Managing copyright infringement risk for artists (see NOTES for details). Artists use others' works in creative ways, sometimes legally, sometimes not so much. It's not that hard to stay on the right side of things, with a little bit of planning. The NOTES for these slides lay out strategies to keep your work in the creative flow, and outside the legal eddies. NOTES tab is below, on the right.
19. IF THE USE IS TRANSFORMATIVE…
Amount: no more than
needed to achieve purpose
Benefit to public exceeds harm
to copyright owner’s interests
20. C H A L L E N G E D O T H E R S ’ U S E O F T H E I R M A T E R I A L S
SULLIVAN, FAULKNER AND SELTZER
21. U S E A 7 - S E C O N D T V C L I P I N T R O D U C I N G T H E F O U R S E A S O N S
THE JERSEY BOYS
22. U S E S 9 W O R D S A T T R I B U T E D T O F A U L K N E R
WOODY ALLEN
23. U S E S S E L T Z E R ’ S S C R E A M I M A G E A S V I D E O B A C K D R O P
GREEN DAY
24. F A I R U S E B E S T P R A C T I C E S
COLLEGE ART ASSOCIATION
25. • Good for
• Visual Artists
• Poets
• Musicians
• Writers
• Directors
• Producers
• Distributors
• The public
• Good to loosen our
grip a bit
Creative uses
Productive purposes
Orthogonal purposes
CC LICENSES
FAIR USE
Notas del editor
Slide 2:
Artists create in many different ways, but for many, maybe most, reference to, use of, or building upon the works of others is an integral part of the process. Because all of our works are protected by federal copyright law from the moment that they become fixed in a tangible medium, including computer media, we all enjoy a certain amount of control over what others can do with our works. We like that.
But if that control were absolute, new creativity would have to be 100% original, or refer to or begin with only those works that are licensed, or really old, and frankly, that’s not how creativity always works. The law recognizes that. In fact, the point of the law is not to give us air-tight control over our works, but to encourage creativity itself. Creativity requires a certain amount of flexibility in the set of rights that give us our control. Fair use is the most important place-holder for that flexibility, and we’ll talk about that in a moment.
But the flexibility only goes so far, and as artists, we are likely to overrun its bounds fairly quickly, especially these days, when access to others works online makes use of them so easy. So if we are to manage the risk that we’ll exceed the law’s built-in flexibility in some really big way, and get ourselves (and those who represent us, our galleries, our publishers, etc.) into trouble, we need a set of strategies – we need to know our options from least risky to most risky, and proceed as we need to, given our risk tolerance, our objectives and the means we have of achieving them.
The strategies include creating our works entirely ourselves; or, if we wish to start with others’ works, incorporate them, or reference them in significant ways, begin with works whose owners have already indicated that they WANT us to use them (!) – that would be Creative Commons and Open Access resources; directly obtain permission to use the work we want; or transform others’ work in such a way that our use will qualify as a fair use.
Slide 3:
“Make it yourself” doesn’t need much discussion, except to clarify that by “yourself” I mean absolutely by yourself, without reference to the use of others’ work. Not even from memory. If you’ve had access to another’s work, and your work is substantially similar, you’ll be presumed to have infringed.
Slide 4:
While I’m in awe of people who truly can create work entirely on their own without reference to others’ works, many artists choose to work differently. For those who start with, incorporate or reference others’ works, I recommend the Creative Commons or Open Access option first because with these explicitly publicly licensed materials, you can avoid entirely the problems associated with item-by-itm licensing, paying permission, creating something from scratch, or fair use. In other words, you reduce risk to zero. This makes starting with CC and OA works as effective a risk management strategy as making something 100% yourself.
Slide 5:
The only thing you need to do is to learn good CC search strategies.
There will be times when no one has posted a CC licensed work that really meets your needs, and then you can turn to another strategy. But I would strongly advise that you learn to search for these materials well, so that if you do conclude that there’s nothing CC licensed out there that meets your needs, you’re correct.
Slide 6:
For images, my favorite search strategy is to go straight to Flickr.
Access creative commons licensed images at flickr.com/creativecommons
Slide 7:
I always start by searching the images with the least restrictive license before I move on to others that would restrict my use more. If you can find something whose owner want’s nothing more than attribution, that should be your first choice. Beyond the CC*BY license, you’ll find materials posted by copyright owners who only permit non-commercial uses, or don’t want you to change their work in any way, or if they do allow you to change the work, they’ll want you to be sure to put the same license on the derivative work you create when you change their work, as they had on their work to begin with.
