Panel VI. IP and Cultural Expression (Moderators, Professor Said and Professor Margaret Chon)
Mark McKenna, Notre Dame: Influence of Campbell outside copyright/in right of publicity: the First Amendment cases in which there’s an arguably expressive use of someone’s identity—movie, song, video games. Courts use a lot of tests; consensus in TM developing around Rogers, but no such consensus exists in RoP despite the fact that these cases are almost always brought as RoP and §43(a) cases. One approach uses Rogers for both, which makes sense since Rogers itself involved both claims.
Comedy III is another option. But the problem is that a person is not a work, so it’s impossible to do a true transformativeness analysis. Courts don’t evaluate whether a defendant’s work is transforming the P’s identity, but rather how creative the d’s work is. This means that this is essentially productive use; it’s a terrible approach to the RoP. It’s unclear whether we look at the creativity in depicting the person, or creativity in the work as a whole. The recent sports videogame cases make this conflict apparent. You could ask how much of the work as a whole consists of the identity, but the courts don’t do that. That would still be a poor test because it would still be hard to know when a painting of a celebrity was protected. In both video game cases, creators were penalized for the realism of the game. Suggests that least worthy would be biography and documentary film, which should be instead at the core of the First Amendment. Of course a court is unlikely to find a violation here, but why not? What work is transformative use doing? Courts are actually judging the value of the work: video game exceptionalism notwithstanding SCt’s directive to the contrary. That’s a story of Campbell’s influence, but not a happy one.
Lateef Mtima, Howard University: Hathitrust as template for social justice arguments in copyright. If print-disabled access is non-transformative, but fair use, that opens other arguments. The EU doesn’t have flexible fair use, but rigid limitations. Several cases in ECJ are doing the same thing of purposive interpretation: Decma v. Vandersteen: court has to interpret the application of the exceptions under Art. 5 of harmonization directive, as to whether or not an unauthorized use of an altered cartoon was a parody.
A social justice use, like the use of rendering books available to the blind, can be defended by looking at the objectives of an expressly articulated law or gov’t policy; there should be a nexus between the social utility objectives of the law or policy and the copyright law. Finally, the last question is whether the specific use isn’t antagonistic to the overarching objectives of copyright. The fourth fair use factor does look after the rights of the copyright holder, but we need to ask this again because copyright holders have noncommercial interests that should be respected. Often when copyright owners complain they’re getting no money we can sometimes point to noncommercial benefits they may nonetheless be getting.
Access/cultural preservation is another worthy goal, for significant cultural events/documents, e.g., women’s rights events.
Christopher Newman, George Mason: Fair use is not holistic enough. Factors still being weighed against each other, however minimally. Souter avoids this in Campbell; remains holistic, w/ glaring exception being factor two, the neglected middle child of fair use doctrine. Factor 2 = dean’s speech at graduation: a customary part of the ceremony, but has limited variation and no one ever expects to learn anything from it; its greatest virtue is usually that it’s short. Kienitz: “Factor two is unilluminating” is the sum of the discussion.
Why? We’ve made the mistake of thinking that each factor must have weight rather than being a lens through which we should triangulate the whole. So we only say things that weigh for or against fair use. Not only is Campbell’s factor two analysis incoherent, Souter goes on to say it’s irrelevant. If the question is fairness, how do you decide the nature of the original work/what it was doing before it was transformed? Ought to ground the rest of the analysis, rather than a factor that weighs for or against fair use. Should instead provide a qualitative baseline: calibrate the scale, not put a thumb on the scale. Instead these discussions take place under the rubrics of the other factors. But it would improve analysis by making sure we’re taking the time to look at the problem from various distinct angles. If we spent more time focusing on the original work on its own terms, we could ID and create bodies of doctrine showing works/characteristics of works that add to the analysis.
