Wednesday, November 28, 2007

Is Sweet & Maxwell Timid or Prudent?

Two weeks ago, I gave a speech in London, the Stephen Stewart Memorial Lecture, sponsored by the Intellectual Property Institute. The Institute has a journal, the Intellectual Property Quarterly which typically publishes the lectures, and wanted to do so in my case. I was happy to have them publish it. The printer is Sweet & Maxwell; I say printer because as far as I can tell that's all they do: they don't solicit the articles and they don't edit them; they don't pay for them either although they do charge for the journal. That doesn't mean they are passive, far from it. For an entity that in this case does nothing intellectual they seem quite opinionated about the content.

Here's the problem. The speech was called "Metaphors and Moral Panics in Copyright." Before drafting the actual text, I spent a large amount of time on the introduction because I became obsessed with the whole idea of introductions to talks, how people try to tell lame jokes, or refer to previous speakers; foreigners usually try to ingratiate themselves to the locals. I decided I would do a parody of such introductions by using all of the most common forms of such introductions and make sly fun of them without seeming to be doing so. This involved in one portion the use of photographs, due to the prevalence of inane PowerPoint presentations that have slide shows. I wanted to parody this too, and did.

Whether the audience got my PostModern assault on introductions or not, I don't know, but I had tremendous fun. I sent a copy of the speech to the journal and they were happy to publish it; that's where Sweet & Maxwell entered. They wanted the photos out: they were expensive to publish in color and there were allegedly copyright problems. I offered to have them printed in black and white, and in that event there would be no cost since they were embedded in the text. I also offered to indemnify them for any copyright problems. No go: their lawyer got involved, and they refused to publish the article with the photos. Well, the introduction wouldn't work without the photos because they are integrally related in every sense to the text. I then told them to simply drop the entire introduction, which is what they are doing.

In my view this exchange is symptomatic of why copyright has failed as a system, but I am interested in others' view. I am happy to send anyone who wants the entire article with the introduction and the photos inhtact, but in order to permit you to form your own views on the merits of whether the use of the photographs is fair use or fair dealing, here is the entirety of the introduction, but with a gaping hole where the photos should be, much like the Girl Scouts danced around the campfire without the music in the Great Macarena Dispute:

The Stephen Stewart Memorial Lecture
William Patry, November 13, 2007
to the Intellectual Property Institute
London, England

Non-Introduction

As a lecture in memory of a most distinguished scholar, I confess to feeling inadequate. One reason for this inadequacy is my nationality: U.S. intellectual property writers have a reputation for being parochial, for lacking a solid grounding in comparative law, and for lacking the nuanced thinking that marked Stephen Stewart’s work with such greatness.

My sense of national inferiority was, however, happily overcome when I looked through the PowerPoint presentation for Charles Oppenheim’s talk to the Institute in July, entitled “What’s Wrong with Copyright?” The second slide in his presentation was entitled “Yanks: over-sexed, over-paid and over here.” At the risk of insulting my wife, who is present tonight, and colleagues from Google’s London office, I take exception to the first two of Professor Oppenheim’s accusations, which I chalk up to extreme jealousy.

And what a long-simmering jealousy it is: over 65 years have elapsed since that saying became popular. British men, have you been doing nothing for the better part of a century to prove your mettle? If I may be so bold as to offer you some advice, you may want to avoid this look:


[PHOTO OF PRINCE CHARLES IN KILT MISSING HERE DUE TO SWEET & MAXWELL]


in favor of this:


[PHOTO OF GEORGE BUSH AS A COWBOY MISSING HERE DUE TO SWEET & MAXWELL]






Of course, if you do look and act like that there are many problems, such as approval ratings in the


[PHOTO OF TOILET MISSING HERE DUE TO SWEET & MAXWELL]







so you will, I think, be best served by being:


[PHOTO OF HUGH LADDIE MISSING HERE DUE TO SWEET & MAXWELL]





Given the lack of eye-catching images found in Professor Oppenheim’s presentation, I wondered whether I should attempt a joke in order to win you over. I consulted with my father in-law, who is a native of London, and a lawyer. He recommended I look at some collections of British humor. I promptly commenced an amazon.com.uk book search for British humor. The first book listed on the search was “Bears Can’t Run Downhill and 200 other Dubious Pub Facts.” The second search result was “Enough to Make a Cat Laugh.”

