Category: Art

Does Graffiti Art Enjoy Equal Copyright Protection?

As with so many copyright questions, the answer is “it depends.”

I stumbled into a discussion on Twitter last week that included some fairly cynical reactions to an artist named Chris Williams, who filed a copyright infringement claim against the Hy-Vee supermarket chain for making use of his graffiti mural in one of its TV commercials.  The spot, which first aired during the last Super Bowl on February 3, prominently features a colorful, patchwork design that Williams painted on a wall in Des Moines, Iowa in October 2018.  Williams alleges that he never would have licensed the image for such a purpose and has filed suit against the grocery chain for infringing reproduction, display, and distribution of his work, as well as violation of DMCA Section 1202 for Hy-Vee’s removal of the author’s signature as a mark of ownership.* 

The Twitter discussion between Professor Brian Frye and Neil Turkewitz began with a general assertion, in which Frye seemed of the opinion that once a creative work is so public (e.g. a painting on an exterior wall or a statue in a city square), the author really must abandon all interest in controlling how that work is reproduced—especially through photography.  Frye further opined that Williams’s desire to litigate the Hy-Vee commercial would be doctrinally identical if he were to try to prevent “tourists” from capturing graffiti art in their personal photographs.  

Turkewitz’s responses broadly stressed the point that one cannot generalize about an author’s right to allow (or disallow) certain uses based solely on the fact that the work has been “published” on a city wall.  “It’s essential to doctrinally distinguish between someone taking a selfie in front of publicly displayed art & posting it on their FB page & someone featuring a photo of such art as part of their advertising campaign,” he replied.

Professor Kevin Casini posed the question that I imagine many people instinctively ask:  Does “publishing” a work by fixing it in a common space alter the boundaries by which the author may control the use of that work?  Opinions will vary, and my own opinion is that, yes, the author does abandon certain types of control that may be retained in other types of publication, but by no means does he give up his copyrights altogether. Whether a protected work is street art, hanging in a gallery, or printed in thousands of book copies, potential infringement claims and defenses will, and should, remain case-by-case considerations.

Frye mentioned in his tweets that a TV commercial is an expressive work.  This is true but not especially relevant.  Countless uses of copyrighted works are expressive—although courts will make distinctions between an “expressive” and an “informational” use when weighing a fair use defense.  Likewise, all works that are vulnerable to infringement (unless it is physically-stolen unpublished material) are, in one way or another, “in the public.”  This is in fact an underlying purpose of copyright: to encourage authors to make their works public by securing their rights to retain certain forms of control over the works they disseminate.  If making a work public vitiates these rights, then copyright is meaningless.  This principle is not extinguished just because a work is apparently made “more public” through display in a physical commons. 

It is also important to remember that authors frequently exert control over the use of their works for reasons other than compensation—a theme that is especially common among street artists, who demonstrably make these works for a purpose other than money in the first place.  While copyright critics tend to cynically assume that lawsuits are always about money, this is a chronic misconception about many artists that should at least dampen, if not disqualify, a lot of the copyright critical scholarship out there.  For instance Williams’s rationale in the complaint is stated as follows …

 “Despite offers, he has very rarely made his original art available as part of corporate advertising campaigns—partly for artistic reasons but also because doing so would diminish the value of his work. Indeed, nothing is more antithetical to a street artist’s credibility than association with something as banally commercial as a chain of grocery stores. People who recognized his Mural in the Campaign would have concluded that Williams ‘sold out,’ diminishing the value of his work and reputation.”

Some observers will take Williams’s views on commerciality at face value, others will respond cynically—especially on Twitter. Moreover, in this particular case, his claim that his “street cred” is harmed by “commercial banality” may be weakened by the fact that Hy-Vee’s TV spot, narrated and supported by Oprah Winfrey, promotes a program to ensure that school kids do not go hungry.  In this context (i.e. a topic that is pretty “street” in itself), Hy-Vee may be able to reasonably argue that their depictions of the mural in segments of its commercial are intrinsic to portraying the street (i.e. neighborhood) they intentionally selected for this particular narrative. 

