Friday, October 28, 2005

Productive Use, Transformative Use, Complementary Use: Who's Right?

In a wonderful, but lamentably forgotten book, "Exemptions and Fair Use in Copyright" (1978) (still in print and available at the late Leon Seltzer (1918-1988), a lovely and scholarly man I am very happy to have met, proposed a unified theory of fair use under the name "productive use." According to Dr. Seltzer, a productive use was one in which one author, using reasonable portions of the work of a prior author, creates a new work. That new work adds to the fount of public knowledge. This theory was embraced wholeheartedly by the Ninth Circuit in Sony, and while criticized as constituting an absolute rule, it was not entirely discarded by the Supreme Court in that case. Justice Stevens wrote that "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests. The distinction between 'productive' and 'unproductive' uses may be helpful in calibrating the balance, but it cannot be wholly determinative. "

In 1990, Judge Pierre Leval wrote his path breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use,":

"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

Note that Judge Leval's description begins with the word "productive."In Ty, Inc. v. Publications Int'l, Ltd., which I argued before the Seventh Circuit, Judge Posner took issue with at least the term "transformative use," and perhaps more:

"The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and"superseding" copies, see, e.g., Campbell) is illustrated not only bythe difference between quotations from a book in a book review and the book itself ... but also by the difference between parody (fair use) and burlesque (often not fair use). A parody,which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use."

Some may disagree with Judge Posner's binary movie examples, and I would be interested to know how such disagreements impact on one's assessment of his approach in general. I am also interested in how helpful the use of such labels is. "Transformative" seems to imply actually changing the original, although a book review, a classic fair use, doesn't. "Productive" use seems to apply the same type of concept, while "complementary" might be construed as too narrow. So any of these labels cover (affirmatively or negatively) uses of works as in Google? How much help are they? Why do we use them, and can we live, profitably without them?


William Patry said...

One problem that may lie in the labels "productive" and "transmforamtive" is a point I think copycomment was making: the goal of fair use, like copyright, is to encoruage learning and this can be done, as in Google, not only by the creation of a second work, but by increasing access to the learning in copyrighted works. The access approach, of course, can be taken too literally, by stating all unrestricted copying increases access because, by definition, a restrict restricts access, but that is where the other fair use factors come into play.
In a class on advanced copyright, one semester I decided to teach fair use uncoventionally. Instead of looking at the statute or case law, we spent a few classes on how we would want a copyright law to work if we were writing it, either as a legislature or common law judges. The considerations and factors advances were virtually identical to those in Section 107. The exercise I think gave the class a lot of respect for how things have been worked out and for the fundamental nature of the issues.

Anonymous said...

Of course, the debate around "transformative," "productive," and similar terms tends to implicitly denigrate the fair use claims of "nontransformative" or "nonproductive" users. This is a shame, as these uses are, at least numerically, far more common and important to regular people. After all, there are more unauthorized copies on iPods and TiVos than have been made by all the Remix Culture mavens filling the hipster clubs in our big cities.

Fortunately, scholars like Julie Cohen, Rebecca Tushnet, and Joe Liu are doing great work on redeeming "consumptive" fair uses to their proper place in the literature.

William Patry said...

I agree with Fred that labels have consequences, and that was an idea behind the posting.

Another problem is that perhaps fair use is being asked to do too much. If you take a doctrine which historically as developed is thought to cover conduct x,y, and z, a certain coherence is created. Line drawing may be and usually is ad hoc at least within the fringes, but the contours are at least identifiable.

In think before photocopying fair use had such a coherence and that was the central point, I believe, of Leon Seltzer's book.
But things changed, with photocopying and then VCRs. Lacking any other legal basket into which to fit such uses (including a different approach to "copy" itself), fair use became the sole basket into which such uses either fit or didn't. Things have only gotten much, much worse since then.

If U.S. copyright had a strong personal use exemption, conceptually fair use would not be so problematic in the area of new technologies. There are exemptions throughout Chapter 1, including 108, but no real personal use exemption. Section 1008 is, for reasons discussed before, a very failed effort in this regard.

One can be as creative as one wishes in reconceptualizing fair use or whatever fancy words one wishes to choose, but at some point, you are talking about a different doctrine altogether, at least as it has historically developed.

