Transformation of Transformative Use
Moderator: Julie Ahrens, Stanford Fair Use Project
Mass digitization: at the start of the litigation Google
seemed bold, but after 8 years the result was less surprising, at least to
some, since digitization is so valuable/expected. Perceptions about what ought
to be easily accessible have evolved along with the law. Subtle but critical shift in fair use
evaluations. It all started with Campbell.
Beyond parody: Dorling
Kindersley is a very important case. Not required to discuss the artistic
merits of the posters to use them on the timeline; the different purpose—use as
historical artifacts—was sufficient when the initial use was artistic
expression/concert promotion. Prince v. Cariou: artist need not have
anything to say about the original art if the purpose is different. Message need
not be tied specifically to the original work/analyze the original work. With remand on 5 works, Prince left some uncertainties about how much change is enough.
Panelists:
Joseph Gratz, Durie Tangri LLP
The Campbell mold
has never been unique—something much older, can’t be stuffed into one word. The
use in question is productive: results in the creation of something new that
goes beyond purposes/value of original, and doesn’t supersede the original. Transformative
is just shorthand for non-superseding productive use. Goes back to Folsom v. Marsh. It’s been a good run since Campbell, but maybe the word
transformative should be retired and talk about what we really mean, since
different uses might not fit in the same bucket even though they are all
nonsuperseding and productive—Pam Samuelson’s categorization attempts to group
them.
Four different buckets he’ll discuss: (1) Easily articulable
comment on original, incorporated into new creative work. Campbell,
Wind Done Gone. Not all are “parodies,”
but there is comment. That’s easy and everyone calls it transformative. Harder
cases when incorporated into new creative work where commentary is harder to
articulate—Cariou, Blanch v. Koons—commentary on society.
We could say the original is used as a touchstone/icon. Though Cariou photos were probably not
iconic. (Blanch is not iconicity; it’s representativeness/standardness,
which also deserves to be available; you’ve got to be able to pick an
example.) Cat in the Hat came out wrong under this standard.
(2) Verbatim copying for the purpose of criticism—not a new
song/painting/book, but just to criticize.
Rarely been of the expressive value of the original, but instead of the
original or even of the author.
Maxtone-Graham: abortion-related book.
Criticism of Scientology.
Criticism of the message of the song “Imagine,” not the melody/chord
structure/etc. That’s transforming the
work as a tool/object of criticism, but transformativeness is distracting: use
for purpose of criticism, where license is unlikely.
(3) Noncritical copying to prove a point: using the work as
evidence. Dorling Kindersley. The work isn’t being commented on in itself, but
the work is necessary to make a point about the world. Zapruder film case fits into this category:
raw material in order to make an argument that couldn’t be made without that
expression. Different use than
original. (Why isn’t Blanch v. Koons here?) These are three distinct categories.
(4) Technological uses.
Google Books, iParadigms (plagiarism detection). They aren’t the
creation of new creative works, and they don’t involve
criticism/commentary. What do they have
in common? Productive: result in creation of new thing that didn’t exist and
couldn’t exist without the original, and they aren’t substitutes. You don’t and
can’t go to these new tools instead of experiencing the original in full form.
Does the value of that plagiarism tool stem from the expressive value of the
inputs? No, its value doesn’t flow from or replace the creative value of the
original. That’s how Google Books, Perfect 10, HathiTrust fit into fair
use/favored under the first factor. It’s
a big umbrella, but transformativeness may obscure more than it makes clear.
Liz McNamara, Davis Wright Tremaine LLP
Not her position that a significant number of cases have
gone wrong on fair use (speaking for herself). Courts have generally done the
case by case analysis properly. What concerns her is the rhetoric and the way
transformativeness is discussed, unhinged from Campbell—that happened in Google Books.
Where the law was before Google: pendulum swing! Too often, content owners are accused of
living in a time warp. But content
owners are the foremost users of fair use.
(Equivocation in the definition here, but ok.) In the 1990s, the swing was in favor of too
much protection—Harper & Row v.
Nation led into Salinger/New Era
that made fair use of unpublished works almost impossible, which was what led to
Leval’s article and subsequent amendment of © Act. Overemphasis on whether secondary use was
commercial—Sony’s statement that
every commercial use is presumptively unfair.
The 6th Circuit in Campbell
relied on this, which was the cause of such concern. Content owners breathed a
sigh of relief after Campbell.
