I think we’ve figured out by now that you can fundraise by lying to people about a threat, right? You can tell them an election was stolen. Or that the internet is under attack. Or that movie stars are harvesting babies to make adrenochrome. Or you can tell them stuff like this . . .
Damn. That’s some chutzpah. If Internet Archive were honest about this litigation and sending out fundraising emails, I’d leave this part of the story alone. But read that message and tell me it doesn’t sound eerily familiar. Because IA’s claim that it’s “defending access to knowledge” is like Donald Trump saying he’s “defending our Constitution.” The email even uses the word radical to describe the publishers’ suit in order to obfuscate the fact that it was IA’s random and illegal (one might say radical) conduct that triggered this litigation in the first place.
Of course, Brewster Kahle’s crusade does not have the grave implications of an attempted coup d’etat, but the comparison I’m making is fair because the tactics are the same: lie about some principle or operation being under threat and ask suckers for money to support the defense. Because the irrefutable fact is that if IA loses this suit (and I believe it will), the outcome will have zero effect on the “right of libraries to lend books.” This is just common sense.
Even if you do not have time to dig into the details of this case, you can ask yourself why the publishers filed suit in 2020 against IA and not against any actual library system? Or you could ask the most obvious question: Has ordinary library lending always violated copyright law, and the publishers just suddenly decided to start litigating? Obviously not.
The modicum of truth underlying that slick email is this: Internet Archive decided to violate copyright law and provoke a litigation that, if successful, could allow all libraries to engage in unlicensed ebook production and distribution. And while there are indeed library associations that would endorse this agenda, that is not the same thing as a fight to preserve the status quo in library lending as the email so stridently declares.
Your local library system is not engaged in the conduct at issue in this lawsuit. Here’s just a sample list of allegations that distinguish Internet Archive:
Internet Archive operates an industrial-scale scanning service which has generated over $25 million since 2011. It provides this “service” to libraries but retains digital copies for itself and makes many of the digital copies available at its own discretion. Your library does not do this.
Internet Archive allegedly keeps thousands of physical books in a warehouse in shipping containers as part of the “collection” it then loans in digital form under a theory of its own invention called “Controlled Digital Lending” (CDL). Your library does not do this.
Citing the COVD-19 shutdowns as an excuse, IA made available approximately 1.4 million titles without controls of any kind in March 2020. Your library did not do this.
Internet Archive makes unrestricted access to digital books available that it deems to be in the public domain but which are, in fact, still in-copyright titles. Your library does not do this.
Internet Archive seeks to displace licensed ebook lending models like OverDrive. Your library does not do this.
Internet Archive is not a library despite its claim to “accreditation” based on federal funding it has received in the past. Said funding does not make IA a library as defined in the Copyright Act. Your library is a library.
Internet Archive does not appear to follow its own made-up rules. So, even if those made-up rules were legal exceptions (and they are so not), it would be violating those exceptions anyway. Your library does not behave like this.
Internet Archive’s founder Brewster Kahle, using a shell corporation, purchased Better World Books, which “sells used books” and then feeds IA’s Open Library with in-copyright books it then claims it is allowed to loan under the theory of CDL. Your librarian does not do anything of the sort.
Naturally, these allegations and others are all matters worthy of more in-depth discussion. But my point in summarizing a few examples is that there is no merit whatsoever to a fundraising email suggesting that the publishers suddenly or randomly decided to go after ordinary library lending.
Tell you what, though. Rather than send millionaire Brewster Kahle your money, send me $5.00 today. I can use it more than he can, and unlike that guy, I make every effort to support what I write with facts. Plus, as a bonus, if you send five bucks right now, I can almost totally guarantee you will not be abducted by aliens!
My last post about the case Hachette et al., v. Internet Archive was angry. Moved by the compelling testimony author Sandra Cisneros wrote to the court, I was and remain pissed off at those who justify what amounts to enterprise-scale book piracy by dressing it up in the rhetoric of progressive lingo and academic theory. Many amicus briefs, authored by familiar names in anti-copyright academia, have been filed in support of Internet Archive. I could pore over every one of those documents, but the only reason to do so is my admittedly morbid and nerdy fascination with the way each author will try to argue that what IA is doing is already exempted by the Copyright Act. But I ain’t got that kinda time. And it ain’t necessary. Because it ain’t so.
