Category Archives: User Generated Content

Ignore fair use at your peril!

One could be forgiven for thinking of the “Dancing Baby” case as a thing of the past.  It seems a long time ago that a district court affirmed that the music heard in the background (for only 29 seconds) of a video in which Stephanie Lenz’s baby is dancing — the music was Prince’s “Let’s Go Crazy” — was fair use, and told Universal Music that they were required to consider fair use before sending out take down notices under authority of the DMCA.  The video, after all, was posted in 2007.  Lenz sued Universal, arguing that, because they failed to consider even an obvious example of fair use before sending a take down notice for the video to YouTube, they had committed copyright misuse under section 512(f) of the Copyright Act by knowingly misrepresenting the legal situation in such a notice.

There was, in fact, an initial ruling that rejected some of Universal’s attempts to exonerate itself, back in 2010.  Then, in 2013, the judge rejected cross motions for summary judgment, essentially allowing the case to go forward on the misrepresentation claim.  Universal appealed this dismissal, and the Ninth Circuit Court of Appeals issued its decision today.  The Court of Appeals affirmed the lower court ruling, agreeing that the DMCA requires rights holders to consider fair use when sending take down notices and letting the suit go forward to determine if Universal was “willfully blind” to the clear fact that Ms. Lenz’s use was authorized by the law.

The thing about the decision that I really want to bring to readers’ attention is what it says about the nature of fair use.  About a year ago I wrote a blog post about the idea that fair use was an “affirmative defense.”  I pointed out that many positive rights, including free speech, would manifest themselves in court as affirmative defenses, meaning that they would be asserted by a defendant to answer a complaint, but that they were still positive rights — a space for freedom of action, not merely an excuse.  In its new ruling in Lenz, the Ninth Circuit makes this point abundantly clear, telling us that, “Fair use is not just excused by the law, it is wholly authorized by the law.” (p. 11 of the PDF)  In fact, the court is so clear and eloquent on this point that I want to quote a whole paragraph, which is found on page 13 of the PDF and which states the situation regarding fair use and affirmative defenses much better than I did:

Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct. Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer.

So perhaps it is time to stop scaring people with this language about fair use as an affirmative defense.  As courts keep telling us, fair use is a positive right, an authorized and vital part of the copyright law in the U.S.  We cannot have one half of that law — exclusive rights for creators — without the other half, which is fair use and the other exceptions that protect productive uses.  Without the latter, copyright would be mere protectionism, and, in all likelihood, unconstitutional.

Museums can get copyright right

One type of question that I get over and over again from faculty and graduate students involves copyright and images of art works held in museums.  In fact, question is probably the wrong name for these discussions; mostly I try to be sympathetic as the researcher bemoans the thicket of claims and permission costs in which they have become entangled as they undertake some project.  I recently met with one faculty member who is creating an amazing “digital humanities” project and needs to obtain, from a significant number of different museums, high-res images of works that are clearly in the public domain.  Even this author, who is both remarkably good-humored and very persistent, was confused and bemused by the Pandora’s box she had opened.

Then I saw this article about the Rijsmuseum in Amsterdam, which reminded me that even in Pandora’s box, hope remained in the bottom — some museums are bucking the trend and creating reuse-friendly policies for images of public domain works.

Whenever I am asked about the process of getting “copyright permission” from museums to use images of artworks in a new project, I start by explaining three basic principles:

  1. Many of the artworks held by museums around the world are in the public domain, either because they were created before copyright came into existence in the late 17th and early 18th centuries or because any copyright they had has expired.  And even for works that are still protected by copyright, most often the museum that owns the art work does not also hold the copyright.
  2. Even a photograph or digital scan of a public domain artwork that is created by the museum may lack copyright protection under a U.S. District Court decision that said that such “slavish” reproductions — reproductions that add nothing but attempt *just* to accurately reproduce the work — are not original enough to gain any copyright other than whatever protection the underlying work enjoys (which, if the work is public domain, is none).  This is only a District Court case, but it has never been appealed or, to my knowledge, otherwise challenged so it probably should guide us unless or until we get something more definitive.
  3. Museum claims over the use and reuse of images from their collection, even though often called and often understood as copyright claims, are really mostly a matter of contractual agreement and simple control over access to the unique works that the museum holds.  Because these works are (more or less) unique, the ability to make a reproduction can be tightly controlled and the museum can impose contractual conditions on access to make such a reproduction or on the reuse of a museum-supplied image.  These contractual obligations actually bind only the parties that agree to them, but in practice they are often passed to downstream users in the form of conditions on reuse that the original recipient feels bound to impose.

