Coward - I'm not an activist; I'm applying the law as I see it. In Blanch v. Koons, the 2d Circuit held that Jeff Koons' use of a commercial photo in a painting was fair use. The court held that Koons' work sufficiently "transformed" the copyrighted work that it stood on its own as a creative work in its own right. In doing so, the court stated that it would not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” But Koons' painting passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”
Why do I think Fairey's work is transformative? It had a tremendous resonance with and impact on the national political scene. Imagine substituting Garcia's photo for Fairey's image -- do you believe it would have had nearly the impact? I can't imagine you do.
In addition, as Mike wrote, I think there is very little if any in Garcia's photo that is "original" in the first place. see http://tiny.cc/IDEQJ for authority supporting this point. The subject, Obama, is as uncopyrightable as a subject can be, and except for the camera settings, and the choice of the camera, the elements of the photo were entirely out of Garcia's control.
Nor did Fairey's image have any negative impact on the market for Garcia's photo. In fact, I understand, Garcia's photos now have a market they never had before. Fairey's image, in other words, added value to Garcia's work!
There's nothing activist about this position. I don't write as an activist. I have no dog in that hunt. I try to call them as I see them.
Get off the politically correct b.s. A judge can quite readily rule and has ruled against Yoko Ono's assertion of a copyright infringement claim:
http://tiny.cc/ZaEjz
Coward - if you'd go to the post Mike linked to and quoted from, you'll note I did mention the fact the cases did not discuss fair use. I really do wish that before you so readily spouted off about matters, you'd at least read what you're criticizing. That's not to mention the continued spouting off on things that you don't know anything about (like the use of cases as precedent).
Coward - In interpreting an earlier case, a court is not limited justifying the earlier result by the justifications enunciated by the earlier court. What Biz Markie did in the Grand Upright Music case either is or isn't infringement. If a later court decides that Judge Duffy was wrong in Grand Upright Music because what Biz Markie did was really fair use, the later court could do so.
And no one could bring the lawsuit regarding Gillis unless he or she could show a concrete and specific injury arising from the alleged wrong. In other words, only a copyright holder could sue Gillis. It's even (highly) unlikely Gillis could bring a lawsuit to obtain a declaratory judgment that what he is doing is non-infringing. Courts do not decide hypothetical questions, and until there is an imminent likelihood of Gillis being sued by a particular copyright holder whose clip he had used, Gillis could not bring that lawsuit.
If you're interested, these topics come up under the legal rubrics of "standing" and "ripeness."
Coward - please promise you'll never go to law school. Sorry, but the description of the commercial in the opinion might be all the court ruling on your case is likely to go on.
And likelihood of confusion is a term of art in trademark litigation. The only way confusion could come up in a copyright infringement context is in determining whether the challenged work has an impact on the market for the copyrighted work. Would you think the described commercial (go look at the opinion if you want the entirety of what the lawyers and court would likely have) damaged any market for the copyright in James Bond?
Oh, that's right, you cannot judge. Wow. You've judged so much else that you don't know anything about (the legitimacy of stating the plain fact that the right to free expression is behind the right to fair use), and now you won't judge something based on all the facts the professionals regularly have to make their judgments? I applaud your reticence, but why has that trait only now appeared?
No, Scott, you're actually wrong. Copyright does not depend on registration. You own a copyright in an original work as soon as you've fixed it in tangible form regardless of whether or not you ever register it. And in fact there's considerable dispute and litigation over whether (1) a work is original enough to receive a copyright, and (2) whether a work that appropriates copyrighted work is sufficiently "transofrmative" that it constitutes a non-infringing fair use.
Re: Re: It's The Expression of an Idea That Counts
Stephen Foster is another example brought up by a commenter dismissing Mike's point that, upon closer examination (not exhaustive, just a little closer, with a little effort), doesn't support the point it is intended to support. First, there WAS copyright protection in Stephen Foster's day, and, in fact, his wife and daughter received royalty payments Foster had negotiated for many, many years after Foster's death. Foster's problem, the reason he fell into poverty, was that he was a lousy businessman who negotiated terrible deals with his publishers. In other words, his poverty did not result from copyright protection or the lack thereof. Publishers made a lot of money off of Foster's compositions. But Foster died destitute because his publishers exploited him. Shades of the record business these past many decades perhaps?