I quickly concluded that the British regard animals as particularly amusing, and in a way Americans don’t. I then came across a story that convinced me this is indeed the case.

In the middle of July, at the very time of Professor Oppenheim’s talk, I read Prince Charles had given Camilla a pair of sheep for her 60th birthday, accompanied by a card that read, “Happy Birthday to Ewe.” Camilla was reported to have been “chuffed to bits” by the gift. I was unfamiliar with the expression “chuffed to bits.” I didn’t know if the chuffing was something Charles or the sheep did to Camilla, or whether it was a good thing, no matter who did it. I recalled too a famous episode from the very first Monty Python’s Flying Circus show, called “Flying Sheep.” This was far from being the only Monty Python sketch about sheep; there was Sheep in Wainscoting segment, and perhaps most famously, the Killer Sheep skit. Between Prince Charles and Monty Python, I concluded that humor, especially about sheep, was better not explored, so I am sorry to say I have no joke tonight.

Lacking a joke, I sought inspiration from those who delivered previous Stephen Stewart lectures. I naturally decided to go to the most recent, by Mr. Gowers. His talk, however, came right before the release of his report, and accordingly he was circumspect in his remarks. Indeed, I understand from the institute’s newsletter that what wowed you last year was not Mr. Gowers’ presentation, but rather, and I quote, “the chance to own an IPI duck, generously donated by Professor Jeremy Phillips.”

This unexplained and perhaps unexplainable enthusiasm for ducks, much like the intense British fondness for sheep, so befuddled me that I gave up on the entire idea of an introduction. Lacking an introduction, I shall instead now launch directly into my presentation, “Metaphors and Moral Panics in Copyright.”

21 comments:

Anonymous said...

You continue to intrigue and delight loyal readers: When time permits,kindly forward the text w/photos to me at
gmhasiotis@aol.com

Thank you.

Anonymous said...

For an introduction that never was, that was one of the funniest introductions I've read in a long time. It really ought to be published, photos and all.

Or better yet, as audio and photos.

Sherry said...

Hello Bill Patry, funny stuff. Sherry Reson here, Public Affairs, Rockridge Institute. I'm been trying to find you. Convenient that you blog. Hope to hear from you.

Sherry Reson
reson@rockridgeinstitute.org

LKB said...

I agree that Prof. Patry's introduction was quite witty.

I also think, based on the information provided (and my experience in representing photographers and consumers of photographers in copyright cases), that Swift & Maxwell's concerns are hardly misplaced.

Back to basics:

1. Are the photographs protected by copyright? Almost certainly.

2. Does Swift & Maxwell have licenses or other permission from the copyright owners to republish them? Apparently not.

3. Does the unlicensed republication (as opposed to Bill's initial use, which is another discussion) fall under a fair use exception (assuming that there is a cognate under UK law)? My read is that it would not (owing largely to the commercial nature of the use), but others may disagree. At any event, it's hardly imprudent for a publisher to have a hard-and-fast rule that they don't publish photos without a photographer's release or similar documentation.


So, does this situation represent why copyright has "failed as a system"? Hardly. Here're some novel concepts, which people in the advertising and publishing industries follow every day:

(1) Why didn't anyone simply contact the photographers involved and buy licenses for the uses in question? Commercial photographers are in the business of licensing their works, and this kind of editorial use license for a small circulation publication would likely have been quite modest.

(2) If licenses for the particular images were not available or too expensive, go to one of any number of stock photography sites, find a similar image, buy a license from it and substitute the licensed image. Very inexpensive and as easy and point and click.


Now, if Bill obtained the photographs on a "royalty fee" basis from a stock house, then I think a different analysis might apply. But if he simply right-clicked a number of images he found on the internet . . . c'mon, you don't just get to reproduce someone else's copyrighted works -- especially in a commercial publication -- merely because such use would be humorous.

LKB in Houston

Chris said...

Prudent...

While I presume your offer to indemnify was sincere, look at it from their point of view -- you're an individual and a foreigner as well. If I'm going to be indemnified, I want it to be by a local with deep pockets. After all, there's a big difference between having somebody agree to indemnify them and actually getting that person to pay those costs. Plus, there's the question of the damage to their reputation, which you can't really indemnify them against.

I'm curious if you had considered just getting licenses; it sounds like these were stock photos.

