Copyright Fair Use 2005: Fine Art, Monster Movies and Karaoke
Devotees of interesting fair use decisions have had much to talk about in the past six months. Postmodern art, 1950s sci-fi movies and karaoke performances have all recently presented the courts with the ultimate case-by-case copyright question: when is it fair for defendant to incorporate pre-existing expression into a new work? The decisions do not suggest any new approaches to answering that question, but they certainly confirm that the fair use doctrine, as codified in section 107 of the Copyright Act1, allows judges enormous freedom to give effect to their own tastes and opinions about the social benefits of various forms of expression. As a result, fair use decisions are seldom predictable and often entertaining, as evidenced by the following examples.
Jeff Koons is a New York artist who has long built his work around pre-existing images, appropriating and adapting them into caustic and humorous critiques of contemporary society. He was the defendant in a significant 1992 decision by the Second Circuit, Rogers v. Koons2, in which his sculpture 'String of Puppies' was held to infringe a photograph from which it had admittedly been derived, and was also held liable for other sculptural works in two district court decisions from the same period3. Undeterred, Koons continued creating work employing pre-existing images and in 2003, photographer Andrea Blanch brought an infringement action alleging that a portion of her photograph 'Silk Sandals by Gucci' was infringed by Koons' 2000 painting entitled 'Niagara.' In Koons' words, the painting depicts
four pairs of women's legs and feet which dangle over a landscape.
Below them is a monstrous chocolate-fudge brownie, served with a
mound of ice cream and flanked by trays of glazed doughnuts and
apple danish pastries. The sandals and feet which appear at the second
from the left were slavishly copied from Blanch's photograph
which appeared in Allure magazine.
Despite Koons' admission that he 'slavishly copied' a part of the plaintiff's photograph, and despite the court's conclusion that the copied portion was 'the focal point of interest' in the photo, the court in Blanch v. Koons4 held on Nov. 1 that the painting was a fair use.
The different result can be attributed to two main factors. First is the different nature of the work at issue. Koons' 'Niagara' is a much more visually complex work than the pieces in the earlier cases, juxtaposing materials from many disparate sources in the manner of a collage. As the court notes, 'Niagara' is 'a montage or collage of common images found in popular culture' advertisements, retail displays, and beauty and fashion magazines ' which Koons has transformed into an entirely new artistic work by altering the context, orientation, scale, and material of the original images, and by combining and layering the images over sublime landscapes in a large scale oil painting.' The sculptures in the prior cases, by contrast, were almost literal 3-D replicas of a single source image. Moreover, although it shouldn't matter to the legal analysis, Koons himself painted 'Niagara,' while the sculptural works in the prior cases were fabricated by others under Koons' direction. In the delicate equitable balancing of fair use interests, that can only have helped.
The second main distinguishing factor is the evolving nature of the fair use doctrine, which offers significantly more leeway to defendants than it did in the early 1990s. The difference is largely attributable to the Supreme Court's adoption of 'transformative use' as a central element of the analysis, in its 1994 decision in Campbell v. Acuff-Rose5. Transformative use, first defined as such in a 1990 Harvard Law Review article by Judge Pierre N. Leval6, is a use which 'employs the quoted matter in a different manner or for a different purpose from the original.' A transformative use is one that adds value by using the original expression as 'raw material, transformed in the creation of new information, new aesthetics, new insights and understandings - this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.'7 Accordingly, if a use is found transformative, the various statutory factors that weigh against a finding of fair use, such as commerciality or a large amount of copying, weigh less heavily.
Judge Louis L. Stanton in Blanch v. Koons came to just this conclusion regarding Koons' 'Niagara': 'The use Koons made of the only items he copied - the crossed legs, feet and sandals - was different from their use in the photograph, whose purpose was to illustrate metallic nail polish. The painting's use does not 'supersede' or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, new insights. Such use, whether successful or not artistically, is transformative.'8
The Southern District applied the transformative use analysis to similar effect in Wade Williams Distribution, Inc. v. American Broadcasting Co., Inc.,9 in which the copyright owners of several low-budget 1950s sci-fi films brought an infringement claim against ABC over the unauthorized showing of film clips as part of a Joel Siegel segment on 'Good Morning America.' The segment, which ran in July 1997, explored the portrayal of aliens and UFOs in popular culture, incorporating clips ranging from the early 20th century all the way through ET and Men In Black. At issue in the case were clips of three drive-in classics, Plan 9 From Outer Space, Robot Monster, and The Brain From Planet Arous, all of which were used without authorization by ABC.
Although the use of the clips was commercial, and thus not favored under the first statutory factor, the court found that the segment was a transformative comment on how filmmakers have portrayed aliens, not simply a repackaging of the clips for their entertainment value. Quoting an earlier clips-in-documentary decision, Hofheinz v. Discovery Communications, Inc.,10 the court noted that 'section 107 does not distinguish between entertaining and serious, plausible and implausible, or weighty and frivolous commentaries, and I do not propose to engage in such subjective line-drawing.'