All of this is explained very elegantly and discussed in great detail in a superb article written on the topic by Kenneth Crews of Columbia University, which is available here.  It is a subject all librarians, in my opinion, should understand, so the article deserves a wide readership.  Dr. Crews points out both that many claims made by museums tend to stretch the copyright law beyond reasonable bounds AND that some of the claims for control and remuneration are supported by sound business practices and cultural policy considerations.  This is not a black or white issue, just one where more clarity and an open discussion of genuine needs and concerns can lead to better conditions for the reuse of artworks and images.

Which brings me to the Rijsmuseum.  Their decision to offer high-resolution images of many works in their collection available for free download is a startling example of the other side of this issue — there are good reasons, especially from the perspective of fundamental museum missions to make culture more accessible to the public, to take the opposite approach from that of some museums and support radical reuse.  I was struck by the reasoning behind allowing even commercial reuse of these high-res images:

If they want to have a Vermeer on their toilet paper, I’d rather have a high-quality image of Vermeer on toilet paper than a very bad reproduction.

Maybe the example chosen is not one involving high culture, but it illustrates quite dramatically that reuse of public domain art is inevitable, even for purposes we may deplore, and that the public is, in many cases, better served by access to good-quality reproductions than it is by complex contractual terms and absurd restrictions on even the most traditional practices (like sketching an artwork at the Art Institute of Chicago).  If we must chose between extremes, there is a great deal to recommend the Rijsmuseum approach.

As libraries, museums and archives work to digitize more and more of the public domain materials that they hold, it is worth considering how others will be able to use and reuse those images.  With so many digital humanities projects being pursued around the world, the thickets of permissions and use restrictions will grow evermore burdensome.  An example like the Rijsmuseum is a great counterweight to that burden, and a graphic reminder that it really does not have to be that way.  Of course, not every cultural institution can afford to make high-res reproductions available for free; fees are often essential to support the mission-driven activities of these collections.  So fees may be needed for the provision of high-res images, as may some restrictions on further dissemination of those images. But many of the restrictions and fees we often encounter cannot be justified in this way.  So if we start from the very open policy of the Rijsmuseum and then apply only those restrictions that have sound, policy-based foundations, we can arrive at much more supportive approaches to reuse and new creativity.  The policy adopted by the Cornell University Library’s digital collections is, in my opinion, a model of such a moderate and sensible approach.

For those beginning to explore the uncharted territory of the digital humanities, permission fees and reuse restrictions will probably continue to create nearly unnavigable thickets of complication.  But with these few counter-examples, we can see that a better approach is possible.  Libraries and the digital archives associated with them need to model the best practices that we can in hopes that the most absurd kinds of copyright overreaching will become less common and rational policies based on an accurate assertion of rights and a realistic assessment of needs will begin to dominate.


Fair use for appropriation art

A new ruling came out last week in one of the most interesting cases involving appropriation art, the ongoing dispute between photographer Patrick Cariou and appropriation artist Richard Prince.  I wrote about the unfortunate decision from the district court back in 2011, and on Thursday the Second Circuit Court of Appeals reversed that decision, determined the 25 of the 30 challenged artworks were fair use, and remanded the case back to the District Court for a better decision on the remaining five.

The decision from the Appeals Court tells the story of this dispute very clearly, but just to summarize, let me remind readers that Patrick Cariou took a series of photographs of Rastafarians that were published in a book, now out-of-print, called “Yes, Rasta.”  Richard Prince then made a series of appropriation art works, which included collages of the photos as well as various other alterations.  The trial court in the case decided on a summary judgment motion that these art works by Prince were copyright infringement.  Judge Deborah Batts, whose opinions we have had cause to regret in the past, held that a fair use defense for the appropriation art failed because the new work must “comment on, relate to the historical context of or critically refer back to the originals.”  When asked what his point was in these artworks, Prince told the trial court that he did not have a point, and that was very damning in Judge Batts’ eyes; for her, his works could be transformative only insofar as they were making a comment about Cariou’s work.

In Thursday’s decision, the Appeals Court told us, and Judge Batts, that this was not the right standard for assessing transformation for the purposes of fair use.

By the way, in her original injunction, which was vacated by the Appeals Court, Judge Batts had given Cariou the right to destroy Prince’s allegedly infringing works.  I wrote about this with some outrage two years ago, so it is worth noting that, to their credit, Cariou’s counsel told that Appeals Court early on that they opposed destruction of the art, even though they wanted it to be held to be infringing.