Anonymous said...

Perhaps the original presentation should have been sans photos, with blank slides labelled "photo of ______ removed due to rights issues." No, that wouldn't have been very funny. But it would have made more of a point, as does seeing it on your blog.

William Patry said...

Dear LKB and Chris. They didn't ask whether I could afford to indemnify them and didn't care whether I could or not, I believe. For them, it was an extremely simple proposition: we will not publish anything unless you are the copyright owner. Maybe if I had a signed, notarized agreement with the Queen's imprimatur, they might have thought about it, but even then it might have been a close call. West Publishing for my treatise wanted me to indemnify them (which i did) AND clear all uses with the copyright owners.

The sad state of copyright is this: publishers are mere printers, happy to make money off of printing material they neither commission nor edit (West is an exception here: my editor is amazing). G-d forbid they have to think, make the slightest effort to understand the legal issues involved: nope, its all corporate cookie-cut stuff, the result of which is that an article that could have been much richer is truncated with all the fun stripped out of it, and needlessly so. While my offer of an indemnification was genuine and I would extend it again, I never expected them to take me up because of this attitude.

The point for me is not whether I could have used stock photos, but whether the ones I did use could be justified. Gone are the golden days when a publisher actually believed in fair use or fair dealing and would apply it in publishing something that was without the permission of the previous author because they believed their author had made a valuable contribution to society and they were willing to stand up for him or her. When I worked for Congress during the great fair use and unpublished works debates in the Second Circuit, a very prominent private lawyer who represented the NY Times and many others advised his clients they could not take one word from an unpublished work, no matter the purpose: and that was in 1992.

I deliberately didn't look for stock photos or at the permissions policies (if any) for the specific photos I used. I chose them carefully because they were a part of my point: the Prince Charles one was perfect for the oversexed Yanks point because he was wearing a kilt, because Camilla was giving him flowers and not the other way around, and because a few paragraphs later they would become a part of the introduction too in another context. The picture of Bush as a cowboy pulling weeds is iconic and symbolizes him and his Administration; the picture of the toilet was carefully chosen because of its conenction with the previous Bush photo and because of the very blue water in the bowl.

If we are afraid of these uses as fair use, we should give it up, as Sweet & Maxwell apparently has. But one of the beauties of the Internet is they don't matter: I don't care whether they publish the article or not; it is a favor to the Institute to let them and I will make no money from them. I am much happier giving it away for free as it was written, with photos, without permission.

Carlos said...

I'd love to see a copy. Interesting and funny so far. ^_^
cjovalle@ischool.utexas.edu

Andrew said...

Professor Patry,

As a permissions editor at an academic publishing house, I'd like to say that, on a daily basis, I counsel authors against seeking permission for uses that can be persuasively categorized as fair use. I would hope that my counterparts throughout the U.S. employ similar policies. This is because I'm of the opinion that academic publishing, which is inherently for the educational purposes of comment, criticism and research, is a fertile field for fair use.

Moreover, I agree with you that the publishing community should take up a more aggressive position on fair use. Partially this agreement stems from my dissatisfaction with the "permissions" industry and its chilling effect on scholarship and worthwhile new works that would benefit society. Since the passage of the Copyright Term Extension Act of 1998, I believe US Courts share my dissatisfaction, and have grown more receptive of fair use arguments.

But let's get down to cases. Your presentation was a parody of previous speakers' introductions, i.e. you used previous authors' work to criticize/ridicule them. As such, anything you borrowed from these previous speakers was a fair use of their original authorship, for obvious reasons. (See, e.g., Campbell v. Acuff-Rose Music, Inc. 510 U.S. at 580, 114 S.Ct. at 1172; Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir.1997)). However, you used the photos for the purpose of satire, i.e. you used the photographers' work as a vehicle to poke fun at another target, e.g. Prince Charles and President Bush. The Second Circuit has made clear in its discussion of parody and satire that, unless the original author's (or photographer's, in your case) copyrighted work is at least in part the target of your criticism, the fair use defense is not available. (See Rogers v. Koons, 960 F.2d 301, 310, 2d Cir.1992). I think you'd agree that you aren't trying to parody the photographers’ works, you are satirizing British people in general, and Prince Charles/President Bush in particular, using those works. As such, your use of those photos constitutes a satire, and is not a fair use.