Coward: no, we can't go back to 1994, but a court ruling today on your example ("Deiter, Brian Deiter . . .") would rely on the description in the 1994 case in determining where it should draw the line. So you can't just dodge the question but saying you "cannot comment" because you have not seen the commercial. That's how courts act -- they look to as much as they can from earlier precedent and, if bound by the earlier court, have to draw the line on the same side as the earlier court. Moreover, the example is one off the top of my head example (I believe someone earlier in the thread had described it) that immediately throws your "clear" distinction into doubt. Is Dylan influenced by his sources or does he copy them? You could write a book on that topic. Most importantly, THE LAW DOES NOT FORBID COPYING! It's so, so much more complicated than that, and all your efforts to reduce it to the your own desires won't make it less complicated. But you can just tell me to go and learn something like you do in response to the plain evidence the First Amendment right to free expression does provide the source of the right to fair use, or you can come up with another simple-minded hypothetical that may or may not coincidentally run up against precedent that belies your point. Or you can realize that maybe you have a lot to learn.
Coward:
Interesting that as evidence you have no problem drawing a bright line between something that's been copied by an original and something that's been merely influenced by an original you should suggest "Deiter, Brian Deiter, private detective" would not constitute a copy but only betray influence as proof.
In fact, it seems you've proved my point that it's a very difficult line to draw. Wouldn't this case be like your example of influence?
Defendants' "Escape" commercial features a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter. A grotesque villain with metal-encased arms n2 jumps out of the helicopter onto the car's roof, threatening harm. With a flirtatious turn to his companion, the male driver deftly releases the Honda's detachable roof
(which Defendants claim is the main feature allegedly highlighted by the commercial), sending the villain into space and effecting the couple's speedy get-away.
MGM v. American Honda, 900 F. Supp. 1287 (N.D. Cal. 1995)(http://tiny.cc/A2cMm).
The problem is the court found the advertisement to infringe the copyright in the James Bond character and enjoined further showings of it.
Coward - why do you speak without even reading the thread you're a part of (much less doing a bit of reflection and, um, research)? See above http://www.techdirt.com/article.php?sid=20090629/0317365399#c59
Fair use is a consequence of the right to free expression, and saying so as a legal matter is uncontroversial.
I wish I were as confident as Coward I could always draw a bright line between "influenced by" and "copied from."
You all should read Jonathan Lethem, "The Ecstasy of Influence: A Plagiarism." (http://www.harpers.org/archive/2007/02/0081387)
It's brilliant, original, and almost entirely copied from other sources. And, of course, it's about the monumental difficulty, if not futility, of distinguishing between "influenced by" and "copied from."
freedom of speech in the U.S. Const. DOES include freedom of expression
This just so happened to appear yesterday in the WSJ, written by a guy who is behind the Volokh Conspiracy, a largely right-wing and largely (not entirely) group: "The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression."
http://online.wsj.com/article/SB124657642816289111.html
I could do more than take the first link on a simple Google search, but please don't go around telling anyone the U.S. Constitution does not guarantee the freedom of expression. That's why fair use applies to painting, to writing, to music, or to any other copyrighted form of expression.
Coward - your choice of character to illustrate the simplicity of the consequences of copyright in a character ironically enough undermines your point. James Bond belongs to Ian Fleming? Tell it to the courts that struggled over Danjac LLC v. Sony Corp.(http://reporter.blogs.com/files/0055781p.pdf), which was a lawsuit about whether the guy who wrote the first screenplay for a James Bond movie with Fleming had created a new "movie" Bond who was a different character than the one Fleming had already created (and arguably infringed in his later novels by using the "movie" Bond as the later "literary" Bond). As the court described it: "[T]his case arises out of an almost forty year dispute over the parentage and ownership of a cultural phenomenon: Bond. James Bond." The court did what courts like to do in cases that involve legal issues that are exceedingly difficult to resolve -- it decided it on a different legal issue, leaving the issue you think is so plain unresolved.