The Second Circuit begins its opinion by pointing out, in clear and forceful language, that copyright is not intended to give authors or other creators “absolute ownership” in their works, as if by natural right.  Instead, the Court notes, copyright is designed to stimulate creativity and progress in arts and sciences.  This is not new, but placed as it is in the opinion, it strongly reinforces the point that fair use is part of the structure of copyright, not an oddity or a mere exception for extraordinary situations.  Without fair use, copyright fails in its Constitutional purpose.

As for the correct standard for deciding if a work has a transformative purpose, the Second Circuit wants a broader rule than that articulated by the trial judge.  Transformation can exist even without direct comment on the original, whenever the original work is altered with “new expression, meaning, or message” (quoting the Supreme Court in the Campbell case).   The new work can be transformative if it “superseded the object of the original creation” by offering “new information, new aesthetics, new insights and understandings.”

Significantly, and especially important given Prince’s refusal to assign a “point” to his work, the court wants us to look at transformation from the perspective of the viewer, not the creator:

Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.  Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature.

For me personally this is very reassuring.  One of the ways I frequently tell students, faculty and librarians to try to decide if a proposed use is tranformative is to advise them to ask themselves three questions.  First, will the “quotation” of the original help me make my point?  Second, will it help my reader/viewer get the point?  Finally, did I use no more than necessary to make my point? These questions, by the way, are borrowed from LA attorney Dean Cheley, thanks to a panel we were both on at the 2012 ALA Annual conference.  The part of the decision that reinforces these questions is the reference to what will help readers and viewers perceive the new message or new aesthetic.  And while my “clients” usually do have a point to make, it is encouraging to see that fair use supports even appropriation art for its own sake.

Finally, the Second Circuit is very careful in its discussion of potential markets when assessing a transformative fair use.  It is not enough, the Court says, that argue the new work could have been licensed, and thus assert that any fair use harms that hypothetical market for a license.  Instead, the Court reminds us that the question is whether the alleged infringer has “usurped” a market in which the target audience and the nature of the content is the same as for the original.  Where the audience for the new work is different, and there is nothing to suggest that the original rights holder would have thought to exploit that different audience or communicate the new message, aesthetic or insight to them, the entirely speculative possibility of a license will not undermine fair use.

In the end, the Appeals Court finds that 25 of the challenged art works are fair use.  It remands only five of them back to the District Court for a new decision applying the correct standard.  The chances are good, I would think, that this will never actually get back to the trial court, because some settlement, based on a licensing fee in regard to those five, is probably in everyone’s best interest.  But regardless of what happens about those five art works, we now have a very strong decision about transformative fair use for appropriation art out of the Second Circuit.  Although not all fair uses, as we know, have to be transformative, this kind of decision helps lend support to many of the most creative forms that teaching and learning take on our campuses.

Copyright gets under your skin

I was considering a post about copyright in tattoos even before I read about a recent case.  This blog post raises some interesting questions about who owns the rights in a tattoo, and trying to answer them seemed like an interesting exercise; a chance, at least, to review some basic concepts.

Then I read these stories about a threatened lawsuit over an upcoming movie and realized that the topic was more current than I had suspected.  The case involves an apparent imitation of Mike Tyson’s famous facial tattoo being used in the movie “Hangover II,” and a lawsuit from the tattoo artist to enjoin release of the film.  As one of the bloggers about the case says, it seems to just be an attempt to get a settlement out of Warner Bros. — perhaps a deserved settlement, one might add — but it reminds us that these are not trivial issues and are worth a few minutes of our attention.

The Tyson case, and the lawsuit over a tattoo on the arm of basketball player Rasheed Wallace back in 2005, raise the issue of who owns the rights in skin ink.  The answer is a little bit complicated, since rights vest when original work is fixed in tangible form.  Actually applying the tattoo is certainly fixation in tangible form, so the actual tattoo artist will often hold the rights.  But sometimes a design may be done by someone else, often the “tattooee” him or her self, prior to the actual tattooing.  If an original design is done on paper, then copied on to skin, the rights are likely held by the designer.  But simply providing the surface on which the tattoo is applied is not sufficient for the person who wears it to claim rights in a tattoo.

One possibility about ownership that should be accounted for is work for hire.  Here it is important to remember that simply paying for something does not make it work for hire.  If a tattoo artist is a regular employee of a shop, the tattoo design may belong to the shop owner as a work for hire.  But it will almost never belong to the person being tattooed just because they paid for it; an explicit agreement would be necessary for that.

