Monday, January 18, 2016

The Velvet Underdog: The Joys of Transformative Fair Use

One of the perks  of living in Nashville is getting to know people who are not only talented musicians but also highly creative visual artists and I can think of no better example than my friend Brad Talbott.  Brad is a massively-talented designer and illustrator. He has done all kinds of high tech things I don’t understand but has also  designed some of my favorite album covers, among his many achievements. 

            His latest creative venture may be my favorite.  Over the past couple of years Brad has put together mashups where he brings together disparate elements of popular culture (see below).  I can't tell you how much I enjoy these images.  His most recent show back in December was called Rock Toons Mashup Art Show. 

            While I was enjoying the show, chatting with friends and drinking wine out of a box, someone asked me if what Brad was doing constituted copyright infringement.  I rattled off my stock answer "No it's protected fair use" but it occurs to me that lawyers often say this without giving any explanation for this opinion. 

            The fair use section of the Copyright Act embodied in 17 USC § 107 states:

     Notwithstanding the provisions of section 106 (i.e. the exclusive            
rights of the copyright holder) the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

     (1) the purpose and character of the use, including whether such use is of a commercial in nature or is for nonprofit educational purposes;

     (2) the nature of the copyrighted work;

     (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

     (4) The effect of the use upon the potential marked for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

            It is important to note that this section of the Act was added to the massive 1976 revision of the law but before that it had existed as a judge-made exception to the otherwise strict liability provisions of the Act.  In other words judges realize that there were some times when it was necessary to use portions of other people's copyrighted works in order to comment upon, report upon or criticize said works. 

            Any good fair-use analysis has to take all of the elements of the statute into account, i.e. what is the purpose of the use, what is the nature of the underlying work – how much was used and is the potential market for or value of the copyrighted work affected (it seems that over the last few years the fourth consideration has decreased in significance). 

            Around the time that the U.S. Supreme Court ruled in Luther Campbell's favor over Acuff Rose (the "Pretty Woman" case – a case with significant Nashville connections) courts began to fashion a new interpretation of Section 107 and that is to ask the question – is the new work "transformative"?  As the court said in Campbell v. Acuff- Rose, "The inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially  'transformative', altering the original with new expressive meaning,  or message.  The more transformative the new work, the less will be the significance of the other factors, like commercialism that may weigh against a finding of fair use". 

            Admittedly, it took me years to truly understand the concept of transformative use and I didn't really get it until I started looking at the work of Richard Prince, the well-known "appropriation" artist who is a highly-controversial figure in the art world but who has made important contributions to our understanding of transformative fair use.  Famously, Prince was sued by a photographer named Patrick Cariou, after Prince appropriated numerous photographs from Cariou's book Yes Rasta into his own work in a show called Canal Zone.  The lower court ruled against Prince, failing to find sufficient commentary in his work to constitute fair use.  The Court of Appeals rejected this requirement and pointed out that in order to qualify as fair use, the observer must only find the work transformative – a "new expression" employing "new esthetics". 

            It is hard for casual students to understand that Section 107 is a defense to copyright infringement and is not a handy shield for artists.  In other words you might still get sued for copyright infringement but you have a chance to win the lawsuit – not exactly comforting.  However, there have been some recent cases involving the Digital Millennium Copyright Act, which underscore the copyright’ owner’s duty to perform a food faith fair use analysis prior to bringing suit. This string of cases might bring a bit more clarity to the situation.

Having said all that,  I go back to saying that Brad Talbott's work is joyously transformative and I can't wait to see what he comes up with next

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