But then, you do have a tendency to over-simplify. Get off this idea that the law treats real property and intellectual property the same because they are both "property." I went through this in response to you yesterday. http://www.techdirt.com/article.php?sid=20090702/0125045432#c689
And are you suggesting that the court that decided Sun Trust (which by no means is alone in recognizing that copyright restricts expression and therefore is in tension with the First Amendment) is expressing some sort of "purist's" view of free speech that can't accommodate the restriction on yelling "fire" in a crowded theater? Get real.
Are you some sort of property purist who believes that you can do anything you want with your property (and therefore that nuisance law, zoning laws, and environmental laws -- just as a start) are unconstitutional? If so, you're the one expressing views with no legal basis.
Coward -
Could these things be said about "any law"? --
We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.
Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001). In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The court ordered the lawsuit dismissed because The Wind Done Gone’s use of the characters and story line from Gone with the Wind constituted fair use. In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”
Mike - you write that you find it troubling to use copyright to prevent the publication of "original expression," but that's precisely the question: is the book really original or not. I like to see the doubtful case decided in favor of publication, but the plain fact is that as a pragmatic matter the legal position that has the best shot of permitting works that appropriate from copyrighted works is the one the court applied: a work that appropriates substantial parts of a copyrighted work is non-infringing fair use if it is "transformative" (that is, sufficiently original to stand on its own as a creative work) and has no impact on the original's market. The judge, having compared the 2 works, concluded that the new one wasn't original enough. An expert supported her testimony. (The fact that the expert turns out to be someone whose opinion I myself would defer to on these matters is something that I hadn't known about until I read the opinion -- since the case began she and I have not been in the same city at the same time.)
My point about the fact neither you nor I have read the new work (even though, as you rightly correct me, it is available overseas) really was only meant to emphasize that it's impossible for us to opine on its originality.
Sneeje -- you're right. There's a lot of gray. That's just the way it is. There are some areas grayer than others. The existing case law on music is black. Basically, the courts that everyone follows held that using any recorded sample is infringement. Those courts didn't even consider fair use arguments. Long story -- but essentially the music industry liked that rule because it protected their property. But it's breaking down now. No one's dared take on Girl Talk, for example, because even though his (Greg Gillis=Girl Talk) work is nothing but brief samples woven together, it's so original and so plainly couldn't substitute for the originals that no one will sue him and threaten the existing precedents being rejected.
In other words, the grayness cuts both ways. D.J. Danger Mouse was meaning a lot of things when he called his work the Grey Album. See http://whatisfairuse.blogspot.com/search?q=d.j.+danger+mouse
Anonymous Coward -- Your equation -- real property=intellectual property -- is precisely the mistake a lot of people make. The Copyright Clause in the Constitution states (and has been interpreted to mean) that copyright is to promote creativity and that to the extent it stifles creativity it has no legitimacy. That's the plain truth, even if there's a lot of disagreement what this means in practice (a lot of people, including myself and, I'm sure, Mike, thought that the Mickey Mouse Copyright extension act was thoroughly anti-innovation, but the Supreme Court disagreed; Mike and I both agree that punitive damages for copyright out of all proportion to actual harm are unconstitutional, and Jammie Thomas-Rasset's case is a great vehicle for "our" side to have a higher court decide this question).
In short, intellectual property is not property like real property is. And don't forget -- you can't do anything with your property. There are all sorts of limits that are precisely the result of decisions about what's good for society as a whole (including, just to begin, zoning laws and environmental laws).
Sneeje - your example of The Once and Future King is not helpful for a couple of reasons which you seem to recognize. Each of these cases is determined on its own facts. The question is whether the challenged work is so "transformative" it stands on its own as a creative work. We'll never know about The Once and Future King for precisely the reason you state: the stories and their characters are in the public domain. So you could write a new Camelot story (though, of course, if you copied and pasted substantial portions of White's novel that were deemed "creative") you'd still have infringed his work. Moreover, even if those stories were not in the public domain, White didn't create them. (And, arguably, Arthur was a historical figure who can't therefore be copyrighted as a character).