Once we understand that the copyright in a tattoo is not always, or even usually, held by the wearer, the issue of remedies arises.  The two cases involving athletes and their tattoos being shown on TV or in the movies seem straightforward as to remedies — the artists want to be paid for uses of their work.  In the Wallace case there was a settlement that presumably gave the artist some money, and it seems likely that the same thing will happen regarding Tyson’s facial tattoo.  but it is important to realize that some copyright infringement remedies — such a destruction or confiscation of the offending item — will simply not be available to a rights holder even if the infringement is especially blatant.  If the application of the law to this area of artist production seems bizarre, we ought to remember that courts usually have some measure of common sense, and realizing that some of the usual remedies for infringement will simply not be available goes a long way to reducing the sense of outrage.

Finally, that first blog post I linked to above raises the question of whether or not a person who has a tattoo in which the rights are held by someone else would be able (voluntarily!) to have the tattoo removed.  The issue here is artists’ moral right to not have their work destroyed without their consent.  In the United States these rights are conferred by section 106(A) of the Copyright Act only on a limited group of visual artists, but there is no obvious reason why a tattoo artist would not be included in that group.  Here again it is important to think about the kind of remedies a court might resort to.  There is a specific provision in U.S. law that limits the right of a visual artist to prevent the removal of a work of art that is incorporated into a building, so that where a building was being torn down, for example, the remedies for the artist are limited such that they cannot force the building to remain standing.  One would hope that our courts would take this example and analogize it to the case where a tattoo wearer wants to be rid of a tattoo; it would seem inhumane to order a person to continue to wear a tattoo against their will, just as it would be to order someone to have a tattoo removed because of alleged infringement.

In the end, there is no reason in principle that ordinary copyright provisions should not apply to tattoos.  But because tattoos are works of art on human flesh, courts would be compelled to take the medium into account in order to avoid offensive and inhumane results.  The way to do this is to limit the remedies available to a tattoo artist whose work is infringed.  While money damages could still be appropriate, as in the Tyson and Wallace cases, other types of remedies that might fundamentally threaten personal autonomy and well-being simply should never be considered.

Getting the whole picture

There has been a lot of attention paid to YouTube’s announcement of its “Copyright School,” which those accused of infringement will be forced to attend online.  YouTube, of course, is trying to fend off more litigation, but that should not be an excuse for misrepresenting copyright law, as the new video that is part of the “school” does.

The video features animated characters who are identified as the “Happy Tree Friends.”  The focus of the video is on Russell, who is dressed as a pirate from the beginning of the video.  This is one of the favorite themes of the content industry, and YouTube is clearly simply doing what they are told to do in designing their “school” this way.  We have written before about why the pirate analogy is legally flawed.  But it is also pretty stupid to use it in this context, since studies have indicated that it does not have the desired effect on the target audience, who think of pirates, at least as portrayed here, as rather romantic and exciting.  Perhaps the myopic executives in the content industries, who are obviously calling the tune for YouTube, think this is a devastating critique, but the users of YouTube probably do not.

Other flaws are equally evident.  The video threatens users with a “three-strikes” policy where three accusations of infringement can get a user “banned for life.”  This is entirely a voluntary policy by YouTube, since attempts to write it in to US law have so far not succeeded.  The problem, of course, is that there are so many inaccurate accusations of infringement, and a three-strikes policy completely avoids the due process that is supposed to be afforded to those accused of the tort of copyright infringement.  Three strikes works as if an accusation is the same as a judgment of guilt, which it decidedly is not.

If this were not enough to show that YouTube is uninterested in being fair or accurate, their appalling treatment of fair use clinches the matter.  Fair use is mentioned in a quick discussion of mash-ups, but the description of fair use is done in a sped-up voice intended to convey that this is legalese which the viewer cannot possibly understand.  The clear message is that fair use is too complicated for ordinary users to even consider.  The Russell character is literally crushed by the weight of the fair use screen which, interestingly, seems to be an industry written text, not the actual text of section 107 of the copyright law.  It ends by recommending that one consult a lawyer whenever there is doubt.  Since fair use is designed to be a balancing test rather than a bright-line rule, there is always an element of doubt, so this qualification swallows the rule.  Case closed on fair use.

The video also discusses the notice and takedown provisions of the law.  What is interesting is that there is no mention of the potential misuse of takedown notices, which is, in fact, a substantial problem.  The discussion of misuse takes place only in regard to the counter-notification process, which users can employ if their work is taken down wrongfully.  Here there is a stern warning against misuse, although there is little evidence that this part of the law is regularly abused, and the viewer is left with the idea that counter-notification is too risky to be used.  Just do what the content owners tell you and be thankful you are not in jail.

If YouTube really wanted to present a balanced view of copyright, at the very least they should balance the Happy Tree Friends travesty with this humorous video that more accurately describes the use of the counter notification process to challenge a wrongful takedown notice.