Slide 8:
CC licensed audio and video are on YouTube and other video sites. You can search these from the CC site (search.creativecommons.org), or include a CC search engine option in your browser and find CC content on the sites themselves, like YouTube. Either of these options allows you to search the web for materials that have a CC license embedded in the page code for that item.
Slide 9:
CC licensed images and text can be reached from the search.creativecommons.org page also. Or you can go directly to those sites.
I like searching from the CC search site when I want to see all the types of media that might be available on a particular topic without having to switch from one site to another for each type of content. Using these strategies, you will find the things that match your search that are also licensed for reuse. For free.
Slide 10:
Of course you can go directly to your favorite search engine. Mine is Google. Google Images allows you to create CC license searches from the Settings page. Choose Advanced Search.
Slide 11:
Near the very bottom of the Advanced Search page, you can specify the type of license you would like.
Slide 12:
If you are making materials that will be available for a public audience, for example, if you are posting your materials on a Website or in your institution’s digital repository, you can do that audience a huge favor by spelling out for it what it can do with your materials. Put your own CC license on your materials. It’s easy. The CC website explains each license, helps you choose the one that’s right for you and gives you the code to paste into your online works to evidence your choice, and make YOUR works searchable by others.
So you can do for someone else, what others have done for you: make your posted works clearly available for use and reuse, so there’ s no risk for others if they want to use your works in the ways that you permit.
Slide 30:
For artworks intended for public display or performance, individually licensing the right to reference or use others’ works in your own work is an option. But, it takes a lot of time. And it can be very expensive. For commercial productions in the film and music industries, however, this is the norm. It’s also the norm for publishing, including publishing about art, film and music.
Identifying copyright owners, contacting them, and getting a response can take a very long time and ultimately be very frustrating. Often there is simply no response, or no way to even figure out whom to ask. But if you have a sufficient budget and the lead time to pursue these difficult item-by-item permissions, this method can whittle down your risk considerably. Explicit permission, well documented, is excellent insurance against infringement claims.
Slide 14:
Fair use is our third option. We have enjoyed a very solid expansion in the scope of fair use over the last 20 years. Continuing a trend that began in 1994 with the "Oh, Pretty Woman," case, Campbell v. Acuff-Rose, courts support fair use where the use or purpose is transformative. Campbell didn't actually elaborate different types of transformative uses, but the lower court decisions since then can be more easily understood if we recognize that different types exist.
Slide 15:
Pam Samuelson described an approach I've found useful in a 2009 article, 'Unbundling Fair Use.’ I’ll be relying on her description throughout this talk.
First, its important to understand that all of these types of transformation are most likely to be fair use when they support First Amendment values and freedom of speech. Second, there are transformative works one might create, and two types of transformative purposes one might have in using another's work. Third, the three categories Samuelson identifies within works and purposes can overlap.
Slide 16:
Transformative works are the easiest to recognize: parodies, satire, and appropriation art are good examples. These photos (Slide 16) show how Jeff Koons used a magazine advertisement for shoes in a collage he called, “Niagara.” The court found his use to be transformative. “When, as here, the work is used as “raw materials,” in furtherance of distinct creative or communicative objectives, the use is transformative.” Blanch v. Koons, p. 7.
Two other cases involving Koons’ work didn’t end so well for Koons, however (Rogers v. Koons (string of puppies); United Features Syndicate v. Koons (Odie). So, simply being an appropriation artist does not, in and of itself, assure you that what you are doing will always be fair use. Why the different results? Most importantly, when the first two were decided, the controlling law on fair use in this context was understood to allow *only* parody as a fair use, but since then, courts have expanded the scope of fair use. This idea of transformation is at the heart of that expansion. And just as the law changed to favor fair use, it can change again to favor owners’ rights. It pays to stay on top of these kinds of developments so you have a sense of where you are and what’s going to work and what won’t.
For more information, see, Legalities 30: Jeff Koons and Copyright Infringement, by Linda Joy Kattwinkel, http://www.owe.com/resources/legalities/30-jeff-koons-copyright-infringement/ and See also, 7th Circuit criticizes 2nd Circuit’s ‘Transformative Use’ approach to fair use, Kienitz v. Sconnie Nation, Sept. 14, 2014, http://www.law.com/sites/jdsupra/2014/09/22/seventh-circuit-criticizes-second-circuits-transformative-use-approach-to-fair-use/?slreturn=20150103123908, for explanation of possible split in the circuits regarding the Cariou decision’s near-exclusive reliance on transformative use to justify fair use, arguably gutting the derivative use right.