The reason I opined in my last post that this case should be short work for the court is that IA’s arguments boil down to two defenses, both of which should be overwhelmed by the facts and relevant case law. Defense Number One is that the IA lending model called “Controlled Digital Lending” (CDL), a model of its own invention, falls within the exceptions already carved out for libraries by statute. And Defense Number Two is, of course, that the CDL model is fair use, beginning with the claim that it is “transformative” under factor one of the analysis.
CDL: It Ain’t on the Page
Regarding the first defense, the CDL theory may sound reasonable on the surface. A library buys or legally obtains a print copy of a book and scans it to make a digital copy (its own ebook). Then, in principle, the library loans the digital copy to one patron at a time and does not loan more digital copies than it has physical copies in its collection. Additionally, the CDL model asserts that the library should not loan physical and digital copies at the same time.
But IA’s difficulty in defending CDL is twofold. First, there is nothing in the copyright statute that allows the practice; and second, it appears that IA does not even adhere to the boundaries of CDL, if it were allowed. Remember that what triggered this lawsuit was IA’s “National Emergency Library,” when it released over one million titles without restriction, using the pandemic as a rationale for doing so.
IA and its amici will take circuitous paths through Sections 108 and 109 and try to stitch together a rationale for a lending regime that was never anticipated by these sections in the law. In the first part (§108), carve outs for libraries specifically exempt limited conduct like preservation, inter-library loan, certain research activities, etc. But nowhere do any of the exceptions even imply that a library may produce and distribute its own trade-pub ebooks for the sole purpose of bypassing the licensing models under which ebooks are currently loaned. Even more damning is the fact that Internet Archive is not a library under the terms of the statute and, the court may find that it does not even qualify for §108 exceptions, let alone that those exceptions encompass CDL.
As for Section 109, IA and its amici will try to argue that because the original, legal purchase of a physical copy extinguishes the rightsholder’s interest in that copy under the “first sale” doctrine, this somehow extinguishes the copyright rights prohibiting the reproduction and distribution of a digital book made from the same physical copy. This is fantasy. Pull a book off your shelf, scan it, and make it available to the public, and you will violate the reproduction right, the derivative works right, and the distribution right of the copyright owner. That IA is engaged in precisely this activity at scale is normally described as enterprise piracy, not library lending.
But even if CDL were permissible by law, the allegations in the publishers’ motion for summary judgment (MSJ) about IA’s operations suggest that the organization is not even complying with the “controlled” part of the regime. The publishers MSJ avers …
Ironically, the many thousands of hard copy books IA obtains from defunct colleges or libraries will likely end up in “archive facilities in Richmond, CA,” which consist of large shipping containers owned by IA. Once locked away, upon information and belief, IA will make no effort to make the print books available to be read, like books in actual library collections. Instead, the print copies primarily exist to rationalize, or provide the predicate for, IA’s argument that there is a one-to-one correlation between print copies legitimately owned and their illegitimate ebook scanned copies.
So, is there any “control” proving that containers filled with books serve as the foundation for IA’s proper accounting of its digital lending? Even more bizarre is that IA allegedly asserts that its “ownership” of print books includes books on the shelves of “partner libraries.” Again, from the MSJ…
With respect to the Website’s titles for which the corresponding print books are allegedly stored at partner libraries, it defies reason that the partner libraries will have the wherewithal to faithfully and consistently remove a book from circulation each time it is borrowed on the Website, and put it back on the shelf when the Website version is checked back in.
You see where that’s going, right? If IA “partners” with enough libraries, it would then justify mass distribution of the ebooks it makes and, apparently, without any control whatsoever. So, even if a court held that the CDL concept falls within the exceptions in the Copyright Act (and this is highly unlikely), these are just two of the facts presented in the publishers’ MSJ indicating that IA is not in compliance with its own theoretical practice. And, naturally, the implications do not stop with books. After Brewster Kahle’s “New Library of Alexandria” swallows the entire commercial market for ebooks, music, motion pictures, video games, etc. would quickly follow. So, assuming the argument that “CDL is legal” winds up skidding hard against the language and intent of the statutes, let’s talk fair use.