Should any reminder that the takedown process can be abused, and that the counter-notification provisions are a necessary part of copyright law, be needed, this blog post about how some doctors abuse the process to get medical websites to remove critical evaluations provides it.  What is interesting is that the weapons of choice against web criticism of specific doctors are copyright claims, rather than defamation law.  If the criticism that is targeted is genuinely untrue, libel law seems like the appropriate way to fight it.  But it is so much easier to send a copyright infringement takedown notice, and the use of the counter-notification process is so sporadic, that this part of copyright provides a shortcut to silencing criticism that avoids having to prove that what was said was untrue or caused harm.

Because copyright infringement claims are so easy to abuse in the service of suppressing protected speech, it is truly appalling that YouTube, which many think of as a tool to empower free expression, has chosen to present such a one-sided and slanted picture of the law.

Update – if you just can’t get enough really bad copyright videos, check out this copyright PSA, apparently created by a teacher using her elementary students.  Not only does it get the law wrong, but it is genuinely creepy as the children chant dubious answers to copyright questions in unison.

One ring to rule them all?

How much control an author should have once a book leaves her hands is a fundamental question for copyright law.  It arises in lots of contexts, but nowhere more directly than when a different author creates a sequel, a parody, or an homage and the original author objects.

This, of course, was the case with The Wind Done Gone, a work that a court ultimately found to be a parody of Margaret Mitchell’s classic novel and therefore permissible under copyright’s fair use exception.  It was also the case with Sixty Years Later: Coming through the Rye, which was a kind of sequel or extension of the story of Catcher in the Rye.  In that case, J.D. Salinger (and, finally, his estate) were successful in stopping publication in the United States because the judge — in a decision I lamented frequently on this site — held that it was not a parody and therefore a potential copyright infringement.

Now comes the news that the estate of J.R.R. Tolkien is trying to prevent the publication of two new books based on the Lord of the Rings. One is an English translation of a Russian work that is told from the perspective of  Sauron and his forces, who lost the battle Mordor and failed to stop the destruction of the ring; it is called The Last Ringbearer and is available as a free PDF download.  The other is a work (called Mirkwood) very similar to the Catcher sequel because it features both characters from LOTR and Tolkien himself, claiming to be a combination of fiction and literary criticism.  These works raise the usual questions of whether allowing this level of control actually serves any social interest, or if we would be better off permitting these sequels and letting the marketplace decide what is good and what is unworthy of attention.

The blog TechDirt has written twice about this issue, and their suggestion that the Last Ringbearer case is very similar to that dealing with the Wind Done Gone strikes me as correct.  After all, each was a retelling of a classic story from the point of view of a neglected or despised character; surely if one is fair use, so should the other one be.  But the second case is not this simple; the issue being raised is not copyright infringement at all, apparently, but a right of publicity claim on behalf of J.R.R. Tolkien.

The right of publicity is basically a right to prevent others from making money using your name, likeness or (sometimes) voice.  It is a right created most commonly by state law, and those laws vary somewhat.  In most jurisdictions, a right of publicity survives even after the individual is dead and can be enforced by his or her estate.  That is the case with the Tolkien estate, who is attempting to use the Tolkien’s right of publicity to prevent the distribution of this second, quasi-literary critical book.  They apparently sent the publisher a cease and desist letter, and the publisher has responded with a court action seeking a declaratory judgment.

I want to focus on two issues raised by the unique facts of this case.

First, the right of publicity is an unusual approach, and it is one that seems designed to avoid a fair use defense (since there is no claim of copyright infringement, as there was from Salinger and Mitchell in those two cases).  The potential power of publicity rights to suppress unwelcome attention and competition seems even greater than copyright.  If it violates Tolkien’s right to control publicity for someone else to write a novel/criticism about hobbitts, wizards, orcs and JRR himself, could it not also be a violation to write a more serious critical secondary work about the original Trilogy if the estate disapproved?  Here we approach the real threat to free speech and to scholarship that is latent in this kind of publicity right challenge to a new book.  Scholarly works that displeased an estate (perhaps the James Joyce estate as well as that of Tolkien) would not even be able to lean on the slim reed (as it has become) of fair use; in its filing for a declaratory judgment on the issue, the putative publisher of Mirkwood: a Novel About J.R.R. Tolkien relies directly on a First Amendment argument.

Second, with these two books we are very close to the issue of fan fiction, especially in the case of The Last Ringbearer since it is being given away for free.  Indeed, fan fiction works based on LOTR are not at all uncommon; the site list almost 45,000 such works amongst its collection.  I spoke about fan fiction at a symposium at Hofstra University last fall, and I learned preparing for that talk that there are strict norms amongst fan fiction writers against both plagiarism and selling one’s efforts, which are intended, usually, as acts of respect.  There is no evidence that these norms have been violated by the Russian sequel, but it may still become an issue, mostly because of the attention turned on it by the review in Slate linked above.

