Monday, November 9, 2009

Is Fair Use Really Fair?

By Samuel Lewis Published in The Business of Photography
Is Fair Use Really Fair?
One of the most perplexing and confusing aspects of copyright law is the concept of "fair use." Of the various limitations on the rights that copyright owners have under U.S. copyright law, fair use is the most widely known. Given the tremendous amount of confusion associated with this doctrine, and the difficulties involved in applying the current statutory embodiment of fair use to real-world situations, it's hardly surprising that fair use also has become what's perhaps the most contentious limitation on the rights that copyright owners enjoy today.

Fair use originated as a judicially created doctrine that permitted an accused infringer to use copyrightable material without the consent of the copyright owner. In effect, the doctrine limited the rights afforded to copyright owners in certain circumstances. While fair use didn't appear in the earlier versions of U.S. copyright law, it was added to the last major rewrite, the Copyright Act of 1976. The doctrine is now codified at 17 U.S.C. §107. As codified, fair use is "not an infringement of copyright" for certain types of limited purposes; the statute even includes several examples of such purposes, including criticism, commentary, news reporting, education and research.

What makes fair use a difficult concept has been succinctly summed up in one of the Copyright Office's fact sheets: "The distinction between fair use and infringement may be unclear and not easily defined." The Copyright Act itself provides four factors to be considered when attempting to determine whether a use is a fair use; however, the factors provide little guidance, particularly to non-lawyers.

The Four Fair Use Factors

The current fair use statute includes four factors that courts are to consider when attempting to determine whether a particular use is a fair use:

  • the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion of the copyrighted work used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

The problem that becomes readily apparent is that these factors provide very little guidance as to what constitutes fair use and what constitutes infringement. This is particularly true when attempting to determine whether use of a photograph constitutes fair use. It doesn't help that two different courts can be confronted with a similar set of circumstances, apply the same set of fair use factors and reach entirely opposite conclusions. Such discrepancies promote a cynical view: Instead of judges analyzing the factors and reaching a conclusion, a judge makes a gut decision and then uses these malleable factors in order to justify that decision. The reality is that this is one of the paradoxes of fair use, namely, that two people can view the same use and come to completely different conclusions.

While each of the four fair use factors must be considered when attempting to determine whether a particular use is a fair use, a 1985 U.S. Supreme Court decision somewhat reminiscent of the Orwellian notion that "all animals are equal, but some animals are more equal than others" provides some guidance. In Harper & Row Publishers, Inc. v. Nation Enterprises, the Supreme Court decided that the fourth factor—the effect of the use upon the potential market for or value of the copyrighted work—is "undoubtedly the single most important element of fair use."

Even with the Supreme Court's limited guidance, performing a fair use analysis is hardly a trivial matter. As Stanford law professor Lawrence Lessig said during his keynote address at a New York University seminar entitled "The Comedies of Fair U$e," "[t]his is a law written for lawyers." Surprisingly, Lessig admitted during the same seminar that he's "against fair use. It's not that I think it's a bad thing; I think the world with fair use is better than the world without it. But what I'm against is the way that fair use shifts the focus of the debate from important questions that we ought to be thinking about as we recognize the way digital technologies have changed the way culture gets regulated."

Perhaps the best thing that can be said of the fair use factors is that they don't translate easily to real-world situations, particularly when dealing with photographic works.

Fighting Over Fair Use

Fair use is at the center of a lawsuit pending in New York brought by photographer Patrick Cariou against artist Richard Prince. Some may remember Prince as the artist The New York Times dubbed a pioneer of "appropriation art," who photographed other photographers' photographs and then exhibited "his" work in galleries, including a major exhibit at the Guggenheim in late 2007. In this case, filed in the U.S. District Court in New York at the end of December 2008, Prince is alleged to have appropriated Cariou's photographs appearing in the book Yes Rasta and created a series of paintings incorporating copies of the photographs. Prince has defended his actions on fair use grounds. The case appears set to go to trial in mid-2010.

The case that has garnered more publicity, however, is the lawsuit between Shepard Fairey and the Associated Press regarding Fairey's Barack Obama HOPE poster and a photograph that Mannie Garcia created while on assignment for the AP. Fairey, who's represented by Professor Anthony Falzone and the Center for Internet and Society at Stanford Law School, filed a complaint in federal court in New York seeking declaratory relief—in this case, a court declaration that his HOPE poster doesn't infringe the copyrights associated with the AP photo, or in the alternative, that Fairey's use of the photo constitutes fair use.

