Comments by the federal judge overseeing the copyright dispute arising out of the Google Books project could portend a lasting effect on reproductions of visual arts. Elevating the question of social benefit in a fair use analysis, Judge Denny Chin of the U.S. District Court for the Southern District of New York posed a question that, applied broadly (which is no theoretical proposition where Google is involved) could turn fair use analysis on its head. Time will tell if the comments were oral argument musings or something more lasting.
Fair Use and Social Utility: Google Books Case Could Drive Copying of Visual Arts in the Name of Access
Posted by
Nicholas O'Donnell on September 30, 2013 at 5:15 AM
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Topics: Google Books, 17 U.S.C. § 107, Copyright, The Authors Guild, Judge Denny Chin, Fair Use
Fair Use and DMCA Take Down—Lawrence Lessig Sues Over YouTube Use of “Lisztomania”
Posted by
Nicholas O'Donnell on August 28, 2013 at 5:39 AM
One of the lurking issues in the murky waters of copyright fair use is the takedown notice provision of the Digital Millennium Copyright Act of 1998 (the “DMCA”). The DMCA, codified at 17 U.S.C. § 512, implements two 1996 World Intellectual Property Organization treaties and absolves internet service providers (“ISPs”) who disable allegedly infringing content when notified by the copyright holder. In practice, this is known as a “takedown notice,” and serves to protect ISPs like YouTube from secondary infringement if a user posts something with infringing content (the easiest example being an unedited clip of a copyrighted movie). Copyright holders patrol the internet to various degrees, but § 512 gives the holders a tool to encourage compliance, and ISPs a way not to be sued out of existence.
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Topics: World Intellectual Property Organization, ISPs, Copyright Act, Digital Millennium Copyright Act, DMCA, Viacom, YouTube, Eldred v. Ashcroft, Lawrence Lessig, Copyright, 1998 Sonny Bono Copyright Extension Act, Liberation Party Music Ltd., 17 U.S.C. § 512, Fair Use, Harvard Law School
A Primer on Transformativeness: Green Day Proves Fair Use of Image in Concert Video
Posted by
Nicholas O'Donnell on August 9, 2013 at 10:34 AM
The Ninth Circuit has ruled in favor of the band Green Day in a copyright case that gives much better guidance on fair use and transformativeness than this year’s earlier Prince v. Cariou Second Circuit case. Despite copying an entire image, in the backdrop of a video that showed onstage at a multi-million dollar concert tour, the appeals court upheld judgment in Green Day’s favor because the use added new meaning and purpose, and thus was transformative. It is a victory for expressiveness, but more importantly, a useful set of instructions that Prince failed to give.
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Topics: Cariou v. Prince, Derek Seltzer, Roger Staub, Graffiti Art, Green Day, 21st Century Breakdown, East Jesus Nowhere, Copyright, Ninth Circuit, Jesus Christ, Performance Environmental Design, Scream Icon, Fair Use
No Infringement in Cariou v. Prince—Second Circuit Plays Art Critic and Finds Fair Use
Posted by
Nicholas O'Donnell on April 25, 2013 at 11:11 AM
Two years after a U.S. District Court decision that sent shock waves through the contemporary art world, the Second Circuit Court of Appeals has reversed that earlier finding that Richard Prince infringed the copyright of Patrick Cariou. Instead, the appeals court ruled that all but five Prince works at issue were fair use under the Copyright Act, remanding the case to re-analyze those five works. It is as dramatic a win for appropriation art as the lower court decision was a chill on that art.
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Topics: Andy Warhol Foundation, Richard Prince, Copyright Act, Graduation, Second Circuit, Canal Zone, Patrick Cariou, Charlie Company, appropriation art, Meditation, Yes Rasta, Clifford Wallace, Warhol, Cézanne, Copyright, Canal Zone (2008), de Kooning, Picasso, Fair Use, Google, Canal Zone (2007)
Public Domain Rights and Copyright Clash Over The Wizard of Oz and Gone with the Wind
Posted by
Nicholas O'Donnell on January 6, 2012 at 4:15 AM
The 8th Circuit recently weighed in on the topic of public domain images and copyrighted characters. As my colleagues Kimberly Herman, Michael Matzka and Laura Stacey explore in greater detail in an advisory about the decision, a number of merchandisers were using images from public domain posters and lobby cards from movies like The Wizard of Oz, Gone with the Wind, and Tom & Jerry. Although the posters themselves were in the public domain (and complete reproductions of those posters were not infringing) the 8th Circuit analyzed further the status of the characters, not merely the images of them. A balance is struck between the right to make derivative works from public-domain images (protected) versus uses that conflict with further development of the character by the copyright holder (infringing). Also discussed is the difference between a character from a public-domain book (e.g. The Tin Man) and an original creation in the film (Tom or Jerry). My colleagues’ treatment of the decision fleshes these points out in fuller depth.
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Prince Copyright Appeal: Warhol Foundation Makes the Case to Reverse Infringement Finding
Posted by
Nicholas O'Donnell on December 8, 2011 at 6:24 AM
After several months of inactivity, the first brief is available in the Richard Prince appeal of the judgment against him and the Gagosian Gallery earlier this year for infringing on the works of Patrick Cariou. Prince’s arguments of “fair use” of Cariou’s photographs failed to persuade the District Court and the infringing works were ordered impounded, a harsh and unusual remedy.
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Topics: Richard Prince, Canal Zone, Patrick Cariou, Dada, Association of Art Museum Directors, Copyright, Gagosian Gallery, Fair Use, Andy Warhol Foundation for the Visual Arts
Richard Prince Copyright Appeal Survives Cariou Motion to Dismiss
Posted by
Nicholas O'Donnell on September 20, 2011 at 1:59 PM
The Richard Prince copyright case is in the news again, though probably more than it deserves. Patrick Cariou, whose photographs Prince was found this spring to have infringed, moved to dismiss Prince’s appeal arguing that the injunction concerning the impoundment and destruction of the existing works (Prince was ordered to deliver them for destruction) was mooted by a stipulation between the parties. Thus, Cariou argued, there was nothing at the moment to appeal (i.e. Prince appealed to soon).
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Topics: Richard Prince, Canal Zone, Patrick Cariou, Copyright, Gagosian Gallery, Fair Use
