Many Internet Service Providers (ISP) assume that take-down requirements with respect to copyright claims are fairly standard and that they can readily avoid copyright liability for posts by users by following some simple rules. The activity in the Courts on the Circuit Courts on this issue shows otherwise.
Monthly Archives: June 2012
Art Imitates Art: “Pictures Generation” Artist Richard Prince and Fair Use
The Fair Use doctrine allows others to use copyrighted material without the copyright holder’s permission under certain circumstances. It sets limits on the exclusive rights copyright law grants copyright owners: the rights to reproduce, distribute, perform, display and make derivative works.
Originally a judicially created exception[1], Congress incorporated the fair use exception as a defense into the Copyright Act of 1976 under section 107. While “codified,” the Copyright Act does not precisely define fair use; nor does it provide specific examples.
The Act only offers an open list of areas “such as criticism, comment, [and] news reporting” (which may or may not be Fair Use) and four general factors to consider: (1) purpose and character of the use, which encompasses “transformative use”; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect of the use on the market for the copyrighted work.
As a result, Fair Use is often criticized as unpredictable, even doctrinally incoherent, as courts have applied it over the past thirty years. The Cariou v. Prince copyright saga has not yet added certainty to the field.
It’s been three years since French photographer Patrick Cariou sued Richard Prince, Larry Gagosian, Gagosian Gallery and Rizzoli books for copyright infringement. Prince’s “Canal Zone” series used aspects of at least 31 of Cariou’s ethnographic-style photos of Jamaican Rastafarians without Cariou’s consent. For example, Prince takes a Cariou photo of a Rastafarian against a dense growth of plants and then covers the man’s eyes with blue circles and places an electric guitar in his arms. Prince claimed “fair use,” arguing that he had transformed the original works, as opposed to simply producing what the Copyright Act would consider protected derivative images.
The United States District Court for the Southern District of New York granted Cariou’s motion for summary judgment on the issue of copyright infringement, noting that the pieces had very little “transformative” element. It ordered Prince and the Gagosian Gallery to deliver for impounding all infringing copies of Prince’s work. The gallery and its owners were also found liable for copyright infringement because they had distributed images and sold paintings from “Canal Zone” and had failed to investigate and ensure that Prince had obtained the requisite licenses to use Cariou’s photos. The judged stated that the gallery “at the very least [had] the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses” and “the financial benefit of the infringing use to the Gagosian defendants is self-evident.”
Prince appealed the 2011 District Court decision and is awaiting review by the Second Circuit U.S. Court of Appeals. Since then, museums across the country have filed amicus briefs with the Court of Appeals arguing that the District Court’s decision, holding the gallery and its owners liable, would force them to hire lawyers to analyze works in their collection containing borrowed images. Given the widespread practice of referencing other images in 20th-century art, the cost to the museums would be unsustainable. The less costly, but the more disturbing option, certainly antithetical to the First Amendment principles that underline Fair Use, would be for museums to self-censor.
Cariou’s legal argument rests largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs and, therefore, is not transformative. Prince (somewhat arrogantly) testified that that he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material.” Cariou’s attorneys argue that taking copyrighted work in order to create “something new,” without any aesthetic significance or expressive purpose for the particular appropriation, has no limits and would effectively eviscerate the rights of copyright owners. In fact, Prince was unwilling to explain his art in court and even refused to call his use of Cariou’s photo “satire”, which is typically protected under Fair Use. Prince only offered the following as an explanation: “Hey, this guy is playing the guitar.”
Is this then taking for the sake of taking like Cariou’s lawyers argue? The District Court already balanced the four Fair Use factors finding against Prince in 2011. But will the Second Circuit decide differently, perhaps by choosing to emphasize a factor other than transformative use?
Consider this argument about market effect for a moment. Richard Prince is what is called a “Pictures Generation” artist, a member of that “movement” of artists takes both the commercial and artistic images that surround them, appropriates those images into their own work, and then “subverts” them. The popularity and strength of the Pictures Generation is clearly seen on the price tags on their works that may sell for millions, especially the early works of James Rosenquist and David Salle. Patrick Cariou is not a Pictures Generation artist, but is rather, an ethnographic photographer. Cariou markets a fly-on-the-wall style of reporting, while Prince markets the skepticism of culture. As Michael Rips points out in his opinion piece for the New York Times, it is for this reason that “the markets for Mr. Prince and Cariou are not just distinct; they are conflicting.” If a Prince consumer would not have otherwise spent money on a Cariou-style photo, how could Prince cause economic injury to Cariou? Should Prince be required to turn over his profits or revenue as penalty for infringement? Or can he invoke the fourth factor of Fair Use – effect on the market of the original copyrighted work – to argue that the de minimus monetary effect on Cariou’s market supports his Fair Use defense? Or, if it is the artistic movement, the Pictures Generation, with which Prince is connected that gives value to the paintings, rather than to Cariou’s images, does the context give rise to a “transformative” use?
