©ollectanea

Some years ago, I was in a meeting with a high IP official of a certain political administration (neither of which will be named here), discussing exceptions to copyright law and trying to make the point that these were critical to the mission of secondary and higher education, which were (even then) cash-strapped. The unnamed official had a simple response to this argument, which ran (in effect) like this:

These days, education is big business, and a big market for copyrighted material. If copyright licenses cost to much, the right answer isn't to impose costs on copyright owners but to go back to education funders and ask for additional appropriations to cover rights clearances.

Somehow, this line didn't seem right then, and it doesn't seem right now. But the argument may be a bit more difficult to counter than some educators believe (or hope). It is, however, important that we prepare to do so, as we gird for a struggle over the future of educational fair use.

I put my focus on fair use here because--at least for now--the promise of educational (and education-related) special exceptions to copyright seems limited, as evidenced by the disappointments of the TEACH Act and the becalmed state of the process designed to update Section 108. In the foreseeable future, then, fair use--that marvelous catch-all copyright exception--may be the best hope.

Educators are entering an era in which the copyright fair use doctrine will be of more importance to us than ever before in its 168-year history. A myriad of questions confront us to which fair use may be at least a partial answer, such as:

• How can students use copyright materials in creating class projects?


• What can students and teachers do with such projects once they have been created?


• What rules apply to quoting copyrighted material in electronic course materials?


• To what extent can teachers take advantage of the potential for e-reserves?


• And many more!

Our communities have strong views on at least some of these questions, as evidenced, for example, by last Fall's Code of Best Practices for Fair Use in Media Literacy Education, which it was my pleasure to help facilitate, or the forthcoming fair use statement from the Society for Cinema and Media Studies. It's crucial that positions like these should be defined as fully and quickly as possible by educators, lest someone else gets to frame the conversation--as publishers are attempting to do in their e-reserves lawsuit against Georgia State (read the complaint here).

The challenge that educators face, of course, is the curious dearth of case law interpreting the fair use doctrine where core educational functions are concerned--and by "core" I don't mean file-sharing by college students or even the production of course packs by for-profit businesses that happen to serve educational facilities. I do mean activities in and around the classroom, the library and (increasingly) the computer lab! And this is where what may either be strength or a weakness in educators' positions lies. In the years since 1841, when Joseph Story first cooked up the fair use doctrine, there have been no decided cases--that's right, no cases!--that address the legal status of core educational functions conducted in and around conventional schools. The closest we come (and it's not very close!) is Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), which stands for the somewhat underwhelming proposition that schools can't invoke fair use to justify a wholesale program of off-air taping for possible future classroom use!

Nor does legislative history help out much. Although the deliberations leading up to the 1976 Copyright Act are replete with discussions of the problem of educational photocopying, they don't give us (or the courts) much to work with on the more fundamental question of how strong a privilege core educational functions, in general, should enjoy. Unfortunately, those deliberations did open up a path that ultimately became blind alley for educational fair use--the prospect of "voluntary guidelines"--and in so doing delayed the emergence of a robust discussion of the application of the doctrine in its native form. (This isn't the place to review the guidelines fiasco, even were there anything left to say after the magisterial article by former CIP IP Scholar Kenny Crews, which you can read here.)

What should we make of the fact that we just don't have well-articulated statements by judges and legislators about the importance of education to society and the importance of fair use to education? One possibility, of course, is that (like my unnamed official) they actually don't buy this argument. The other--and it seems to me more likely--is that the argument is too self-evident to require much discussion. If so, a possible corollary might be that copyright owners (who generally don't like to lose) have been leery of pushing claims against core educational functions to a decision!

Remember, though, this is all supposition--which suggests to me that educators should be reluctant to rely on it too heavily. In that case, what should educators (and those who love them) be doing now to improve their position? Let me make two modest suggestions:

1. First, it's important that educators refrain from claiming too much under the heading of fair use--and, in particular, that they avoid the simple (and erroneous) proposition that merely because a use is educational, it is definitionally fair. True though it is that "education" is named in the preamble to Section 107, that--in itself-- and $3.00 (give or take) will get you a Vanilla Rooibos Tazo® Tea Latte at Starbucks.
2. Second, it is crucial to develop the arguments for treating various kinds of educational use as "transformative." Like it or not, this is the current mantra of fair use jurisprudence, and educators need to recognize this jurisprudential fact and respond accordingly. They need to generate more and better explanations (the fair use code for media literary, referenced above, being one example), of how educational uses don't just repeat quoted material for its original purposes, but both repurpose that material and add value to it. For educators, this proposition may seem transparently obvious. But this isn't necessarily true for the copyright community in general--or the courts in particular.

