APPROPRIATION AND TRANSFORMATION II

cariouprinceIn a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to the question of whether the accused works were “transformative uses.” We asked whether there was “a judicial double standard favoring artists that judges and their acquaintances either ‘get,’ or think they ought to ‘get,’ over those who appeal strictly to the hoi polloi?”

Cariou has now filed a petition for certiorari with the U.S. Supreme Court presenting that very question without the snark:

Whether the first statutory fair use factor, “the purpose and character of the [secondary] use,” requires consideration of the secondary user’s purpose (i.e., his or her justification for appropriating particular copyrighted materials), and not just of the secondary work’s expressive character, as perceived by judges employing their own personal aesthetic sensibilities.

Prince’s response to the petition, which is available here, frames the issue in starkly different terms:

Whether the Second Circuit’s fact-specific, interlocutory decision that twenty-five colored collages depicting rock stars and erotic imagery in a post-apocalyptic alternative reality made fair use of altered portions of black-and-white portraits of Rastafarians and Jamaican landscapes . . . .

The Supreme Court has not seriously addressed fair use in the nearly twenty years since it adopted the “transformative use” standard in Campbell v. Acuff-Rose Music, the “Pretty Woman” parody case. The betting here is that the Court will deem Cariou v. Prince an appropriate vehicle for revisiting the issue and perhaps putting the genie at least partially back in the bottle.

UPDATE 11/13/13: I lose. The Supreme Court denied the petition for cert.

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ENGLISH LANGUAGE 1, SUBWAY 0

subwayNo, this is not another contribution to the on-going debate over whether Subway’s vaunted “footlong” sandwiches actually measure 12 full inches. I will leave that to the consumer affairs bloggers. Our concern is with Subway’s effort to monopolize the word “footlong” as a registered trademark for 12-inch, give or take, heros/submarines/wedges/hoagies/grinders. Last week the Trademark Trial and Appeal Board, in an EXTRA LARGE™ 61-page opinion, rejected Subway’s application, ruling that “footlong” was a widely and long-used generic term for for sandwiches of a certain length.

 

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FULL OF SOUND AND FURY, SIGNIFYING NOTHING

200px-William_Faulkner_1949Some time ago, in our continuing series of “Cease and Desist Letters from Beyond the Grave,” we reported on a complaint for copyright infringement filed by William Faulkner’s literary estate against Sony Pictures, arising out of a single line spoken by Owen Wilson in Woody Allen’s Midnight in Paris: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.” The plaintiff might have thought it caught a lucky break in that the judge, Michael P. Mills of the Northern District of Mississippi, was quite a Faulkner aficionado. Turned out to be just the opposite. Other than taking umbrage at Sony’s contention that Faulkner’s Requiem for a Nun was a “relatively obscure” work (“Nothing in the Yoknapatawpha canon is obscure,” the court wrote), Judge Mills came down squarely on the side of the filmmakers, dismissing the complaint on the grounds that the disputed quote constituted a fair use. His opinion is well worth reading in full, but his attitude is well summed up in one nugget: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.”

GOOGLE LIBRARY CLASS DECERTIFIED

When last we checked in with The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, Judge Denny Chin had certified the case as a class action on behalf of all “persons residing in the United States who hold a United States copyright interest in one or more books reproduced by Google as part of its Library Project.” I suggested that this was a major milestone in the case, and that it cleared the way for Judge Chin to make some very important fair use law. At this point, the case centers on the internet display of “snippets” (roughly 1/8 of a page) of copyrighted books which Google has digitized (without the consent of copyright owners) in response to search engine requests, a far cry from the universal digital library that Google had envisioned at the outset.

The Second Circuit Court of Appeals, however, then ordered that the case be stayed while it considered the propriety of the class certification. Yesterday, in a short per curiam opinion, the Second Circuit vacated the class certification and ordered that Google’s fair use defense be adjudicated first, because “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot . . many class certification issues.” Although the appellate panel, which included the father of the modern expansion of fair use through “transformative use” analysis, Judge Pierre Leval, did not address the merits of the fair use issue, its comments at the oral argument and its suggestion that resolution of fair use could “moot” class certification strongly telegraph acceptance Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.

THE BREYER ASCENDANCY, PART TWO

In a post here a few months ago, I noted that a series of dissents in intellectual property cases over the past decade had established Justice Stephen Breyer “as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.”  “Not coincidentally,” I added, breyer“Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.” In light of his majority opinion this year in Kirtsaeng v. Wiley & Sons, which placed a significant limitation on the copyright law “first sale” doctrine, I asked whether we have perhaps “reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment.” Today’s opinion in a case in which patent law and antitrust law meet like an irresistible force and an immovable object — FTC v. Actavis, Inc. — with Justice Breyer again writing for the majority, strongly suggests  that the answer to my rhetorical question is an emphatic “yes.”

