Fair and Balanced: On Copyright and Fair Use
Moreover, now probably isn’t an opportune moment for blue-sky copyright reform, as the communications scholar Patricia Aufderheide and the intellectual property lawyer Peter Jaszi recognize in Reclaiming Fair Use, a pragmatic, lucid explanation of how to improve the balance in copyright laws. Were Congress to revisit the basics of copyright law anytime soon, Aufderheide and Jaszi fear, creators and audiences would lose even more to distributors, because the lobbyists of big media are so powerful. (Indeed, Congress has recently been giving serious consideration to a bill known as the Stop Online Piracy Act, which would give copyright holders a streamlined power to forbid payment processors, ad services and search engines from cooperating with websites accused of enabling piracy.)
Instead, Aufderheide and Jaszi propose taking advantage of fair use, which is, as they explain, “your right to use copyrighted material without permission or payment when you make a work.” Sometimes thought of as a “safety valve,” fair use was written into America’s copyright laws in 1976, using language that Justice Joseph Story had come up with in 1841. It’s thanks to fair use that I can liberally quote Patry and Aufderheide and Jaszi in this review without asking their permission or their publishers’. I can be critical, even vituperative, and my right to use their copyright-protected words remains unimpaired. In Story’s formulation, a judgment of fair use depends on four factors: the nature and purpose of the new use, the nature and purpose of the original work, the amount taken and the impact on the original creator’s income. No single factor is decisive, however, and in an influential 1990 law article, the federal trial judge Pierre Leval suggests that the key issue is the “transformative” nature of the new use. The new use, it is sometimes said, should be “orthogonal” to the original one. Following Leval’s lead, Aufderheide and Jaszi prefer to frame the matter in three questions:
§ Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose?
§ Was the amount of material taken appropriate to the purpose of the use?
§ Was it reasonable within the field or discipline it was made in?
In this review, for example, my purpose is to evaluate Patry’s and Aufderheide and Jaszi’s books, not merely to repeat their arguments so as to save you the cost of buying them. I need to quote in order to give you a flavor of their style and to convince you that I haven’t misrepresented them. Liberal quotation is an accepted practice in book reviewing; indeed, heavy-quoting reviewers are sometimes praised for giving readers of a review the chance to judge for themselves the author’s voice.
Fairly well-established fair uses, besides comment and critique, include illustration. In 2006, for example, a judge ruled that a publisher could reprint concert posters in a coffee-table book about the Grateful Dead without permission, because the reprints weren’t at full size and because the book put the posters in a new context: the band’s history. (As it happens, Patry represented the holder of the posters’ copyright.) Another established use is incidental capture. If a documentarian is filming children who, uncoached, happen to sing a line or two of “That’s Not My Name” by the Ting Tings, he isn’t obliged to license the song. But these aren’t the only kinds of fair use, nor are individuals the only fair users. I doubt that The Daily Show pays Fox News for the clips it lampoons. Aufderheide and Jaszi consider Google “the largest example of a company for which fair use is essential.” In 2003 a judge ruled that it’s fair for a search engine to publish thumbnail-size versions of images that it’s indexing, and Google originally planned to defend as fair use its scanning of in-copyright books and its publishing of snippets from them after it was sued by the Authors Guild and the Association of American Publishers in 2005. Because Google and its opponents decided to negotiate an ambitious private settlement, the case still hasn’t gone to trial. But as law professor Pamela Samuelson notes in an April 2011 article published in the Columbia Journal of Law and the Arts, most observers think that on the limited question of fair use Google should, and probably would, prevail.
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Not every change rises to the level of a transformation. A coffee mug serves a different purpose from a cartoon, but if you put a copyright-protected cartoon character on a mug and sell it, the courts will not view it kindly, because the mug’s appeal would depend almost entirely on that of the original cartoon. Nor does fair use exempt a borrower from the courtesy of attribution. In fact, if you feel like you’re getting away with something, Aufderheide and Jaszi suggest, you’re probably doing it wrong. Their populist message is that fair use is a matter of common sense, and that if a borrower engages in the Rawlsian thought experiment of imagining how she would want to be treated if she were the one borrowed from, she will probably get it right. It isn’t always easy to detect when one’s judgment has been clouded by wishful thinking, though, and in their zeal Aufderheide and Jaszi may underestimate how hard it is for laypeople to figure out the basics of fair use. I also worry about their eagerness to move beyond the traditional analysis by four factors. Aufderheide and Jaszi’s three questions are easier to grasp, but judges are creatures of precedent.
