LET’S NOT GO CRAZY

babyThe cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background. Universal Music, Prince’s publisher, notified YouTube that it had a “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law” (magic language required by the DMCA) and demanded that the video be removed.  (Fisher-Price, apparently, had no objection to the product placement.)

Ms. Lenz did not take the matter lying down. Although the DMCA takedown provision is designed to protect  third-party internet content services like YouTube from liability for hosting infringing content, it also gives the users of the service who post material subject to a takedown notice certain rights, including the right to demand reinstatement and a cause of action for damages against the copyright owner for “knowingly materially misrepresenting . . . that material or activity is infringing.” Ms. Lenz demanded that the video be “put back” and sued Universal for damages on the ground that it had not, before demanding takedown, considered whether the video was protected under the doctrine of fair use.

Last week, in Lenz v. Universal Music, the Ninth Circuit handed Lenz an important—albeit provisional—victory, holding that a copyright owner is indeed required under the “good faith belief” standard to consider fair use before making a takedown demand.

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SOME PUSHBACK ON TRANSFORMATIVE USE

sconnieA recurring theme in our posts under the “Fair Use” tag has been the rise of “transformative use” as a litmus test that not only supplements, but often virtually supplants, the  four statutory fair use factors—the purpose and character of the secondary use, the nature of the original work, the amount of the original used, and the effect on the potential market for the original. This trend reached its apogee, at least for now, with the Second Circuit’s ruling in Cariou v. Prince, discussed here and here. Judge Frank Easterbrook of the Seventh Circuit has taken note of this trend, and in his ruling yesterday in Kienitz v. Sconnie Nationa case involving not appropriation art but the politically motivated t-shirt pictured herehe took a moment to register, in a somewhat gratuitous aside, his disapproval.

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GOOGLE BOOK SEARCH FAIR USE, JUDGE CHIN HOLDS

We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.

Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to  rule on Google’s fair use defense first. As we noted,  the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.

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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.

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.

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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SID & JOHNNY

Dennis Morris was a photographer who recorded the Sex Pistols’ legendary 1977 tours, capturing at least one iconic on-stage image of Johnny Rotten and Sid Vicious.  Russell Young is an artist who found that image on the internet and used it, without Morris’s permission, in a series of Warhol-like pieces.  Morris v. Young, decided yesterday by Judge Gee of the U.S. District Court in Los Angeles, is but the latest installment in our continuing series of not-easily-rationalized or reconciled fair use decisions.

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GRADE PECULATION

luck_9As Professors Aufderheide and Jaszi write in their book Reclaiming Fair Use (Chicago 2011), “fair use  becomes real only when people use it; like a muscle, it can shrink with disuse.”  Kudos then to fulltime high school teacher Rob Rang and NFLdraftscout.com, for which Rang moonlights as an NFL Draft analyst.  It must have been intimidating to receive cease and desist letters and phone calls from the lawyers for National Football Scouting, Inc., complaining that Rang’s disclosure of Player Grades devised as part of scouting reports sold to 21 NFL teams for $75,000 per year was a copyright infringement.  Rang and the website stood their ground, and last week a federal district court in Tacoma, Washington upheld their fair use defense.  The ruling in Rang’s favor, unlike Andrew Luck, was no sure thing.

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