Tuesday, June 22, 2010

CIP Symposium: Fair Use Trends

University of Maryland University College Center for Intellectual Property 2010 Symposium

Fair Use Trends: Madelyn Wessel, J.D., Special Advisor to the University Librarian and Liaison to the General Counsel, University of Virginia

Identified various misconceptions teachers might hold (some of which, it should be noted, were not historically misconceptions and are so only because of the expansion, often unintentional, of copyright to cover ordinary interactions between teachers and students, which are now often carried out in digital forms). One important misconception: if you buy one copy of a test/teaching instrument, you can automatically make as many copies as you have students. Deep tensions between the public good of access and the private interest in compensation. Fair use is one key way of balancing these interests.

Also: Section 110(1) and 110(2) dealing with face to face and distance education; Section 121: special formats for persons with disabilities. Points out that Section 120’s allowance of photographs of architecture taken in public spaces isn’t the law everywhere, for example France.

Section 110 is a first resort, before fair use. Use digital objects, clips, etc. in portfolios, exams, and so on. But faculty and students are used to liberty in the context of the classroom—110(1) enables that. But the limitations of 110(2) are much more severe. The DMCA and other provisions come into play; the likelihood of discovery is greater and so are the stakes. Fair use can be the most critical asset and should be asserted/preserved, but it is sometimes necessary to get permission.

Fair use neither excludes commercial uses nor protects all educational uses. Notes that the Supreme Court provided the entire lyrics of both songs involved in Campbell v. Acuff-Rose. Campbell spurred confusion about the role of fair use as affirmative defense/exception. Supreme Court was concerned with market harm; market harm has to come from substitution, not from other effects on the market. Campbell is not a great help today in remix of popular media. “Heart of the work” remains an important thread in these cases—an iconic moment.

Assessing fair use and images: purpose and character can be difficult—Koons made a $5 million painting using, as he likes to do, works of unknown/“little people” and had it deemed a fair use. Nature of the work: photos are generally considered creative; paintings, sculpture, and architectural designs always are. (Comment: This is why the nature of the work factor is really unhelpful if you consider it centered around the creative/factual divide; to be protected by copyright, a work has to have protectable creative expression and thus anything other than extraction of pure facts, which isn’t infringing in the first place, will always be disfavored under this factor. We might do a lot better to think harder about the “nature of the work” being published/unpublished and the work’s genre—software programs pose special considerations, for example.) Photographers are very aggressive/energized about rights, trying to license; that has an impact on courts’ treatment of fair use claims. So, in Blanch v. Koons for example, Koons won but the court noted that Koons didn’t take background elements that were a part of the original photo’s composition.

Koons invites courts to look deeply into artistic motivations: Koons did it because copying had a genuine creative rationale, not just laziness/attention-seeking/desire to avoid the drudgery of working up something fresh. This is not a free pass. She thinks Koons had a better rationale for his use in Blanch than his use in Rogers; I don’t think that makes sense—there was a clear reason to take an existing example of the banal to highlight the banality of popular culture; creating a new photo not authentically from that popular culture would have detracted from the force of the critique.

Cariou v. Prince, an undecided case filed in 2008, in which a photo of a man’s face was used in a collage. So is it a reasonable market to sell rights to reuse a photo in a collage where manipulations have been performed on the components?

Fairey v. AP: Fairey lied about the source of the Obama image he used for his iconic Obama HOPE poster—AP’s complaint showed all the merchandise it showed up on. AP argued that it was more than willing to license tote bags, etc. (Not sure this claim is believable given that AP hardly wants to be associated with a political party, even if we accept that AP was willing to license transformations and not just reproductions.) Fairey has licensed photos before, apparently, and has also sued other artists for copying. Manny Garcia, the photographer, meanwhile has sued claiming that the photo was not a work for hire (meaning that the hypothetical AP license would have done Fairey no good). Fairey’s depositions have been postponed because of potential criminal violations. Takeaway: DO NOT LIE about the source of your images.