Fair use originated as a judicially created doctrine that permitted an accused infringer to use copyrightable material without the consent of the copyright owner
Falzone, who's also the executive director of the Fair Use Project—a project with the self-described purpose of clarifying and ex-tending "the boundaries of 'fair use' in order to enhance creative freedom"—concedes in his blog that Fairey used the AP photo "as a visual reference in creat-ing the Obama Hope poster that became a ubiquitous symbol of President Barack Obama's campaign." According to Falzone, the Fair Use Project filed suit on behalf of Fairey "to vindicate his rights, and disprove the AP's accusations."

One of the aspects that may militate against a finding of fair use is the proceeds generated from the sale of HOPE posters. According to the allegations of the complaint, the company owned by Fairey and his wife sold the initial run of 350 HOPE posters for $45 each and then used the proceeds from the sale of the first run to print additional posters. By Election Day, Fairey's company had sold approximately 4,000 posters at the same rate. The complaint also alleges that Fairey's company used the proceeds from poster sales—which, although not stated in the complaint, appear to be approximately $180,000—to print and distribute nearly 300,000 posters for free. Thus, the court could very easily conclude that Fairey's purposes were commercial in nature (even if he did use the proceeds to distribute additional posters for free). While the distinction of commercial versus noncommercial isn't determinative by itself, it does make for a more difficult fair use case unless Fairey can show that his HOPE poster had a positive effect on the market for Garcia's photograph.

The Fairey-AP case has developed an interesting twist. In early July, Garcia's lawyers filed a motion to intervene in the action, asserting that Garcia is the rightful owner of the copyrights of the photo at issue in the Fairey-AP litigation. If permitted to intervene, Garcia seeks to recover damages for copyright infringement and to cancel Fairey's copyright registrations. It's too early to determine what effect, if any, Garcia's intervention will have on the progress of the case.

Fair Use Foibles

Given the confusing nature of the fair use factors, and in light of the efforts of various groups advocating to expand the scope of what constitutes fair use, it's hardly surprising that nonlawyers have a somewhat skewed sense of what constitutes fair use.

Recently, The New York Times found itself in the unenviable position of having to do damage control after one of its writers suggested using images downloaded from the Internet photo-sharing site Flickr to decorate her apartment.

On June 24, 2009, Sonia Zjawinski admitted in The New York Times' Gadgetwise blog entry "Flickr as an Interior Decorating Tool" ( that she regularly visits the Flickr photo-sharing website in search of photographs to download, print, frame and hang in her New York apartment. As Zjawinski explained, "[a]nd if you're wondering about copyright issues (after all, these aren't my photos), the photos are being used by me for my own, private, noncommercial use. I'm not selling these things and not charging admission to my apartment, so I think I'm in the clear."

It didn't take long for Zjawinski's suggestion—which many viewed as an endorsement for stealing copyrighted images—to generate a re-sponse. Within roughly 24 hours, 50 follow-up comments had been posted to the blog, ranging from suggestions that The Times take down the article to outright attacks on The Times' journalistic integrity (234 responses were posted as of the writing of this article). More than a few responses described Zjawinski's actions as "illegal" and even bluntly described it as "theft."

In an effort to justify the original column, Zjawinski and The New York Times published a follow-up column two days later. Far from being the apology or clarification readers and commentators had suggested would be appropriate, Zjawinski reported her conversation with Falzone. Falzone suggested that Zjawinski's situation with Flickr was analogous to the 1984 Supreme Court decision of Sony Corporation of America v. Universal Studios. In that case, the Supreme Court held that Sony couldn't be held liable for contributory copyright infringement because the device they manufactured, the VCR, had substantial noninfringing uses. In plain English, the manufacturer of a VCR wouldn't be responsible for encouraging the illegal copying or recording that might be done with the VCR since there also were many legal uses for the VCR.

Falzone, however, focused on the activity that Universal Studios complained of, namely that the VCR would permit home viewers to engage in what was called time-shifting—recording televised programs for personal viewing at a later time—which the Supreme Court determined to be fair use. Ultimately, Falzone suggested to Zjawinski that "if someone decides to download an 'All Rights Reserved' image from Flickr and put it on their PC desktop or print it out at home, they should be covered under fair use" under the same rationale that applied to time-shifting.

