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« The Villain and the Wannabes | Main | From frumpy to foxy - reincarnating the first First Lady »

February 05, 2009

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Point of order: fair use does not "allow[] exceptions to copyright law," much as the big shot so-called content owners would like it be regarded. It is copyright law. Despite the fact that the statute is headed, "Limitations on exclusive rights: Fair use," and that it reads, "the fair use of a copyrighted work...is not an infringement of copyright," it is nevertheless debatable, I suppose, whether fair use operates rather as a defense to an infringement. But nobody debates the brute fact of the complexity of a fair use analysis, based upon a doctrine that evolved from judicial pronouncements into a fixed statutory form (17 U.S.C. § 117) now subject to more judicial pronouncements, blah blah blah.

My almost completely uninformed gut feeling says Fairey (apt name) is in trouble. His painting may be merely "based on" the AP photograph, but if Jeff Koons got nailed for basing a sculpture on a photograph (see section on Appropriation Art about halfway down), it would seem to be much less of a stretch to discern a violation in this circumstance.

Speaking of fair use, this just in. I quibbled with Judge Patterson's ruling here on AB. I was inclined to give the benefit of the doubt to Vander Ark. (He's a librarian, after all.) I was wrong...or was I? I'm not about to read the competing versions of the lexicon to see just how much revision, based on Patterson's opinion, Vander Ark had to undertake, but I'm willing to bet that the second version shares more with the first than the first with Rowling's oeuvre.

I'm not sure I understand Dean's quibble over terminology. I've seen courts repeatedly refer to the "fair use exception," and it seems to me that fair use is precisely that: an exception to the copyright holder's exclusive control over the use of copyrighted material. (In litigation, of course, it is effectively an affirmative defense, but I don't see that as a contradiction.)

Also, Obama's face isn't copyrightable. A photograph is, but that's limited to its copyrightable elements -- the creative or expressive parts. I think there's a fair case to be made that those parts haven't been substantially copied, in which case we don't even get to the fair use defense.

There. I think I've closed the emphasis tag properly.

My quibble had to do with Ruchira's statement, probably inadvertent, that FU "allows exceptions to copyright law" (my emphasis). FU is part and parcel of the law. More importantly, the wide tendency to treat FU as essentially exceptional (try that three times real fast) skews the perceived purpose of copyright law almost entirely in favor of the "exclusive control" provision Joe identifies. The language of exclusivity does, of course, appear in the Constitution--as does the by now virtually meaningless notion of protection for "limited times"--but § 107 (did I mistype 117 above?) reflects the inevitable and integral notion of what must be the case, namely, exclusivity cannot be absolute. Take this remark by copyright expert William Patry:

“Limitations and exceptions to copyright,” a phrase in much current use, posits the issue backwards; that phrase assumes a grant of rights that is checked only on occasion, and in derogation from a presumed default of unfettered rights. The contrary is the case: copyright rights are what is limited; historically they were parsimoniously granted, toward the greater societal goal of encouraging learning. (Patry on Copyright § 10:1.50)
The same section from the Patry treatise has more to say about the relationship between owners' rights and FU. After quoting Judge Pierre Leval to the effect that FU "is a necessary part of the overall design" of copyright law, he continues:
One would be hard pressed, however, to see much evidence that fair use is regarded as such a necessary element. While the lion's share of the blame must be placed squarely on copyright owners' wildly inflated views of the scope of their rights, courts also bear responsibility for their failure to appreciate that unauthorized, unpaid-for uses are in particular instances as vital to the constitutional scheme as the grant of rights. Courts, accustomed to interpreting statutes, and doing so carefully, have squeezed a common-law concept of great flexibility and scope into the straight jacket of statutory words meant merely to evoke but not encapsulate and certainly not to constrain the doctrine. If fair use has a hope of functioning in the 21st century, that hope must be based on courts' willingness to act with the freedom and breadth that the early English common-law judges who created the doctrine did, and with those judges' mindset: Copyright is not a one-sided coin, only concerned with enforcing rights. Rather, copyright law seeks to achieve a balance that ultimately serves the public's, not authors' interests. For fair use to effectively function, bold holdings with substantial consequences will be required.
The question isn't whether Obama's face is copyrightable, because as Joe notes, it isn't. There are exceptions--photographs of buildings, for example--but ordinarily the subject of a photograph is not the object of protection. It's the work of the photographer, the image derived from a modicum of intellectual, creative, "original" effort on the AP photographer's part, that copyright protects. That image can be copied, as it arguably has been in this Obama case, but insufficiently transformed copying must be authorized by the copyright owner.

Don't get me wrong. I personally give no credit to the notion of rights-based incentives to invent or create, and so I'm inclined to view that entire structural component of copyright law as defective. I think Fairey ought to have been able do exactly what he allegedly did. Courts and AP think otherwise. This circumstance may change as folks like Patry and the Stanford push in other directions. (But I sure am tired of reading Lawrence Lessig wax Romantic about remix culture.)

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