I think the courts got this one right and that the distinction is a cogent one. It's fair for you to use someone's own work to mock them (how else would you be able to?), but it's not fair for you to detract from the livelihood of a photographer/author by coopting their work just to poke fun at someone else. Why should Congress or any body legislate to promote mockery that doesn’t really add value to society, beyond its humorous effect, at the expense of those who created the works?

Fair use must be balanced against the proprietary rights of authors to profit from and control the presentation of their own work, otherwise we would quickly approach a slippery slope wherein intellectual property rights evaporate -- along with the economic impetus to create socially valuable works. I think Congress had precisely this in mind when they drafted sec. 107. Lines must be drawn, and I would say that you crossed a reasonably drawn line with your satire, and should have simply requested permission for the use and presented those licenses to Sweet & Maxwell, who no doubt would have accepted them and proceeded with publication.

One Post Script: Is S & M timid? Certainly. They should have proactively sought those permissions themselves and detracted the cost of the licenses from your share of the royalties (or charged you in some alternate fashion). That’s what I would have done. :)

Brad Robertson said...

Thanks for sending the speech to me. I enjoyed reading it. Honestly, it has forced me to reconsider some of my beliefs regarding property and "natural" rights.

Interestingly, I had just read an essay by Robert Frost in which he stated that poetry is metaphor, and teaching poetry (i.e., teaching metaphors) is the way to teach people to think.

I've always believed that metaphors are a necessary way of making a complex world manageable, but it can have certain dark consequences, such as racism (i.e., I have experience with a small sample and I then apply it to the whole).

I also considered that the way to debate successfully is to state your opponent's position is a negative way. You gave excellent examples of this in a way that was new to me.

I feel like a dwarf climbing onto the shoulders of a giant :-)

William Patry said...

Bravo, and many thanks Andrew for your excellent comment. It is quite wonderful to hear from someone in the trenches. I agree with almost all that you say and even that part where we disagree the disagreement isn't so much with what you say but the parody-satire distinction drawn in Campbell.

You are absolutely right that I was not making fun of the photos, but instead they were the vehicle for my parody of introductions in general (and in part Prince Charles and President Bush, as well as lauding my dear friend Prof. Sir Hugh Laddie).

My point would be though that to exhaust fair use through such distinctions as parody versus sature is to engage in a needless crabbed view of the doctrine. We should instead ask whether the user's overall purpose was for a socially useful purpose (I hope so), and whether it harmed th market for such uses. True enough some photographers do license such uses, but here we get into the circularity issue on the fourth factor.

In any event, thank you so much for taking the time to comment.

LKB said...

I guess ultimately it comes down to the parameters of fair use. As the good Prof. will be the first to admit, this is inherently squishy ground (try getting a summary judgment defeating a fair use defense sometime), and where the law is vague it's hardly surprising that publishers will be risk adverse. (Having said that, the publisher's position of only dealing with copyright owners does seem ridiculous -- photographers' releases are pretty standard fare.)

However, the solution that the good Prof. last post seems to suggest -- that a use ought to be fair use if its "overall purpose was for a socially useful purpose" gets us nowhere.

One man's trash is another man's treasure . . . how do we decide what is a "socially useful purpose"? Heck, I've dealt with people who argue with a straight face that their non-de minimus, non-transformative, unauthorized uses of copyrighted photographs *in advertisements* should be "fair use" because it served a public interest of "educating" the public about their products.

I say again: if the photograph is so special and perfect for a particular use, then recognize its value and pay the photographer his due. Photographs *are* protected by copyright, and photographers have a legitimate right to expect compensation for use of their work -- especially where the use is in a publication.

LKB in Houston

Anonymous said...

I have to admit some confusion. I can understand the fair use justification for the pictures of Prince Charles and George Bush, but what's the justification for the picture of a generic toilet?

Andrew said...

I enjoyed reading these responses and I agree with you wholeheartedly that, when it comes to fair use, we should only inquire after the social benefit.

However, I think we may have fallen into equivocation with respect to what is "socially beneficial."

You've argued (very persuasively) for a broader construction of fair use than US Courts are comfortable with endorsing. However, the Courts are including authors' property rights in the "socially beneficial" calculus for obvious reasons: economic incentives stimulate the labor necessary for scientific and artistic works. Such was the rationale for including copyright in the Constitution and subsequent legislation.

