IPSC part 4: copyright (and a bit on the right of publicity)

Second Breakout Session
Copyright Fair Use
Raw Materials and Creative Works
Andrew Gilden
Raw materials concept is part of transformativeness in copyright and right of publicity cases.  Project: Examining the application and meaning of this concept.  Noticeable differences—cases seem to privilege by wealth, fame, race, and gender, rather than by whether there’s interference with commercial interest of plaintiff.  Ethically troubling: does not address why people incorporate existing imagery into their work.
Distributional patterns in ~30 cases that use the trope. Largely favors big names who appropriate from small names.  Koons, Prince, Sega, Green Day.  Not Mr. Greenwash or people who appropriate from Seinfeld or J.K. Rowling.  This is troubling because small artists need to rely more on fair use to create their work. And if injunction is unavailable, the big guys can afford to pay even statutory damages.
Gender and race implications as well: in almost every case the raw material is a woman or a black man (or a portrayal of same), with the sole exception of the albino Winter brothers in Winter v. DC Comics.  This is related to the meaning of “raw materials.”  Raw is an inherently relational term.  In need of cooking, purification, transformation into higher/more refined/more palatable state.  Is sushi just raw fish?  Is wheat raw material for bread, or is bread raw material for toast?  That needs some external referent.  Courts fall back on cultural hierarchies/notions of what is and isn’t legitimate art.
Normatively: channeling fair uses towards defendants who display lack of empathy to plaintiff/plaintiff’s works—Prince’s works using naked bodies and mangled faces; Green Day putting picture in religiously fraught context; DC Comics making the Autumn brothers half-man and half-worm.
Solutions: (1) stop talking this way and talk about inspiration and dialogue to get at importance of taking without imposing hierarchy; (2) creative process test detailed in paper whose thrust is that liability should hinge on defendant’s subjective experience of engaging in creation, not satisfaction of audience’s standards for artistic merit. Doesn’t want to throw away precedent, but look under the hood of the work.
Linford: payoff: do the case results change any?  You want broader/more fair use, but the Winter analysis suggests some plaintiffsare being underserved. What kind of shift should we look for?
A: thinks it would be broadening of transformative use. We don’t have a good sense of what the harms at issue are.  (I wonder whether you could appeal to Dan Kahan’s work on what kinds of reasons are more/less insulting to worldviews.)
Wendy Gordon: devaluation of women as raw materials. Could lead to contraction to make things more equal, not just to expansion.  T-shirt with drawings of Three Stooges: more wrong or less wrong?
A: he doesn’t want to think of anyone as raw materials.  Marilyn Monroe and Three Stooges should have equal rights of publicity.
Q: will this overlap with a new look at fair use generally/derivative works?  Can you really look at transformativeness alone?
A: thinks this is distinct from Google Books; transformativeness is a useful umbrella, but the interest here is new expression rather than some other social benefit, and should be kept analytically separate.
Law Firm Copying and Transformative Fair Use: An Examination of Different Purpose
D.R. Jones
Recent lawsuits against law firms in connection with patent application filings, where firms made copies for clients and for internal use. PTO intervened, arguing that the use was fair. One case settled quickly; two district courts reached decision that defendant’s use was fair.  Plaintiffs dismissed the appeal of one, and dismissed a pending case (still in discovery); litigation is essentially over.  Interesting case study of analysis in fair use: the discussion of transformative use; use of “purpose” in analysis; determination of fair use markets.
Both cases determined that defendants’ use was transformative based on different purpose, not on alteration or change in the works. Trend in the doctrine: Change in purpose is more important than change in actual work.  HathiTrust & Swatch v. Bloomberg—in the latter, the first opinion didn’t focus on the different purpose, but superseding opinion added several paragraphs discussing different purpose in use of a recording without alteration. Other cases protect uses in litigation.
Fourth factor: judicial proceeding cases find no effect on the market. If there is a market, there’s a very limited effect given the difference in purpose.  Often there is no market—plaintiff registered in order to manipulate use of work in judicial proceeding. In the lawsuit cases, the judges found no effect on the market for the original articles, many of which were older.  Difference: plaintiffs argued that they lost fees from the copying. This is different because plaintiffs argued that a ready market for licensing existed, citing Texaco and Michigan Document Servs.  Demonstrates continuing effort to focus fourth factor on copyright owner’s incentives and rewards.  Does not address whether there should be a method of payment, only whether there is. Very persistent argument. 
Cambridge v. Becker, Georgia State e-reserves case: states that the publisher’s right to collect fees is a powerful argument countering fair use which counsels against D when there is a reasonable licensing mechanism available that isn’t used.  Even in a nonprofit educational use case.  Idea that is easy to get these licenses.
