Panel VI. IP and Cultural Expression (Moderators, Professor
Said and Professor Margaret Chon)
Mark McKenna, Notre Dame: Influence of Campbell outside copyright/in right of publicity: the First Amendment
cases in which there’s an arguably expressive use of someone’s identity—movie,
song, video games. Courts use a lot of
tests; consensus in TM developing around Rogers,
but no such consensus exists in RoP despite the fact that these cases are almost
always brought as RoP and §43(a) cases. One approach uses Rogers for both, which makes sense since Rogers itself involved both claims.
Comedy III is
another option. But the problem is that a person is not a work, so it’s
impossible to do a true transformativeness analysis. Courts don’t evaluate
whether a defendant’s work is transforming the P’s identity, but rather how
creative the d’s work is. This means
that this is essentially productive use; it’s a terrible approach to the RoP.
It’s unclear whether we look at the creativity in depicting the person, or
creativity in the work as a whole. The recent sports videogame cases make this
conflict apparent. You could ask how
much of the work as a whole consists of the identity, but the courts don’t do
that. That would still be a poor test because it would still be hard to know
when a painting of a celebrity was protected. In both video game cases,
creators were penalized for the realism of the game. Suggests that least worthy would be biography
and documentary film, which should be instead at the core of the First
Amendment. Of course a court is unlikely
to find a violation here, but why not?
What work is transformative use doing?
Courts are actually judging the value of the work: video game
exceptionalism notwithstanding SCt’s directive to the contrary. That’s a story of Campbell’s influence, but not a happy one.
Lateef Mtima, Howard University: Hathitrust as template for
social justice arguments in copyright.
If print-disabled access is non-transformative, but fair use, that opens
other arguments. The EU doesn’t have flexible fair use, but rigid
limitations. Several cases in ECJ are
doing the same thing of purposive interpretation: Decma v. Vandersteen: court
has to interpret the application of the exceptions under Art. 5 of
harmonization directive, as to whether or not an unauthorized use of an altered
cartoon was a parody.
A social justice use, like the use of rendering books
available to the blind, can be defended by looking at the objectives of an
expressly articulated law or gov’t policy; there should be a nexus between the
social utility objectives of the law or policy and the copyright law. Finally, the last question is whether the
specific use isn’t antagonistic to the overarching objectives of
copyright. The fourth fair use factor
does look after the rights of the copyright holder, but we need to ask this
again because copyright holders have noncommercial interests that should be
respected. Often when copyright owners complain they’re getting no money we can
sometimes point to noncommercial benefits they may nonetheless be getting.
Access/cultural preservation is another worthy goal, for
significant cultural events/documents, e.g., women’s rights events.
Christopher Newman, George Mason: Fair use is not holistic
enough. Factors still being weighed
against each other, however minimally. Souter avoids this in Campbell; remains holistic, w/ glaring
exception being factor two, the neglected middle child of fair use doctrine.
Factor 2 = dean’s speech at graduation: a customary part of the ceremony, but
has limited variation and no one ever expects to learn anything from it; its
greatest virtue is usually that it’s short.
Kienitz: “Factor two is unilluminating” is the sum of the discussion.
Why? We’ve made the mistake of thinking that each factor
must have weight rather than being a lens through which we should triangulate
the whole. So we only say things that weigh for or against fair use. Not only is Campbell’s factor two analysis incoherent, Souter goes on to say it’s
irrelevant. If the question is fairness,
how do you decide the nature of the original work/what it was doing before it
was transformed? Ought to ground the
rest of the analysis, rather than a factor that weighs for or against fair use.
Should instead provide a qualitative baseline: calibrate the scale, not put a
thumb on the scale. Instead these discussions take place under the rubrics of
the other factors. But it would improve
analysis by making sure we’re taking the time to look at the problem from
various distinct angles. If we spent
more time focusing on the original work on its own terms, we could ID and
create bodies of doctrine showing works/characteristics of works that add to
the analysis.