In truth, attempting to draw parallels between time-shifting and using images copied from Flickr for interior-decorating purposes may not be an entirely fair comparison. The problem with such a comparison becomes apparent when the fourth of the fair use factors is applied to the two situations. In the case of a televised program, it easily could be argued that time-shifting doesn't negatively impact the market for the televised program (considering the number of times that programs are rerun on television, this argument becomes even stronger). In the case of photographs displayed on Flickr, however, an argument easily could be advanced that downloading and printing the images without consent has a very real impact on the market for the work. If people could simply copy and print such images, they would never pay the photographer for a legitimate copy of the same print, and the photographer would be deprived of the rewards that the U.S. Constitution and Congress intended the photographer, as a copyright owner, to receive.

Another troubling aspect of the comparison is that it fails to take into account changes to copyright law since the U.S. Supreme Court's decision in Sony Corporation of America. In 1997, Congress passed the No Electronic Theft (NET) Act, which broadened the scope of what constitutes criminal copyright infringement. One of the key changes was to extend criminal penalties to instances of infringement, even when no money is charged.

Fortunately, it doesn't appear that everyone at The New York Times shares Falzone's views regarding fair use. Shortly after Zjawinski's controversial suggestion was published, Times Assis-tant Managing Editor Michele McNally published an answer to the question of whether she endorsed Zjawinski's view "that it is perfectly acceptable to steal copyrighted images from the Internet" and whether it's a "good idea for The New York Times to seemingly endorse such views by publishing them." In response, McNally wrote, "I have received a number of queries about Ms. Zjawinski's recent post on Gadgetwise, a New York Times blog about personal technology, in which she discussed downloading and printing Flickr images for use as home décor. Here is where The Times stands on the issues that have been raised about the post: We are strong proponents of copyright protection. The New York Times does not endorse, nor is it our policy to engage in, the infringement of copyrighted work. We apologize for any suggestion to the contrary."

As an interesting postscript, on June 29, Zjawinski revised her article "[t]o address questions raised by the original," and to clarify that, "in keeping with the policy of The New York Times," photographs are "used only if permission is granted by the rights holder." Despite these revisions, Zjawinski maintained the original language "[a]nd if you're wondering about copyright issues…." However, at the risk of stating the obvious, there would be no need to wonder about such issues if the owners of the photographs had granted permission.

Extending Terms And Increasing Fair Use Tensions

One of the tensions at play in the fair use debate is the fundamental reason why copyright exists, namely to provide an incentive for people to create.

When responding to some of Lessig's arguments regarding fair use at "The Comedies of Fair U$e" seminar, Allan Adler, the vice president for Legal & Government Affairs for the Association of American Publishers, highlighted this tension when illustrating the misguided view that many people have regarding fair use. For example, according to Adler, many people have the mistaken belief that "any educational use of a copyrighted work is fair use. Well, if that's the case, how are we supposed to have an industry in this country, as indeed, the public and our government want us to have, for people who will constantly be investing in ways to improve education, in part, through the constant improvement and creation of new and better education content with which our teachers can instruct students in school. If it's all free simply because it's being used for educational purposes, how is somebody supposed to invest in what it takes to create a textbook?"

However, as the term of copyright protection has been extended, the debate also has turned on whether copyright law, in its current form, still exists to advance the arts and sciences, or whether it now exists for the sake of entrepreneurialism. Unsurprisingly, many who believe that fair use as it currently exists stifles creativity also believe that the term of copyright protection has been extended to the point where copyright law no longer serves its intended purpose.

In the United States, the authority for copyright laws was included in the same document that created the entire American system of democratic government: the U.S. Constitution. Article I, Section 8 of the Constitution—which establishes the powers of the legislative branch of government—includes the power to"promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

To understand the significance of this foundation, a brief history lesson is necessary. By the time America's founding fathers authorized Congress to enact copyright laws, the very concept of copyright laws was fairly well accepted, even if that concept was a relatively new one. The founding fathers, drawing upon their English heritage, had as an example the Statute of Anne—named after the ruling monarch at the time the law was enacted—also referred to as the Copyright Act of 1709. The law, which went into effect on April 10, 1710, is considered by many to be the first real copyright law. More importantly, the Statute of Anne represented a fundamental shift in thinking; previously, the rights to publications were vested in publishers rather than authors.

