Fair use quandary

The copyright “fair use” dispute continues between the AP and its freelance photographer Mannie Garcia — who took a 2006 photo of then-Senator Barack Obama — and poster artist Shepard Fairey, who has sold thousands of T-shirts and other nick-nacks with his colorized version of the Obama photo. (There’s even a Flash 10 website where you can colorize your own photo).

It is not clear how much Fairey has made off of the Obama image. Six months ago, the estimated pretax(?) profit was $400K, but that must be much higher by now. From one rendering alone — an inaugural poster — the gross revenues would be $1.4 million if it sold out. It seems like a conservative estimate of the gross revenues would be $3 million or more, with gross margins of 50% or more.

The AP countersued Fairey last week, saying that the artist had broken off discussions of licensing rights to the AP photo:

The cooperative said it tried to work out a license agreement with Fairey and agreed to donate proceeds from his prior use of the photo to a charitable fund that helps AP staffers who suffer personal losses in natural disasters and conflicts. Fairey cut off negotiations, the AP's lawsuit said.

The most detailed legal argument can be found from Carolyn Wright at her Photo Attorney blog. Some representative commentaries thus far:

• For Fairey and derivative works: Erick Schonfeld on TechCrunch, Larry Lessig (whose lawyers are representing Fairey)
• For the AP and copyright: Dan Wasserman of Boston.com.
• A plague on both their houses: Joel West of you who who.
• Strangely silent: IP law professor Mike Madison and friends at Madisonian.net; are they reluctant to criticize their friend and colleague for his efforts to use “free culture” to kill IP law once and for all?

On Monday, publishing executive and amateur IP economist L. Gordon Crovitz weighed in on the controversy. His “Information Age” column in the WSJ continues to grow in my estimation, as one of the few places where the economic realities of information business models are considered without predictable pandering to one side or the other.

Crovitz also starts out with the “plague on both their houses” approach, but eventually sides with the AP. While this might seem predictable for the former WSJ publisher, his version is far more nuanced than last Friday’s plea from ABC News president (and AP board member) David Westin.

Crovitz seemed offended by the scofflaw approach by the nominal artist:

As for Mr. Fairey, instead of agreeing on a licensing fee, he worked with Stanford University's Fair Use Project to sue the AP, claiming that the poster was fair use of the photo. The Stanford group, founded by Lawrence Lessig, favors fewer protections for copyright. In Mr. Lessig's recent book, "Remix," he rightly criticized many copyright claims. He cited the lawsuit brought by Universal Music against a woman for posting on YouTube an amusing clip of her infant dancing to a song by Prince. There's no opportunity to license snippets of songs and no harm done to Prince.

But this case is different. The AP and Mr. Garcia make their livings selling their work. As a reader commented on Mr. Lessig's blog, "I don't think photographers, professional and amateur, are going to appreciate free-culture types saying that their work is not creative since it only took a second to snap a picture."

The less-copyright-is-always-better crowd has an odd champion in Mr. Fairey. He earned street cred by being arrested for graffiti and uses imagery from Che Guevara and the Black Panthers, but such rebellion is now so establishment that he designed a current ad campaign for Saks Fifth Avenue. He and his lawyers often complain about alleged infringements of his copyrights by other designers.

Digital technology complicates copyright, but technology doesn't override the importance of showing respect for the work of others.

Claims of fair use reiterated from Feb. 5.

Obama poster: AP, IP, and FU

The late night news had a hilariously ironic story about the money artist Shepard Fairey made off of the most famous poster for Sen. Obama’s. The Associated Press is suing the artist asking for a piece of the action.

As the AP reports on AP’s dispute:

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement. "AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

"We believe fair use protects Shepard's right to do what he did here," says Fairey's lawyer, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

This story works on so many levels. There are no clean hands, and is much like Captain Renault saying he is “shocked, shocked” to discover gambling in Morocco.

AP is the same AP that has spent the last five years taking text and image content from its dying newspaper members — who spend most of the money in the US to gather it — and then providing it to the same companies (i.e. Google and Yahoo) that are putting newspapers out of business.

Meanwhile, in an interview with the artist, Fairey used laziness (rather than scholarly or artistic license) for using the photo without rights.

…the idea of hijacking things was almost part of the concept rather than it being looked at as appropriation or plagiarism. It's like, "F*** you if you don't like that I'm using this, 'cause I'm using it anyway. I have no money and no power so you can't get anything from me anyway." …

Aspects of that have remained with me. When I did my Obama image, I just found my image from an AP news photo on Google and illustrated from that. There was no time to get Obama to do a sitting or license a photograph. I felt I needed to get the image done and out there right away. So part of that is still with me.

Finally, this seems to be encouraging rather than discouraging even sillier IP ideas. According to the LA Times, the administration is trying to control all rights to the president's image

The Ticket also reported the other day that White House lawyers are exploring ways of protecting the copyright of the new president's image like this. And we said good luck with that around the Obama-loving world.

This is coming from the administration that talked about openness and reportedly is interested in an open source mandate.

Besides the PR problem of such a ham-handed effort, there is also the issue of legal feasibility. While I defer to real lawyers, I suspect this image control strategy is doomed to fail: it was tried by our Governator here and only achieved minor success.

Photo credit: AP photo and Fairley poster used under a claim of fair use; the latter was redistributed by AP without prior license (presumably under a claim of fair use).

Copyright common sense

Regular readers know that I’m generally pro-IP and pro-IP business models. Properly structured, intellectual property rights reward innovation and creativity, giving us more and better.

However, I’m cheering a victory tonight against the overstretch of the “copyright cartel” (as their opponents demonize them). The case involves a YouTube video and a lawsuit filed by Universal Music against YouTube here.