Images in traditional publishing: oddly perhaps, seems to be going much better for defendants than using manipulated images in art. Bill Graham v. Dorling Kindersley. DK’s unwillingness to agree to Bill Graham Archive’s excessive licensing quote did not weigh against it. Why didn’t DK just pay $17,500 for 7 images as requested and go home? The answer seems to have been that the publisher was dealing with a work with thousands of images, and the publisher publishes a lot of books like this; it thought its use was fair. If it had paid $2500/image in the book, rights would have cost $2 million before any other costs came in. This was not just principle but survival. (I note also that BGA’s demands may also have been problematic in that it seems that BGA wanted to get cross-licensed by the Grateful Dead to release concert footage for commercial sale, which the Grateful Dead didn’t want to allow; this is not a traditional type of licensing and thus arguably BGA wasn’t participating in the traditional licensing market.)

Court also liked that the copy was made in the context of a timeline—a recontextualization, almost a remix; the copy was also small so that you couldn’t recreate a commercially significant poster from the image in the book. Other key factors: only a few images from a large collection were used. They were scattered throughout a 480-page book with lots of other visual materials. Thus, the fact that whole images were used was not a problem. The display itself was artistic (collage).

Note that licensing is an issue: if you can’t get to the objects you want to use without agreeing to a restrictive license, your fair use argument is in trouble. Students/professors get access by way of their IP addresses; they aren’t aware of the licensing that goes into that access, and then they copy/remix in ways that are affected by the licensing.

Kelly v. Arriba Soft: thumbnails in a database were transformative. Mass digitization projects as transformative, serving a different function than the initial photos. Implications for things like scanning book covers and putting thumbnails up to assist patrons in finding them—useful for things like special collections, helping people understand what’s available. Use of such thumbnails for search and retrieval is perfectly reasonable even when you wouldn’t use a high-res image.

Some fair use myths but often have a strong pedigree in older case law. They may be gone/partially gone but should not be forgotten. New cases need to be integrated: you can use a whole image/work under certain circumstances, despite what you might have learned (no 25% rules). Consider also the impact of technology. Another myth: fair use is dead. Not all copying requires permission, despite what some say! Publishers who say that all quotes require authorization are wrong and should be questioned in individual cases.

The market myth: just because a market exists for a work doesn’t eliminate fair use. If they’ve figured out how to sell it in tiny increments, fair use still exists. Likewise, if you ask permission and are refused, it may still be fair use. The fourth fair use factor is not the only fair use factor.

Burden of proof/risk myths: the supposed presumption against fair use, even for institutions of higher education. The fear of copyright damages being huge.

The misapplication of Basic Books and Princeton University Press—these are cases about independent commercial entities, not classroom uses or acts taken by nonprofit educational institutions themselves. The burden of proof on market harm may shift to a copyright owner for noncommercial uses.

Courts are beginning to understand that intenret functionality may require copying whole works. Size matters: use tech to control size, quality, access to a full high-quality image and enhance the chances of being found fair.

Courts are getting more comfortable thinking about new forms of art. Thinking more openly about the role of copyright in creative culture and the purposes of copyright. Less willing to accept claims from copyright holders to have “occupied the field”—Bill Graham and the recent A.V. v. iParadigms (anti-plagiarism software). Corporate criticism was fair use, when a disgruntled employee blogged and circulated “wanted”-style postcards—even though the employee used whole photos, it wasn’t for the same purpose as the original corporate glamor shots.

Barton Beebe’s study: when the first and fourth factors both favor fair use, usually in educational contexts, a finding of fair use was basically inevitable.

Big change threading its way through courts on injunctive relief also may have important effects on behavior.

But see Gaylord v. US—no fair use of sculpture in photo of sculptures in snow used on stamp; despite contract with designer saying that the sculpture was work for hire owned by the US government.

The next big fair use clashes: course reserves litigation at Georga State (which also is affected by sovereign immunity; the only remedy is injunctive relief and not damages; current guidelines at Georgia State are pretty similar to many other institutions’ policies and thus there is a lot at stake in the litigation for other institutions). Video streaming dispute at UCLA. To what extent is student learning transformative within the meaning of the case law? How important is nonprofit status? Will courts take §107 seriously given the existence of §110 which exempts some teaching activities entirely? (She thinks the plain statutory language supports Georgia State by talking about “multiple copies for classroom use”; she thinks this may be less helpful for streaming—though streaming also involves multiple copies.) Will campus licensing decisions begin to influence what courts view as markets that must be respected?