In future posts, I'll be going into some more detail about the challenges that educators face. But it isn't too soon to begin to think--and talk--about how to meet them.

Many publishers license digital text for downloading through Amazon.com. Now Amazon is out with the Kindle 2 device, which in addition to displaying the electronic books you purchase will read them aloud to you--after a fashion! This is not (it bears emphasizing) a substitute for conventional recorded books, presented by professional readers and boasting a variety of production values. What the Kindle will generate is synthesized speech, which is serviceable when conventional reading isn't an option and essential for print-disabled "readers" (including the blind and the dyslexic).

Now (on February 12, to be exact) comes the Authors' Guild, an advocacy organization of professional writers, suggesting that someone (Kindle users? Amazon?) is courting copyright infringement liability as a result of the new "Text to Speech" function. This attempted shot across Amazon's bow is at http://www.authorsguild.org/advocacy/articles/e-book-rights-alert-amazons-kindle-2.html, and it makes interesting reading.

There's just one problem with the argument: However great a threat the Guild may discern to the increasingly lucrative recorded book market, its members have nothing to say about this new technology, as far as copyright law is concerned. This leads me to a brief disquisition on why we don't get sued for singing in the shower. It isn't because such amateur performances are fair use, or because the music industry is solicitous of our personal privacy. It is because the itemization of the exclusive rights of copyright owners (in Sec. 106 of the Act) is, itself, exclusive. If a right isn't listed, copyright owners don't have it--period! And where performances (of music or text or anything else) are concerned, the statute only enumerates a right of public performance. (That's also why, once you purchase a record or CD, you can play it until your friends and family are thoroughly bored with it.)

What's true of private musical vocalizations is equally true of reading aloud in our homes or offices or vehicles. And the fact that the reading is being done with the aid of a personal reading device changes nothing. On its website, the Guild states that its Executive Director's remarks on the subject "have been interpreted by some as suggesting that the Guild believes that private out-loud reading is protected by copyright. It isn't, unless the reading is being done by a machine." But why? It's a distinction without a difference, at least where copyright is concerned. If the Guild is pinning its hopes on a court's willingness to treat whatever short-lived buffer copies may be generated by the Kindle's "Text to Speech" function, they should take another look at the discussion of transitory copying from the Second Circuit's 2008 decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 at 129-130.

Nor incidentally, do hundreds or thousands of separate private performances, whether or not machine-enabled, somehow constitute a cumulative public performance. This concept, however we may like or loath it is simply unknown to the law. And it goes without saying that if the users of the Kindle 2 are in the clear, so is Amazon for distributing the device--thanks to the familiar rule that secondary liability for infringement can exist only where there is primary infringement. So here's hoping that Amazon doesn't allow itself to be intimidated by this overreaching assertion of non-existent rights.

Before getting into the substance of my first post to Collectanea, I want to thank the Center for taking me on as its IP Scholar for the next few years. It's an honor and a privilege to follow in such distinguished footsteps -- most recently Georgia Harper's -- and to have the chance (from time to time) to speak to such an engaged audience. In other words, this should be fun!

As you'll discover quickly, I'm a big fan and promoter of fair use -- a user-friendly doctrine in our copyright law that is too often misunderstood and (more critically) underutilized. A lot of my work in the last five years has been around getting different practice communities to recognize and own their fair use rights, and I'll be blogging about the resultant "Best Practices" in fair use documents sometime soon.

Today, however, I want to suggest (somewhat uncharacteristically) that the fair use handle may not be the best one (or, at least, not the only one), by which to pick up the by now widely-publicized controversy between the street artist turned culture hero Shepherd Fairey and the Associated Press. By now, you know the outline of the dispute: AP wrote Fairey to assert that his iconic image of Barack Obama infringed its copyright in a photo taken by a freelancer it had employed. Not waiting to be sued, Fairey fired back (with help from the estimable Fair Use Project at Stanford) seeking judicial declaration that the use was legal. In press accounts, one element of that lawsuit got most stress: the claim that whatever use Fairey had made of the image in question should be considered "fair."