An overly broad construction of fair use could lead to a slippery slope on which the incentives for original works of authorship evaporate. Such a result is not socially beneficial. Accordingly, dim-line rules have been drawn as guides through this penumbra.

One such rule is that it is a necessary condition of fair use that third party material be directly addressed in the commentary/criticism, at least in part. (Of course there are a few exceptions, such as biographies. Graham Archives v. DK Ltd, 2006). Herein lies the philosophical underpinnings of the parody/satire distinction. The rationale being that there should be a compelling reason for trumping an author's property rights, (and “societal benefit” as such a reason does not work, as property rights are instrumental in achieving that end). I believe you were speaking to this point above when you write:

“I deliberately didn't look for stock photos or at the permissions policies… [because the pictures were perfect for my purposes]”

Your argument implies that you had a compelling reason for trumping property rights. (You knew you needed to speak to this!) However, I find this unpersuasive, as other readily accessible images would have served the same end (although, this may be a point on which reasonable people can disagree. It is my contention that a compelling reason must be provided for singling out those particular photographers for infringement; namely, that reference to their work is impossible or severely hampered by its absence.

Artists/Authors/Photographers do earn money by charging permissions fees, true; however, we have overlooked the intangible element (which to many authors is more valuable than money). What if the rightsholders disagrees with your use? What if they downright don’t like you or the purpose for which you’ve employed their work? I’m not saying they have an inherent right to copyright, but I do believe that, absent that compelling reason I mention above, their voice ought to be considered in the balancing calculus. And I believe this for good reason: summarily denying authors’ privilege to control their property hampers the incentive for them to create those social goods in the first place.

Hampering that incentive would certainly alter the present landscape considerably. I don't think it's alarmist to predict that such an alteration would diminish the production of socially beneficial works.

---

That said, S & M certainly employ an impractical policy (timid is a kind word). As someone in the trenches, litigation is extraordinarily rare in these cases. Unless there is bad blood or a Kinko's type situation, a publisher who doesn't seek permission for something they should have will almost always receieve no more than a strongly worded invoice from the rightsholder. No one benefits from creating an environment of litigation, particularly because the costs of litigation far outweigh any benefits, especially when we're talking about, at the very most, US $500 for each of those photos. Most outside counsel would charge that for an hour of work, as I'm sure you know. Who wants to pay that for protracted litigation when they can just send an invoice? :)

William Patry said...

Andrew, thanks again for most insightful comments. As you gathered, I am attempting to be a bit provocative in order to get a discussion on the issues.

On the toilet issue, I could say I am "flush" out of reasons for using it, ha ha, but that one is admittedly the most difficult. I spent some time picking the proper loo shot since it was a proper British audience: not any loo would do. It had to be attractive; it had to draw you in and down. The purpose for any such picture was of course the connection with Bush, pictured in the previous picture in his best "I'm a tough guy, bring 'em on" photo op. Except he never went anywhere when he had the chance, and it is other people's children who have gone and others' children who have been killed in Iraq solely as a result of his actions. May his memory be wiped off the face of the Earth like Amalek's. (See http://en.wikipedia.org/wiki/Amalek). So, that's the rationale for the toilet shot.

You say:

"An overly broad construction of fair use could lead to a slippery slope on which the incentives for original works of authorship evaporate. Such a result is not socially beneficial. Accordingly, dim-line rules have been drawn as guides through this penumbra."

"One such rule is that it is a necessary condition of fair use that third party material be directly addressed in the commentary/criticism, at least in part. (Of course there are a few exceptions, such as biographies. Graham Archives v. DK Ltd, 2006). Herein lies the philosophical underpinnings of the parody/satire distinction. The rationale being that there should be a compelling reason for trumping an author's property rights, (and “societal benefit” as such a reason does not work, as property rights are instrumental in achieving that end). I believe you were speaking to this point above when you write:

“I deliberately didn't look for stock photos or at the permissions policies… [because the pictures were perfect for my purposes]”

"Your argument implies that you had a compelling reason for trumping property rights. (You knew you needed to speak to this!) However, I find this unpersuasive, as other readily accessible images would have served the same end (although, this may be a point on which reasonable people can disagree. It is my contention that a compelling reason must be provided for singling out those particular photographers for infringement; namely, that reference to their work is impossible or severely hampered by its absence."