Fair use markets: Castle Rock introduced it, and Dorling Kindersleyused it: the availability of licensing won’t count.  Hinged on concept of transformative use.  There still remains a lot of confusion in application.  It’s a messy fit when there’s no alteration in content.  Maybe another way to define a fair use market: we can’t rely on decisions of copyright holders to consider all relevant values and interests.  Judicial proceeding cases offer an example: they rest on the societal benefit of presenting all relevant information in a judicial proceeding.  Having a different purpose or fitting within a type of cases that often supports fair use isn’t enough; you have to look at deeper underlying reason we want to consider providing fair use in this case—what’s the copyright owner’s interest in this case looking at the whole picture?
Rebel Without Good Laws: James Dean and Posthumous Publicity Rights on Social Media
Jeff Roberts
@JamesDean Twitter account ran for several years (now suspended)—a fan who posted photos and quotes/statements about Dean.  CMG Worldwide claims to own Dean’s right of publicity; sued Doe and Twitter—they claim to protect his rights and the rights of other celebrities “then, now, and forever.”  Case seems to have gone nowhere; Twitter does not go on record.  New frontier of trolling—publicity rights?
How did this come to be? Postmortem personality rights are hard to understand.  Indiana: 100 years postmortem; California: 70 years; NY: none.  Weird results—Marilyn Monroe died in 1962 but has no postmortem rights because she died as a NY domiciliary/took advantage of NY’s estate law; James Dean died 1955, off limits until 2055 (?). 
Issues: (1) jurisdiction.  Where can CMG assert this right?  If tweets appear in Indiana, is that enough?  (2) Tension between state laws and Lanham Act.  (3) Is this a personal right or property right? Now appears courts converging on property right.  (4) Normative justification: hard to justify under Lockean labor theory, natural law, or other theories of property.
CMG claims rights in people in many fields—literature, architecture, “humanitarian,” military, aviation, science/medicine, etc.  Got Indiana to pass very favorable law and promotes it elsewhere.
Limiting mechanisms: fair use (copyright); federal publicity statute; constitutional limitations including full faith and credit; Rogers test from Lanham Act; or something else?
Ramsey: Bob Marley case against Avela—involves state right of publicity, and also using Lanham Act for false endorsement. Can you have false endorsement when celebrity is dead? The heirs say it’s a quality seal and that they only approve certain uses.
Matt Sag: consider moral rights.
A: aren’t moral rights tied to creating? Don’t you need a work first?
Q: but using someone’s name on a painting they didn’t paint violates moral rights.
Roberts: looking for other examples of states trying to give home-field advantage.  (1-800 Contacts?)
McKenna: Indiana is worse than you think, because it covers anyone who died anywhere as long as the use happened in Indiana.  Marilyn Monroe has a right of publicity in Indiana.
All of This Has Happened Before and All of This Will Happen Again
Rebecca Tushnet
My topic: New models of licensing or practices that are not even licensing, being used by large content owners once again to enable the argument that there’s no need for fair use.  But as with CCC before them, the new licenses don’t change the fundamental policy and normative bases for fair use.  Overarching concerns, present for all the models I’ll discuss, happy to discuss more in Q&A: effects on the privacy of users and their audiences, the risks of creating monopoly chokepoints for an aggregator in a particular content space, and the new models’ continued right of suppression of unpopular or critical content.
Getty Images, providing access to many Getty photos: not even a copyright license, just a way to embed an image.  Can’t resize or memeify.  Getty doesn’t know how it’s going to monetize it, but really really hopes to do so. Query whether this even counts as a licensing market for purposes of factor four fair use analysis.
Content ID, for identifying sound and video: not a license to the uploader, but to YouTube.  Monetized using ads, not license fees.  Another question of factor four: if the usual formulation is whether the user paid the customary price, the customary price is zero.  So this is a different kind of foregone gain—potentially lost revenue from third parties who experience the defendant’s use—than the traditional licensing cases have held to be relevant to the effect on the market.
Amazon Kindle Worlds: this one is a license, though a retrospective one, and unlike the others provides for a revenue split between the author of the work based on an Amazon licensed property and Amazon and its partners.
Small detail, unnoticeable to lawyers because it’s part of the air we breathe but devastating for creative fan communities, which are sometimes overwhelmingly and usually significantly populated by minors: mandatory exclusion of anyone under 18 because they can’t contract unvoidably. Imagine: you can’t show your art to anyone if you’re under 18; you can’t buy pencils if you’re under 18.
The monetization model is particularly interesting because it represents a crack in the wall—long valorized by both large copyright owners and many fans themselves—that the line between tolerated use and infringing use was commercialization.  Substantially more content restrictions than the other models.  For example, you can’t make a GI Joe character a Yankees fan or make Bloodshot characters behave in out of character ways, but along with those idiosyncrasies there are also standard restrictions on explicit sexual conduct and so on. 
