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Appropriation Of Photos: Where To Draw The Line – Part 1 (Law360)

Law360, New York (April 27, 2012, 1:45 PM ET)

"Wer alles verteidigen will, verteidigt nichts." (He who defends everything defends nothing.)
--Frederick the Great

The Golden Age

If there is one constant about human expectations, it is that you never know a golden age while you are living in it. In the good old days of just a few years back, those of us who believe in the social and artistic imperative of a strong copyright law were living, unawares, in our own golden age.

The general public had not yet been handed sophisticated electronic devices that permitted the making of perfect but unauthorized copies of complex, professionally produced content. Newspapers, magazines, broadcast television and terrestrial radio had a virtual monopoly on the delivery of news. Whether that concentration of power was good or bad for society, the decision to attempt to make a decent living as a reporter was not seen as a daring and risky career move.

If you wanted recorded music, you had to buy it from a store that got it from a record label, and if you wanted to see a movie, whether in a theater or (much later) at will and in your home, someone along the pathway of delivery had to pay the copyright holder. Looking back, we could question if some of the law from that time was a product of the consolidation of media and entertainment into powerful conglomerates and question as well if protecting their interests was in the common good, but we cannot question that copyright generally did what it was designed to d protect the rights of those who make and deliver content.[1]

Although historically slow to react to changing times, the law eventually does respond. Under the Copyright Act, a common defense to a claim of infringement is the affirmative defense of fair use under Section 107. The origin of fair use is a contemplative 1841 circuit court decision by Justice Joseph Story in a case about whether the use of 319 letters of George Washington in a two-volume work infringed upon the copyright in the letters. In rejecting what we would call a defense of fair use and what Justice Story termed a defense of "fair and bona fide abridgement," he laid out what would become the basis of fair use under the Copyright Law:

In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.[2]

That test was imported almost bodily into the Copyright Act of 1978, but much of what has happened in nearly all the media and the arts since the effective date of the act has substantially altered the marketplace. Much of that change is cultural. With new tools in the hands of the public comes a new public morality, one that condones, under the claim of fair use (or simply entitlement), much copying at will. Once tolerated as a gentlemanly exception to the monopoly rights generated by ownership of copyright, fair use has come to be seen by the traditional copyright bar as the first refuge of scoundrels and by the insurgent "copy left" as the first defense against oppression by property holders.

When I consider what is happening in the context of photography, as both a lawyer and a photographer, I am suspicious of the copy left's claims. As an art critic, I have written cautionary tales about the level of creativity of those "appropriation artists" and others who raise that battle flag of fair use instead of the more honorable banner of talent and originality.

But I am also mindful that many on my side of the aisle are too willing to overplay their hand, to claim broad rights in cases in which they are limited or, on occasion, to claim rights where there may be no rights at all. I am therefore prepared, despite my own allegiance to the copyright camp, to hear from both sides, and it is for that reason that I have put together the visual and thought experiment that concludes this piece.

The Rationale for Copyright

Copyright came into United States law right at the start, in the Constitution, which says that the purpose of copyright is, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[3] To contemporary ears, those words ring more of socialism than capitalism. That is, the grounding principle of American copyright is not about what was good for property holders per se; it is about the good that property holders can do for the nation in the name of progress that benefits all.[4]

In an influential 1990 article in the Harvard Law Review, Judge Pierre N. Leval of the Second Circuit Court of Appeals (writing then as a district court judge), offered copyright holders the following pragmatic alert:

The copyright is not an inevitable, divine or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts. …

Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design. … Briefly stated, the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.[5]

Judge Leval wrote near the end of our golden age — at a time when the big worry among creative communities was the consolidation of power among those media and entertainment conglomerates that were increasingly seen as profit-motivated gatekeepers.[6] What a difference an electronic revolution makes.[7] The problem now is no longer the control of access by the public.

You are an author and do not have a publisher? Go to Amazon's Kindle site, Scribd and other sources where you can publish yourself. You want to promote your work? Make your own website or Facebook page, or post a video on YouTube. The big problem now is not access but compensation: With so much out there, how will you sufficiently distinguish yourself from the pack to distribute enough copies to make a profit, and if you do find an audience, will it really pay you or simply find an electronic way to gain access without permission?[8]

The fact that the game has profoundly changed does not mean that Judge Leval's admonitions, which are based on an appreciation of the fundamental purposes and expectations of copyright law, should be brushed aside by defenders of copyright in its battles with the copy left. Too often, in the face of determined and successful opposition, advocates of conservative positions have adopted a bunker mentality. What they should do instead is accept that the campaign must be fought differently.

The first change is to be aware that, when the other side is winning battles, you need to know when to give ground and where to form a defensive line that is likely to hold. That has happened already with the financial problems caused by the electronic age: We are all now aware that much of the content we create will probably earn less for us then it might have just a short time back. We need to be prepared to give additional ground, this time in the application of the doctrine of fair use.

To make the withdrawal to a defensible line an orderly one and not a rout, those who work to protect copyrights in photography should join together to arrive at a position on fair use, to be embraced as broadly as possible. It should be one that realistically takes into consideration what the public is capable of doing with content, what the public thinks it should be permitted to do, and what creative people and those who work to disseminate creative content need to have as sufficient protection to help them keep a sensible level of control over what they do and, we hope, obtain a realistic financial return for their efforts.

