More on copyright and tanning products

Bill Patry has also posted on the copyright side of the Designer Skin case. As my comment there didn’t show up for some reason, and as it’s actually a point of general interest that I drafted some thoughts on but omitted from my initial post, I thought I’d recreate the comment here. Patry argues that §113(c) is the obvious barrier to the copyright claims—“In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.”

But one reading, and perhaps the best one, is that §113(c) allows anyone to take their own pictures of a useful article for ads or news, but not to copy the copyright owner’s pictures of same. I say “perhaps” because I think the text is ambiguous—the use of “making” instead of “reproduction” could be read to mean something other than “reproduction,” i.e., something that required the copier to start out by making its own pictures or photographs, but “making” has to encompass some sort of reproduction or the exception is pretty useless, especially given the breadth of reproduction in the digital age. The restrictive reading of §113(c) imposes some costs on copiers/resellers/newspapers/etc., but not huge ones; on the other hand, it doesn’t do much to benefit copyright owners with legitimate claims either, and does empower anticompetitive claims of the type at issue in the Designer Skin case. (The one thing it does is make clear that Andy Warhol’s Campbell’s Soup cans aren’t fair game just because the lithographs are pictures of useful articles—with Warhol, there is a separate “work” at issue that goes beyond the work reproduced in useful articles.)

Anyway, if the restrictive view of §113(c) is right, it’s no defense to the claim that defendants copied plaintiff’s own “electronic renderings,” whatever that means. But the copyright at issue would then be that in the image, and the creative choices made to render the image, not in the creative elements of the label. And it seems quite possible that there isn’t sufficient originality to justify a copyright in the “electronic renderings” apart from the creative choices shown in the label. From the very fact that the court couldn’t tell whether defendant copied plaintiff’s “electronic renderings,” it’s clear that no Warhol-level creativity (which was pretty low as a matter of artistry, if not as a matter of marketing) is at issue. Especially given the pro-competitive policy underlying §113(c), competitors should only be unable to use photos of useful articles when those photos evince some creativity that is of value independent of the portrayal of the useful article.

In the end, the issue makes good discussion fodder, but Patry and I agree that the court was still wrong on fair use.