Lipton, Weinberger & Husick

So, do you know what an “appropriation artist” is?  It’s an artist who uses preexisting objects or images to create new works of art.  While you might guess that appropriation artists keep many a copyright lawyer employed they also sell their works for large sums of money.  Take for example, Richard Prince, perhaps, the most famous appropriation artist.  In a recent exhibit of Rastafarian images referred to as the “Canal Zone” exhibit, he sold one work for more than two million dollars!  Prince didn’t create the base images for his works, rather he appropriated them from a collection of photos by Patrick Cariou, which Prince altered by “printing ‘lozenges’ over their subjects’ facial features and using only portions of some of the images.”

Patrick Cariou, who made approximately $8,000 from his book of Rastafarian photographs, believed that Prince ripped him off and sued him in federal court for copyright infringement. Prince defended himself by asserting the legal doctrine of “fair use,” which, under the U.S. Copyright Act, permits use of copyrighted works for purposes of “criticism, comment, news reporting, teaching, scholarship, or research.”  The lower court rendered its judgement in favor of Cariou holding that to qualify for fair use, the secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.”   Because Prince’s works did not comment upon the original works of Cariou, the court held that Prince’s works did not qualify as fair use.  Prince, who was not short of funds, appealed.

In a complete reversal, the U.S. Court of Appeals for the Second Circuit rejected the reasoning of the District Court judge, and concluded that there is no legal requirement that the secondary use must comment upon the original work to qualify as fair use even if the use “serves some purpose other than those” cited by the statute.  The Court wrote that the requirement of fair use only requires that the new work be “transformative” and that it “alter the original with ‘new expression, meaning, or message.’”  The Court of Appeals held that Cariou’s work is “serene” and “beautiful” while Prince’s work, whch is “crude,” “jarring,” “hectic,” and “provocative,” is fundamentally different.

Here’s an example from the court’s opinion, what do you think?

From Yes Rasta by Patrick Cariou (from the opinion)

Graduation by Richard Prince (from the opinion).

– Adam G. Garson, Esq.

The estate of William Faulkner is furious.  In the past month it has filed two copyright infringement lawsuits, one against Sony Picture Classics and another against Northrop Grumman Corporation and the Washington Post Company.  In the Sony case, the Faulkner Estate claims that Sony infringed Faulkner’s copyright in the famous phrase from Requiem for a Nun, “The past is never dead.   It’s not even the past.”  when the lead character in Woody Allen’s film, “Midnight in Paris.” exclaims, “The past is not dead!  Actually, it’s not even past.”  In the case of the suit against Grumman and the Washington Post, the Faulkner estate claims that it printed without the estate’s permission, Faulkner’s phrase, “We must be free not because we claim freedom, but because we practice it,” in a full page advertisement paid for by Grumman.  The offending quote was from  Faulkner’s essay, On Fear: the South in Labor.  Defendants in both lawsuits will raise the “fair use” defense to blunt The Faulkner estate’s attack.  So let’s take a brief look at the “fair use” doctrine.

“Fair use” is a copyright doctrine that permits one to use copyrighted material without seeking permission from the copyright owners if it falls within certain categories: criticism, news reporting, teaching, scholarship, or research.  The problem is that the copyright statute fails to give specific guidance on how to identify fair use other than to list factors to be considered:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

As a result, the law of fair use is one of the most vague and unpredictable areas of copyright law.  Let’s take a peek at the arguments that the lawyers will likely make in the Faulkner estate case against Sony. The Sony lawyers’ principal argument will be that the amount and substantiality of the Faulkner quote is insignificant. The Faulkner estate lawyers, on the other hand, will argue that first, Midnight in Paris does not arguably fall within the statutory categories of criticism, news reporting, teaching, scholarship, or research and, second, despite the short length of the quote, Sony is using it for commercial purposes. The Sony lawyers, of course, scoff at the suggestion, asserting that use of the Faulkner quote will have absolutely no commercial impact upon the market value of the copyrighted work, which is more than 60 years old. See the article in CNN.com for a first-hand account of the war of words.  The arguments raised by lawyers in the Grumman case will be similar. Should the cases actually go to trial, an unlikely scenario, copyright experts everywhere will be closely watching.

Adam G. Garson, Esq.

On May 28th, Phillies versus the Mets, ace-pitcher Cole Hamels, allowed four runs in eight innings but got out of an eighth-inning jam by making the right pitches at the right time.  But it was first baseman Ty Wigginton’s game.  He saved the day by going 3-for-3 with a double, home run, two walks, and a career-high six RBI’s.

So, now that I’ve given you a brief synopsis of the game, were you aware that Major League Baseball (MLB) believes I’m guilty of copyright infringement?  Yes, that’s right, MLB prohibits all accounts of the game for any purpose.  According to Dr. Copyright, who graciously provided me an emergency consultation,  I shouldn’t worry, though.   Here’s why.

You’ve probably heard the mantra before or during every broadcast of a major league baseball game (football, too):

Any rebroadcast, reproduction or other use of the pictures and accounts of this game without the express written consent of Major League Baseball is prohibited.

The National Football League has a similar warning:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

These warnings are harsher than they need to be.  Do your think that every journalist covering a baseball game has obtained permission from the MLB to write a story about it?  Of course not.  But who gives the sports leagues authority to prohibit you from recounting a game?  The answer is no one, not even copyright law.  The prohibition is not only harsh, it’s flat wrong.

There is little dispute that broadcasts of sporting events are copyrighted events.  If one were to record a game and post it on YouTube (assuming that you could do so), the copyright police would bring it down before you could turn off your computer.  This is the leagues’ right.  They produce and distribute the game and, therefore, have a right to make sure that others are not profiting from their endeavors.  But recounting a sports story, whether verbally or in print, is not a copyright infringement, it falls under the broad designation of “fair use”.   Fair use is  written into the U.S. Copyright Act (Title 17 § 107) and permits use of copyrighted works for purposes of criticism, news reporting, teaching, scholarship or research.  Granted, the boundaries of fair use are fuzzy — courts have and continue to wrestle with what constitutes fair use — but it remains one of the bulwarks of first amendment protection from those who claim a monopoly on information. So, the bottom line is don’t be intimidated by misinformation.

– Adam G. Garson, Esq.