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 The fact that a work is unpublished shall not itself bar a finding of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.
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