I pray for the day when any country has a broad construction of fair use, much less an overly broad one. I don't see that on the horizon, although the Canadian Supreme Court has be in the vanguard. So that's a straw man argument to me.

My speech had a lot of discussion about the issue of copyright as a property right, although I intend to write much more about it. I don't think copyright is a property right in the sense in which its advocates usually advance the characterization. I call this the Nancy Reagan theory of copyright: you can just say no; that's what it means to be a copyright owner: to control your work by saying no. I think also think that the phrase "exceptions" is inaccurate too, and that "limitations" skirts the line. (You of course don't refer to these, I am just riffing here). I think of copyright as a regulatory privilege that has a number of components, a very important one of which is the granting of limited rights to provide incentives. But those privileges are of a whole cloth and that cloth includes limitations like fair use and fair dealing.

One of our differences is your assertion that there must be a "compelling reason" to use another's work without permission. I think there must be a reason sure enough, and a socially useful one to boot. But the status of fair use and fair dealing as affirmative defenses, is vastly overstated, as the Canadian Supreme Court pointed out in the CCH case. It is a slight evidentiary matter; it is not a thumb on the scale matter where the thumb is pressed hard against the purported fair user who better come up with compelling evidence to lift it to a position beyond the point of equilibrium: that view, the property view, does a grave disservice to the role played by fair use/fair dealing, and vastly overstates the scope of copyright owners' privileges.

I also find unpersuasive the satire/parody "directly addressed" distinction made in the 2 Live Crew case, an artificial distinction that has led to trying to game the system. why should we care if the socially useful purpose is one that directly criticizes the copyright owner as compared to the subject of the photograph, as I did?

In any event, your views are quite wonderfully expressed, sensible, and reasonable. I thank you for them.

Anonymous said...

Speaking as an inhouse copyright attorney for a large corporation (not in the publishing industry), I am sympathetic to S&W's position. Litigation is the last thing any company wants: it's a costly distraction. Company's don't want winning defenses; what they want is to avoid litigation. The S&W issue is a great jumping-off point for a discussion of fair use and the right and wrongs of copyright, as your blog shows, but I cannot fault S&W for taking a practical position.

William Patry said...

Thanks, Anon, as you note, litigation is "a costly distraction. Companies don't want winning defenses; what they want is to avoid litigation."

In this case, the failiure to pubish the photos is no big deal because I can make them available to others and because while the photos were integral to the introduction, the introduction was not integral to the speech as published, although it was to the live event.

The problem as I see it is a variant of what you indentified: while publishers are happy to be plaintiffs, they don't want to be defendants. As inhouse counsel myself at a company that is not a plaintiff but is a defendant, I appreciate the traditional view about being in litigation. Still, the lack of any backbone leads to impoverished, sterile works that are in no one's interest. Nor did it used to be this way: a fair question is when did publishers lose whatever backbone they used to have and why?

Andrew Scott said...

I can't underscore enough how enjoyable this discussion has been. Thanks, William, for weighing in so heavily and persuasively.

1. I agree with you that the "rights" language ought to be removed from copyright. (I'll refrain from using it in the future! Hah). It is nothing more than a privilege conferred for a limited time. (I use "limited" loosely, as I vehemently disagree with the Sonny Bono Act and its protection of the idle rich, as I know you do, as well.)

2. I'd like to address our point of contention, the "compelling reason" requirement. Your question perfectly frames the issue:

"Why should we care if the socially useful purpose is one that directly criticizes the copyright owner as compared to the subject of the photograph?"

We should care because, as the current case law suggests and I agree, uses that fail to directly criticize the owner are rarely socially beneficial. (Often the selection is arbitrary -- the photos you used in the slideshow could have been swapped with others.) This is because we want to promote the creation of art like those photos, so we grant them copyright protection as a means of providing pecuniary compensation to artists who create them. You have a different definition of what constitutes a benefit to society (and it may well be right).

The Nancy Reagan theory is problematic. Perhaps the privelege to say no shouldn't be afforded to authors, but that is irrelevant to considerations of fair use. If a use is a fair use, the author can cry foul till the cows come home and it will fall upon deaf ears.

