infringe DLT's copyright in Three's Company." In other words, no one would publish Adjmi's play or agree to pay money for a license to use material from it without Adjmi first being able to guarantee to them that 3C did not infringe DLT's copyright. I have to hand it to Adjmi and/or his lawyers--bringing the lawsuit must have cost a pretty penny. In fact, the cost of obtaining such a legal guarantee (available only via a lawsuit or consent by the copyright holder) would block most people from even trying to get it; had Adjmi been like most people, the result would have been that he would never be able to publish or license his work. That, precisely, is what the problem is with copyright overclaiming.
from "The Invention of Influence," by Peter Cole
Freud could never be certain, he said,
in view of his wide and early reading,
whether what seemed like a new creation
might not be the work instead
of hidden channels of memory leading
back to the notions of others absorbed,
coming now anew into form
he’d almost known within him was growing.
He called it (the ghost of a) cryptomnesia.
So we own and owe what we know.
Peter Friedman is a lawyer, artist representative, speaker & writer who's written for years on the impact of law on creative endeavors and law itself as a creative endeavor. From 2008-2012, he wrote Ruling Imagination: Law & Creativity, selections of which are republished here and the entire archive of which is available from the Internet Archive's Wayback Machine here and in pdf format here. In addition, he has written about copyright and fair use at What is Fair Use?