[Air-L] Help with sources

Tue Feb 12 11:41:58 PST 2013

Thanks, Tom.
You are right on the money (as is your friend) as to where this is coming from.
I've been playing with fair use and transformativeness for the past few years. In fact, my last article used both the Fairey case and the Prince case to further a different argument (“Social Semiotics in the Fair Use Analysis,” 24 Harvard Journal of Law & Technology 335 (2011)).  They are both vital steps in where I am trying to go now.  In essence, I am building an argument that relies both on the appropriation case and the image search cases (Kelly v. Arriba Soft and Perfect 10 v. Amazon.com).
And your friend is certainly correct, I'm definitely pushing the envelope a bit more with this piece (and ignoring Judge Batts to an extent).
Thank you so much for your response.  Your time is greatly appreciated.
Brian

________________________________
From: Tom Lee [tlee at sunlightfoundation.com]
Sent: Tuesday, February 12, 2013 1:16 PM
To: Brian Holland
Cc: air-l at listserv.aoir.org
Subject: Re: [Air-L] Help with sources

Brian, given your background I suspect that much of this will be familiar to you, but your question immediately brought to mind related questions from the art world related to recontextualization of copyrighted images. You seem to be suggesting a transformation from (potentially) aesthetic to functional uses (and a consequent accommodation similar to the one extended to embodiments of copyrighted works in computer memory). If that's correct, I suspect that some of the same principles relevant to transformations in the other direction will apply.

I hope you won't mind that I shared your query with a friend who works as a critic.  I'm afraid that the following may suffer from a lack of clarity about exactly what you mean by "SMS sites" and "offloaded and/or transactive memory," but I hope you will find some part of it useful. His reply (lightly edited):

There was as you're likely aware a legal battle between street artist Shepard Fairey and an AP photographer over the rights to the Obama "HOPE" propaganda. That case and various mutterings about fast-fashion and trickle-up (or -down) design represent the most popular tests of copyright in design.

But the better case, and the better test, of copyright and appropriation comes involves Richard Prince. He's an artist whose genre is appropriation: He got his start with a technique he called re-photography, which was to take photographs of commercial advertisements that are in large part indistinguishable from the commercial advertisements themselves. Here's his famous Untitled (Cowboy)<http://www.metmuseum.org/toah/works-of-art/2000.272>, a rephotograph of the photograph used for a 1970s Marlboro campaign.

Whenever it's come up in court, the law has largely favored artists and generally deemed appropriation to be useful and protected (if irritating) speech. Two precedents that are cited often: a 1990 Harvard Law Review article<http://docs.law.gwu.edu/facweb/claw/LevalFrUStd.htm> on fair use that found a positive, additive value in appropriation, and (why not) a 1994 SCOTUS decision involving 2 Live Crew<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10426>. But two years ago, Prince lost a case brought forward by another photographer in a U.S. District Court that alarmists say upends fair use as it applies to visual art. Here's a report on that case<http://www.theartnewspaper.com/articles/Patrick+Cariou+wins+copyright+case+against+Richard+Prince+and+Gagosian/23387> and here's the case<http://www.scribd.com/doc/51214313/Cariou-v-Richard-Prince>. I agree that the decision narrows the potential for fair-use in visual art and has a chilling effect on rephotography as a strategy, but I doubt that the precedent would ever apply to any other artist; there are few artists out there whose means and ends are appropriation whole stop. But I could be wrong and in any case I do think it was a dumb decision, tyranny!!, etc.

I don't know that it answers the poster's question, but my guess is that U.S. District Court Justice Deborah Batts would not be convinced that posting an image to an SMS site (??) qualifies as a "transformative" use, because recontextualization fails a test that Batts has entered into precedent, namely that the adapted work must comment on the original in some affirmative sense. I don't really remember the specifics from the case, but this is a good summary<http://jolt.law.harvard.edu/digest/copyright/cariou-v-prince>:

After considering whether the work was transformative, the court went on to analyze the commerciality of the work, the presence of bad faith on the defendants’ parts, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the copyrighted work, finding that each of these factors weighed against fair use. The court also found the Gagosian Gallery directly liable – having copied elements of Cariou’s photos in the production of an exhibition catalogue – and contributorily and vicariously liable – having benefited from and knowledge of the infringing nature of Prince’s work.  Towards this last point, the court made special note of the fact that “the Gagosian Defendants were well aware of (and capitalized on) Prince’s reputation as an appropriation artist who rejects the constricts of copyright law,” yet failed to ensure that Prince had obtained permission for the use of Cariou’s photographs.

It sounds like the forum poster skirts some of these questions. Hope this is helpful and let me know if you see some angle in here that might be especially applicable and I can let you know if I know any more about it. Feel free to copy, adapt, transform, etc., this email as you see fit.

On Tue, Feb 12, 2013 at 12:02 PM, Brian Holland <bholland at law.txwes.edu<mailto:bholland at law.txwes.edu>> wrote:
A long-time lurker to this point and, as a law prof, feeling like a bit of an outsider, so I'm sorry if this is a bit misplaced ...

Background: I am writing an article arguing that images posted to SMS sites should, in some cases, be protected from copyright claims via fair use. In essence, I am arguing that such use is "transformative" (and thus protected by fair use) because it serves a purpose distinct from the original; i.e., originally news, aesthetic, etc., now as markers in offloaded and/or transactive memory.

Issue I'm having: I am familiar with the extensive writing about issues attendant to the sharing function of these websites (and I address this to an extent by linking memory to identity), but I can't find much of anything in the legal literature on the archiving or repository function (except re: issues of privacy, post-death protection, evidence, etc., which aren't really on point for my focus on the social and psychological aspects).

Request: Can anyone steer me towards literature that I might find helpful?

Thanks in advance, and my apologies if this is off track for the list.

Brian

H. Brian Holland
Professor of Law
Texas Wesleyan School of Law

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