Panel II. Transformative Use Across The Arts (Moderator, Professor Said)
Annemarie Bridy, Idaho: Role of aesthetic judgments in fair use cases. Bleistein principle of aesthetic neutrality/nondiscrimination. Campbell said it wouldn’t judge whether the parody was good, just whether it was a parody. Literary critics don’t make the parody/satire distinction as the case did. Courts should own up to the fact that they’re being called on to make an aesthetic judgment.
But with parody as © concept and not literary concept (literary elements aren’t very good), you can make it work. But then you have to treat Campbell’s discussion of satire as noise, and most courts have done so. Kennedy left satire out of his analysis altogether; parody must target original, not just genre to which it belongs or society as a whole. (This is silly, BTW, because criticizing a genre can work by criticizing an example, so too society.)
We still don’t want judges to arbitrate good or bad taste in art. But we do need them to be informed about/apply aesthetic principles: Cariou v. Prince, where court said outright that the works had different “aesthetics.”
Daniel Gervais, Vanderbilt: Did the derivative work rights need to exist? He thinks so. Can’t be coextensive with reproduction via substantial similarity. Also, transformativeness can’t moot the derivative works right—fair use can’t subsume the entire right. And finally, derivative work must be a work. It must be original.
Using a quote: doesn’t involve a derivative work because it’s using the quote for support. Wall tile cases: not a reproduction but has been called derivative work. Perils of failing to distinguish are shown by cases that refuse to distinguish, and discuss only market impact. If market impact is used to define the scope of the right, gets too close to fourth fair use factor and creates a paradox in definition of the right. Unstable and normatively undesirable.
What would be better: derivative right should be understood by looking at what’s taken from original work and what makes the first work original. Has the second author taken elements that made the first work original? Fair use inquiry is then separate. Licensing is a very bad proxy here.
Jessica Silbey, Suffolk: creators tend to underprotect their works in economic terms in order to preserve other objectives. Doesn’t systematically analyze borrowing in book; is looking now at “fairer uses” in this light. Data show a wide range of creators, individuals and firms being much more tolerant of borrowing and copying, often expecting it as a matter of practice. Singer/songwriter comments about drift of imagery/lines that happen by accident and that are tolerated as long as there’s acknowledgement within the community. Inevitable influence: you’re influenced by Austen; you get to say “this book is like that famous book”—use others as models and give you confidence that you can do it too—use others’ work as scaffolding.
People expected copying and said being an artist depends on it. Are they just describing genre? They went on to distinguish expected/accepted copying v. offensive copying. One journalist: stealing quotes from other people is wrong: pretending that you spoke to someone when you didn’t, stealing the other reporter’s blessing. Another: it’s ok to profit for a good humane cause. Equitable dealings: nonprofit uses/small payment/credit. Much less tolerant of critical uses, feeling that they are degrading the work (including possible fair uses).
Steve Tapia, Seattle University: Judge’s statement: it all comes down to whether you took too damn much. In copyright, too often we are trying to put into words/abstract concepts something that the artist never did. Clients want gut level advice in a moment of need: can we run the Reginald Denny footage? Yes, while it’s big news; don’t run it again. Does transformativeness change the judgment we all made? A number of cases grew out of those spur of the moment decisions. There is a qualitative difference b/t the moment of creation and the moment of analysis, especially now in light of remix culture. Transformativeness might focus on wrong thing. Fair use suggests focused on use/technique rather than on end product. Gestalt view of moment of creation would be better. The fan films: offered to a community as contribution rather than information sharing technique; the artistry is in the creation rather than the output. There is a value in curation of existing works.
Fred Yen, Boston College: Terminal ambiguity about legality: that is problematic for free speech; is there anything that can be done? When some authors consult me, I can’t tell them for sure whether it’s ok, and Campbell didn’t change that. Campbell was a remand and settled; Suntrust was a remand; Salinger v. Colting requires dicey aesthetic determinations to distinguish (and also ended up settling on remand).
Said: people do not stop and think about idea/expression before writing a novel. Is this mismatch a problem? Ought © to reflect actual practices more clearly? Does the law have the power/duty to have an impact on existing artistic practices.
Tapia: Harold Bloom talks about how creation starts with copying everything gone before, and then there’s a moment of cleavage where you embrace and break away from what’s gone before and starts your own artistic creation. When you want a compensation system for that end product, you’ll find that if you look at process there’s a lot of copying. Creation depends on ability to copy what grand masters did before. So you need to balance the past and the future.