The transformative nature of ABC's use also worked to its benefit under the third and fourth factors. While the amount of the copied footage totaled only 24 seconds, plaintiff argued that this amount was significant because the works are usually licensed in the form of short clips. Defendant countered that the amount copied was reasonable for purposes of its transformative commentary, and the court agreed. The court agreed further that there was no showing of market harm under the fourth factor. Although the court was willing to consider the plaintiff's argument that the relevant market was the market for licensing short clips, and not the market for the sale or licensing of the films in their entirety, the record indicated that plaintiff had only issued twelve licenses for all three films over the previous eleven years, and that five of these were issued after the airing of the ABC segment. Thus, it did not appear that plaintiff's licensing market had been affected at all.
In summary, the court indicated that plaintiff was urging a bright line rule that every use of a film clip, regardless of length or purpose, required a license. But such a rule would stifle commentary and criticism, which are among the main activities which the fair use doctrine seeks to promote. As with Koons, the result seems to depend in large measure on the court's willingness to credit the defendant's claim that its use was truly for a different intrinsic purpose than the plaintiff's, and the court's belief that this different purpose resulted in 'new information, new aesthetics, new insights and understandings.'
Where the court does not find a credible argument for such a socially beneficial transformation of the plaintiff's work, the fair use defense is difficult to sustain. Such is the lesson to be learned from Morganactive Songs v. K&M Fox, Inc.,11 decided by the Southern District of Indiana last March. In Morganactive, the defendant operated an establishment called Sneakers Pub in Indianapolis, which hosted regular karaoke nights. As described by the court, the karaoke performances were offered to attract customers and increase liquor sales, and comprised 'a disk jockey playing a background musical track of a popular song while the words of the song are displayed on a screen or a monitor to allow one or more persons to take center stage and sing the song . . . a brief chance for audience members to feign stardom, or perhaps act the fool.'
Sneakers obtained a karaoke license from BMI but not from ASCAP, and refused to come to terms with ASCAP when this discrepancy was brought to its attention. Litigation ensued, and Sneakers earned itself a place in this column by arguing that its karaoke performances were actualy transformative parodies of the songs at issue. According to the Supreme Court's holding in Campbell v. Acuff-Rose, to qualify as fair use parody a defendant's work must, to some extent, comment on or critique the plaintiff's work while simultaneously altering and ridiculing it.
The court in Morganactive 'wholeheartedly disagreed' that karaoke could be deemed a parody, however:
While, as [defendant] argues, wrong or different words may be sung
by the performer and some degree of ridicule or criticism often results
along with comic relief, it is not criticism of the original work or artist.
It is not the performer who engages in ridicule, it is the audience.
It is not the original work that is being criticized, rather it is the glory
seeker who has usually been inspired by liquid courage to provide
the vocals to an otherwise unchanged musical backdrop. This is not parody,
but solely imitation. Nothing new has been created, which the Supreme Court
found to be an important characteristic at the heart of fair use.12
The court concluded that because plaintiff's works were 'not the spark for the creation of something new and different, [but] simply provided the material for another performance,' they could not be deemed transformative no matter how far the performance might alter or deviate from the song as written. In sum, 'a bad performance is still first and last a performance, not a parody.'
As demonstrated by these recent decisions, fair use under Ã‚Â§ 107 remains an open-ended, fact specific inquiry which challenges the courts in every case to balance competing considerations. With the added wild card of transformative use, the courts have been given even greater discretion to find in favor of defendants who create works they deem to be in furtherance of the basic purposes of copyright. Even when one does not agree with the results, it is always fascinating to watch the federal courts openly fashioning social policy, under color of an intentionally vague statute that gives them almost no choice but to do so. In the case of fair use, even the staunchest advocate of judicial restraint would be hard-pressed to 'apply the law as written,' and that is probably best for all concerned.
Copyright: Â© 2005 Cowan, Liebowitz & Latman, P.C., and Robert J. Bernstein
Robert J. Bernstein practices law in New York City and is a frequent author and lecturer on copyright law and litigation. He is a past president of the Copyright Society of the U.S.A., and formerly served as Chairman of the Copyright Law Committee of the American Intellectual Property Law Association and as a member of its Board of Directors.
Robert W. Clarida is a partner in the New York law firm of Cowan, Liebowitz & Latman, P.C., and speaks and writes frequently on copyright law. He is the chairperson of the Copyright and Literary Property Committee of the Association of the Bar of the City of New York, and co-chair of the Copyright Committee of the American Intellectual Property Law Association.
Originally published in the New York Law Journal, November 18, 2005
1 Section 107 reads as follows: 'Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include' (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2 960 F.2d 301 (2d Cir. 1992).
3 United Features Syndicate, Inc. v. Koons, 817 F. Supp. 370 (S.D.N.Y. 1993); Campbell v. Koons, No. 91 Civ. 6055, 1993 WL 97381 (S.D.N.Y. Apr. 1, 1993).
4 No. 03 Civ. 8026 (LLS), Nov. 1 2005 (slip op.).
5 114 S. Ct. 1164 (1994).
6 'Toward a Fair Use Standard,' 103 Harv. L. Rev. 1105 (1990).
7 Id. at 1111.
8 No. 03 civ. 8026, slip op. at 7.
9 2005 U.S. Dist. LEXIS 5730 (S.D.N.Y. Apr. 5, 2005).
10 60 U.S.P.Q.2d 1845 (S.D.N.Y. 2001).
11 No. IPOO-10939-C-G/H (S.D. Ind. Mar. 29, 2005)(slip op.).
12 Id. at 11.