Q: What is a classroom? That’s shifting.

A: Definitional difficulties for “classroom” and “course” are profoundly important to these disputes—UCLA has made the argument that the media studies lab is an extension of the classroom. Streaming may comply with §110(1) to the extent that it is equivalent to face-to-face. The TEACH Act itself shows what a struggle this is—trying to enable distance learning, but takes away with one hand what it gives with another; the requirement of downstream controls was something everyone knew at the time was technologically impossible and yet it was built into the statute. Tech people can prevent her from downloading content but not a really smart 13-year-old. (Of course the statute need not be read to require perfect security; the DMCA’s anticircumvention provisions themselves don’t require DRM to work very well to be covered by the law, and it would be odd if educational institutions had to do better than self-interested music companies.)

Q: big question about dissertations—making dissertations with 3d-party included content available in an institutional repository. We always thought about fair use in dissertations in a particular way; how does the fair use calculus change?

A: ProQuest has standards, which she thinks were drafted by Kenneth Crews. ProQuest’s position is that it now has to act like a standard publisher, with permission for everything. Some publishers have standards for what they consider fair use. The broader the access, the more you have to worry about permissions. Limiting access to campus or to scholarly work group can help.

E-reserves: what’s the significance of constitutional purpose of access. How important are new mechanisms enabling the sale of ever-smaller units of information? Can markets ever be ignored? Is one part of higher education at war with another? How much should inequality in information resources be considered? Serials as a percentage of budget: Harvard spends one-third of its budget, which is huge; but most can’t afford anything near that and are still getting slammed on serial costs. Huge disparities in expenditures between rich and poor colleges. Huge numbers of institutions get under 1000 total periodicals available on campus. For poor institutions, the Georgia State case could be devastating in terms of access to information.

Streaming: §110(2) allows streaming entire nondramatic literary or musical work, and “reasonable and limited portions of any other work.” This uncertainty makes it far from clear that §110(2) actually works, which makes it worthwhile to explore whether you can extend the classroom of §110(1). Also changes in how education is delivered really are changing the classroom.

Q: what is UCLA streaming? Is it created specifically for educational use?

A: Doesn’t know the details, but that may be part of the argument. A spectrum of video works are involved. One nonprofit nondramatic works producer argues that it makes available a digital license that UCLA should be using.

Fair use and scholarship: The Rebecca Clarke Reader was a book by a musicologist who got into a bad fight with the heir of her subject, and the book was recalled over 94 lines in a 241-page book. Individual lines, short quotations from unbpublished materials, used in scholarly analysis—the publisher determined that it had to be pulled. Lawrence Lessig: fundamental problem that author contracts require permission for everything because publishers are too afraid of lawsuits, whether legitimate or not; a court most likely would have found the use to be fair.

Too Much Too Young, book about popular music by Sheila Whitely; book had been printed when publisher was threatened by the Jimi Hendrix estate. Author was told she had to get permission for every excerpt or quotation, no matter how short, despite the fact that all were used for scholarly analysis. The publisher did have guidelines for fair use of poetry and prose, but it determined that these guidelines (with which she complied) didn’t apply to music. The book was delayed two years, with scholarly material removed due to lack of permission.

Another anonymous anecdote: publisher of literary journal determined that every quote from poetry, no matter how small, requires permission. This is the “end of literary criticism” according to the editor. The publisher (a bigger press that had acquired a smaller, less conservative press) said its “hands were tied” due to the law—but pushing back actually worked in getting fair use guidelines. But she still sees a lot of permission-for-everything author contracts.

When we fight for fair use: Carol Schloss and the Lucia Joyce case; Schloss’s book as published after accommodating Stephen Joyce’s threats was criticized for failing to provide sufficient support, so she wanted to make her supporting material from the Joyce Archives public, and did so on a website, defying Stephen Joyce and his aggressive threats. She achieved a declaratory judgment and a fee award.