Silbey: w/large enough misalignment, we have a rule of law/legitimacy problem. How much of a misalignment does it take to make the legitimacy problem real?
Gervais: art can only be born from the way we see art. Harder question arises from linedrawing and we have to rely on courts (not Congress), which have been pretty good (other than 6th Circuit).
Yen: law does have the ability to affect production, yes and no. When you’re consulted, you stop some of what clients do; but much is created w/out any consideration. As for duty to account for artistic practices, a qualified yes. Qualification: even the move to say that authors should control how © controls what they do is an authorial supremacy move that we might not desire for society. That should inform what we do, but doesn’t require us to agree w/them.
Bridy: ignorance may be feature and not bug. There is a real danger given ambiguities that there’d be a chilling effect.
Yu: technology changes things because it leaves a record. Mahler may have taken from lots of places, but if he did it digitally we might have known.
Gervais: cuts both ways in making it easier to find and to take. In every case, we’re asking how much you’ve taken (vice) and how much you’ve done with it (virtue). Shift in quantity allows lots more people to do more. Inducing quantity and making copyright law more relevant to ordinary people, which is more than quantity.
Silbey: interviewees mostly say thank God for the internet. Even the folks whose stuff is being copied w/o permission recognize that the balance is much better for their everyday practice—less true for graphic artists/photographers than musicians/writers.
Buccafusco: creators making law into inputs into their creations, and how © makes judgments about aesthetics in art—what’s going on there? Is this a new thing?
Rosenblatt: creators are thinking about their moral intuitions as they create, though not law; law may affect their moral intuitions and vice versa. Fair use as a community resource—how much is that dependent on particular communities v. universal?
Silbey: won’t generalize, but fair use is like an ethic for most people. They assume it’s there as part of a practice, and may not have known its name until it got into the air. Certain communities collide in sharing the ethic and others branch off. Visual artists of all kinds tend to share similar ideas.
Samuelson: Amy Adler’s new work on transformativeness talks about ways in which some appropriation artists are changing production practices, and not in ways that Adler thinks are a good idea; Campbell didn’t defer enough to artistic community on what was fair/appropriation rather than looking at artist’s perspective or at “reasonably perceived” perspective. Great paper.
Silbey: market effect factor: how does that relate to tolerance for borrowing? In terms of code of best practices, the folks I talk to have a much narrower view of what their market is and therefore what harm they suffer from copying. What fair use/codes should do is figure out what kind of borrowing won’t thwart ongoing practices, and not what will maximally exploit. People didn’t worry about copying or competition, but did worry about reputational/ego harms, and we’ve decided in the US that’s not what © protects.
Yen: we come across variations of this problem elsewhere, e.g. in torts—reasonability among football players may differ from reasonability among football fans. External/internal perspectives are always hard to identify/choose between. Downside of consistency is consistent winners and losers, and for artistic practice that may not be the best thing because inconsistency may help art advance.
Said: cultural and racial context in which Campbell was decided. Not judging the “vulgarity” of the rap was remarkable. In 1994, there was huge cultural tension: 2 Live Crew had been in court on obscenity charges. Consider Andrew Gilden's analysis in his raw materials piece about distributional/race/gender effects.
Lunney: one size fits all copyright/fair use is probably not optimal. Are there ways to introduce differences into the law?
Gervais: there are various types of authors, and the statute doesn’t seem to recognize that very well. Differ in not just what fair use means to them but what © means. He suggests structuring © around different types of authors.
Silbey: worries about everyday authors v. Taylor Swift authors. © works for some groups and not others, but she’s not sure about how to build that into the statute.
Tapia: easier for us to perceive transformation in visual art than aural, because so much of our senses are devoted to the visual.
Silbey: some disagreement. Artists and writers talk about conversational practice. The way they describe how the work gets made productively is through conversation with previous work. That’s how works get made and transformed, which are almost the same thing. We may see montage; with aural/textual, remix may look more like something new/uncopied on the outside to us but from the inside they can see the fragments/montage/conversation. Hard to figure out whether the conversation is happening from outside the practice/discipline.
Gervais: one difference between types of art is use of tech in different fields. Computer doesn’t know idea from expression—all bits (is that true? Is idea any bits at all?). When computer starts creating, how will we know fair use?