Rhetoric has become more shrill/out of the box on what’s
transformative, with little regard for content owners—“free on the internet is
free to use.” (I’m not sure which
advocates say that.) Kelly v. Arriba Soft—not necessarily
wrong. But the facts are important:
thumbnails were small/poor resolution and could not serve as substitute for
aesthetics of full image. Court also assumed, w/o evidence, that search engine
actually acted as pointer/drove users to websites where you could get the full
image to the benefit of the © owner. Substitution remains a critical component
of transformative use, not just in the 4th factor. 9th Circuit in Kelly took pains to contrast facts
before it, where it found substitution impossible, with Infinity Broadcasting, where it was possible to use original
broadcast for entertainment purpose.
Judge Chin/Google Books: what’s at issue is not what’s being
served up in the search results, but the fact that Google digitized 20 million
books without permission. They didn’t say please or thank you; they just took
it. A volume discount on fair use? Judge Chin failed to take into account
monetization of data Google collects/Google’s data mining. (I thought she was cool with commercial fair
uses?) Improperly considered the project
educational, looking at ultimate user rather than Google, when law dictates
that Google’s use controls rather than ultimate user’s under Texaco.
When uses are systematic and no new expression emerges, we should apply
a new and heightened standard, considering not just that the new use is useful,
as Infinity said—change in
format/enhancing convenience is not transformative. Instead should ask whether it is capable of substituting for the
original. Kelly wrongly assumed that search engine acted as a pointer; AP v. Meltwater: we now understand how
often clicks do/don’t happen. News
service was really being read as substitute. Including links wasn’t a pointer.
Also, are profits being diverted from original
publishers? Rosetta Books established that electronic rights are separate for
authors. Authors are entitled to license
them. Totally removed from the
analysis. Serious loss of revenue—Google
strives to keep users on its platform, and 20 million books is an important
monetary incentive to stay. (… If you
got to read the whole book, sure.)
Also need to look at whether this is one-off taking or
systematic taking of massive quantities of data.
She isn’t that optimistic about the 2nd Circuit
decision in favor of Authors Guild, but does hope that the court carefully
circumscribes its rulings so as not to create unanticipated/significant
negative consequences for creators.
Kozinski said that if you want to win in the 9th
Circuit you have to say that to go against you would be the demise of Google.
That’s where we are.
Gratz: He’s since said that he’s not worried about Google.
McNamara: reminder about Infinity:
media dial-up subscription services, allowing subscribers to listen to radio
broadcasts around the US. Marketed for the purpose of auditioning talent,
verifying that ads were played, etc. Evidence
showed that users could listen to snippets or entire broadcast. 2d Circuit found infringement. D had argued that its broadcasts were used
informationally, not for entertainment—different purpose. Court rejected that argument: a difference in
purpose is not quite the same thing as transformation. Retransmissions left the
character of the broadcast unchanged, without new meaning or message. Listener could
use for entertainment purposes. (Interesting
switch to the effect on the user, which McNamara said wasn’t legit when Google
does it. Also doubtful that many users
piece together a few hundred words at a time for original entertainment
purposes of the books.) Societal benefit
wasn’t enough to be fair use, citing Texaco. Not enough of a benefit to outweigh the
taking. Google Books will have to deal
with this language.
Ahrens: one thing that seems missing from Infinity that is in more recent cases
seems to be the idea of nonsubstitutionary use.
Gratz: we don’t disagree to the extent someone is using the service
just to listen to songs, because the songs make them happy—that’s a
substitution. One thing that’s changed
in the 2nd Circuit is how one looks at who the primary/direct
infringer is, and who we’re running the fair use analysis on. We didn’t have the volitional conduct rule in
1998. Who’s the direct infringer in Infinity? The facts in Infinity could have turned out
differently if D was just operating a system that didn’t do anything until
someone logged in and tuned their own little radio to play to them. Is that fair use? Maybe/maybe not, but then D would be
secondarily liable. If there are legit
uses for ad verification, etc., that would be a fair use. Have to drill down into what the person
choosing to activate a technological system is doing. That’s not actually a matter of changed fair
use doctrine.
