Wednesday, March 28, 2007

Animals who think they are more equal

Cory Doctorow at Boing-Boing had this posting yesterday:

The company that licensed the US rights to Orwell's 1984 don't really understand copyright, so they're threatening the people who made the now-infamous Hillary Clinton/Apple 1984-ad mashup. Apparently, these people weren't paying attention when the carpetbaggers who bought out the Woody Guthrie estate tried to shut down Jib-Jab's "This Land" parody, and got their asses handed to them.
"The political ad copies a prior commercial infringement of our copyright," said Gina Rosenblum, president of Rosenblum Productions Inc. "We recognize the legal issues inherent under the First Amendment and the copyright law as to political expression of opinion, but we want the world at large to know that we take our copyright ownership of one of the world's great novels very seriously."

Rosenblum purchased rights to "1984" from the Orwell Estate and Sonia Orwell in 1981 and the Orwell novel is still under copyright, at least until the year 2044. The company has utilized these exclusive rights to produce a number of products based on the novel. "We produced Richard Burton's last film, '1984', which opened that year to great critical acclaim," Gina Rosenblum said. "We also authorized a number of related products such as videos and soundtracks, and later released the film for television viewing and an '1984' Opera. Currently, we are in discussions with major Hollywood companies to make a new motion picture of the classic novel."

If an accurate description of the dispute, Ms. Rosenblum's remarks raise misuse concerns. Not any use that can be licensed is within copyright and not any unlicensed use is infringement. The Supreme Court held in the 2 Live Crew case that copyright owners do not possess market power over parodies. Copyright owners do not possess market power over a host of other fair uses. It is, in fact, difficult to see any protectible elements of the novel that were used in the mashup. Preserving fair use, moreover, in no way impinges upon legitimate markets, like remakes of movies or stage productions.

There have been a number of fair use cases involving political speech. A political use of copyrighted material by a right-wing politician and allied groups in connection with a campaign was found to be fair use in Phoenix Hill Enterprises, Inc. v. Dickerson, 1999 WL 33603127 (W.D. Ky. 1999). In Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978), plaintiff was a political committee seeking the reelection of the incumbent governor of New Hampshire. Defendant was a political committee seeking to advance the election of the challenger. A third party had produced and marketed a song entitled “Live Free or Die,” which is the New Hampshire state motto. Plaintiff purchased the copyright to the song, which it used as part of its political advertisement.
The alleged infringement – found to be fair use - arose when defendant ran an opposing advertisement that copied portions of plaintiff's advertisement, including the song. See also Doehrer v. Caldwell, 1980 WL 1158 (N.D. Ill. 1980) (use of political cartoon in campaign literature). A gun control group's copying of a mailing list of state legislators whom the NRA had agreed its members to contact was found to be fair use by the Sixth Circuit in NRA v. Handgun Control Federation of Ohio, 15 F.3d 559 (6th Cir. 1994). But see Long v. Ballantine, 1998 WL 35156025 (E.D. N.C. 1998) (rejecting use of photograph in political campaign).

A political advertisement that used a credit card commercial to criticize the influence of money on politics was found to be a parody in MasterCard International, Inc. v. Nader 2000 Primary Committee, Inc. Ralph Nader, 2004 WL 434404 (S.D. N.Y. 2004). Nader ran advertisements based on MasterCard's “Priceless” advertisements. At the end of MasterCard's advertisements, there is a phrase identifying a trite intangible deemed priceless and therefore not capable of being purchased, e.g. “a day where all you have to do is breathe,” followed by the tag line: “Priceless. There are some things money cannot buy; for everything else there's MasterCard.” Nader believed that his “truth” was the remedy for what ails American political life, principally the evils of political contributions. To that end, his ads included a sequential display of items associated with fundraisers, followed by a price, e.g., “grilled tenderloin: $1,000 a plate,” “campaign ads filled with half-truths: $10 million,” “promises to special interest groups: over $100 billion.” As with the MasterCard ads, there was a tag line: “finding out the truth: priceless. There are some things that money can't buy.”

Whatever the merits of the mash-up ad in question, political discourse is priceless and must be preserved against Orwellian barnyard tactics.


Crosbie Fitch said...

And why stop at parody?

Why not permit any and all artistic evolution of published artworks?

What is to stop any artist dropping a non-parody derivative work into the viral marketing machine?

How can you prosecute them if they're anonymous?

They need only admit to authorship of their works that are popular.

When was the last time an artist got thrown in the slammer for preparing an unauthorised derivative (not classed as parody) and making it available?

What is the penalty for such a heinous misdemeanour these days?

Bruce Boyden said...

What's the misuse? The infringement claim seems wrongheaded (aside from the name of the ad, I don't even see substantial similarity, let alone lack of fair use), but I don't get how that leads to a misuse defense.

William Patry said...

If one regards the misuse defense as limited to anti-trust type activity, then there is none. If one regards, as I believe Judge Posner does, misuse as also encompassing the assertion of copyright clearly outside the bounds of one's protection for purposes of supressing speech or censoring particular uses -- in this instance censoring political speech -- then there would be a misuse.

Bruce Boyden said...

Are you referring to cases like Assessment Technologies v. WireData? In that case the plaintiff was attempting to leverage its copyright license to prevent the defendant from getting access to what it admitted was noncopyrightable data. But this seems wholly different, it's an attempt to claim copyright infringement where there was no prior license for any of the plaintiff's works. I.e., there's no leveraging, just overreaching. I don't see how it's different in kind from any case in which the plaintiff has mixed motives (e.g., suing a competitor) and ultimately loses on the infringement issue.

William Patry said...

Bruce, I am thinking more of his writings and speeches.

Anonymous said...


I think the Doctorow may have just confused the use of the terms "fair use" and "misuse." I've seen a lot of people use "misuse" to describe an attempt to enforce a copyright against an actiity that likely will be considered a fair use.

I mean, it's possible that this would be a case that involved misuse, but I think Doctorow is just confused as to the distinction.

Anonymous said...

Doctorow is a very bright net-geek self-taught in many fields including copyright. He moves so quickly and multi-tasks with such virtuosity that he misses many things along the way. He is a terrific spokesperson for political issues implicating open access and such but I admit to being very surprised to find him quoted without comment on a blog that typically sticks to real law as really applied. That the 1984 folks are being aggressive and over-reaching is completely normal and would deserve no mention except that it involves an Apple commercial morphed, probably without permission, for a probably fully authorized faux-user generated Barach Obama on-line YouTube clip. The more interesting claim is the one presumably still to surface from Apple or its former advertising agency. Or maybe, as faux as they were hoping to be, the real people behind the Barach Obama ad actually secured permission as would be required whether or not the speech was political. Every election cycle some campaign or another picks some recordings and claims them as signatures of their candidates and frequently they ask no one for appropriate licenses. Every once in a while, a democrat steps on a rare republican songwriter or visa versa. Video content is no different except that until vehicles such as YouTube offering free distribution, there was no reason to rip off video clips referencing common cultural currents. Political types of all kinds when following their social agendas tend to get maddeningly arrogant about their "rights" to conscript all manner of things and people to their causes including intellectual properties.