You can see in the text of Section 107 why finding a consensus as to the reach and limitations of the doctrine of fair use has been so elusive and often frustrating. The first paragraph is frequently called the preamble, which is misleading; preambles explain what is to come and why it is there, but the preamble of Section 107 is operative law and would be so were nothing to follow. It tells us that "the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."[9]

Note the use of "such as," which can only mean that examples follow, rather than a defined set of requirements and limitations. As operative law, therefore, the preamble of Section 107 says this and this alone: "[T]he fair use of a copyrighted work … is not an infringement of copyright."

Next come four enumerated factors:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

That standard is obviously based on the test set forth by Justice Story in 1841. Although the statute says that the factors for determining fair use "include" the named four (implying that courts can conceive of others), as a practical matter, the four statutory factors are treated as a complete test for disposition of a fair use claim. Courts will typically go through the factors, in statutory order, and assign a winner and loser for each as between the parties; whoever wins the most factors (or at least those considered most consequential, based on the facts) is almost certain to win the case. If the defendant wins, he has made fair use of the primary work; if he loses, his work is an unauthorized and therefore infringing derivative work.

I will start at the end to get quickly through an obvious paradox: The fourth factor asks that courts take into account "the effect of the use upon the potential market for or value of the copyrighted work." In short, the fourth factor is the one that weighs the economic impact of the secondary use on the copied work. By the upside-down logic that often seems to guide the art market, however, the value of the secondary work of the appropriator of a primary work often eclipses that of the art he appropriated.[10]

Even more challenging for the application of the fourth factor is the value given by contemporary society to fame gained for almost any reason: Like the man cuckolded by a celebrity who finds he has thereby become sought out as a celebrity himself, an obscure artist, once appropriated by a more celebrated copyist, can find his prices (or at least his visibility in the art world) increase as a result.

And this is an art market, after all, in which, despite occasional corrections, collectors can often do much better in the purchase and sale of works by living artists than they can with Old Masters pieces. The application of the fourth Section 107 factor, which was enacted during an age different from ours in the pricing and the marketing of art, may therefore need to take into account revised notions of value and fairness.

In photography, the second factor, relating to the nature of the art being copied, can be important if the image is particularly imaginative or the work otherwise unique. Consider the difference between any famous news photograph of a remarkable incident, captured in a single frame by the sole photographer present, and a photograph made of a celebrity on the red carpet at an event in which a dozen photographers fire shots simultaneously in burst mode, each capturing multiple images per second. The third factor is more than about cropping and other edits, but for the sake of simplification, the question to ask is: Did the secondary work take a lot or a little of what the primary work contains, or something in between? The reason: In copying, less is truly more in making a successful claim of fair use.

In part two, I will describe four prominent cases that illustrate the dilemmas faced by businesspeople and lawyers in trying to understand what is or is not the fair use of photographs. The subjects of the images range from puppy dogs to President Obama. A discussion of what happened in each instance leads into an analysis of whether much appropriation art is actually art or something in the nature of commentary about art. At stake: artists' fame and art-world fortunes.

--By Alan Behr, Phillips Nizer LLP

Alan Behr is a partner in Phillips Nizer's New York office.

The author would like to acknowledge the assistance of Dr. Jan Philipp Oppermann, a graduate of the Universitaet Bonn and Universitaet Wien; Andre Buchholtz, a law student at the Freie Universitaet Berlin; and Christopher Harke, a law student at the Humboldt Universitaet zu Berlin.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Would the United States have extended the term of copyright by twenty additional years in 1998, under the Copyright Term Extension Act, Pub. L. 105-298, 112 Stat. 2827 (1998), if not for the importance of early cartoons from the Disney catalogue and other works nearing the end of their copyright terms?
[2] Folsom v. Marsh, 9. F. Cas. 342, 348, (C.C.D. Mass. 1841) (No. 4,901).
[3] U.S. CONST. art. 1§ 8. By saying that this happened at the start, I am letting the national government, earlier formed under the unworkable Articles of Confederation, take a mulligan.
[4] See discussions by the Supreme Court in Golan v. Holder, 132 S. Ct.873, 181 L.Ed. 2d 835, (U.S. 2012) and Eldred v. Ashcroft, 537 U.S. 186 (2003).
[5] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev., 1105, 1107, 1110 (1990).
[6] I would be interested to see if data can be assembled to show a correlation between the rise of the ability of the average person to copy professional content and the relative success of the fair use defense.  I am indebted to Nancy Wolff for the observation that judges may be increasingly influenced by their clerks and that, at a number of the law schools from which clerks are drawn, copyright is increasingly seen with hostility. I recall my own education in copyright, by my professor and mentor John M. Kernochan, in which the imperative of copyright protection for the works of visual artists, writers, musicians and others was presumed and never questioned by anyone in the three intellectual property classes in which I was a student.
[7] As in so many other things in life, it is not the thing you are watching for that gets you; it is what comes on you from behind, unexpected.
[8] To offer my own anecdotal evidence: My work as both a writer and photojournalist has never been more widely disseminated, regularly appearing both legitimately and courtesy of infringement. During that time, the level of compensation, following market trends, has fallen so precipitously, I can truly say that I now do it for love.
[9] (See e.g. Campbell v. Acuff-Rose Music Inc. 510 U.S. 569, 578 (1993); Blanch v. Koons, 467 F.3d 244, 254 (2d Cir. 2006) (citing NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004)).
[10] See 784 F. Supp. 2nd 337, 343 and 350 (S.D.N.Y. 2011).

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Appropriation Of Photos (Part 2)