Why don’t we talk about what kind of work it is? The ways in which we process and draw meaning from a work vary depend on type: music/writing. Amount of work necessary to transform may vary: relatively small alterations to an image may have a profound impact on its meaning in ways that wouldn’t happen w/text or sound. Kelly etc. are often cited as complete copying cases, but actually the resolution was altered in ways that make transformation a more plausible conclusion. Be careful in analogizing types of cases across types of works.
What’s the work’s expressive purpose? Current analysis is undisciplined, failing to distinguish between the purpose of expression embodied in the work and all the instrumental ways in which that expression might be used. Irrelevance of good faith: we want to be able to look at objective qualities of two works and not at what’s going on in people’s heads. Expressive content of photos can be entirely unaltered—Dillon v. Doe, headshot of politician to ID her, used for the same purpose: to physically identify the person under discussion. The effort to convey positive/negative meanings was separate; there was no transformation. You might say once a politician chooses to make an image identify her, that image is fair game. Okay. But then we need to know when secondary associations should be considered part of a work for fair use purposes.
Factor two could also ground the discussion of factor four. What kind of market are © owners trying to participate in, and how are they using it to further expressive aims? Doesn’t see why market has to mean economic value, but rather some other kind of gain. We shouldn’t categorically opposed to let artists use exclusive rights to protect whatever idiosyncratic values they have. If artists want to be paid in attribution, and release work under CC licenses, then someone who copies w/o attribution shouldn’t win fair use automatically b/c there’s no market harm.
Moral rights through the back door? What I’m suggesting doesn’t increase scope of author’s §106 rights just because of objection. Fair use is like nuisance law. Requires actual harm to use & enjoyment of property, which isn’t limited to ability to profit. But owner doesn’t have carte blanche to define use & enjoyment—depends on the character of the neighborhood and the neighbors’ interests. Violation of a ban on criticism shouldn’t be honored, but that’s not true of all idiosyncratic values. So discuss what sorts of use & enjoyment authors value in this space, and is there any reason to stop them from using exclusive rights to further those values.
Betsy Rosenblatt, Whittier: Young women’s voices on fair use. People make things they may not realize they’re making, including community or themselves. Fanworks, overwhelmingly female communities under investigation. Deep dedication to gift economy. In post-Campbell world, these fanworks pretty uncontroversially don’t infringe, even resisting the temptation to separate the factors out from each other. Transformative of meaning; noncommercial; small portions; don’t compete in the market. There has never been a lawsuit about a noncommercial fanwork (despite threats and rumors).
Skin in the game: Organization for Transformative Works legal committee head; OTW runs the Archive of Our Own w/over 400,000 registered users, 1.3 million works, 5.8 million unique visitors/month. 107 responses to our call for fan stories to submit as part of our response to the USPTO/NTIA Green Paper call for comments on remix. We had to depend on self-identification as women/girls. We only asked about benefits of creating remix, not drawbacks: reflects our pro-fanwork agenda.
We found very powerful trends in the responses. Particularly: creating fanworks provided unique opportunities for developing selfhood, emotional maturity, and professional skills. Broad fair use permission for noncommercial derivative works promotes expression by often marginalized speakers and offers benefits otherwise unavailable. Fandom helped them understand themselves. Many had a narrative of fandom as rescuer—literally lifesaving in some cases. Felt they were not alone in the world; helped them find their voices; taught them to value their own expression and their own opinions, which served them later in life.
Women believed fandom allowed them to talk back to mass culture, especially one that didn’t adequately represent them. Claim agency around popular narrative, explore issues of gender and sexuality by working with popular characters; nonheteronormative narratives; issues of race and disability. Infinite diversity in infinite combination. The derision of fanworks was often bound up with other negative attitudes towards feminine pursuits. The young writer in any genre will not start out good; she finds her voice and that’s a benefit.
Remix taught important skills—language, writing and editing w/ the system of beta reading in fandom, critical thinking, visual art, programming/coding, other fields that could be used in professional lives. The rewards are support and feedback, a community/culture of learning. Transformativeness, because community that supports empowerment through changing the original, comes disproportionately from underrepresented groups. Permission culture would make this all difficult/prohibitive.