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OWNING OWN THE POWER

oprahSome of my favorite trademark cases involve “reverse confusion.” Instead of the usual scenario in which a rich and powerful senior trademark user crushes a little start-up for trading on its good name, the essence of a reverse confusion case is that a rich and powerful entity has flooded the market with much more promiscuous use of a mark than a smaller, but senior, user of the mark had ever mustered, with the result that the public comes to  believe wrongly that the poor senior user is the infringer. That is the gravamen of the complaint that Own Your Power Communications, a “motivational services business,” brought against Oprah Winfrey and her media empire for the “Own Your Power!” issue of O Magazine pictured here, together with associated online content and events. In a ruling handed down by the Second Circuit last week, Own Your Power won the first round, surviving Oprah’s motion to dismiss the case which was based on the ground that her use of the mark “Own Your Power” was protected under the doctrine of trademark fair use.

 

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APPROPRIATION AND TRANSFORMATION

Patrick Cariou, a professional photographer, spent six years among the Rastafarians of Jamaica. and in 20oo he published a book of  portrait and landscape photographs taken during this sojourn.  Yes Rasta sold modestly, earning Cariou about $8,000 in royalties from sales of about 5700 copies. Four of those copies were purchased by appropriation artist Richard Prince. Prince, without permission from Cariou, created more than 30 large-scale art works, called the “Canal Zone” series, which incorporated photographs taken from Yes Rasta, altering them to varying degrees, for example:

cariou 2prince 2

Prince’s Canal Zone series was exhibited at the Gagosian Gallery in 2008.  As the United States Court of Appeals for the Second Circuit noted, with evident awe, in its recent opinion in Cariou v. Prince, the dinner hosted by the Gagosian in association with the show was attended by such A-List celebrities as Jay-Z, Beyoncé, Jeff Koons, Tom Brady, Graydon Carter, Robert de Niro, and Brangelina. Prince sold eight works for a total of $10,480,000 and exchanged seven others for works by Larry Rivers and Richard Serra.  Can life possibly be this unfair?

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THE BREYER ASCENDANCY

In a post a while back, I quoted from Justice Stephen Breyer’s dissents in two important copyright cases of the past decade, Eldred v. Ashcroft (2003), which breyerupheld the copyright term extensions adopted by Congress in the Sony Bono Memorial Copyright Term Extension Act of 1998, and Golan v. Holder (2012), which upheld an act of Congress that restored copyright protection to certain old foreign works which, for one reason or another, had previously fallen into the public domain in the United States.  In those dissents and others, Justice Breyer had established himself as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.  (Not coincidentally, I think, Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.)  Last week, however, Justice Breyer delivered the majority opinion for the Court in a contentious copyright case, Kirtsaeng v. Wiley & Sons, coming down against the copyright holder on the issue of whether the “first sale” doctrine applies where the first sale of a copyrighted item occurred abroad.  Justice Breyer conceded that the Constitution gives copyright owners a limited right to exclude competition.  “But,” he went on, “the Constitution’s language nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain.”

Breyer was also the author of last term’s unanimous and rather broadly drawn opinion in Mayo Collaborative Services v. Prometheus Labs, which held that a method of calibrating dosages of drugs used to treat autoimmune disease, which relied upon measurement of metobolites found in the bloodstream upon administration of the drugs, was an unpatentable law of nature.  Have we reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment?

THE EMPIRE STRIKES OUT

mickey-mantle-whitey-ford-signed-autographed-1957-yankees-yearbook-psadna-8-t2333117-170It was some ten years ago, while the Boston Red Sox were still mired in the 86-year championship drought brought on by the Curse of the Bambino, that their president Larry Lucchino hung the moniker “Evil Empire” on the New York Yankees.  The Yankees, as Lucchino should have anticipated, took it as a compliment and good naturedly embraced the honorific, even playing the Darth Vadar musical motif at home games.  The Yanks have not, however, gone so far as to use the term “Evil Empire” on team merchandise or otherwise as a trademark, as they have with their more familiar and flattering nickname “Bronx Bombers.” So what happened when an apparel maker unaffiliated with the team sought to register “BASEBALLS EVIL EMPIRE” as a trademark?  Duuh Duuh da da da Duuh Duuh da da da Duuh Duuh dun-dun-dun-duuuuh . . .

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HOLY UTILITARIAN FUNCTION, BATMAN

In a short-lived, much-reviled sitcom of my youth, My Mother the Car, the title character wasimages a restored 1928 Porter touring car, the reincarnation of star Jerry van Dyke’s mother, who spoke to Jerry through the radio and—as per the theme song indelibly lodged in my memory—“helped him through everything I do.” I am not aware of any demand for reproductions of that vehicle, and we will probably never know whether it qualified for copyright protection.  But commerce in reproductions of its much cooler 60s TV-Land contemporary, the Batmobile, has always been brisk, and a U.S. District Court in California has now ruled that it is subject to copyright protection as a “character.”

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