This is one of those weeks with lots of ups and downs. Recent decisions and issues about fair use take us on a roller coaster ride, I am afraid, as we find both good news and bad in the reports.
The case brought by Righthaven in which the judge indicated that he would find that the re-posting of an entire newspaper article constituted fair use has now resulted in a formal opinion; there is a story, with a link to the full decision, here. As I wrote earlier about this case, the principal reason for finding fair use seems to have been that the plaintiff, Righthaven, was so unsympathetic. As expected, the decision puts considerable weight on the fact that Righthaven was using the copyright only to bring, or threaten, lawsuits. It is unusual for a decision about fair use to focus so much on the plaintiff’s behavior, rather than that of the defendant, but it is good to see a concern for the “chilling effect” that copyright infringement claims can have being acknowledged by the court.
What is more gratifying about this ruling, however, is its attention to the purpose of copyright law, and its attempt to place copyright in that context. Judge James Mahan finds in this case that denying fair use and upholding Righthaven’s lawsuit would do “nothing to promote the Copyright Act’s purpose of promoting artistic creation.” Exactly. And if more judges started with why we have a copyright law in the first place, fair use would get a better hearing.
To see a negative example of how important it is to consider the reasons behind copyright protection, we need only look at the decision denying fair use for the “appropriation art” of Richard Prince and granting summary judgement to photographer Patrick Cariou on his infringement claim. This decision rejects the idea that appropriation art can be fair use, and it threatens to have an especially chilling effect on galleries, since it holds that Prince’s gallery shares liability for not having ensured that Prince’s work was non-infringing before offering it for sale. There are reports about this frightening decision here, here and here. As the last of these stories notes prominently, this ruling includes the order that the offending artwork be destroyed! Here, I think, we can see why over-enforcement of copyright can pose a real threat to cultural productivity and why it is so important to look at each case through the prism of the original intent behind the law.
The Prince/Cariou decision was made by Judge Deborah Batts of the Southern District of New York. I have criticized Judge Batts before for her willingness to suppress cultural productions, including the sequel to Catcher in the Rye, in the name of an exaggerated view of the control that copyright grants. Judge Batts, I believe, is much too willing to simply outlaw certain imaginative creations when she thinks they are too dependent on a previous work. She does not, in my opinion, consider carefully enough the overall purpose of protection, its limitations, which stem from that purpose, or the possibility of less draconian remedies for genuine infringement.
One reason for this problem may be an excessively restricted view of the role of “transformation” in considering fair use. The term, of course, is not used in the fair use provision of the law, but it was championed in a 1990 law review article by Pierre Laval and used by the Supreme Court in the “Oh Pretty Woman” case. That case emphasized that parody was a transformative use, and Judge Batts seems fixated on that single kind of transformation, dismissing fair use in both the Salinger and the Prince cases because she does not see enough parody. In the one case I can find where Judge Batts did rule in favor of fair use, reported here, the parodic element was clear. But Judge Leval clearly did not intend his proposed “fair use standard” to be so narrowly cabined in, and his avowed intent was to find an analysis that took account of the intent of the law to support artistic creativity. If we use that purpose as a guide, the case against literary sequels and artistic appropriations cannot possibly be as clear-cut as Judge Batts thinks it is.
The last stop on this fair use roller-coaster is New Zealand, where a court is considering an infringement claim brought over a phone book. I mention the case because it shows how rules that we take for granted in the U.S. are not necessarily shared in other jurisdictions. Our Supreme Court has held that the white pages of a phone book, at least, are not creative enough for protection, and explicitly rejected the “sweat of the brow” theory, which holds that copyright protection may reward hard work, even when no creativity is involved. But protection for sweat of the brow is common in Britain, and it underlies the sui generis database protection which is the law in the European Community. So now a New Zealand court is facing a choice: uphold a copyright based on the idea that labor alone should earn protection, or consider the possibility that the role of copyright should be limited to serving as an incentive for creativity. It is this latter view that is supposed to be the law in the U.S., and we would be better served if our own courts kept it in mind, regardless of what the Kiwis decide.