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:
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.
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.
Years ago when I was teaching copyright and fair use, a student volunteered that he'd spent his college summers working in a bakery. According to this student, on random occasions men in suits (appearing like Men in Black) would show up, show their credentials as representatives of Disney, and inspect the bakery's cases to ensure there were no birthday cakes bearing unauthorized images of Disney characters.
Disney, in short, has long been notorious for its zeal in protecting its copyrighted properties, zeal so great it largely seemed to disregard any notions of fair use. (It could not, of course, ignore the right to fair use entirely.)
So Andrew Leonard's article, "How Disney learned to stop worrying and love copyright infringement" brings wonderful news. According to Leonard:
Disney’s expertise in nurturing, co-opting and, most of all, not cracking down on the many ways fans have embraced “Frozen” online is a template for how to thrive in a digital, copy-promiscuous, consumer-empowered environment. Disney, long one of the fiercest and most powerful defenders of strict intellectual property control, has learned how to let copyright go.
I've long thought the publishing, recording, and moving picture industries need to reform their heavy handed "Copying is Stealing" approach to the digital age. It doesn't work, and everyone knows it, so the self-righteous moralizing undercuts the legitimate interests they have in limiting genuine, creation-killing piracy. Disney's embrace of the Frozen's fan culture seems, finally, to be a move in the direction that ought to have been taken back in the late 1990s. Here's hoping it's the start of a sea change.
On March 26 2014 the Copyright Society of the USA’s New York Chapter presented a luncheon panel – If I Ran The Zoo: Probing The Contours Of “The Next Great Copyright Act” – at the Princeton Club in NYC. A year ago Copyright Registar Maria Pallante delivered the Manges Lecture at Columbia University in which she called upon Congress to enact a program of comprehensive copyright reform. Since then hearings have been held by Senate Judiciary, and the USPTO, to explore the issues involved . The CSUSA convened this panel of experts, and asked them what they would do if they “ran the zoo”, in the hopes of discovering where there might be points of consensus, and intractable strife, and, perhaps, space for deeper exploration. Speakers were Allan Adler: Gen. Counsel & VP, Government Affairs, Assoc. of American Publishers; Victor Perlman: Gen. Counsel, American Society of Media Photographers; Michael Weinberg: VP, Public Knowledge. Moderator: Robert Kasunic: Assoc. Register of Copyrights, Dir. of Registration Policy & Practice.
For this weekend's musical interlude, we'll go crude without sacrificing significance. From the Disruptive Competition Project came the announcement that yesterday
[W]as twenty years [since] the Supreme Court issued its landmark decision in Campbell v. Acuff-Rose, its most recent consideration of fair use. The Court made clear, in a unanimous opinion, that a commercial parody was fair use under Section 107 of the U.S. Copyright Act. A lower court had held that the rap act 2 Live Crew’s “Pretty Woman,” a lewd skewering of Roy Orbison’s saccharine love ballad “Oh, Pretty Woman,” was presumptively unfair because it was a commercial parody. When the group and frontman Luther Campbell appealed, the Supreme Court reversed, holding that the “more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” (Some interesting C-SPAN coverage of the case before the Court’s decision, hinting at class overtones of the dispute is available here.)
It should be remembered too (as I pointed out yesterday) that to limit the implications of Campbell to commercial parodies of other works--that is to appropriating works that only appropriate to comment or criticize the works they appropriate--is too narrow a reading of the Court's 1994 decision and of the ways art is always appropriating the meaningful elements of its culture (including its works of art) to create new meanings entirely divorced from the component elements. But this discussion is for another day. This weekend is to revisit the heights of misogyny the pop charts chan reach:
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?