David Newhoff, Author at The Illusion of More

Brammer Appeals Unsound Ruling in Otherwise Simple Copyright Case

In June, I wrote about the deeply flawed ruling in Brammer v. Violent Hues after the District Court for the Eastern District of Virginia handed down some rather inscrutable opinions about an otherwise straightforward copyright infringement case. A production company company called Violent Hues used a photograph belonging to Russell Brammer on a website for the purpose of promoting a film festival. The district court held that the use was a fair use predicated on errors of both fact and law, which are now enumerated in Brammer’s appeal to the Fourth Circuit, filed on October 22. I suspect Brammer will prevail in this appeal, but I wanted to comment on one aspect of the response.

In the days before a now woefully unclear principle called “transformativeness” was introduced to the fair use doctrine (see discussion here), Brammer would have been a very simple case. A photograph was copied and displayed for commercial purposes and used without a license. The defendant would not have a leg to stand on, and the complaint would end in settlement.

But as described in this recent post about Richard Prince’s unlicensed use of Donald Graham’s photograph to make “fine art,” various parties have sought to leverage the ambiguous nature of “transformativeness” in order to assert that it means little more than using a protected work in a context the original author had not exploited at the time of the infringing use. I know that’s a mouthful, but such is the nature of twisted logic.

In Brammer, the lower court held that Violent Hues had only made use of the informative aspect of Brammer’s photograph, displaying it in an informational context on a website, and so this was different from the photographer’s original, expressive purpose. This line of reasoning is fraught with destructive implications; but one comment I made half-jokingly in my June post was that if, indeed, a court were able to identify two images (one expressive, one informative) in a single photograph, then Mr. Brammer ought to sue for infringement of his right to make derivative works.

I say this was only half joking because, as Brammer’s appeal points out, one significant pitfall of an over-broad interpretation of “transformativeness” is that it can eliminate the author’s right to prepare derivative works as protected under copyright law §106(2). In fact, the brief refers to a highly-controversial ruling by the Second Circuit which held that Richard Prince (yeah, him again) had made fair use of several photographs belonging to Patrick Cariou, stating “Cariou and its predecessors in the Second Circuit do not explain how every ‘transformative use’ can be ‘fair use’ without extinguishing the author’s rights under § 106(2).”

So, I wasn’t really kidding. Either the district court erred in holding that a photograph can be metaphysically split into identical twins with entirely separate identities, or Violent Hues infringed Brammer’s right to prepare his (expressive) work as a derivative (informative) work. Spoiler: the initial parsing of the image by the district court is preposterous as a matter of law, art, culture, and basic reason.

The brief goes on to assert, “The Second Circuit heard the criticism [about the derivative works right] and received the message that its post-Campbell holdings went too far. In subsequent decisions, it dialed back what can qualify as transformative, holding that the Google Books and Cariou cases presented unique factual circumstances, and limited what can be viewed properly as a transformative justification.”

As addressed in other posts, the “transformativeness” doctrine is a squirrelly little bugger. It has caused splits among circuits and, as we see in Brammer, can result in a federal appeal where settlement should have been the natural outcome. It seems likely that before long the Supreme Court will need to chisel this particular doctrine into some kind of coherent shape. As such, rights holders should demand that its meaning remains tethered to the way in which it was first applied in Campbell v. Acuff-Rose in 1994.

To Review…

Assessing “transformativeness” is a consideration under the first fair use factor, which weighs the “nature and character of the use.” It was first weighed in a manner entirely consistent with the spirit of fair use, which is to limit copyright’s protections so that they do not stifle otherwise unachievable new forms of expression. Thus, a use which “transforms” by adding to or amending an original work in a way that creates a wholly new expression is well-suited to consideration for its amount of “transformativeness,” especially if the nature of the original work is intrinsic to the new expression.

As first applied in Cambell, the Supreme Court held that a consideration of “transformativeness” favored the manner in which 2 Live Crew had used the song “Oh, Pretty Woman,” not solely because the raunchy rap version was new, but because there was an extent to which it parodied the spirit of the original, and this commentary was constituent to the nature of the new expression.

Clearly, the considerations in Campbell are a far cry from a case like Brammer, where no new expression was created, but where the defendant simply used a whole work, as is, without permission (not that different from Prince v. Graham, really). Still, the errors made by the district court in this otherwise simple case reveal the extent to which the “transformativeness” doctrine is in dire need of clarification.

As I said in the past, I think the word itself is problematic. It is just too easy to shift perspective from considering how a use may “transform” a creative work to a consideration of how a use may have a “transformative” effect on an audience, or on society as a whole. Both of these distinct perspectives have been present in fair use analyses, but arguably only the former truly examines expression itself, which is the purview of copyright law. So, I expect Russell Brammer will prevail in this appeal, but we have not heard the last of these semantic adventures to the edge of reason aboard the “S.S. Transformative.”