In contrast, Salinger created Holden Caulfield, and the finding he is a copyrighted character (assuming that characters can be copyrighted, which is not definitive as a legal matter but widely accepted), merely taking that character (which the judge determined the new book did, making him 80 but intellectually unchanged from his character in the novel) and placing him in a new story is a no-no.
What we wouldn't have is "fan fiction," which in fact we do. But not because fan fiction doesn't infringe copyrights but), rather, because the copyright holders let the fan fiction out there alone. But Salinger is an odd duck -- nothing published since, what, 1964? And with a public plainly thirsting for anything new from him. It's exploiting that public thirst (which he created by creating his character and by his decades' long silence that is the real problem here. No one's going to pay for Star Trek fan fiction. But there may be enough thirst for Holden Caulfield in my generation that even a 3d rate knockoff could exploit it. It is, I think, really that the market that can be exploited here is precisely one Salinger created (unless the new work is sufficiently transformative that it stands on its own as a creative work) is the problem the author of the sequel has.
Mike - as you know, I'm usually on your side on this one, but I can't make the same judgment you have. The plain fact is that if all the defendant has done is exploit the value Salinger created in Holden Caulfield, he's not been sufficiently transformative to claim fair use.
Moreover, we really can't make that judgment here -- neither you nor I have seen the "sequel." Nor can we, which gets to why there IS irreparable harm. If any copy got out, it would be instantly disseminated. Salinger is trying to stop exactly that, and is entitled to that if it's an infringement. For the court to deny the TRO therefore would create irreparable harm. And if, after a full hearing on the merits the judge determines the work is fair use, the harm the defendant will have suffered will be fairly easy to calculate.
And I'm sure the defendant doesn't want a copy to get out pre-publication either. If it hit the internet, he'd lose a lot of market if and when the work does get published.
Finally, just to give the judge some credit -- Salinger's expert, Martha Woodmansee (whose sworn declaration is referred to in the decision as the "Woodmansee Decl.") is a colleague, a friend of mine, one of the world's leading scholars on the history of copyright, and someone who is very sympathetic personally toward and whose work is very supportive of the kind of broader recognition of creativity (in, among other things, explicitly appropriative art) you and I support
Michael Stonecker: from the stories it looks as if Nextbus provides the predictions to the public transit authority and that the app developer got them from their. Maybe Nextbus is claiming that its deal with the transit authority gives the transit authority a limited license with respect to how it can use the predictions. As to business model: the stories make plain that Nextbus charges for its predictions, though they also make it appear Nextbus has not been entirely consistent in its assertions regarding the price.
I'd be shocked if Nextbus's "algorithm" is anything as complex as what goes into a weather prediction. There are predictions and there are predictions. One way to tell the difference between protected predictions and unprotected predictions is to ask how much individual or institutional investment there is in the method developed. As I wrote above, the location at any given moment of a bus is indisputably a "fact." Thus, even if in the unlikely event Nextbus's investment in developing and applying their "algorithm" is anything comparable to the investment organizations put into weather prediction, I have no doubt that a lot of useful information could be garnered by customers themselves, not to mention app developers (who could develop their own "algorithms") by broadcasting in real time the locations of all buses within the system.
As the comments by CNE and Awesome imply, the simplicity of the likely "algorithm" (a mystification of "calculation") makes it seem unlikely and dangerous to suggest that it is not an unprotectable "fact." And anyway, why then doesn't the transit authority just make the location of the buses public and allow people to create apps with their own "algorithms" that will provide the predicted times. Or just to rebroadcast the locations of the buses so individuals can apply their own minds to the task of taking that fact and making their own predictions on when the buses will arrive at the locations they care about.
On the post: Shepard Fairey Case Gets More Complex: Mannie Garcia Claims The Photo Is His, Not The AP's
Re: Re: Re: Peter Friedman
On the post: More Copyright Oddities: Why Does Yoko Ono Get To Hold Copyright On Lennon Videos Others Purchased
Re: Explanation
On the post: Why Hasn't The Recording Industry Sued Girl Talk?
not mentioning the cases don't discuss fair use
On the post: Why Hasn't The Recording Industry Sued Girl Talk?
