Jonathan Band, oft-time consultant for the American Library Association, wrote a short editorial
in the Jerusalem Post, lauding Israel’s recent adoption of a US-style fair use doctrine.
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We have just completed a new report on online service providers (Intellectual Property and Free Speech in the Online World). We spoke with representatives of 25 different service providers — educational institutions, commercial service providers, and service providers for nonprofits and activists — to understand their processes and practices.
Our report shows that, indeed, protection for consumers’ free expression rights has a long way to go, but we were able to identify a number of best (and better) practices for service providers. Following the report, we will be releasing toolkits of model best practices and policies.
On October 25th, 2006, in Blanch v. Koons, the U.S. Court of Appeals of the Second Circuit ruled on an important case dealing with the fair use of copyrighted material in an artistic, “collage” setting, affirming that artist Jeff Koons’ incorporation of a photograph into a collage painting was fair use.
Jeff Koons, an “appropriation artist“, created a collage entitled “Niagara” which depicts four pairs of women’s legs with the feet pointing downwards superimposed over images of “confections … with a grassy field and Niagara Falls in the background.” In his collage, one of the sets of legs in the painting was originally part of a photograph taken by a professional fashion and portrait photographer, and published in Allure magazine in 2000. Koons described his work as using popular images for commentary on the “social and aesthetic consequences of mass media.” The work was commissioned by Deutsche Bank and the Guggenheim Museum.
In ruling that Koons’s use of the legs from Blanch’s copyrighted picture constituted fair use, the Second Circuit went through a detailed explanation of the four-factor fair use test: the purpose and character of use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effects on the actual or potential market for the work or its derivatives.
Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”
The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.”
The remaining factors used by courts in these cases—dealing with the nature of the copyrighted work, the amount and substantiality taken, and the effect on the market—all also weighed in Koons’ favor or were deemed unimportant in this case.
Further information on the subject matter of this case:
Blog posting with snapshots of both pieces of art
Barney’s humorless owners at the Lyons Partnership have on more than one occasion attempted to stifle humorous and parodic takes on the purple dinosaur. EFF stepped up to the plate in 2001, and more recently, in defending Stuart Frankel’s online parody. After EFF filed for declaratory judgment that the parody was lawful (complaint, 8/23), Lyons settled Monday, 11/27, agreeing to pay Frankel a $5,000 settlement, and promising not to sue or make any other claims against Frankel or his ISP based on the Barney parody.
— Full text of the settlement agreement (PDF) and more information about the case, from EFF; coverage from the LAT.
The Second Circuit Court of Appeals affirmed that artist Jeff Koons’ incorporation of a photograph into a collage painting was fair use.
More detail coming.
Judge Alex Kozinski, renowned for his copyright and trademark jurisprudence, will be delivering a lecture on “Fair Use Revisited” Thursday, Sept. 21, 2006, at Washington College of Law, American University, Room 603. Judge Kozinski is always entertaining as well as enlightening, so this is an event not to be missed. More information at http://www.wcl.american.edu/pijip/Kozinski.cfm .
The U.S. Court of Appeals for the Eleventh Circuit has just decided that the United States Postal Service, maker (and copyright owner) of postage stamps, may sell postcards and greeting cards depicting those stamps. International Stamp Art, Inc. v. USPS, 2006 WL 1982685 (11th Cir.(Ga.)).
This case comes to us under the auspices of trademark infringement. Yes, Virginia, the USPTO granted a trademark to International Stamp Art for the perforated border on stamps, for use on the greeting cards it sells. For many years International Stamp Art got non-exclusive licenses to the stamp images for its cards from — of course — the Postal Service. Those images were of the whole stamp, which of course included that essential icon of stampiness, the perforated border. When the Postal Service started offering its own greeting cards using similar images of its own stamps, ISA cried foul based on the mark it had registered: use of stamp borders on printed note cards and greeting cards.
The trial court had correctly recognized this as a case of classic fair use, where the defendant uses the trademark in good faith, in its descriptive, not trademark or source-identifying capacity, and uses it only to describe the defendant’s product, not to refer to the plaintiff’s product. The Postal Service was essentially producing enlargements of its own product, which is clearly a descriptive use of the borders, and the trial court found no evidence of bad faith. Interestingly, ISA only appealed this issue of good faith, apparently conceding that the use was descriptive and not a trademark use.