Here’s tonight’s SF Chronicle update of the AP story:

(08-20) 19:58 PDT San Jose -- In a victory for small-time music copiers over the entertainment industry, a federal judge ruled today that copyright-holders can't order one of their songs removed from the Web without first checking to see if the excerpt was so small and innocuous that it was legal.

The ruling by U.S. District Judge Jeremy Fogel of San Jose was the first in the nation to require the owner of the rights to a creative work to consider whether an on-line copy was a "fair use" - a small or insignificant replication that couldn't have affected the market for the original - before ordering the Web host to take it down.

A 1998 federal law authorized copyright-holders to issue takedown orders whenever they see an unauthorized version of their work on the Internet, without having to sue and prove a case of infringement. Some advocates of Internet users' rights - including the Electronic Frontier Foundation, which represented the individual user in this case - contend the procedure has been abused.

The principle of fair use is that society benefits by allowing certain exceptions to an absolute copyright control, allowing both small amounts (such as my story quote above) and for specific purposes (such as for commentary, research or scholarship). Playing 15 seconds of a song in a documentary about the music scene is different than putting an MP3 file on Gnutella.

The law is also quite clear that “fair use” has limits. In the case of Gerry Ford’s memoirs, The Nation published only 300 words from an illicit copy of the book, but it was enough to kill a deal the publisher had to serialize a larger excerpt in Time. The Supreme Court ruled that even this brief excerpt violated fair use because of the impact on the publisher’s business.

Thus, today’s ruling is no guarantee of victory for the defendant, a mom who used 29 seconds of a Prince song in a YouTube video of her toddler. That is as it should be — whether some use is “fair use” is a question of fact to be decided at a trial.

But it means that the DMCA has to conform to the same principles of copyright as any other copyright law. Perhaps the record industry will now be a little more judicious (and reasonable) in challenging use of its work. Given Hollywood’s difficulty in dealing with the Brave New World, somehow I doubt it.

Technology vs. price discrimination

Sling Media has been making a cool box (the Slingbox) for several years for sending signals from your home TV tuner over the internet to your laptop on your business trip. I don’t travel consistently enough to pay for it (plus I’m cheap) but I always thought it was a cool idea and something I’d like to have. Instead, I just run the VCR when I’m traveling and catch up when I get home.

This week, Major League Baseball has threatened Slingbox with a lawsuit. Its gripe is that Slingbox (despite limited adoption) threatens its business of selling out-of-town TV rights (and potentially local blackouts).

The two sides don’t seem to have studied the same IP law. For the content owners:

“Of course, what they are doing is not legal,” MLB general counsel Michael Mellis told the publication.

versus the response from the Consumer Electronics Association:

“This is a classic instance of copyright owners trying to suppress innovation purely because it empowers consumers,” CEA President Gary Shapiro said in a statement. “There is no infringement or piracy here — consumers are simply watching content they lawfully purchase (or receive free over-the-air) in a different physical location.”

If I have the right to watch the SF Giants at my home in San Jose on a Saturday at 1pm, what are my other rights? Under Sony v. Universal (the Betamax case), I have a right to record it on a videotape and watch it at 4pm, or on Sunday, or the next week. Or to take that videotape with me to another town. Or — by extension — to record it on a hard disk and take it with me.

How is the Slingbox case different than taking a videotape with me? They’re both personal use — taking my legitimate right from my home to shift it in time (or space). There is always the question as to whether the facts are different enough to nullify existing precedent, e.g. whether the immediacy of watching a live sporting event (live in a different city) is different than ordinary time-shifting.

This dispute points out the whole problem of the global Internet colliding with IP rights being segmented/sold/licensed on a geographic basis. Apple uses IP addressees for its iTunes store, to make sure that download rights are mapped consistent with the nation-by-nation rights that the record companies have.

It’s up to a court to decide if MLB can use copyright law to protect its business model against new technologies. Certainly Pam Samuelson would fight to prevent the content owners from infringing on existing fair use precedents.

Technorati Tags: business models, fair use, intellectual property, video

Using fair use to attack fair use

On Friday, Lucasfilm released clips from its Star Wars movies on Eyespot, a San Diego company that both hosts a website and produces editing software. As I noted in my SD Telecom blog, Eyespot’s cooperation with licensed content is in stark contrast to the GooTube business model.

On his Madison.net blog, Mike Madison added a copyright law wrinkle I hadn’t considered:

Of course, once Lucasfilm blesses the remixing, a couple of things happen. One, the resulting remixes aren’t necessarily examples of “fair use”; so long as the mixers follow Lucasfilm guidelines, their mixes are authorized. Two, Star Wars remixes that don’t rely on the authorized clips begin to look a bit less like fair use than they might otherwise; here again, there is a copyright owner that is authorizing parodies. Under a typical four-factor analysis of fair use, avoiding an authorized “market for parodies” appears to cut against the user.

That’s a really clever angle — don’t know if it took a lawyer to come up with, or only a lawyer to spot it.

The fair use law makes quite clear that anything that diminishes the value of the original looks less like fair use. Since Lucasfilm/Eyespot eventually plan preroll ads to support their website, parodies that bypass the site will be undercutting Lucasfilm’s business, and thus less likely to be considered “fair use.”

Some are whining that Lucas is tightly controlling the clips with possible censorship (e.g. against Princess Leia as a porn star). But if Lucas didn’t exert some control, then it would lose the ability to go after others who diminished the value of the franchise.

As for complaints that Lucas isn’t sharing advertising proceeds for user-generate content, where is this true? Geocities? Yahoo Groups? Blogger? YouTube? Hotmail? I think everyone knows that “free” on the web means “I don’t pay but others sell ads.”

Technorati Tags: business models, copyright, fair use, Web 2.0, YouTube