Images on Slide 16: http://newsgrist.typepad.com/diap_new_media_art_histor/2012/12/copyright-art-three-striking-decisions.html
Slide 17:
Transformative purposes include productive uses and orthogonal uses.
Good examples of productive uses would be those that promote ongoing authorship -- research uses, including making iterative copies that will be used to inform a critique or a commentary, copies for news reporting, quotes to illustrate a point, to explain, to demonstrate. Another example might be making a photograph of a sculpture for an analytical piece. And as HT indicates, an excellent example is making digital copies of books to enable access by the blind and print disabled.
Orthogonal uses are those "wholly unrelated to the use made or envisaged by the original author," (Sag, 2010, Predicting FU, citing Samuelson at 2557). These are uses for a new audience, for a new purpose. HT is again instructive: digitizing works to index them for full text search and to enable text mining are excellent examples. So is Jeff Koons’ work, Niagara. So, that work is a creative use, with a creative purpose.
Again, these are strongest when made in support of First Amendment values.
Slide 18:
Let me give you another example to illustrate the differences among the categories: One might critique or comment upon Margaret Mitchell's, Gone with the Wind, by making a new creative, transformative work, such as the novel, "The Wind Done Gone," a parody, or by writing a scholarly work. Both might be fair uses, but one would rely more on a transformative use (actually changing the work into a new work), the other on a transformative purpose -- a productive use. One might also use her work for an orthogonal purpose by including it in a text-mining project, perhaps to uncover previously unknown information about authors of her era or genre, which information itself might become the subject of some study or other exploration. Such a use is completely different from what Mitchell intended when she wrote the book.
My use of these images (Slide 18) is also orthogonal, as well as productive: I use them to provide a visual reference for what many would say are subtle nuances that define different aspects of transformative fair use. As an instructor, I rely on fair use of visual images to promote understanding of the law among those who wish to keep their actions within its sometimes “evanescent” boundaries.
Slide 19:
Keep in mind that even if a use or a purpose is transformative, the user must still satisfy the other criteria for a fair use. She must use only so much as is necessary to achieve the transformative use or purpose, and the benefit of the use to the public must exceed the harm to the copyright owner's normal expectation of commercial exploitation of his work.
Slide 20:
So, with this framework in mind, let’s look at what happened in 2013. I chose three cases from a rich array of interesting court challenges that year: Ed Sullivan challenged The Jersey Boys; Faulkner challenged Midnight in Paris; and street artist Dereck Seltzer challenged rock band, Green Day, in the Scream Icon case.
Slide 21:
First Ed Sullivan: SOFA Entertainment, owner of the copyrights in the Ed Sullivan Show, sued Dodger Productions, the producers of a play about the 60’s rock band, the Four Seasons. Dodger used a 7 second clip of Ed Sullivan introducing the band. In the view of the 9th Cir., the use was “for …historical significance.” The Court noted that “the defendants had imbued [the clip] with new meaning and had done so without usurping whatever demand there was for the original clip.” The lower court awarded Dodger’s attorney’s fees ($155,000) because it “viewed SOFA’s infringement claim as objectively unreasonable and determined that awarding fees would deter future lawsuits that might chill the creative endeavors of others.” The 9th Cir affirmed the award when it affirmed the fair use defense.
This exemplifies a productive purpose. Jersey Boys uses the 7-second clip to show (illustrate, demonstrate) a point in the Boys’ historical trajectory. Making it on the Ed Sullivan show was quite an accomplishment. In fact, the band viewed it at the time as its hope for reviving its popularity in the midst of the British Invasion. The clip also illustrates an orthogonal use – the new audience, the different expressive purpose, the re-contextualizing giving the older content a new meaning.
My use of this image from the play (slide 21) serves as a visual referent to aid in understanding and retention of the information the case embodies, the information I am trying to convey. These actors and their director and producers are taking a risk and making a statement about their right to reference the culture of the 20th Century – our culture – for purposes other than the original expressive purpose of the creator of the materials, and for a different audience. Me too.
Image on Slide 21: http://www.jerseyboyslondon.org/
Slide 22:
Now, the Faulkner challenge: In the movie, Midnight in Paris, Owen Wilson’s character Gil Pender at one point says, “The past is not dead. Actually, it’s not even past,” which he attributes to Faulkner even though the quote was slightly inaccurate. Pender goes on to recount a meeting he has just had with the long-dead Faulkner as proof of the assertion. This movie is a comedy. It’s filled with literary and artistic allusions. This quote describes Pender’s problem: “Golden Age Thinking, the erroneous notion that a different time period is better than the one one’s living in. Ya know, it’s a flaw in the romantic imagination of those people who find it difficult to cope with the present”. “Golden Age Thinking” pervades the film, both in plot and theme.” p. 2, quoting character Bates in the movie.