The appeals court decision, affirming the trial court, doesn’t break any new ground, but it does provide a neat encapsulation of the good faith issue in trademark fair use. The central question is whether the defendant “intended to trade on the good will of the trademark owner.” In its analysis, the court found no evidence of any intent to confuse consumers as to the source of the cards. In fact, the judges saw affirmative evidence of good faith in the Postal Service’s placement of their own logo prominently on the cards. ISA also failed to show a non-infringing, commercially viable alternative, which might have at least gotten the issue of good faith past the summary judgment stage, because you have to use the borders to depict stamps as stamps; otherwise they just look like interesting pictures. The court also rejected the notion that the Postal Service was required to consult with an attorney to show good faith, because its descriptive use entitled it to use the images. Finally, the Postal Service’s knowledge of ISA’s trademark did not show any bad faith because the use was descriptive and non-trademark.
The appeals court’s decision accords with the common-sense determination that the United States Postal Service has no reason to covet whatever good will International Stamp Art has to offer. The potential customers for greeting cards depicting stamps are more than likely big Postal Service fans already, and they are likely to prefer USPS merchandise. Any other possible theory of the market for these goods would have to be very convincing, and ISA had no such theory to offer.
In a recent fair use case, the U.S. Court of Appeals for the Ninth Circuit held that installing software on more computers than provided for by the license is not fair use, even if the software is actually only run on the licensed number of computers. Wall Data, Inc. v. L.A. County Sheriff’s Dep’t., 447 F.3d 769 (9th Cir. 2006). To reach this result, the court threw the baby out with the bathwater, giving software makers a unique presumption of market harm for any use outside of their licensing agreement. The outcome might be correct, but the reasoning is overbroad and potentially harmful to lawful uses.
The L.A. Sheriff’s Department purchased 3,663 licenses for Wall Data’s software (now sold by NetManage), but in the process of setting up computers in a new facility, they copied the same hard drive to all the computers, such that Wall Data’s software ended up on 6,007 computers. IT departments often use this method to manage networks with many computers because it greatly increases the efficiency of the initial setup process and it allows them to fix problems more quickly. In an attempt to comply with their licenses, the Department limited the number of computers that could actually run the software to the number of licenses they purchased by requiring that a network administrator assign a computer one of the licenses before that computer could open the program.
The Ninth Circuit upheld the trial court’s judgment for Wall Data on its copyright infringement claim, denying the Sheriff’s Department’s fair use defense. The Court held that all four fair use factors, as enumerated in §107 of the copyright law, weighed against the Department.
The Department’s use was not favored by the first factor — the “purpose and character” of the use — because the Court found it to be both non-transformative and commercial. While the Department is a government agency, not a commercial business, its use was commercial because it engaged in “repeated and exploitative copying” to avoid the cost of purchasing more flexible licenses. The court also specifically noted that the use “did not promote the advancement of knowledge and the arts,” treating that as a separate element of the first-factor analysis. The second and third factors, the type of work copied and the amount copied, also weighed against the Department, although the first and fourth were the most significant.
In considering the fourth factor, which weighs the harm to markets for the original work, the court relied on an expansive view of potential licensing markets, stating that “whenever a user puts copyrighted software to uses beyond the uses it bargained for, it affects the legitimate market for the product.” Judge Pregerson, writing for the court, expressed concern that the digital nature of software facilitated overuse through easy copying.
Unfortunately, the court’s analysis on this factor reached too far. While the judges are likely correct that the fourth factor weighs against the Department, it should be because the potential licensing market in this case (something similar to the “concurrent use” licenses that many software makers sell) was traditional and reasonable enough to consider the harms to that market, not because software deserves special, enhanced protection from any unauthorized use.
Most traditional fair uses are not bargained for, such as quoting for criticism, and it is not clear in the court’s analysis what distinguishes software; it may certainly be quoted for criticism and often is. Instead of offering a special rule that assumes software authors should get paid for any and all uses of their product, when no other authors are accorded such a privilege, the court should have rested on its more precise determination that the Department could easily have bargained for the flexibility it needed and didn’t.
To complement its broad view of market harm, the court also offered a confusingly narrow vision of fair use: “[it] is appropriate where a “reasonable copyright owner” would have consented to the use, i.e. where the “custom or public policy” at the time would have defined the use as reasonable. As Michael Madison has noted, the legacy of this case in the Ninth Circuit may be this restrictive view of the fair use doctrine. That would be unfortunate, because it is squarely at odds with a core principle underlying fair use: that certain uses, unauthorized by the copyright owner, are protected regardless of the lack or even likelihood of permission.
While the court did not strike a direct blow against fair use in this case, the decision may have the unfortunate effect of choking off the development of novel and interesting uses for software by providing a confusing fair use standard and requiring an upfront bargaining process available only to the largest software buyers.
The “Comedies of Fair U$e” symposium discussions are now available as MP3s at the Internet Archive. The April 28-30 symposium was sponsored by the New York Institute for the Humanities.
(thanks Joy)