Transformativeness panel Q&A

Questions for the panel:

Ginsburg: Is there a difference between “purpose” and discursive communities?

Heymann: In the way we might approach the question, perhaps. A focus on purpose makes the author into a hero or a villain. It’s too easy to say we disbelieve an artist’s purpose, as in Koons v. Rogers.

Me: In the folk art/fan art tradition, creators are readers and vice versa – I wouldn’t separate the community from the artist in this case.

Reese: No distinction is apparent in the judicial decisions. Nuñez looked at the newspaper’s purpose, not the readers’ reactions.

Goldstein: All the Tushnet & Heymann examples were top-left corner examples (see Reese’s chart), which is Goldstein’s notion of fair use. Once you start talking about purpose, with no transformation within the four corners of the work, you’re in a dangerous place. If purpose is subjective rather than objective, anybody can win. Example: the superrealist identical copy, as Sherrie Levine makes. What if Alice Randall’s commentary was to copy the book? Different “purpose” just means different market, e.g. translating English to Japanese.

Me, to Goldstein: That view makes it hard to explain Sega, a case of pure copying. Goldstein: That’s a different pattern, reverse engineering.

Heymann: Market considerations can inform how readers react. Translation is supposed to engage readers the same way as the original. (Comment: “is supposed” papers over questions of who’s doing the supposing. Who would have thought that Larry Lessig’s work on translation would link up to his work on copyright?) There’s not enough interpretive distance between the two communities, at least for these purposes.

Ginsburg: What about CleanFlicks? The purpose was to allow viewers to engage with the work differently.

Heymann: The interpretive distance isn’t that great. Jeff Koons is creating a greater distance. (My own view: the difference is that, for CleanFlicks, the point is not to compare the altered version with the original. The interpretive communities with which Heymann is concerned are aware that there is an appropriation and the earlier link in the representational chain hasn’t been erased, whereas CleanFlicks wants to make the original film invisible to its audience. That might actually be okay – I’m not a fan of the CleanFlicks model, but I might still call it transformative, and Congress has endorsed the general project – but it’s not what Koons is doing.)

Reese: The CleanFlicks controversy comes because the Supreme Court did us the disservice of elevating transformativeness too much. The same thing happened before with the commercial/noncommercial distinction.

Q: Sony – same result today?

Goldstein: No. Wrong when decided, but decided within a high transactions cost framework. Thus, the Court used the noncommercial/commercial distinction to set the burden of proof on factor four. Harper & Row shifted the test. Campbell shifted it again, and transformativeness made a lot of sense for a parody case. If a TiVo case came up next, there should be liability.

Q: Courts have worried about allowing third parties to make aesthetic determinations. If we allow audiences to decide, doesn’t that inhibit the creative process?

Heymann: Her proposal is slightly different, though it’s hard to divorce the two in practice. She wants to assess not merit but distance from the original. Do audiences recognize two works as forming separate clusters? Are they engaging with the first work in the same way? It doesn’t matter whether the audience thinks the second work is good. If a second artist engenders no reaction, that could be a problem.

Follow-up: Then the initial creator has the value of the work judged for whether it can be taken by others.

Ginsburg: If Koons had talked the talk in Rogers, would he have won then?

Heymann: Maybe. Contemporary commentary could have helped Koons, but the court in Rogers focused on harm to the creator.

Q: Different audiences always exist. This would destroy ownership, because whoever takes the work into a different context first would win. How do you tell whether the second person has selected a new context the copyright owner wouldn’t have?

Heymann: This is where her theory butts up against the derivative works right. Her concept isn’t designed to answer all questions easily. Distance can mean criticism or commentary. When works are presenting critical approaches, that creates distance. A film version of a novel would have to be evaluated case by case. Some works are faithful and engage in the same way, others are not.

Goldstein: Easily overlooked is that Campbell ended in a remand on market harm. Campbell encourages Orbison to license rap derivatives at once instead of waiting.

Q for me: Are you advocating a system with no copyright enforcement? Should the original copyright owner be able to commercialize a fan novel?

A: Speaking only for myself: No, I’m not against copyright enforcement. One promising solution for enforcement is the EFF (and other organizations’) fair use principles for sites hosting user-generated video, which state that filters shouldn’t automatically filter out video where there’s an audio/video mismatch or where only small portions of the audio and video match; those circumstances indicate that fair use is at least possible and humans should review the matter. As for commercializing a fan novel, in the unlikely event a copyright owner wanted to reprint and sell the exact text of a fan novel (hard to imagine buyers since it’s probably available free online, but fine), I would think some form of revenue sharing could be appropriate, but if the copyright owner commissions someone else to use the same concept, no – that’s just a variant of the common situation that multiple people can use similar ideas.

Q: Are the Richard Prince photos of the Marlboro Man ads fair use?

Heymann: Yes. They recontextualize the ads, and the critical reception reveals they’re transformative.

Q: You can always get someone (say, an academic) to say that a use is transformative. How to implement Heymann’s proposal – a survey?

Heymann: The problem of manipulability exists in purpose inquiries too. An artist has an incentive to talk about purpose. She would look for evidence outside the litigation context, about reception. Look at how the people for whom the works are created are engaging with them. The court can play the role of the reasonable reader.

Q: How should we deal with the third-party infringer who is making money, like YouTube?

Me: The type of works you get when creators are creating for fun and not profit are different – often in socially valuable ways – from the types of works created within a commercial paradigm. The fact that a third party then makes money from running ads alongside those works doesn’t change the transformative nature of the works. As a result, YouTube is disseminating the kinds of works fair use doctrine should favor, and YouTube shouldn’t be liable just because it is a commercial entity. Especially in a commercialized society, commercialized venues may be the only practical ways to distribute new works – distributors don’t regularly have the same intrinsic motivations for creativity that initial authors do.

Reese: Secondary liability doctrine offers help with this answer.

Thanks to Jane Ginsburg, June Besek, the Kernochan Center, the Columbia Journal of Law & the Arts, and the participants at the conference for a rich and engaging day.