Walt Whitman Championed Democracy and Fought for Copyright – Part I

(This post was first published as part of Copyright Alliance’s Secret History of Copyright Series)

“Publishers move without concert, harmony, or agreement. There is no law to regulate their rights, and they have none (which are respected) by courtesy. They print the same book, and the spirit of competition is such as to destroy all correctness, all taste, and all chance of profit. The result is, that the author gets nothing, the publisher is subjected to losses, and the public are never satisfied. An international copyright law would remove these evils.”

— Nahum Capen, 1844 —

This excerpt from a Memorial written by a notable Boston author, editor, and publisher fairly well sums up the state of book publishing—and most creative work—in the embryonic America of the mid-19th century. It is not mere coincidence that the evolution of an American artistic voice parallels the development of U.S. copyright law; and the passage of an international copyright statute in 1891 was a key milestone—culturally, economically, creatively, and politically—in the nation’s progress toward global maturity. One important advocate of that law also happened to be one of the nation’s first truly domestic creative voices—the poet Walt Whitman, who viewed the adoption of international copyright as a matter of democratic principle even more than a matter of economic purpose.

Creativity today is entirely democratic. We understand that works of great genius and value might come from anywhere. But many of America’s most influential authors and thinkers, during the years between the Revolution and the Civil War, believed that literature should remain tethered to classical, elitist traditions. Thus, while American copyright law evolved throughout the 19th century, charting a course distinct from the antecedents of English common law, a new American creative voice was emerging at the same time. Indeed, there was a conscious, creative/political movement that may be roughly bracketed between an 1837 speech by Ralph Waldo Emerson and the literary apotheosis expressed in Whitman’s Leaves of Grassin 1855.

It was August 31, 1837, when Emerson spoke to the Phi Beta Kappa Society at Harvard University in which he called upon young, domestic authors to write the narrative of the new nation rather than to continue to “feed on the sere remains of foreign harvests.” Emerson’s address helped galvanize a broad, cultural shift that was just percolating among the first post-Revolution, literary figures in the nation, and among these was Whitman, who published his first short stories in a new periodical founded on the principles of this movement—the United States Magazine and Democratic Review.

Whitman was a colleague of the Young Americans—they were contemporaries of other literary- nationalist movements in Europe—who had intentionally set out to democratize literary work as an essential ingredient to democratizing America itself. Although the policy views of these young Democrats are too myriad, factional, and contradictory to synthesize in this short essay, the one consistent belief of the Young Americans was that culture and literature should not be authored solely by the nation’s aristocratic, Anglo conservatives. Whitman was, therefore, a key figure in America’s first clash of generations, with younger authors insisting that the American voice must become far more diverse than works steeped in European traditions and flowing from Puritan epicenters like Harvard and Yale.

Capen’s observations about the state of publishing was contemporaneous with early debates on international copyright, which the independent American book publishers successfully opposed for decades, primarily by asserting that the law would give the larger printing firms monopoly control over all publishing. In truth, most American publishers of all sizes were accustomed to the trade in copies of European—mostly English—books without license, and Capen’s Memorial also notes that that these volumes tended to be cheaply made products with flawed pages and weak bindings (i.e. disposable). Hence, American rejection of international copyright throughout most of its first century had the twin effect of disenfranchising foreign authors from the American market while simultaneously retarding investment in domestic authors and a domestic publishing industry.

When Charles Dickens toured America in 1842 and advocated that the U.S. adopt international copyright, he was scorned by many, including in several editorials that forecast today’s digital-age critics of copyright. In fact, it was the founding editor of the Democratic Review, John O’Sullivan, who broke rank with his literary colleagues by opposing international copyright in an 1843 editorial, in which he said of Dickens, “He has certainly been richly enough paid at home, in pecuniary rewards as well as in public honor, for what he has done, to leave him but slender ground on which to ask a return of mere volunteer generosity on our part for the pleasure his admirable writings have afforded us.”

O’Sullivan acknowledged the same article that his opposition to an international copyright law was contrary to the beliefs of his fellow authors, and this included Whitman, who had earlier written a defense of Dickens (nicknamed Boz) in the Evening Tattler. Although critical of Dickens’s alleged (and it turns out inaccurately reported) haughty tone toward the Americans, Whitman wrote, “Let Boz—ungrateful as he has proved himself—let him be treated fairly. He no doubt came over here with the main purpose of effecting an international copyright: we are among those who believe that a law to that effect would be wise and righteous.”