Stop Me if You’ve Heard This One
Internet Archive alleges that its conduct is fair use, which is amusing and should easily be denied based on more than one precedent in the same circuit. I say amusing because Internet Archive’s mission is a crusade predicated on the devout certainty that this part of its operation is permitted within the statutory exceptions for libraries. But just in case that argument fails, IA will plead fair use. I mean, yeah. It would be bad lawyering if they didn’t. But it’s still funny.
In the simplest analysis, IA’s conduct exceeds the boundaries established by the Second Circuit in Google Books and which was reaffirmed in ReDigi and TVEyes. The Google Books opinion begins with the statement, “This copyright dispute tests the boundaries of fair use.” And that was Judge Leval, who wrote the paper introducing the doctrine of “transformativeness” to the fair use analysis. There, the Google Books search engine, which necessitated digitizing millions of books, was held to be “transformative” under factor one of the analysis because it “added new utility” (i.e., a research tool the world did not have). But essential to that holding was the fact that Google Books does not make whole, in-copyright books available to the public. As the opinion states …
With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs’ books …
That “competing substitute” language is fatal to IA’s argument that it is “transformative” under the same “new utility” doctrine. In fact, because IA clearly provides a substitute for licensed ebooks, it cannot reasonably argue that it provides a new utility at all. It simply provides unlicensed digital books in lieu of licensed digital books. Indeed, enterprises more innovative than IA (e.g., TVEyes) have tried to argue “transformativeness” under the Google Books utility doctrine, and they have failed by the light of the same market substitute boundary.
When your only innovation is giving away for free that which the copyright owner intends to sell, there is nothing fair use offers as a defense. In the fair use analysis, there is always a strong interplay between factor one (purpose of the use) and factor four (potential market harm), but here the questions are almost identical because IA’s purpose is nothing more than market substitution.
So, Internet Archive will continue to make noise on Twitter and elsewhere. It will continue to portray itself the underdog, standing in the shoes of all librarians against the juggernaut of the publishing industry. And it will continue to elide or distort the authors’ interest in the narrative. But as a legal matter, for the reasons stated, I think IA should lose, and lose big. And that will be just fine for real libraries because real libraries do not engage in the conduct alleged in this case. And that will be the subject of a future post.
Jeff Sedlik has been a fine art and commercial photographer for over 30 years and has served as an expert witness in more than 400 copyright cases. But until celebrity tattoo artist Katherine Von Drachenberg (Kat Von D) inked his famous portrait of Miles Davis in 2017, he had never been in court as a plaintiff claiming infringement of his work.
Kat Von D tattooed Sedlik’s Davis portrait onto the arm of Blake Farmer, a lighting tech, with whom she had worked on a film project. She allegedly did not charge Farmer for the tattoo, but the inking was highly publicized (millions of impressions) via Kat Von D’s social media accounts, and this included displays of Sedlik’s photograph. By any definition, the use was commercial. There are various bits and pieces to this case, including the unique nature of tattoos, which become part of a person’s body and likeness. But the most important matter to copyright law, once again, is the fair use defense presented—especially while we wait to see what SCOTUS has to say in the Andy Warhol Foundation v. Goldsmith case.
The portrait Sedlik created in 1989 is all about silence. Davis appears almost ghostlike, as though he has leaned his head from deep shadow into a pool of soft light to hush the viewer, holding the index finger over his lips with the other three fingers positioned as if playing an invisible trumpet. Or, as Sedlik explains to the district court, he intentionally had Davis pose those fingers “in a cascade visually representing aurally perceived musical notes.”
That description comes from compelled response to an interrogatory, demanding that Sedlik, “Identify and describe in detail each and every element in the PHOTOGRAPH that you contend is protected by copyright law.” The response provides a full account of Sedlik’s process, including 51 brief paragraphs describing every creative choice he made to achieve the final image, right down to Davis’s eyeline and the positioning of those fingers.