Fan fiction is often not very good, but it is spontaneous creativity that springs from love for a particular work of creative art, whether it is a novel, movie or TV show.  These works should not be seen as infringements, and they should not have to rely on obscurity in order to exist.  If a work of fan fiction actually turns out to be good enough for a wider audience to want to read it — The Last Ringbearer may be such a work — society is better off for its creation and there is no loss to Tolkien or his heirs if we let the new work thrive alongside the original classic.  Neither the purpose of copyright law nor the interests protected under rights of publicity are really harmed by such works, and copyright’s purpose is arguably advanced.

[The slides from my presentation on fan fiction are available here]

Pirate Marketing?

Let me start with a confession; I have never seen the TV show Glee.  But lately I have heard a lot about it, from the odd perspective of copyright law.  In this blog post by Christina Mulligan, the copyright consequences of practices that are taken for granted in Glee are tallied up.  Apparently the cover performances, music videos and remixes could result in millions of dollars of liability if done by real high school musicians.

As Mulligan points out, there is no attention to copyright issues as these teenage performers go about making their music.  They “see so little wrong with this behavior that the word ‘copyright’ is never even uttered.”  In this way, Glee is a telling illustration of where we are as a culture; what a small group of entertainment industry executives would insist is stealing is everyday practice for many real-life consumers and performers.  Copyright only really works to protect the big name writers and performers; for so many lesser-known musicians and for millions of consumers it is merely a hindrance or, perhaps even worse, a non-issue.

It should be noted that Mulligan does not consider the possibility that fair use might actually support her contention that “remixing isn’t stealing,” even if industry lawyers would disagree.  But the larger question is really whether copyright is doomed to irrelevance in the remix culture.  Is all lost for those who believe that copyright has some important function (however defined) in incentivizing new creation?  If so, is what we gain by the demise of copyright compliance greater than what we lose?

Perhaps there is a middle ground, as illustrated by this remarkable letter written by media consultant Brian O’Leary to incoming Author’s Guild president Scott Turow.  O’Leary cites the research done by his own organization, Magellan Media, which found “an apparent correlation between piracy and a subsequent growth in paid sales.”  O’Leary is not, I don’t think, suggesting that the content industry should encourage piracy, even if such a thing were possible.  But he does suggest that it is counterproductive to fight piracy too aggressively, since “discovery, even using a pirated file, may lead to more sales.”  In short, the natural tendency of the kids from Glee may not be a death knell for the content industries, but an opportunity to refine their business models and consider how to maximize discoverability while still offering added value that will lead to sales.  I was particularly struck by one specific warning that O’Leary offers, that publishers should not undermine discovery (and frustrate consumers) by delaying the release of e-book versions in order to prop up print sales; the e-books, even when distributed without authorization, may themselves support print.

In all this I think there are two lessons for those of us interested in copyright and, especially, in scholarly communications.

In regard to copyright, these two very different communications reinforce the point that the terms “piracy” and “theft” are much too blunt instruments for this discussion.  Piracy has a long history in intellectual property, but it should be reserved for large-scale commercial interference in the marketplace.  The attitude toward remixing and other non-commercial, personal uses of media needs a different term that takes account both of the ubiquity of such uses and their potential.  How about “opportunity?”

For academics, the important message is that there are lots of venues for distributing our work and the most important criteria should be discoverability.  As the original rights holders in scholarly works, faculty authors do not have the same concerns about so-called piracy that the movie and music industry has, for example.  We are free, as long as we retain our rights, to distribute our work in whatever ways lead to maximum access, and we can manage our copyrights for that purpose.  With improved discovery, as O’Leary’s research suggests, comes greater impact, and that should put a “gleeful” smile on the faces of scholarly authors.

Transformation and teaching

On Wednesday the Duke Libraries’ Instruction and Outreach department held a retreat on the topic of “Digital Literacies.”  The excellent keynote speaker for the event was Ellysa Cahoy from Penn State University.  As part of the retreat, I spoke very briefly about copyright issues around the use of digital media.  My comments ended up being very different than what I originally planned, based on the things I heard from Ellysa and the Duke faculty who participated in a panel talking about the kinds of new media assignments they were using.  Ellysa has some kind words about the retreat in general, Duke’s superb instruction librarians, and my remarks in this blog post.  On that latter topic, I want to take a minute to clarify and expand on what I said, because I believe the message is quite important.