Your prescriptive assertion that Fair Use should not be a thumb on the scale is a compelling one, but that's not the current reality of copyright law in the US. This is probably because section 107 is so damned vague when it comes to what constitutes a fair use. I think courts see the general rule as "everything is copyrighted," and the affirmative defense of fair use as a small footnote to that; hence, a narrow construction.

Perhaps the "directly address" rule is odious to our moral sense, and we're justified in believing our common law rights are being infringed to line the pockets of special interests. However, what alternatives can we propose? How should we limit the privilege of copyright, and to what extent?

Any redifining of this privilege would necessarily require that we define what we as a culture perceive as beneficial to society. At the heart of the current caselaw patchwork is a philosophical discussion about what we as a nation perceive as the Good (e.g. which arts are useful?), and what appropriate measures would be instrumental in achieving that end.

As imperfect as the case law is, I believe the rules that have been developed accomplish the Founders' goal of promoting the sciences and the useful arts. I don't think the problem is with the 2 Live Crew decision or the parody/satire distinction. I agree with those and would defend them.

Where we have gone sorely awry is the extension of copyright terms into virtual perpetuity. The current standard of author's life plus 70 years is unconstitutional, and the Mickey Mouse Act ought to be nullified by judicial review. What practically amounts to 100 years or more could neither be considered a "limited time" by any reasonable person nor construed as the intent of the Founders.

That is the answer, for me, and the approach that should be taken. Allow the current privileges to endure, as draconian as some may perceive them, but cut the life of copyright to no more than 15 to 20 years. That would promote the sciences and useful arts, force artists to create, and their heirs to get off the couch.

----

PS. Not all publishers have lost their backbone. :)

William Patry said...

Thank you again, Andrew, for making the blog what I always want it to be: a enjoyable, playful look at difficult issues among friends including those one only meet (at least initially) online.

I certainly agree with you about the ill-effects of term extension, but in the case of fair use I don't think the difference between life plus 50 or life plus 70 matters: most parodies/satires are of contemporary, even current works, and that's the fun of it. We want to make fun of our culture now, not 110 years later when we are all dead and those alive have never heard of the works in question because they have sunk into oblivion.

The Jon Stewart show is funny because it is current to that day. So if we want a vibrant fair use -- and I certainly want a vibrant Jon Stewart, even though his show is based upon massive use of others works without permission, including clips from YouTube -- how do you achieve that?


On to specifics of your remarks: you state in one place: "as the current case law suggests and I agree, uses that fail to directly criticize the owner are rarely socially beneficial," and in a later passage, "I don't think the problem is with the 2 Live Crew decision or the parody/satire distinction. I agree with those and would defend them."

We shouldn't forget that much like the inducement theory that provided a deus ex machina for Justice Souter in Grokster, the parody/satire distintion played the same role for him in 2 Live Crew; it was a distinction I think was not really drawn as sharply as he drew it (if at all) and for good reason: it makes no sense. One example is Blanch v. Koons in the Second Circuit which I think admirably found fair use for the very person they had years before called a pirate, and for a use that was not in any sense a parody of Ms. Blanch's photos. Even in the 2 Live Crew case, a number of people thought the use was not a parody even though it might be fair; instead, it was a satire on other things, in which the song played an ironic role. An even better example is the Capitol Steps, which in now way parody the music they set new lyrics too: fair use, yes. Parody no.

Nor do I find it in any way determinative that one can find other works to use rather than the one you did. In the case of my introduction, the Prince Charles picture and the one of Bush were what I wanted to say so that would have been hard, but it would have been possible in the case of the toilet. Yet, so what? Shouldn't all that matter be that the photo I did choose did work for the socially beneficial purpose I made of it?

Thanks again for your wonderful comments.

Nick Holmes said...

William

You refer to fair use and fair dealing in the same breath, but as you know the UK fair dealing exceptions are much narrower than your fair use.

Provided they are acknowledged, use of excerpts will be regarded as fair dealing if for:

* research or private study – not applicable in your case
* reporting current events – but photographs are specifically excluded from this exception
* criticism or review – the problem for you here is that the each photograph is a work in itself; you are using the whole.

So, an interesting debate here, but arguments based on fair use don't wash.

It is a crazy situation, particularly since the advent of the digital camera.

William Patry said...

Hi Nick, yes I realize they are different: I was hoping Lord Triesman was going to save me, but then he went off to play football again.