It is an impressive anecdote. Just looking at the photo, I know how challenging it is to control shades of black but had no idea that, for instance, Sedlik was required to work with Davis outside at high noon and, therefore, constructed a mini studio of sorts to retain the control necessary to execute the image he had in mind. But that’s photography fan me talking.
Copyright observer me has other questions, beginning with an objection to the court’s demand that any author describe “each and every element” he believes is protected. Not only are few complainants as experienced as Jeff Sedlik in describing such things in terms a court can evaluate, but more broadly, one attribute this case shares with Goldsmith is the folly that “transformative” defenses seem to lead courts to stray too far into the realm of art appreciation to settle questions of law.[1] From the opinion on cross motions for summary judgment, ordered May 31 …
Here, the Court finds the Portrait is entitled to broad protection because there were a great number of choices involved in creating the Portrait, such as Davis’s highly specific pose, facial expression, lighting and shadows, camera angle, and background for the image.
Part one of that opinion about “choices” goes to the aforementioned objection because the expression, as alluded to in the second part of the sentence, is observable without knowing anything about how the photographer created the image. The reason I mention this is not hypothetical but doctrinal. Copyright rights attach to a work upon fixation, regardless of how it was made, and it is settled doctrine that bars consideration of “sweat of the brow” to base copyright protection on process rather than creative choices resulting in a protectable expression.
Choice and process are often intertwined for the creator, but they must be separated as a question of law lest courts err in granting greater protection to the author who appears to have worked “harder” to achieve his vision. When a court demands the kind of defense of copyrightability as it did in this instance, there is a risk of over-emphasizing process, thereby potentially stripping another photographer of her rights because her choices are compressed into an instant, which may seem “easier.”
The question in Sedlik, as I believe it should be in Goldsmith, is whether the secondary work copies the protectable expression or the unprotectable facts of the original—not how either photographer achieved the expression, or what any of the images at issue necessarily convey. I have opined that “message” can be a fickle consideration, especially with non-verbal media. I have also written that I personally find the Warhol screens copy more fact than expression from Goldsmith’s photo, though I would say the opposite about Kat Von D’s tattoo copy of Sedlik’s photo. But regardless of outcome in either case, what is most important for copyright law is that the fair use blob called “transformativeness” be contained.
The Transformative Blob Eats Everything in Its Path
Kat Von D asserts a fair use defense, arguing that the tattoo is “transformative” under factor one, which considers the purpose and character of the use. It is typical of many alleged infringers to argue that using a work in a new medium is sufficient to find the use “transformative,” but here, the defendant cites myriad facts that are irrelevant to a fair use consideration at all. From the court’s summary:
First, Defendants contend the Tattoo presents a “new expression, meaning, or message” that is personal to Farmer because it relates to his study of jazz music in college, and because he personally identifies with Davis and “remains an avid listener of jazz and Miles Davis’s music.”
As I have argued in the past, the “new meaning or message” standard is already too broadly or too subjectively applied. But the idea that this consideration should encompass the personal, sentimental relationship the tattoo wearer has to his tattoo is capricious even for the most extreme view of fair use. Yet, the defendant doubles down on the idea …
Second, Defendants argue that tattoos inherently create a new expression, meaning, or message as a result of being permanently imprinted on a human body because tattoos have personal meanings, which may not be immediately obvious to someone unfamiliar with the significance of the tattoo to its wearer.
This is almost the same argument as the first using different words. A tattoo is no more “inherently new expression” than an oil painting or a silkscreen. And obscure meanings “not immediately obvious” to an observer is anathema to the purpose of the fair use exception. This argument is another variation of the refrain “new medium favors fair use under factor one.” Thankfully, the courts have been fairly consistent, at least on appeal, in rejecting this view. (e.g., Brammer v. Violent Hues)
In the 1884 case affirming copyrightability of photographs under U.S. law, the infringing lithograph is subtly different from the photograph it copied. This is partly because no matter how skillful the lithographer, drawing in grease on stone will produce differences between the paper print made from that medium and the paper print made from a photographic plate etched by light. Likewise, ink on human skin will result in certain distinctions between the tattoo and any photo the tattoo artist copies. I mention this to preface Kat Von D’s final rationale to assert “transformativeness.”