Sound recordings: rights in recordings fixed before Feb. 15, 1972 are covered by state law. EMI Records v. Premise Media (N.Y. Sup. Ct.): 15-second excerpt from Lennon’s Imagine; the court decided to allow fair use of pre-1972 sound recordings under a common law analysis. Compare: the Sixth found that sampling even a single note is infringing (which does not preclude a fair use analysis, only a de minimis analysis).

Video and film: not clear how much will be considered fair. Cases going both ways in biography and news (Reginald Denny) contests. In her opinion there’s no way to predict the outcome of cases involving music and film—both the specific facts and the specific judges matter. In one case, use of 85 seconds of an opera performance from a 2 hour film in a nonprofit foundation’s film broadcast to public TV channels was found unfair because even the educational, noncommercial use was outweighed by the possibility of licensing revenue. This is what makes Best Practices from the Center for Social Media so good. Key principles: (1) transformation/different purpose and (2) amount and nature taken should be reasonable in light of the purposes of the use.

Her perspective: scholarship using reasonable/limited portions of other works should essentially be, intrinsically, fair use. That is, case-by-case factors wouldn’t have much additional purchase because other issues are not dispositive once the type of use (scholarly) and the amount (reasonable in light of the use) are established.

Final note on other rights: Property rights, such as control over a physical object like a photograph. Artist’s sale of work does not sell the copyright. License and contract issues: her university works hard to include fair use provisions in contracts/licenses. Elsevier, in response to many years of complaints, has come up with a pretty reasonable license template for author-contributors and for licensed materials for her campus.

Ironies: iTunesU agreements require permissions, even though iTunes benefits from fair use. So do Google, Microsoft, YouTube web environments. If you encourage students to upload content, are you educating them about third-party permissions issues? (Well, copyright owners are unlikely to be third-party beneficiaries of these contracts; hard to imagine that there is any risk beyond a takedown.) Some grants require permissions for everything used.

Other realities: many content providers like publishers, nonprofit associations, etc. require permissions anyway even if your claim to fair use is strong. We advise that people document the source of all their content throughout the research process. Grad student shouldn’t spend five years on a dissertation and then be unable to submit it to ProQuest for failure to source properly. Work with students/faculty early and often and prepare to make fair use arguments.

She advises people to get copies of publisher guidelines early and often—many won’t give guidelines to the author at the outset of the process unless the author asks. If you’re writing art history, you need to know this early on. Phenomenon she’s seen a lot: author got $150 permission for an image in the past; new agreement with publisher requires author to secure e-publication rights, and suddenly the cost is $1500. She suggested asking the publisher if they were really going to publish an e-edition; if the publisher says no, the author should not have to pay out of pocket for a right that the publisher has no plans to use.

Q: Google Book settlement?

A: UVa was an early partner library. Would have been a great fair use case, though she finds settlement understandable from a risk perspective. She can’t really predict what will happen, other than that it will take a long time with appeals etc.

Note: The Rebecca Clarke Reader is available on Google Book Search. The author apparently ended up self-publishing.

Q: It’s a good idea to take advantage of the §504(c) limitation on remedies for educational institutions with a good-faith belief in fair use. That certainty of limited exposure allows you to flex the fair use muscle. Suggestion for best practices? She (not a lawyer) has people document and file their fair use inquiry—Kenneth Crews’s fair use checklist.

A: Documentation is important, and she likes Crews’s approach. Publishers’ position in Georgia State litigation is that this is not a substitute for a full, four-factor evaluation by a lawyer. Publishers don’t pay much attention to this in the context of scholarly publishing.

Q continued: our thesis office now accepts the checklist filled out by a student as sufficient, now that it’s part of our training.

A: Also consider documenting zealous attempt to get permission where applicable.

Q: also helps you make a fair use decision if you’re dealing with an orphan work—a failed attempt to find the person can factor into your fair use calculus.

A: yes, and inability to purchase a copy of an out-of-print work can be taken into account in a fair use determination; might decide to digitize the work or a portion thereof and allow students access for a particular class.

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