For the most part, we must mute sideline mumbling about “good v. bad” intentions in such cases and look at the manner in which a work is used by an alleged infringer.  In Hy-Vee’s case, the Williams painting is featured so prominently in at least two scenes of the commercial that any filmmaker watching it would conclude that it is the primary element of art direction in those scenes.  The young girl protagonist walks past the mural, which fills the entire frame.  Consequently, the expressive qualities of these shots are almost entirely conveyed by Williams’s painting.   

This use is sufficient for an infringement claim but, in the broader context, may not ultimately support Williams’s allegation of harm, especially given his emphasis on reputational harm.  After all, he imposed his personality onto a neighborhood, which Hy-Vee then reasonably selected as a location in order to promote its own contribution to the same community.  

On the other hand, it is important to remember that the use of notable artwork for endorsement may be a form of coerced speech. In the legal analysis, we cannot be distracted by the message being conveyed with the use, no matter how virtuous it may be.  We must only be consistent in allowing any author of a work to endorse or oppose anything he or she chooses in cases where the use of a work may be understood as endorsement. 

Looking at The Mercedes-Benz Case 

In a related story, Mercedes-Benz filed a lawsuit in March against four graffiti artists who sought to remove the automaker’s advertising photos from Instagram.  The promo photos depict Mercedes vehicles traveling near murals painted by these artists in the City of Detroit. 

In these examples, the murals are prominently visible; and one can reasonably assume that the Mercedes creative team chose compositions in which the graffiti art lends aesthetic value to the overall compositions.  But at the same time, the murals do not do quite so much of the visual “heavy lifting” as the Williams painting does in the Hy-Vee scenes.  This provides Mercedes grounds to argue that their reproductions are “incidental,” which would favor a finding of fair use.   

When creative works like art painted on walls become part of the landscape of a neighborhood, when they cannot be “unseen,” this factor tends to broaden the umbrella of fair use for incidental photographic capture—even for commercial purposes.  In the Mercedes photos, for instance, the cars remain the most prominent visual elements in the frames, while the murals generally play supporting roles as part of the cityscape background.  

I cannot say conclusively that Mercedes has a fair use claim here, but want to highlight the differences between the amount of creative expression being contributed by the street art in these two uses in order to emphasize the point that one cannot appeal to a universal doctrine that must apply to all graffiti art.  Further, if the Mercedes case proceeds, it is conceivable that some, but not all, of the images will be held to be fair uses. 

Beyond considering these two commercial uses, I maintain that Professor Frye is overreaching to suggest that if Williams were to prevail in his suit against Hy-Vee, this implies that he might just as easily prohibit tourists et al from capturing his street art in their personal photographs. Not only is it hard to imagine a graffiti artist wanting to prevent that kind of personal use photography, the fair use doctrine, the right to capture public scenes for personal use, the concept of “incidental” capture, and non-commercial considerations all shield the general public user in ways that impose limits on the author’s right to prohibit that are not the same as the commercial user.  The doctrines are not the same and the details matter quite a lot.

*Although there is no longer a requirement to place a notice of copyright on a work, removal of an existing mark for online distribution with the intent to facilitate infringement may be a violation; and Williams is presumably claiming that by framing out his signature in online displays of the commercial, Hy-Vee violates this statute.

Fair Use Error in Seuss/Trek Mash-Up Case Not Good for Small Creators

In order for copyright law to work for all the Whos in Whoville—the small and the tall—legal reasoning must apply equally whether the plaintiffs are major enterprises or kitchen-table start-ups. While it is understandably common in the court of public opinion to favor smaller defendants being sued by larger copyright owners, the fact is that when an error of law disfavors a large owner, it can have an even more profoundly negative effect on smaller creators.  This is a significant problem with the district court holding in Dr. Seuss Enterprises v. ComicMix LLC.  

In 2016 a group of creators, working under the name ComicMix copied Dr. Seuss’s iconic imagery from several classic works and combined these with themes and characters from Star Trek in order to produce a “mash-up” book called Oh, the Places You’ll Boldly Go!.  According to the creators’ testimony, the “Boldly” book was painstakingly designed to mimic Seuss—not only in illustration style, but composition, coloring, etc.—and a side-by-side comparison of the visual works shows that ComicMix “slavishly copied” nearly all of Seuss’s expressive elements in its pages.