Why don’t we talk about what kind of work it is? The ways in which we process and draw meaning
from a work vary depend on type: music/writing. Amount of work necessary to
transform may vary: relatively small alterations to an image may have a
profound impact on its meaning in ways that wouldn’t happen w/text or
sound. Kelly etc. are often cited as complete copying cases, but actually
the resolution was altered in ways that make transformation a more plausible
conclusion. Be careful in analogizing types of cases across types of
works.
What’s the work’s expressive purpose? Current analysis is undisciplined, failing to
distinguish between the purpose of expression embodied in the work and all the
instrumental ways in which that expression might be used. Irrelevance of good faith: we want to be able
to look at objective qualities of two works and not at what’s going on in
people’s heads. Expressive content of
photos can be entirely unaltered—Dillon v. Doe, headshot of politician to ID
her, used for the same purpose: to physically identify the person under
discussion. The effort to convey positive/negative meanings was separate; there
was no transformation. You might say
once a politician chooses to make an image identify her, that image is fair
game. Okay. But then we need to know when secondary associations should be
considered part of a work for fair use purposes.
Factor two could also ground the discussion of factor four.
What kind of market are © owners trying to participate in, and how are they
using it to further expressive aims? Doesn’t see why market has to mean
economic value, but rather some other kind of gain. We shouldn’t categorically opposed to let
artists use exclusive rights to protect whatever idiosyncratic values they
have. If artists want to be paid in attribution, and release work under CC
licenses, then someone who copies w/o attribution shouldn’t win fair use
automatically b/c there’s no market harm.
Moral rights through the back door? What I’m suggesting
doesn’t increase scope of author’s §106 rights just because of objection. Fair use is like nuisance law. Requires actual harm to use & enjoyment
of property, which isn’t limited to ability to profit. But owner doesn’t have
carte blanche to define use & enjoyment—depends on the character of the neighborhood
and the neighbors’ interests. Violation of a ban on criticism shouldn’t be
honored, but that’s not true of all idiosyncratic values. So discuss what sorts
of use & enjoyment authors value in this space, and is there any reason to
stop them from using exclusive rights to further those values.
Betsy Rosenblatt, Whittier: Young women’s voices on fair
use. People make things they may not
realize they’re making, including community or themselves. Fanworks, overwhelmingly female communities
under investigation. Deep dedication to gift economy. In post-Campbell
world, these fanworks pretty uncontroversially don’t infringe, even resisting
the temptation to separate the factors out from each other. Transformative of
meaning; noncommercial; small portions; don’t compete in the market. There has never been a lawsuit about a
noncommercial fanwork (despite threats and rumors).
Skin in the game: Organization
for Transformative Works legal committee head; OTW runs the Archive of Our Own w/over 400,000 registered
users, 1.3 million works, 5.8 million unique visitors/month. 107 responses to
our call for fan stories to submit as part of our response to the USPTO/NTIA
Green Paper call for comments on remix.
We had to depend on self-identification as women/girls. We only asked
about benefits of creating remix, not drawbacks: reflects our pro-fanwork
agenda.
We found very powerful trends in the responses.
Particularly: creating fanworks provided unique opportunities for developing
selfhood, emotional maturity, and professional skills. Broad fair use permission for noncommercial derivative
works promotes expression by often marginalized speakers and offers benefits
otherwise unavailable. Fandom helped
them understand themselves. Many had a narrative of fandom as rescuer—literally
lifesaving in some cases. Felt they were
not alone in the world; helped them find their voices; taught them to value
their own expression and their own opinions, which served them later in life.
Women believed fandom allowed them to talk back to mass
culture, especially one that didn’t adequately represent them. Claim agency
around popular narrative, explore issues of gender and sexuality by working
with popular characters; nonheteronormative narratives; issues of race and
disability. Infinite diversity in infinite combination. The derision of fanworks was often bound up
with other negative attitudes towards feminine pursuits. The young writer in
any genre will not start out good; she finds her voice and that’s a benefit.
Remix taught important skills—language, writing and editing w/ the system of beta reading in fandom, critical thinking, visual art, programming/coding, other fields that could be used in professional lives. The rewards are support and feedback, a community/culture of learning. Transformativeness, because community that supports empowerment through changing the original, comes disproportionately from underrepresented groups. Permission culture would make this all difficult/prohibitive.