McNamara: D wasn’t paying anyone who created the content
from which it reaped a benefit. Also, Texaco
refutes the notion that the end user matters rather than the commercial actor
appropriating the content. News
reporting mission doesn’t let news organizations line their shelves with photocopies
of books on journalism. Equally
extravagant to claim that Google Books can line its shelves with 20 million
copies of books. (But in this analogy,
the “journalists” can’t take the whole book off of Google’s “shelf,” even if
their activities bring indirect profit to Google. Now we’re back to the snippets.)
Ahrens: but what kind of substitution are we talking about?
The original or a derivative market that the copyright owner would just really
really like to license?
McNamara: substitution comes in many ways. There can be
outright substitution, with news aggregation.
Sliding scale. There can be
substitution if copying usurps a separate existing market that people pay
for.
Gratz: Those are fourth-factor considerations, and don’t go
into Q of where the value comes from—expression in the original or what the
secondary user added.
Texaco: not
employed as part of a larger whole for some new purpose. Verbatim copying is
always the case—it’s necessary to the process of creating transformative
works. Scientist wanted to make hardier
copy/copy that he could write and spill stuff on; court said that might well be
transformative if that was all you were doing.
But it wasn’t shown that he was doing that. He was reading it to understand its
intellectual content. Assess the means
by which the value of the second use is generated—if the means is the same,
copying expression to enjoy expression, then that’s not transformative.
Would this be the same today? Yes, even after the Second Circuit
(hopefully) affirms in HathiTrust and
Authors Guild cases. Just making a
reading copy is not by itself transformative, though that same act may also be
necessary for a different and transformative purpose/act later. Public benefit isn’t enough—and that doesn’t
even come into transformativeness, though it’s worth weighing in fair use
overall. Totally useless changes can be
transformative. Letting us read 20 million books in their
entirety would have a great public benefit, but that wouldn’t make it
fair. Creating something that doesn’t
exist before, and that can’t substitute for the original, is different.
McNamara: seat licenses for electronic newsletters—the market
has evolved in a way that addresses the Texaco
issue. (And strangles our libraries, but
never mind.)
Q: how do you square Cariou
with the definition of a derivative work?
Gratz: “transforms, recasts, adapts,” and he doesn’t
disagree that the best word for what was going on may have been recasting
rather than transforming in the sense of a parody. Where it departs from what would talk about as
a derivative work, is the way the word transformative is used in fair use:
fodder or raw material in a way that separates it not for its expression but as
a touchstone/icon. Transformation is not
physical (or not only physical) but in purpose, and that means something
different. But that’s one reason we
should stop using the term in fair use.
Ahrens: some markets are not reserved to the copyright
owner, like criticism or commentary.
Maintaining that distinction helps preserve free speech.
Q: but it does interfere with derivative rights. Looking at third party audience’s reaction
isn’t helpful to the artist figuring out whether they need a license. Yes Rasta photos weren’t iconic. Rather than take his own pictures, he took
what was convenient. There are easily
licensable materials.
Ahrens: necessary isn’t the standard; reasonability in light
of the purpose is the standard. Nothing is necessary. 2 Live Crew didn’t have to comment on Pretty
Woman.
Q: but no one would ever permit parody. But a visual reference isn’t parody, and is
available for licensing. (I wrote an article with Bruce
Keller about why this is wrong.)
Ahrens: but he wasn’t picking from pictures of Rastafarians. He was inspired by that specific book.
Q: McNamara sounds like grafting unfair competition law onto
fair use. Why is making money relevant
without a theory of unfair competition (which would be preempted)?
McNamara: there is an existing market for digitizing
works. Copyright Alliance amicus brief:
needs to be decided with stakeholders at the table, not unilaterally by Google
which drives everyone else out of the market—no one else can engage in this
level of mass digitization; even Microsoft backed off. There is a derivative
right at issue. (RT: No, there’s a
reproduction right. This argument about
Google’s uniqueness seems a bit in tension with the immediately previous claim
that there’s an existing market.)
Gratz: those are fourth factor issues, and asking permission
doesn’t matter to fair use.
Q: DJ culture as new business model. Where does that fit in
transformativeness?
Ahrens: mashups can be new/not substitutive. W/music in particular, and sampling law, it’s
complicated. The licensing model
matters. If sampling cases had begun to be
decided now, and not in 1992, that might’ve changed the entire landscape. But it’s not a new business model, but how the
genre developed. There are arguments
about how this has harmed the art form; the only people who sample are showing
off how much money they have and new entrants are limited in their expression.
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