Whitman self-published Leaves of Grassin 1855, carving a new, egalitarian, domestic verse out of a long walk through New York City, filled with industry, sweat, agony, pathos, and sex. Literally and metaphorically a response to Emerson’s call to “sing” the song of the young nation, it begins with the democratic vow …

I celebrate myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.

One might think the symbiotic relationship between author and reader inherent to those words—and indeed evident throughout Whitman’s poetry—would be anathema to a passionate defense of copyright. But in fact, Whitman promoted the cause of international copyright throughout his career—his first article supporting the law was published more than a decade before he published Leaves of Grass—viewing the principle primarily as an expression of moral and democratic values and, therefore, consistent with the literary aspirations of Young America. He just barely lived to witness the law’s passage in 1891, about which he wrote…

“We have our international copyright at last—the bill is signed today. The United States, which should have been the first to pass the thing, is the last. Now all civilized nations have it. It is a question of honesty—of morals—of a literature, in fact. I know it will be said by some—Here, now, how is it that you, Walt Whitman, author of ‘Leaves of Grass,’ are in favor of such a thing? Ought the world not to own the world in common? Well, when others do, we will, too. This copyright bill is the doing as we would be done by.”

American Literature Professor Martin Buinicki of Valparaiso University, in an article published in 2003, seeks to harmonize Whitman’s democratic ideals, his writing, his relationship to the independent publishers of the period, and his advocacy of copyright. “Taken at face value,” Buinicki writes, “Whitman’s careful tending of his copyrights appears not only to contradict his democratic declarations but also to trouble his bold assertions of artistic independence: by scrupulously protecting his copyrights …”

In Part II of this post, I’ll expand on why that “face value” assumption is incorrect and why Whitman, therefore, serves as a foil to many assumptions made by copyright critics about the motives of authors.

Graham v. Prince or Art v. Fair Use

Richard Prince is one of the most reviled names in the worlds of photography and copyright. This is because his career and notoriety are built largely on high-profile “appropriation” art works, which have earned him considerably more income than most artists ever see, including, of course, most of the photographers whose images he has used without permission.

In September of 2015, artists, copyright advocates, and the web-conscious reacted with strong emotions to New York’s Gagosian Gallery hosting an exhibit called “New Portraits,” comprising 38 pieces in which Prince used people’s Instagram photos without permission. Each of the nearly 5’ x 6’ canvasses depicts a screen-grab of the photograph within the Instagram interface and with a few comments, including one made by Prince himself. The headline about this exhibit that seemed to outrage most people was that Prince had appropriated these Instagram photos without permission and then sold them as fine art, reportedly earning $150,000 for at least one of the pieces.

In response to that story, I wrote a post in May of 2015 arguing that what Prince had done, despite his utter disdain for copyright, was indeed art. Specifically, I considered the fact that he had “artified” images which had essentially been thrown away—because posting on social media relinquishes individual authorship to an extent—to be the kind of provocative, contemporary statement that clearly follows a well-established tradition in modern art. But just because the overall purpose of the multiple appropriations Prince made may be defensible as an “artistic statement,” this does not necessarily mean that each appropriation is itself a fair use under copyright law. And one litigation stemming from this collection of “New Portraits” may prove this point.

Graham v. Prince

One of the photos Prince used for this series is not the work of an amateur, and was not even uploaded by the photographer himself to Instagram. Titled “Rastafarian Smoking a Joint” the photograph was captured in Jamaica in 1996 by professional photographer Donald Graham, who—and this is important—also sells his photographs in the fine art market. In Prince’s “New Portraits” show, the Instagram reprint of Graham’s photo was presented as “Untitled” and was eventually purchased by the Gagosian Gallery itself.

Graham filed suit for copyright infringement naming both Prince and Gagosian as defendants in December of 2015. In addition to being used in “Untitled,” Graham alleges that his photo was displayed in marketing material, including a billboard used to promote the series, and that Prince made an infringing use when he posted the photo on Twitter in a defiant (okay, fuck you) response to the lawsuit.

Prince and Gagosian are of course making a fair use defense and even filed a motion to dismiss on that basis; but the court (S.D.N.Y.) denied the motion in July of 2017, primarily because fair use is a fact-based analysis which is not, in general, properly weighed at the motion to dismiss phase of a lawsuit. Further, the court’s opinion in its denial of the motion suggests Graham would likely prevail in a fair use analysis and also reveals that the rationale being applied by the defendants asserts (once again) a very broad interpretation of that bugaboo doctrine of fair use known as “transformativeness.”