Perhaps we would accomplish more if we focused on attempting to formulate a new approach, one that actually is directed toward the conduct we wish to cover, personal uses, rather than claim that fair use "covers" this or that. After studying and practicing fair use for 25 years (and I just filed today a reply brief in the Second Circuit in a fair use case that I will argue in 8 weeks or so), I am increasing pessimistic about the doctrine's center, to invoke Yeats.

Anonymous said...

I think we are in danger of using "fair use" to define the contours of acceptable digital digestions of copyrighted works in many contexts. This will be very much more complicated than the slices attempted by Judge Posner to define parody from burlesque - - with which I wholeheartedly disagree. The struggle in this blog's comments sections over the Google Print program using fair use as a context for analysis is symptomatic.

"Transformative" and "productive" and any other useful nomenclature are just attempts to create a legal standard in a situation where the judgment is, in fact, almost entirely equitable. One should admit straightforwardly that with precedent as a guide a fair use analysis consists of a court's best judgment in balancing equities; in which case definitional guides using labels become less critical. The object in equity is to look through the law and to consider precedents on a results or outcome basis instead. (This, unfortunately, precludes a jury from a finding of fair use - - and I admit to being too pressed for time to look up if a jury can or has ever made such a determination.)

I agree completely with where Prof. Patry is going. Fair use isn't enough to meet the challenge of defining appropriate personal or public uses of copyrighted works that are excused from the grant of exclusive rights to the copyright owner. By and large, most of those excuses should be able to found by the legislature and put in the statute in plain language. Why would we want the courts to legislate those uses through a wishy-washy fair use quasi-equitable process using ill-defined labels? It seems a dangerous delegation of authority. And we can see from Sony and Grokster and Teleprompter and other cases how uncomfortable the courts have been when exercising that authority.

The reason I disagree with Posner on parody and burlesque is because it does not seem to be backed up by any empirical data on the substitutive commercial impact of a burlesque on an original in any of the examples he used - - a real fact far more significant in a fair use analysis than a Judge’s opinions on literary forms however well-read he may be. But a legislature could easily say: parody, yes; burlesque, no (library copies, yes; copies for an AI Borg, no) - - not because it is inherently fair to draw the line that way but because it is an appropriate compromise to draw the line that way based on the political considerations as they presented themselves. In a legislative process, the result could just as easily be: parody yes and burlesque too! What we fear, and rightly so, is that given the current climate of political sway in copyright circles and the extreme imbalance of the process the answer would come back as NO, NO, NO on any limitation to exclusive rights even those that are artistically necessary and justified. It is simply hard to get and have a fair debate in Congress, and this has always been true. Even Congress knows this and will punt to the courts as it did so resoundingly on fair use in 1978.

William Patry said...

I accept Joshua's realpolitik about Congress. I would suggest that the Copyright Office has always played a very constructive role as a think tank for Congress, and this may be one route. Another is starting on November 15th, with a "mob" run by Randy Picker at University of Chicago, who with his colleague Doug Lichtman form a dynamic duo of intellectual property. Here is the announcement:
I will be participating.

William Patry said...

I'd like to suggest this very insightful article by Professor Michael Madison at the University of Pittsburgh Law School:

Anonymous said...

It seems to me the problem one always runs up against in fair use arguments is the use and the problems to the copyright owner of the use varies so greatly over different types of intellectual property. Even finely tuned rules cannot apply equally to films, recordings, novels, photographs, blueprints, etc.

William Patry said...

Anonymous is certainly correct that fair use may be applied quite differently depending on the subject matter: most of the time visual works, for example, must be reproduced in their entirety, thereby rendering analysis of the third factor differently, than say an equivalent type use with musical compositions where perhaps a small amount is sufficient.

This doesn't bother me and I don't think there have been too many probelms with such distinctions, although this is not to say none. In the Ty case I argued before Judge Posner, for example, the district judge blew the visual point entirely. In the Second Circuit case involving Bill Graham posters I am arguing soon on the plaintiff's side, we don't contest the need to use the entirety of posters in appropriate cases, but the argument is over what is a transformative use of them. That varies among subject matter, and has been, at least in my experience, more problematic.

Perhaps in my case the Second Circuit may provide some guidance.