As Elyssa says, my fundamental message was that faculty who are using creative assignments involving new media, and the librarians who work with them, need to embrace the space given to them by fair use.  I hasten to add that I did not say that they should “not worry about using copyrighted material,” but I did encourage a degree of reflection about the nature of the use in question.  Events like the lawsuit against Georgia State over electronic reserves and the news coverage about the conflict between UCLA and AIME over streamed digital video have a tendency to make librarians very nervous about all uses of copyrighted works.  But all uses are not the same; our courts have been very receptive over the past three decades to uses that are perceived as “transformative.”

Transformative uses are, broadly speaking, uses of copyrighted works which create something new that has a different purpose than the original work involved.  Transformative works are often identified as those which do not create any kind of market competition with the original work.  Thus a parody of a 1950’s classic song by a 1980’s rap group is a transformative use of the original, and an historical work about the Grateful Dead makes a transformative use of original concert posters for Dead concerts when it uses them to illustrate a time line.  One does not buy a history book instead of attending a concert, nor does one buy 2 Live Crew’s music as a substitute for Roy Orbison’s (although a truly eclectic music fan might buy both).  In a fair use analysis, transformativeness strengthens the argument for fair use based on both the first fair use factor – the nature and purpose of the use – and the forth factor — the effect of the use on the markets for the original.

When students (or faculty) use media like film, music and video clips to create remixes, mash-ups and other kinds of commentaries, this is a strong example of fair use.  These uses are quite different than the largely iterative ones like scanning a book chapter for e-reserves or streaming a video through a course management system.  These may or may not also be fair use – that is a highly controversial issue – but they are very different from creative and transformative uses.  When I realized that the retreat was discussing such student assignments as using advertisement illustrations in “story board” essays about popular culture or re-mix film and music clips to create PSAs for local non-profits, I changed the focus of my remarks from warnings about iterative uses to encouragement of these transformative ones.  To my mind, these kinds of uses, where new scholarly and social valuable works are being created, are at the heart of the rationale for fair use in our law.  While copyright law often seems to inhibit pedagogy, this is one area in which the normative interpretation of fair use offers strong support for creative teaching.

One thing I wanted to stress about transformative use and student assignments was the way in which the fair use analysis actually encourages good scholarship.  It seems clear that the more integrated copyrighted material is into the basic argument or message of the new work, the stronger the argument for transformative fair use will be.  To take one example, music added to a student-made video simply to produce a more pleasing product is much less likely to be fair use than music which contributes to the overall theme of the work in a direct way.  Thus, a conversation with student and faculty creators about copyright and the importance of thinking through the fair use analysis is not only valuable in itself, it can actually support the creation of better, more coherent scholarly work.

Facing the Future of Social Media

By Will Cross

As a scholarly communications librarian I am naturally excited when scholars embrace a promising new method of communication.  As such, I was delighted to see this new study published in the Chronicle of Higher Education.  Although academia is just scratching the surface of social media use, this study of almost 1,000 professors indicates that roughly 80% are already using social media and about one-third use social media to communicate directly with peers and students.

Of course this blog provides one vital (in every sense) example of such communication, but more interactive tools such as Facebook are also being used by libraries and scholars to promote academic discourse.  Even Twitter has recently been used to address scholarly issues, as with the recent coordinated protests against ACTA.  Scholars have also begun to study Twitter as a source of data for scholarly analysis similar to telephone surveys.  These nascent uses certainly do not present an imminent threat to replace traditional scholarly discussion and publication, but they do suggest the potential for new forms of communication among scholars that can act as a valuable adjunct.

As we enter this brave new world, however, we must be cautious; moving scholarly discourse into digital and commercialized spaces has costs that come along with the benefits.  The most visible example of this fact is the recent conflict over Facebook’s privacy settings.  As the Electronic Frontier Foundation’s Timeline describes, what began as a private tool for communication among friends and colleagues has essentially been transformed into a clearinghouse of personal data that is being mined and sold en masse to advertisers.  This has occurred based in large part on changes in the “default” settings, well-illustrated by this graph, and compounded by the fact that personal information continues to be made available and mined after it is removed from a user’s page and even when a user quits Facebook altogether.

Facebook is the most publicized offender, but more traditional “new media” present similar problems.  As ebook readers pop up on iPads and Android phones it has been revealed that ebook reading habits, personal annotations and highlights are being recorded and aggregated.  Even scholarly darling Second Life has been the subject of a recent class action lawsuit over ownership of content created within the “virtual world.”  This is similar to Facebook’s ill-fated 2009 claim to “perpetual worldwide ownership” of all content that was eventually rescinded when users revolted.