Faulkner’s point was altogether different – about your past catching up with you. This suggests that this is an orthogonal use and a productive use – in other words, that Midnight’s director has a transformative purpose.
The quote is used to illustrate a point about our attachment to the life of the past, to explain. This is a rather traditional use of a short quote. The Court elaborates on the orthogonal purpose, noting that, “The speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar.” at p. 8. And the quote even takes on an aspect of transformative use in the creative sense in the Court’s view: “The use of these nine words in Midnight undoubtedly “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” citing Campbell. At p. 9. The quote has been entirely recontextualized, and that itself is transformative.
Nine words. Eight seconds of a 90 minute film. Again, we're seeing very small parts used, challenged, and defended successfully as fair use! Directors, actors and producers are taking a risk, making a statement about their right to reference popular culture in creative, productive and new ways.
Image on Slide 22: http://www.theatlantic.com/entertainment/archive/2011/06/hemingway-said-what-a-cultural-cheat-sheet-for-midnight-in-paris/240198/
Slide 23:
The third case relies on a creative use: Seltzer v. Green Day: Photographer Richard Staub had earlier taken a picture of a wall plastered with Seltzer’s street art, and when he was hired by musical group Green Day to create a video for the group that would play as background for a live performance, he built a set that included an image inspired by Seltzer’s scream icon, along with a lot of other street art. During the video a series of artists come onto the set, add art to the wall, then exit. Finally, the video played as a backdrop for a particular song in a Green Day live performance. These three aspects of the use are illustrated by the images on the screen (Slide 23).
Interestingly, in this case, the plaintiff actually helped the defendant make his case. Seltzer complained about how much Green Day changed his work, how horribly the band deformed it, and how they changed its meaning to almost the opposite of what Seltzer intended. Of course, these qualities are precisely what made the use transformative, and a fair use, even though Green Day used the whole work. Further, it was clear that Seltzer would never have authorized the use. Fair use was Green Day's only option. And, importantly, the use supports a speech value so it furthers the goals of copyright. Finally, the harm to Seltzer was minimal, by his own admission. Thus, the value to the public outweighed the harm to Seltzer.
Images on Slide 23: NYC Bar (http://www.nycbar.org/copyright-a-literary-property/copyright-news/1833-dereck-seltzer-v-green-day-inc-et-al-9th-cir-transformative-use-of-poster-art); Rebecca Tushnet’s blog (http://tushnet.blogspot.com/2013/08/changed-meaning-is-fair-use-but-cant.html); and IP Kitten (legal blog) ( http://ipkitten.blogspot.com/2013/08/transformative-use-victory-for-green.html) .
Slide 24:
American University and its Law School have collaborated on a series of statements of the Best Practices in Fair Use in a variety of contexts. These are practical, scenario-driven guides that help people in those fields to more confidently rely on fair use. The College Art Association, which supports the work of colleges and universities all over the country, published its statement in February, 2015 and you can find it online at http://www.collegeart.org/fair-use/
The third scenario in the statement is helpful for artists, as students and as professionals. It’s entitled, Making Art, and it begins on page 11.
Slide 25:
So, what does this mean for artists? We have choices about the way we create, and about the way we use others’ works in our process. The development of CC licensed works as resources and the expansion of transformative fair use have very positive implications for artists and their galleries and museums of course, but also for scholars, educators, publishers, actors, poets, directors, and producers. These developments are very good news for all of us involved in the creation, dissemination, and discussion of new works. They give all of us room to move.
There are, no exaggeration, billions of images online. Of the individuals placing them there, millions and millions have decided to share them in a way that gives us all permission to use them freely. How can this not be a huge benefit to the creative process? There may still be many people who wish to keep others from using their works, but thanks to fair use, they cannot prevent all uses. This would undermine the very point of copyright law.
As the Court in The Jersey Boys case said (p. 7), quoting an earlier fair use decision: “ … an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. Stewart v. Abend, 495 U.S. 207, 236 (1990). To avoid that perverse result, Congress codified the doctrine of fair use.” Id.
Fair use requires of us as copyright owners that we not hold so tightly to our ideas about what we can or should be able to control. Copyright is porous on purpose. The law gives us all these freedoms and our society is better off when creators are not afraid to take full advantage of them.