Third, Defendants argue that the Tattoo is transformative because while Kat Von D used the Portrait as a reference, she inked the Tattoo in the “freehand” method and added her own interpretation to it: “one that added the appearance of movement by adding and shading waves of smoke around the perimeter of Miles Davis’s hair and hand; created a sentiment of melancholy; and eliminated the stark, black background that dominates the Photograph.
This is as close as the defendant comes to presenting a foundation for “transformativeness,” and where her defense has a kindship with AWF by alleging a “different message” achieved by some alteration to the original work. But in addition to the fact that I think Kat Von D exaggerates the creative distinctions between the two images (that they are really differences in media), this is another example as to why the “message” test allows the “transformative” blob to swallow the other fair use factors and, quite often, the derivative works right.
The limitations of one medium to precisely reproduce a work in another medium cannot be the foundation of fair use without erasing the author’s right to prepare derivative works. This logic would lead to the conclusion that, for instance, a book author has no interest in the motion picture based on her novel simply because movies function differently for the audience than words meant to be read. Of course, they do. But that is not the test.
Relatedly, the allusion to Kat Von D working “freehand” is both questionable and irrelevant. The promotional images show her tracing Sedlik’s photograph, but it almost doesn’t matter. Whether an alleged infringer achieves literal copying by her unaided hand or through some intermediary medium, it is the copy that infringes, not the method by which it is made. Indeed, where the copyright owner must prove copying, identifying how the copy was made may be a relevant fact. Here, there can be no doubt that Kat Von D’s tattoo is a copy of Sedlik’s photograph, and Sedlik has no burden to prove copying.
Sedlik portrait and Kat Von D tattoo.
Again, I will argue in this case, as in Goldsmith, that the “transformativeness” blob can be contained if the Court reaffirms a rule that the secondary work must assert at least some evidence of commentary upon the original for factor one to tilt toward a finding of fair use. Like AWF, Kat Von D asserts “transformativeness” without claiming any commentary upon the original work (because no such commentary exists), but the case law being what it is, the district court held that there were triable issues of fact—namely that Defendants had met the “different purpose or meaning” test by changing the appearance of the image to “create what [Kat Von D] characterizes as ‘adding movement and a more melancholy aesthetic.’” The court further stated…
However, Sedlik disputes whether Kat Von D’s rendering of the Tattoowas transformative by virtue of the small changes she made. Sedlik opines thatall of the alleged dissimilarities between the Portrait and the Tattooresult from Kat Von D’s replication of the Portrait onto a three dimensionalsurface (Farmer’s arm). TheCourt finds Sedlik has raised a triable issue as to transformativenessthat is more appropriately left to a jury.
And so, Sedlik v. Kat Von D heads to a jury to decide, though it is concerning that the court seems to have punted core questions of law into that panel. Where juries are supposed to decide questions of fact, the question of “transformative” as argued here strikes me as a question of law. That said, juries are summoned as ordinary observers in these cases, and it is difficult to see how any reasonable person, even without any knowledge of photography or tattooing or the fair use doctrine, cannot readily see that the Kat Von D tattoo is a copy of the heart of Sedlik’s expression.
Broadly, Kat Von D argues that tattoo artists rarely, if ever, license the images they use, implying that Sedlik is an outlier for litigating this matter at all. It appears from facts presented by Sedlik that this assertion is as untrue as it is irrelevant, but I will leave the discussion that allegation provokes for another post.
[1] Of note, Sedlik served as Goldsmith’s expert witness at the district court. His testimony on factor four, asserting that the Warhol screens conflicted with Goldmith’s licensing interests was cited in the Second Circuit’s holding.
The Illusion of More is my personal blog from December 2011 to December 2025. As of February 2026, I am no longer posting new blogs or other content, but I hope you enjoy this archive. Please do not attribute any of my writings here to my current or previous employers.
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