Although a relatively new concept, the Statute of Anne was fairly well-accepted 80 years later when John Adams wrote the Massachusetts Constitution in 1779 and married the concepts of exclusive rights afforded under the Statute of Anne with the importance of education, sciences and the arts as "being necessary for the preservation of...rights and liberties" in a provision entitled"[t]he Encouragement of Literature, etc." Adams' inspiration not only would enjoy unanimous approval in Massachusetts, but it also would have a direct impact upon the U.S. Constitution, and in turn, on the first U.S. copyright law when Congress passed the Copyright Act of 1790.

The term of copyright protection under the first U.S. copyright law was 14 years (renewable for a second 14-year term). In the years since, Congress has extended the term of copyright protection. Including the most recent changes, the current term of copyright protection under U.S. law is 70 years after the author's death; for works made for hire, the term is the shorter of 95 years from first publication or 120 years from the date of creation. This drastic difference in terms of copyright protection has caused some to question whether current copyright law is still serving the purpose for which it was created.

Addressing this point, Lessig has said that, while he believes "most copyright and patent law does promote progress...there is an important and growing list of exceptions." As an example, Lessig suggests that "extending the terms of copyrights for works that already exist does nothing to promote progress."

Still, others have attempted to defend the lengthening of the terms of protection. Some have suggested that Congress was only attempting to keep pace with what it believed necessary to continue to incentivize those creating copyrightable works. It also has been suggested that Congress was merely attempting to harmonize U.S. copyright law with the terms of copyright protection commonly provided in Europe and elsewhere.

The debate over the term of copyright protection, and whether copyright law is consistent with its constitutional purpose, reached something of a zenith in the U.S. Supreme Court case of Eldred v. Ashcroft. Eric Eldred, an Internet publisher, and various other entities, challenged the constitutionality of the Sonny Bono Copyright Term Extension Act, passed in 1998, which extended the term of copyright protection by 20 years. Despite Lessig's arguments—he served as lead counsel for the challengers—the Supreme Court upheld the constitutionality of the legislation.

In light of the Supreme Court's decision to uphold the current term of copyright protection, the tension between the current limitations on fair use and the fundamental reasons why copyright law exists—the progress of science and useful arts—will continue for the foreseeable future.

Reconciling Fair Use

Although Picasso is credited with once saying that "good artists copy, great artists steal," the statement suggests he wasn't terribly concerned with fair use issues. What's inescapable, however, is the reality that as each photographer matures—like any other artist—each tends to integrate aspects of other photographers' styles and works into what becomes the photographer's own, unique style. In most cases, this integration takes place without directly impacting copyright and fair use issues.

Today, however, there are some who question whether fair use in the United States is no more than the right to hire a lawyer to defend the right to create. While that might appear to be the case as a result of cases like those involving Shepard Fairey and Richard Prince, those cases are, relatively speaking, isolated incidents. It's also something of an exaggeration to suggest that because Fairey and Prince may face liability for their acts, the right to create has been curtailed.

There's no question that fair use, at least as it exists in the United States, can be terribly confusing, complex and unpredictable. However, as even Lawrence Lessig concedes, "I think the world with fair use is better than the world without it." Undoubtedly, the debate about whether fair use is fair will continue, unabated, for years to come.

Recent Developments

Shepard Fairey dealt his case a setback by admitting that the Obama HOPE poster was based upon a different Mannie Garcia photograph. In papers filed with the court on October 16, 2009, Fairey's attorneys admitted that Fairey was mistaken when he originally identified the Garcia photograph of George Clooney and Barack Obama as the reference used to create the now iconic poster. According to a statement published on Fairey's website, Fairey admitted that a different Garcia photograph—a tighter image of Obama alone and, notably, the image that the AP has long asserted Fairey used—served as the basis of the HOPE poster.

The papers filed with the Court also admit that after Fairey realized his mistake, he attempted to destroy the files he actually used when creating the HOPE poster.

In the wake of these revelations, Fairey issued a public apology, taking responsibility for submitting false images and deleting other images. Various reports also suggest that Fairey's lawyers intend to withdraw from the case.

While the basic fair use issue hasn't changed, Fairey's admissions create several significant problems for his case. The fair use argument is more difficult given the amount and substantiality of the Garcia photograph Fairey now admits was used to create the HOPE poster. In addition, Fairey's admissions—including his public apology—may be used at trial to undermine his credibility. Only time will tell how significant an impact this combination of factors will have on the outcome of the case.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it..
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