Akin to the manner in which certain tech companies have tried to argue that merely migrating an appropriated work into a new medium or context is inherently “transformative” (see post here), Prince is presenting a very similar argument in Graham. His defense amounts to an assertion that, despite his having copied the entire “Rastafarian” photograph with only de minimis alterations, he has “transformed” the work by placing it in a new context—one which asks viewers to think about themes related to social media, but not related to anything specifically expressed in Graham’s original photograph. This understanding of “transformativeness” does not typically hold up in a fair use defense, but Prince is not the only party to try to promote such an interpretation.

It is not normally kosher to use a whole work without license as a supporting or central asset in an expression that is entirely separate from the meaning or expression embodied in the work being used. In this regard, I would argue that Prince has used Graham’s photograph in much the same way a non-fiction author might include a protected photograph in her book. Absent a license, the infringement of a photograph in this case would not be mitigated by the overall merits—including its value to to society—of the book itself. Similarly, it should not matter what Prince was saying—or trying to say—with the “New Portraits” exhibit; the fact that Graham’s “unobstructed and unaltered photograph is the dominant image” in “Untitled” weighs substantially against finding “transformativeness” under the first factor.

In citing Prince v. Cariou, a case in which Prince prevailed on a fair use in defense for his use of all but five photographs belonging to Patrick Cariou, the court states, “In fact, the ‘alterations’ Prince made in this case are materially less significant than those that were found to be insufficiently transformative to clearly warrant a finding of fair use in Cariou.”

Further, on the subject of art v. fair use, I would caution that what Prince has truly done to “transform” Graham’s photograph (and all the others he appropriated) is to put his name on it. Remove Prince himself from the equation, and the perceived value—both artistic and monetary—of these Instagram canvasses drops quite possibly to zero. Just ask Gagosian what they would pay if, for instance, I offered them the same images; and it is worth noting that the commercial nature of “Untitled,” which weighs against fair use, is substantially intertwined with Prince’s rather thin “transformative” argument, both of which turn on the assumption of some Midas-like quality to his celebrity.

Such metaphysics may be sufficient for the world of fine art (see Banksy shredding his painting the moment it sold for $1.4 million at Sotheby’s), and there is an extent to which the same metaphysics are present in the foundation of authorship in copyright law; but if it were indeed correct to say that the artist with the most marketable name may “transform” the work of another artist simply by moving it wholesale into the domain of his imprimatur, then the boundaries of copyright, and the fair use exception, would have no meaning whatsoever.

In fact, it was Prince himself who emphasized the (often absurd) relationship between publicity and artistic value when he publicly revoked his authorship of the Instagram canvass he had made from a selfie of Ivanka Trump, and which she purchased for $36,000. Displeased with Trump’s election, Prince supposedly returned the money to Ivanka and declared the work to be “no longer a Prince,” which begs all manner of legal and metaphysical questions as to whether an artist can truly disavow a work made from little more than a photograph he originally appropriated from the buyer of the work! (And of course the most likely outcome will be an increase in the work’s monetary value because of the story.)

A Few Unusual Details

Graham v. Prince also entails a few nuances that do not often present themselves in copyright cases. For one thing, “Rastafarian Smoking a Joint” was not registered at the Copyright Office at the time Graham filed suit, though it was registered by the time the billboard was made and certainly before Prince posted the photo in his allegedly infringing tweet. Although it is a general rule of thumb that authors who do not register works have a hard time proceeding with litigation, this case illustrates that Graham may be able to prove actual damages (i.e. losses) and, more likely, that he may be awarded some portion of profits generated by both Prince and Gagosian based partly on the unlicensed exploitation of his work.

Another aspect of this case that caught my eye was that if Graham prevails, part of his relief may include a court order to have the infringing works forfeited and/or destroyed. This remedy dates back at least as far as the first copyright statute of queen Anne (1710), which provides for infringing copies of a book to be turned over to the proprietor, “who shall forthwith damask and make waste paper of them;” but it is not a remedy we see very often in the modern, let alone digital, world where infringers are usually enjoined from continuing some practice.

But in the fine art world, where both Graham and Prince have market value that clearly intertwines name (i.e. brand) and creative expression, the very existence of “Untitled” and its use in promotional materials by Gagosian may be viewed as an appropriation that fails under the fourth factor of the fair use test, which assess potential market harm to the original work. Prince has argued the opposite—that his use in fact elevates the market potential for Graham’s photograph, but I suspect a court will not find this persuasive if this case proceeds.

Of course, if in fact Prince’s “Untitled” is destined to be destroyed, I suppose he and Graham could collaborate and ask Banksy to shred it, which will then make it worth a cool million at Sotheby’s. At that point, the work will arguably be Banksy’s, which only further emphasizes my point that copyright law cannot be quite as ambiguous as the mercurial nature of what we call, or don’t call, “art.”

Author: David Newhoff