Margaret Chon: Legal transplantation, examined by McKenna—we’ve
seen this in other contexts such as the three-step test of Berne being
implemented in national legislation.
Mtima is talking about similar issues: © looking outside of itself and
even IP as a whole, towards other kinds of laws and policies. Specifically the ADA. Perhaps IP isn’t the be all and end all for
innovation—think about leveraging and connecting other social policies. McKenna isn’t a cheerleader for
transplantation, whereas Mtima is.
Newman and Rosenblatt do deep dives into two fair use
factors, which Leval urged us to consider as deeply connected. Chon also has the tendency to handwave factor
two; Newman’s project is to bring factor two back into the fold.
Rosenblatt/Tushnet also dive deeply into the transformativeness factor: how do
these two impact each other? How would
Newman’s approach deal with the Rosenblatt/Tushnet process-oriented approach to
transformativeness. Is there value to
Newman’s approach for thinking about fanworks?
Breathing space may tie this all together. We tend to think of this as tied to First
Amendment/free expression goals, but “breathing space” is open enough to
capture many ideas expressed on the panel.
Securing copyright is good, but one must not put manacles on science:
quote from older case is her favorite part of Campbell. Fair use had
earlier precedents, not just in America.
McKenna: not averse to transplantation in itself. Courts
often don’t think nearly carefully enough about what they’re doing when they
transplant something. E.g., courts often pretend they’re just using tort principles
in secondary liability cases, but they don’t. Most likely to go awry when court
is unfamiliar with the borrowed-from body: Cal. SCt doesn’t get very many
copyright cases! Likewise, the SCt doesn’t get many tort cases, but thinks it
knows torts. No rhyme or reason. Mtima
wasn’t advocating borrowing willy-nilly but was arguing for borrowing
w/relation to copyright.
Mtima: we all seem to be saying that the nature of the work
matters. The right type of access to
works—being able to get them and then to reuse them—helps continue the evolution
both individually and as a society.
Newman: People usually think about fair use w/regard to fan
fiction as copyright being a looming, never materializing threat. Newman takes strict view of idea/expression
and thinks fanworks usually don’t count as derivative works. Super rich depiction of artistic community: I’m
curious to know to what extent is © useful, not because I have to shield myself
from it, but perhaps because they want to keep it noncommercial/constitutive of
their personhood.
Rosenblatt: Very suspicious of considering intent of
original creator, but intrigued by considering purpose as something different
from intent. Expressive substitution may not just be for what the original work
says, but for what the original work does.
Wary of importing moral rights through the back door. But these
communities depend on certain things they want their works to accomplish for
themselves and others. Recent ebooksTree issue of copying
fanworks to attempt to convince people to pay for “free” ebooks. Fans
definitely want their works to remain free.
Yen: If the phenomenon you observe with transformativeness
in RoP cases mimics the problem w/transformative use being so broadly applied
that it loses coherence and simply becomes a result announced in advance. Public pressure to compensate NCAA players;
this just happens to be our vehicle.
McKenna: it’s true, that seems influential—and I want them
treated fairly too. But there is a core way in which it makes sense for
copyright; it doesn’t make sense at all in the RoP. It is in some ways announcing a result b/c it’s
hard for Ds to win. On the very same day
the 9th Circuit announced that the videogame wasn’t transformative
for RoP purposes, it announced that it would use Rogers for 43(a) claims against the same conduct.
Besek: Factor two/coursepack cases: some texts are created
specifically for the educational market; that’s an important aspect of their
nature. Is there a place for the publishers’ goals? Courts have rejected
authors’ own desires for wide dissemination as probative.
Newman: should start by understanding what role © actually
plays in enabling and encouraging the people who are trying to cultivate the
value of the work doing what they’re doing, which includes
publishers/intermediaries.
(RT: Barthes’ readerly
and writerly texts as a factor two consideration? That would tie in with the fan communities
that respond to certain works. Except it turns out that almost texts can be
writerly. Newman might not be into that,
b/c he seems to look at “purpose” as something objective about the
creators/publishers, rather than purpose as function in the reader-writer
interaction. Readerly/writerly might fit
into the fact/fiction, published/unpublished distinctions we have though.)
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