And so it should be (a point to which I'll return) if the dispute ever gets that far. But there are some other copyright questions to consider along the way. As much of a fair use enthusiast as I am, it's always my advice to consider other arguments against liability as well. And in this case, there are plenty of them.

Here's some background:

Back in April 2006, then-Senator Barack Obama attended a press event with actor George Clooney to draw attention to atrocities in Darfur, as described at swamppolitics.com. AP Photographer Mannie Garcia snapped some photographs of the event, including this one:

Ultimately, Barack Obama ran for president, accepting the nomination for the democratic candidacy on the 45th anniversary of Martin Luther King's "I have a Dream" speech and taking the oath of office one day after the national holiday honoring Dr. King's birthday.

Graffiti artist Shepherd Fairey has been an active in politics for over 20 years, and in Barack Obama he saw a candidate worth celebrating and supporting. In early 2007, he came across Garcia's photograph and used it as source material for this painted design:
Apparently, it was Fairey who "found" the striking Obama close-up by cropping Garcia's busy medium-shot of the Senator and Clooney.

The Obama campaign never officially adopted the image (ironically, because of copyright concerns), but nevertheless encouraged Mr. Fairey to make and distribute the posters. The image became one of campaign's central symbols, and the Smithsonian Institute acquired the original for display in the National Portrait Gallery.

So let's analyze the claim. The first question, of course, is whether AP has any rights upon which it can rely. As a freelancer, Mr. Garcia may or may not have been an "employee for hire," but it seems at least likely that AP did contract specifically for rights in works he produced on assignment from them. A more interesting question, then, is whether whatever rights AP had were exclusive or shared ones. Since the early 20th century, it's been a copyright convention in the United States to discount the contributions that photographic subjects make to images depicting them. This is the approach the Supreme Court took in the famous 1884 Burrow-Giles Lithographic v. Sarony case (involving rights in a portrait of Oscar Wilde), and its implications were first documented by Jane Gaines, in her important 1991 book, "Contested Culture: The Image, the Voice and the Law."

In practice, a photographic subject has a lot of responsibility for how he or she looks, at least in a posed or "semi-candid" shot. This may be particularly true of a politician actively involved in cultivating a public image. If the subject were ever considered to be a joint author of a photograph, the implications for legal analysis would be substantial. In this case, for example, Barack Obama would have been in a position to give Fairey legal authorization to make whatever use of the photograph was necessary to create the poster -- making the AP's claim effectively moot. Does the issue of the ownership of Barack Obama's image provide an occasion to reconsider the historically well-established but doctrinally shaky allocation of all rights to the photographer (or the photographer's employer)? Perhaps so. But it could be an uphill battle. So let's consider another argument -- one that doesn't depend on establishing Barack Obama's ownership.

The scope of copyright protection extends only to the elements of the work that are someone's original authorship. We probably all would concede that had Mr. Garcia's photograph been reproduced exactly, in its entirety, something attributable to him would have been taken. But that wasn't the case here. Shepherd Fairey painted his image using a photograph as a reference, rather than transcribing it directly. What, after all, do the two graphic works have in common? One thing is Barack Obama's physiognomy, which is his alone! Another is his pose -- chin uplifted and face slightly turned -- clearly one of the elements that makes the original image (and Fairey's version) memorable. Can the AP (by way of Garcia's authorship) claim that? In the abstract, perhaps, since every since Burrow-Giles we've understood that posing the subject can be an aspect of photographic authorship. In this case, however, it isn't clear that Garcia created the pose, as distinct from happening upon it. Nor is it obvious that had he created it, it would be considered "original." Innumerable high school yearbooks testify to the fact that this is a conventional way of creating interest in a portrait photo. Moreover, it is one that is already familiar from photographs of public figures, including Martin Luther King himself, as photographed by Karsh of Ottawa. In general terms (which are the ones that matter most here) the pose is conventional rather than copyrightable.

So what's left? And -- more to the point -- is it enough? Using the conventional "subtractive" approach to infringement analysis, and beginning by stripping away all the elements of the Garcia photograph that copyright doesn't protect, would we be content to conclude that the Fairey poster design is "substantially similar"? Or are the "original" elements repeated in the poster (the exact angle of the head, for example) simply to few and too trivial to count There's a general rule that the law doesn't stoop to trifles and it applies in copyright infringement analysis. The fact that we excuse rather than penalize so-called de minimis copying of protected material is just another way of assuring that overenthusiastic assertions of protection don't gum up the works of creativity. This may well be such an example.