Margaret Chon: Legal transplantation, examined by McKenna—we’ve seen this in other contexts such as the three-step test of Berne being implemented in national legislation. Mtima is talking about similar issues: © looking outside of itself and even IP as a whole, towards other kinds of laws and policies. Specifically the ADA. Perhaps IP isn’t the be all and end all for innovation—think about leveraging and connecting other social policies. McKenna isn’t a cheerleader for transplantation, whereas Mtima is.
Newman and Rosenblatt do deep dives into two fair use factors, which Leval urged us to consider as deeply connected. Chon also has the tendency to handwave factor two; Newman’s project is to bring factor two back into the fold. Rosenblatt/Tushnet also dive deeply into the transformativeness factor: how do these two impact each other? How would Newman’s approach deal with the Rosenblatt/Tushnet process-oriented approach to transformativeness. Is there value to Newman’s approach for thinking about fanworks?
Breathing space may tie this all together. We tend to think of this as tied to First Amendment/free expression goals, but “breathing space” is open enough to capture many ideas expressed on the panel. Securing copyright is good, but one must not put manacles on science: quote from older case is her favorite part of Campbell. Fair use had earlier precedents, not just in America.
McKenna: not averse to transplantation in itself. Courts often don’t think nearly carefully enough about what they’re doing when they transplant something. E.g., courts often pretend they’re just using tort principles in secondary liability cases, but they don’t. Most likely to go awry when court is unfamiliar with the borrowed-from body: Cal. SCt doesn’t get very many copyright cases! Likewise, the SCt doesn’t get many tort cases, but thinks it knows torts. No rhyme or reason. Mtima wasn’t advocating borrowing willy-nilly but was arguing for borrowing w/relation to copyright.
Mtima: we all seem to be saying that the nature of the work matters. The right type of access to works—being able to get them and then to reuse them—helps continue the evolution both individually and as a society.
Newman: People usually think about fair use w/regard to fan fiction as copyright being a looming, never materializing threat. Newman takes strict view of idea/expression and thinks fanworks usually don’t count as derivative works. Super rich depiction of artistic community: I’m curious to know to what extent is © useful, not because I have to shield myself from it, but perhaps because they want to keep it noncommercial/constitutive of their personhood.
Rosenblatt: Very suspicious of considering intent of original creator, but intrigued by considering purpose as something different from intent. Expressive substitution may not just be for what the original work says, but for what the original work does. Wary of importing moral rights through the back door. But these communities depend on certain things they want their works to accomplish for themselves and others. Recent ebooksTree issue of copying fanworks to attempt to convince people to pay for “free” ebooks. Fans definitely want their works to remain free.
Yen: If the phenomenon you observe with transformativeness in RoP cases mimics the problem w/transformative use being so broadly applied that it loses coherence and simply becomes a result announced in advance. Public pressure to compensate NCAA players; this just happens to be our vehicle.
McKenna: it’s true, that seems influential—and I want them treated fairly too. But there is a core way in which it makes sense for copyright; it doesn’t make sense at all in the RoP. It is in some ways announcing a result b/c it’s hard for Ds to win. On the very same day the 9th Circuit announced that the videogame wasn’t transformative for RoP purposes, it announced that it would use Rogers for 43(a) claims against the same conduct.
Besek: Factor two/coursepack cases: some texts are created specifically for the educational market; that’s an important aspect of their nature. Is there a place for the publishers’ goals? Courts have rejected authors’ own desires for wide dissemination as probative.
Newman: should start by understanding what role © actually plays in enabling and encouraging the people who are trying to cultivate the value of the work doing what they’re doing, which includes publishers/intermediaries.
(RT: Barthes’ readerly and writerly texts as a factor two consideration? That would tie in with the fan communities that respond to certain works. Except it turns out that almost texts can be writerly. Newman might not be into that, b/c he seems to look at “purpose” as something objective about the creators/publishers, rather than purpose as function in the reader-writer interaction. Readerly/writerly might fit into the fact/fiction, published/unpublished distinctions we have though.)