As scholarly communication, and perhaps eventually scholarly publishing, moves into these new arenas we must decide how to respond to these challenges to personal privacy and authorial ownership.  Some have argued for an open alternative to these commercial entities that must, at the end of the day, focus on their bottom line rather than social or scholarly good.  At the same time, businesses are looking to technology to control access and retain all information in social media.

Along with these technological solutions many groups are focusing on providing users with information.  The American Library Association has put out an excellent video called “Choose Privacy” that aims to educate users about these issues so that they may make informed decisions.  Business Week’s list of Ten Reasons to Delete Your Facebook Account goes a step further to argue for a specific action.

However we address these issues we must be cognizant of how social media change the norms of expression.  The Scholarly Kitchen has an excellent discussion of social media and privacy that highlights the way social media such as Facebook are transforming social norms about privacy.  Since these norms themselves influence privacy law and the Fourth Amendment’s complex and often-misunderstood “reasonable expectation” test, today’s social practices may drive tomorrow’s legal changes.

At the same time, the Scholarly Kitchen article cites a study describing the necessary tradeoff between sharing information and sacrificing some privacy.  The challenge for scholars and librarians, I would argue, is to find a balance that permits the appropriate sharing of information but retains the privacy and ownership values necessary for intellectual exploration, reflection and creation.  As is so often the case with new modes of expression, we must be careful to import the social, cultural and legal norms of scholarship that we need while leaving room for new opportunities to flourish.

A lens on the digital challenge

On March 19th a fascinating symposium was held in Chapel Hill, NC in honor of Laura (Lolly) Gasaway.  Lolly, for many years Professor &  Law Librarian at UNC Chapel Hill and now Associate Dean for Academic Affairs, is a prolific scholar and has had a tremendous impact on how libraries understand and work with copyright law.  She is also a gracious and generous friend; meeting her has been one of the best parts of coming to work in the Research Triangle, even if we are on opposite sides of the great basketball divide.  The symposium in her honor was a gallery of prominent and interesting speakers who witnessed to the full range of Lolly’s intellectual and practical influence.

I was particular interested in the remarks made by Professor Llewellyn Gibbons of the University of Toledo College of Law, who talked about the Visual Artist’s Rights Act (VARA) and its application in the digital environment.

VARA was adopted in 1990 and adds a section to the Copyright Act (section 106A) that carves out a special right for visual artists.  An artist who creates a covered work under VARA gets a truncated version of the “moral rights” that are recognized in most other countries — a right of attribution and a right to ensure the integrity of the art work.  VARA applies only to a narrow category of works — paintings, drawings, prints, sculptures, or still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed by the artist.  It is interesting to note that this is the only recognition of these moral rights in U.S. law, in spite of our commitment when we joined the Berne Convention to protect such rights for all rights holders.

Professor Gibbons raised the issue of how well or poorly VARA might apply to an artist who works in digital media.  The real problem, he pointed out, is the limitation to works that exist in 200 or fewer copies.  How do we talk about a limited number of copies in an environment that promiscuously makes copies every time material is displayed, download or transmitted?  This question is remarkably similar to one that the Section 108 Study Group, co-chaired by Lolly, grappled with regarding the application in the digital realm of the limit on the number of preservation and interlibrary loan copies that a library can make.

Suppose an artist creates a digital work and displays it on her website.  That, we could argue, is a single copy.  But people will download that work and, without some control, soon there will be more than 200 copies.  And even that way of stating the problem assumes that the ephemeral copies created in a computer’s memory whenever a site is visited do not count (they are not copyright infringements because of section 117 of the Copyright Act, but that does not determine whether they would count toward the restriction in VARA).  Professor Gibbons discussed the possibility that a “download and delete” scheme, presumably based on coding that would prevent the 201st download and would prevent a downloaded copy from proliferating (similar to the DRM used by iTunes?), might preserve VARA rights for such an artist.

I am less than optimistic that the scheme Gibbons suggests could really work, but I look forward to reading his paper when the proceedings of the symposium are published in the Journal of Law & Technology.  In the meantime, it seems very obvious to me that the idea of digital art is completely outside of what Congress was imagining when it drafted VARA 20 years ago.  And that, perhaps, is the most important point.  This attempt to imagine how VARA could apply to digital art clearly demonstrates the inability of copyright law, even with relatively recent revisions, to keep up with changing technology.  It highlights the near impossibility of creating a law flexible enough to respond to new technologies.  The real digital challenge is to create a copyright law that is permeable enough to provide “escape hatches” through which new technological possibilities can slide so that creativity is not inhibited for the long periods of time it takes for law to catch up with human ingenuity.