And no one could bring the lawsuit regarding Gillis unless he or she could show a concrete and specific injury arising from the alleged wrong. In other words, only a copyright holder could sue Gillis. It's even (highly) unlikely Gillis could bring a lawsuit to obtain a declaratory judgment that what he is doing is non-infringing. Courts do not decide hypothetical questions, and until there is an imminent likelihood of Gillis being sued by a particular copyright holder whose clip he had used, Gillis could not bring that lawsuit.
If you're interested, these topics come up under the legal rubrics of "standing" and "ripeness."
On the post: The Myth Of Original Creators
Re: Re: influenced by/copied from
And likelihood of confusion is a term of art in trademark litigation. The only way confusion could come up in a copyright infringement context is in determining whether the challenged work has an impact on the market for the copyrighted work. Would you think the described commercial (go look at the opinion if you want the entirety of what the lawyers and court would likely have) damaged any market for the copyright in James Bond?
Oh, that's right, you cannot judge. Wow. You've judged so much else that you don't know anything about (the legitimacy of stating the plain fact that the right to free expression is behind the right to fair use), and now you won't judge something based on all the facts the professionals regularly have to make their judgments? I applaud your reticence, but why has that trait only now appeared?
On the post: The Myth Of Original Creators
Re: Copyright
On the post: The Myth Of Original Creators
Re: Re: It's The Expression of an Idea That Counts
On the post: The Myth Of Original Creators
influenced by/copied from
On the post: The Myth Of Original Creators
influence by/copied from
On the post: Is There Really An Idea/Expression Dichotomy In Copyright?
Someone has gotten around to it.
On the post: The Myth Of Original Creators
influenced by/copied
On the post: Is There Really An Idea/Expression Dichotomy In Copyright?
freedom of speech in the U.S. Const. DOES include freedom of expression
On the post: Is There Really An Idea/Expression Dichotomy In Copyright?
On the post: Is There Really An Idea/Expression Dichotomy In Copyright?
On the post: District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?
On the post: District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?
In contrast, Salinger created Holden Caulfield, and the finding he is a copyrighted character (assuming that characters can be copyrighted, which is not definitive as a legal matter but widely accepted), merely taking that character (which the judge determined the new book did, making him 80 but intellectually unchanged from his character in the novel) and placing him in a new story is a no-no.
What we wouldn't have is "fan fiction," which in fact we do. But not because fan fiction doesn't infringe copyrights but), rather, because the copyright holders let the fan fiction out there alone. But Salinger is an odd duck -- nothing published since, what, 1964? And with a public plainly thirsting for anything new from him. It's exploiting that public thirst (which he created by creating his character and by his decades' long silence that is the real problem here. No one's going to pay for Star Trek fan fiction. But there may be enough thirst for Holden Caulfield in my generation that even a 3d rate knockoff could exploit it. It is, I think, really that the market that can be exploited here is precisely one Salinger created (unless the new work is sufficiently transformative that it stands on its own as a creative work) is the problem the author of the sequel has.
On the post: District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?
Moreover, we really can't make that judgment here -- neither you nor I have seen the "sequel." Nor can we, which gets to why there IS irreparable harm. If any copy got out, it would be instantly disseminated. Salinger is trying to stop exactly that, and is entitled to that if it's an infringement. For the court to deny the TRO therefore would create irreparable harm. And if, after a full hearing on the merits the judge determines the work is fair use, the harm the defendant will have suffered will be fairly easy to calculate.
And I'm sure the defendant doesn't want a copy to get out pre-publication either. If it hit the internet, he'd lose a lot of market if and when the work does get published.
Finally, just to give the judge some credit -- Salinger's expert, Martha Woodmansee (whose sworn declaration is referred to in the decision as the "Woodmansee Decl.") is a colleague, a friend of mine, one of the world's leading scholars on the history of copyright, and someone who is very sympathetic personally toward and whose work is very supportive of the kind of broader recognition of creativity (in, among other things, explicitly appropriative art) you and I support
On the post: The Battle Over Who Owns Bus Arrival Times
how it happened
On the post: The Battle Over Who Owns Bus Arrival Times
predictions and creativity
On the post: The Battle Over Who Owns Bus Arrival Times
facts and creativity
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