Fair-use it or lose it, Aufderheide and Jaszi advise. “Like a muscle, [the right] can shrink with disuse.” They recommend that communities of users convene to decide on the best practices for fair use in their medium. Judges, they’ve noticed, pay attention to community norms, and an open, public discussion is more likely to persuade behind-the-scenes decision-makers like insurance companies, who err on the side of caution where the law is concerned. Not long after documentary filmmakers released a code of best practices in 2005, errors and omissions insurers began offering routine coverage for fair-use claims in documentaries. Aufderheide and Jaszi report that there are now fair-use codes for poetry, online video, dance, media-studies publishing and curriculum sharing.
Without any help from legislators, fair use seems to have grown stronger over the past couple of decades. In particular, courts have grown more accepting of the idea that a use may be fair even if it makes money for the borrower. The pop-conceptual artist Jeff Koons lost a 1992 case over an expensive sculpture based on an unlicensed photo of puppies, despite arguing that he was making a comment about banality; but he won a 2006 case over an expensive mural that used parts of a fashion photo, in part by arguing that he was making a comment about mass media. The progress isn’t universal, though. If a reviewer is allowed to quote whole paragraphs from a book, and if Stephen Colbert can play clips from Fox News, how come a musician can’t sample even a note from another musician’s recording without licensing it? Aufderheide and Jaszi suggest that a musician should be able to, and they see sampling as a cautionary tale, showing what happens when a community fails to defend fair use.
After a 1991 preliminary injunction against the rapper Biz Markie quoted the biblical commandment against theft, nervous record labels began insisting that all samples be licensed. (The case never went to trial, but a fair-use defense might not have prevailed; the rapper’s borrowing was pronounced.) In 2005, after the group NWA borrowed three notes from a George Clinton song, an appeals court ruled that there was no such thing as an excerpt of a recorded performance so short that it didn’t have copyright protection but advised the lower court to consider whether the borrowing was fair use. Again the parties settled out of court. By the time another George Clinton case reached the courts in 2009, an appeals judge noted that even though the borrowing looked “transformative” to her, she was reluctant to upset the market in music-sample licenses that had developed over the years. In Aufderheide and Jaszi’s view, a failure to defend fair use had given rise to a new reason to oppose it, and they call the result “a disturbing, vicious circle.” I suspect, though, that Aufderheide and Jaszi may be misreading the 2009 decision. In context, the judge, in using the word “transformative,” seems only to have meant that the new song didn’t sound much like the George Clinton original. She went on to say that the new song had borrowed “the most distinctive and recognizable elements” of the original, and she professed herself unconvinced by the borrowers’ claim that the purpose of their song was to offer a homage to Clinton. Indeed, the reason courts have rarely, if ever, recognized fair use in sampling may simply be that the purpose of one song, broadly considered, never differs much from the purpose of another.
Aufderheide and Jaszi decry the romantic excesses of copyright anarchists. A radical rewrite of copyright law is unlikely in today’s political climate, they argue, and they believe that a number of artists who have been acclaimed as copyright rebels are merely exercising rights of fair use. For example, Tom Forsythe, an artist who photographed a Barbie doll in a blender, not only prevailed in court when Mattel sued but was awarded $1.8 million to cover his legal fees. Nonetheless, copyright radicals have described Forsythe’s case as “a cause for alarm,” Aufderheide and Jaszi write. In their opinion it’s a false alarm, and pundits who frame copyright in terms of martyr-rebels versus persecutor-oppressors run the risk of weakening fair use by conveying the impression that it’s more dangerous than it really is. Aufderheide and Jaszi regret that the Digital Millennium Copyright Act of 1998 made it illegal to break encryption technology, thereby outlawing the fair use of encrypted works, but their advice is to challenge the ban by petitioning the Copyright Office for exemptions at hearings that are held once every three years.
The remedy will strike some as insufficiently revolutionary, but in its way it’s hardheaded. Aufderheide and Jaszi end with a couple of cautions: they warn that fair use is an American right, available in very few jurisdictions abroad, and they worry about people clicking away their fair-use rights as they scroll through the fine print on websites. In their zeal, the authors may be a little too sunny-minded about the risk that fair users run of misunderstanding the concept—or of understanding it correctly and being hit with a nuisance lawsuit anyway. But their insight into the way courts and politicians follow social norms, and the way engaged citizens can shape those norms, is canny, and one can forgive a little evangelism in copyright thinkers who have managed, despite the times, to find good news.