Separate, but magnifying the effects of these limits: monetization changes the culture of freedom, both from creators’ side and from consumers’ side.  Noncommercial communities “pay” for content with feedback, help people improve their art—even useful for learning a foreign language, since native speakers will help you with your language in order to get more of the stories they want. By contrast, you can’t use Kindle Worlds to improve your craft because people don’t generally pay money to help other people improve their work.  Destructive of creative ferment supported by communities.  Individualizing nature of “participation” on these sites—audience with fans, rather than fans interacting with and responding to fans.
Amazon’s model may prove attractive to others—the makers of My Little Pony just announced a similar scheme. If they approve your custom design, you can sell it on a dedicated site and split the revenues with them.  Contrast the five selected artists with the My Little Pony sculpt community on DeviantArt, just one of many fan venues—lots more variety.  And like Amazon, which prohibits crossovers or mashups, Hasbro will never sell my favorite modification: My Little Spock.
Sheff: There may be a tension b/t what might be good for copyright/fair use and what might be good for communities.  B/c these kinds of tolerated uses are limited in this way, transformative uses that don’t comply with those uses are inherently protected. Might be good for some transformative users who create critical works, but not good for communities.
A: But that assumes that there are a bunch of critical creators who aren’t considered fair users now; I don’t think they’re at risk and even the new licensors purport not to want to interfere w/the classic trashing uses.  I don’t have to face a tradeoff if those people will be protected regardless; I can focus on the context from which they arise—you don’t get Shakespeare without hundreds of playwrights whose work does not survive.
Gibson: midway point between completely unregulated fair use and complete control?  Derives from importance of canon. Some might thrive knowing they’re official.
A: Not true as a matter of fact—these uses don’t become canon; it’s totally ok for Brandon Sanderson to finish the Wheel of Time and be considered canon, but that’s not what’s going on here.  And I have no objection to the existence of these models, as long as they aren’t considered to justify shrinking fair use.  More a matter of ecosystem diversity.
Gordon: market failures exist that have nothing to do w/lack of negotiation but social goals.  One of the social goals from overenforcement is a world without censorship.  Owners of iconic works may have too much neurotic urge to control.  Bite the bullet of challenging the self-protective desires that should be characterized as censorship. There is a tradeoff between freedom to speak and dignity of the author.
A: I would say it differently, since I think the offensive uses are likely to stay fair regardless.  This is what I want to do with the idea of community: iconoclasts come out of contexts.
Michael Madison: communities doing their own thing, and participants in Hasbro-endorsed mods.  Are these separate populations?
A: depends on the community. Hasbro apparently recruited from fan communities; Amazon did not.
Madison: is there community objection to this?
A: can be very controversial.  If people gave you rewards in the noncommercial space and you try to leverage that commercially, some community members object to that.
The Right to Parody and User-Generated Content
Peter Yu
Parody is still controversial in Hong Kong.  Claim that IP rights are human rights and thus more protection is required.  Relevant human rights provision: Enough protection to provide adequate standard of living.  But that’s not as strong as current law, which protects more than that. The right to parody wouldn’t create tension within the system.
Another question: whether IP contains internal limits, or whether we need to go outside to appeal to things like First Amendment/free speech.
Will the same analysis apply to TM parody?  What about design?  What do human rights have to say about those?
Options: fair dealing exceptions for specific list—commenting and quotation or more than that, all the way to transformative use.
Q: baseline: is it that nothing is allowed unless mentioned, or is it that there is freedom unless there is a justified restriction?  Onus on copyright to explain why parodies should be limited.
Commonwealth jurisdictions: 1911 act that codified fair dealing, never thought that was anything new or important; nobody thought that various things were infringing in the first place.
A: He is working from current law, where they are negotiating what the new level of protection will be.  There is different level of opposition to different limits—private copying and parody.
Gilden: how much is transferrable to a different speech culture? Americans have notion of parody as core of fair use. Is that so linked to our First Amendment culture that it doesn’t transfer?  Suggests that satire might be at the core for the uses Yu identifies.
Q: Fair dealing is the European model, with enumerated list.  You are suggesting that fair use shouldn’t just be a defense, it should be a right.  Canadian court has called it a user’s right.  But that case was highly controversial.  If you are starting from user’s right perspective, does that give the users a right to use existing work to satisfy their free expression interests?  Parody is a derivative work, but you need permission—or fair use. 
We don’t need to treat satire the same as we treat parody. 
A: There is still an academic debate about fair use as affirmative defense. 

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