Of course, if a court were event to reach it, Shepherd Fairey's fair use claim would also have real force. In Garcia's photograph, Fairey "found" a reference to Karsh's famous King portrait - arguably an act of visual commentary or critique. In any event, Fairey took only a portion of the original image (although arguably the most important part), he transformed the image by using it in a new context (fine art/political advocacy v. news reporting) and adding value to it, and he did nothing to undercut the lasting commercial value of the image. About the only argument left is the circular one that if the use were not considered fair, the AP would have been entitled to receive a license fee for it -- and, therefore, that its "market" has been harmed. But recent fair use case law speaks clearly, decisively and negatively to that point. When a use is truly "transformative," we are told, the copyright owner has no valid expectation of licensing revenue for it (or others like it): "[When the use of] images is transformatively different from their original expressive purpose.... a copyright holder cannot prevent others from entering fair use markets...." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006) at 614-615.

Fairey v. AP could be an interesting fair use case, but it is (perhaps) an even more interesting introduction to other copyright doctrines that protect the rights of creators to incorporate elements of the surrounding culture into their own work.

Well, believe it or not, this is my first time posting to the Collectanea blogosphere since the inception of the Center for Intellectual Property's blog in early 2007. (By the way, I'm the CIP's Executive Director- Kimberly Bonner). When the CIP developed the blog in 2007, we envisioned the blog as the primary communication platform for scholars with whom CIP collaborates. Although the CIP anticipated interest in the blog, the response far exceeded our wildest expectations. Collectanea's favor is, in large part, due to the wit and wisdom of Georgia Harper.

For the past 2 years, Georgia has been the primary scholar working with the CIP on educational programming, research and experimenting with the Collectanea blog. Without a lot of assistance, but mountains of creativity and passion, Georgia has helped to create a space online where over 30,000 folks come to read and reflect on Georgia's musings.

I am among Georgia's legions of fans who enjoy thinking about her new ideas and nuanced reasoning. I'm very fond of teachers...probably because I come from a long line of them. I admire Georgia's uncanny ability to take the incredibly complex, break it down and make it incredibly accessible. That's a quality sorely lacking these days- particularly in copyright circles.

Georgia's collaboration as our IP Scholar ended November, 2008. She will still serve on the CIP Board of Advisors, but she will no longer moderate the blog. (I know, I know...let's just pass the Kleenex now and go rent Beaches). But alas, this good thing has come to an end. Please let Georgia know how much you appreciate her work.

In 2009, the CIP will implement many changes. Change appears to be the "buzzword" in the U.S. and it certainly applies to the CIP. The first change will be our new IP Scholar. Peter Jaszi has graciously agreed to collaborate with the CIP for the next two years. Peter is a terrific scholar and professor at American University's Law School. We are excited about this collaboration and hope you are also.

Peter will begin posting to the Collectanea blog in February, 2009. Please visit the CIP's website at www.umuc.edu/cip for more updates on future programming.

Happy Holidays and have a wonderful 2009! Change is definitely in the air....
Kimberly

I have so enjoyed my two years as the Center for Intellectual Property's Virtual Scholar, and my 20 months as your host here at Collectanea. Over these two years, I've kept an eye on and chatted about copyright matters, heard from many of you either in comments or by email, taught two courses for the Center, helped to plan and keynoted for the Center's Annual Symposium and, overall, been very, very privileged to be involved with you and your concerns and interests through the generous sponsorship of the Center. My tenure comes to an end this month and Peter Jaszi will be joining the Center as virtual scholar next year, continuing a wonderful practice that we are all so lucky the University of Maryland University College supports!

I am a contributor to two other blogs and hope that you'll read those posts from time to time if they may interest you: Free the books and The Scholar's Space, the first sponsored by the University of Texas at Austin Libraries, and the second by the Texas Digital Library. My writing for Free the books focuses on the copyright issues involved in identifying public domain and orphan works. That effort stems from UT's participation in the Google Book Search project, which generates digital copies of all of the books in our Benson Latin American Collection, but it will extend to issues associated with ascertaining the copyright status of all works, not just books. The Scholar's Space focuses on open access and other issues associated with scholarly communication. And again, these issues spill out to other forms of communication. It's a web, right? Everything is connected to everything else.

I certainly wish all of you who address copyright issues in your day-to-day the very best of luck. More than that, May you have the determination, the confidence, the courage and the wisdom to meet the challenges you will face today and everyday. May you be happy!