Whichever Fair Use factor one wishes to emphasize – transformative use or market effect – there is a shifting perspective in the art world, where artists can appropriate works and then sell versions or alterations to collectors for millions of dollars without any benefit accruing to the lesser-known artist. In other art news, Origami artist Robert Lang is suing abstract painter Sarah Morris in the Northern District of California, claiming that she used his designs in her paintings without asking permission. Morris took several of Lang’s crease patterns and changed lines, added colors to the shapes and made the resulting images into very large paintings. Morris argues that the change in context and meaning is transformative. Currently no court date has been set, but Lang says his case is about getting credit for his craft and deciding how his work is used.
France Gives the “Feu Vert” to Google Books
The United States has yet to reach an agreement over the Google digital books project, but France, a literary haven and copyright devotee, has forged ahead.
With what its supporters have praised as a tool for bringing out-of-print books into the hands of new readers, the Google digital books project has sought to digitally scan collections of current and out-of-print books to create a massive digital collection on Google’s database.
Universities and Professors Consider Possible Shifts in the IP Interest “Balance”
Who controls intellectual property that is the product of grant-funded faculty research and work in a university environment? Are the “inventions” of professors essentially the result of their positions and participation in a research environment and, as such, like those of an employee produced in the course of employment with a private company? Should written works of authorship – articles, scholarship, books, and textbooks – be treated differently from medical, biotech, or software advances that professors create or contribute to? What about the input from students, especially specialized graduate students, in the process? Should the contributions of third-party industry funds to research and development in the university setting be acknowledged with intellectual property interests? Are the creative products of professors ever “works for hire” for their universities? The American Association of University Professors (AAUP) doesn’t think so.
“Here’s Looking at You, Kid”: That’s Not London Fog in the Moroccan Mist
Burberry has made extensive social media efforts this year to tell the public how its iconic look and status developed over time. Companies, like Burberry, with a visual history to promote, are especially attracted to Facebook’s Timeline.
Timeline lets users post stories and pictures in chronological order. Visitors scroll down on a Facebook page and go back in time to the initial creation of a product.
The company can create a nostalgic connection between the visitor and the brand. The Facebook Timeline for this “156 year-old global brand with a distinctly British attitude” includes photos of Burberry’s first store opening in 1856, images of pilots wearing Burberry aviator suits, and pictures of its classic trench coat through the years.
Google Disclosures
Last month Google announced a new addition to its website’s Transparency Report.
Google has decided to release information on the number of requests it recieves from copyright owners (and the organizations that represent them) to remove Google Search results that allegedly link to infringing content.
Google’s senior copyright counsel Fred von Lohmann writes on Google’s blog, “We believe that openness is crucial for the future of the Internet. When something gets in the way of the free flow of information, we believe there should be transparency around what that block might be.”
Obama’s Campaign Committee Sues Online Vendor for Trademark Infringement
Last week President Obama’s campaign committee, Obama for America, filed a trademark infringement lawsuit against an online vendor, DemStore.com, for allegedly using the campaign’s trademarked logo without permission. The campaign sent DemStore.com two “cease and desist” letters last year, but the company did not stop using the logos. DemStore has sold merchandise supporting Democratic candidates since 1985, and currently sells Obama election merchandise bearing two logos that belong to Obama for America. The two logos at issue are the “Rising Sun” logo, which Obama for America has owned under a federally registered trademark since 2008; and the “2102 Rising Sun” logo, for which it has a pending federal trademark application.
Viacom v. YouTube Brings About a Sea of Change in the Safe Harbor
Over the past decade, websites and Internet Service Providers (ISPs) have learned to rely on the takedown procedures of the Digital Millennium Copyright Act (DMCA) in order to generally avoid copyright infringement liability imposed by content owners.
ISPs have been able to shield themselves from all liability form their users posting infringing material by having a proper takedown system in place. But, a recent Second Circuit case undermines that level of confidence in takedown procedures.
The Second Circuit Court of Appeals is the first U.S. court to decide that ISPs may still be liable for copyright infringement even after complying with the takedown provisions of the DMCA.
As a result, the underlying questions remain: should intermediaries be held liable for their users infringing actions?
If so, then to what extent? Where does the law now draw the line? How can a website owner or ISP best protect itself when posting content provided by others?
The DMCA is known for allowing ISPs, under certain circumstances, to avoid copyright infringement liability for activities that would otherwise lead to secondary liability for copyright infringement.
German Court Ordered Google to Do More to Prevent Copyright Violations on YouTube
A German court ordered Google to install filters on its YouTube services in Germany in order to detect and stop people from accessing copyright infringing material.
While not holding Google fully liable for the uploaded material, Judge Heiner Steeneck did say that the company needed to do more to stop violations. The court order issued on April 20, 2012, however, is for Google a happy departure from the request made by GEMA, the German association that imposes and collects royalties on recorded media. GEMA had demanded that Google sort through its entire online music archive and remove all copyrighted material from its system. The judge rejected the request.