Dr. Seuss Enterprises (DSE) sued ComicMix for copyright infringement, and the District Court for the Southern District Court of California held that “Boldly” is a fair use because it is “highly transformative.”  So, once again, this nettlesome doctrine is confusing courts as to the nature of derivative works.*  Because “Boldly” is not a work of commentary about — or parody of — the original, and is merely a different use of Seuss’s expressive elements, the district court erred by not recognizing it as a derivative work, which is the exclusive right of the copyright owner to produce.  Or not produce as he/she sees fit.  (See also, Stephen Carlisle posts here and here discussing this case.)

Fourth-Factor Fair Use Analysis is Troubling for Small Creators

Concurrent with this case being appealed to the Ninth Circuit, Copyright Alliance filed an amicus brief, which points to a specific error in the district court’s unfounded reasoning in its application of the fourth prong of the fair use test.  If the court’s rationale were to be upheld, it would be especially troubling to small, independent, and start-up creators. 

The fourth fair use factor considers the potential market harm to the rightsholder if the contested use were allowed; and that word potential is critical to this analysis because authors do not always know how, when, or why their protected work may be profitable in some new way.  Hence, the aforementioned exclusive right to prepare derivative works is a big part of that potential value, and exploiting that right is neither mandatory nor limited by a timeframe (other than the expiration of copyright itself).  Write a novel next year, and it is up to you to decide when—or if—you want to develop or approve a film adaptation.  The right to exploit your novel for a motion picture does not wane if you choose never to enter the film market or to enter that market many years after publication.

Consequently, when weighing potential market harm, one question the court is supposed to ask is whether the allegedly infringing work would be considered a derivative work under the exclusive rights granted by the copyright act.  If the answer to that question is yes, this weighs in favor of a finding that the contested use does present potential market harm.  And this is true regardless of a plaintiff’s ability to quantify the presumed value of that derivative market—especially if it implies a market she has not yet entered!    

So, because the district court erred in failing to recognize “Boldly” as a derivative work, it then exacerbated this problem by inventing what Copyright Alliance calls a “bright line standard” that does not exist in caselaw, whereby a plaintiff would be required to present evidence to prove the “substantial” market harm caused by the contested use. Now, forget about being a major player like Seuss for a moment and think about being the smallest Who on the dust-speck. 

Imagine being an indie comics author just beginning to get some recognition for your work on Instagram when you discover that some other party has started making merch or animated clips from your characters without license.  Then, when you sue to defend your work, the court says, Well, you weren’t in that market, so you can’t demonstrate how you could have sustained market harm. Or as the CA brief describes in its footnotes …

“One can readily imagine the first-time author whose only market data consists of modest profits from a first novel, with no existing licensing or sequel revenues, failing to show “substantial” harm after a playwright sells a script that co-opts the author’s central plot points and characters.”

This Catch-22 logic is the antithesis of the principle that fair use is meant to extend the purpose of copyright law. Instead, this court’s reasoning merely transfers the author’s derivative works right to another party for no reason other than the fact that the using party was the first to exploit a particular idea for a derivative.  By framing this ruling in those terms, it should be clear why a larger entity, which could expedite time-to-market, may be more likely to do harm to a smaller entity, or an individual, than the other way around.  

In addition to creating a burden of proof for the plaintiff that has no basis in the history of fourth-factor analysis, the district court in Seuss v. ComicMix went so far as to dismiss evidence that DSE had already pursued various derivative-works collaborations and is preparing to do more of same in the future.  So, even with a plaintiff who could come rather close to providing quantifiable evidence of potential market harm, this court still dismissed DSE’s claim in this regard as “merely hypothetical.”  

More specifically, as the Copyright Alliance brief describes, the court “penalized [DSE] for both non-entry into a market and successful entry into other, existing markets.”  In other words, ComicMix’s fair use defense was supported by the fact that DSE had not yet entered the specific mash-up “opportunity” ComicMix had exploited; BUT the defense was also strengthened by the fact that DSE had been successful with other derivatives in general.  

Presumably, the “logic” here seeks to define “potential market harm” as the extent to which an infringer may capture some fraction of the rightsholder’s market—as long as the rightsholder is already financially successful.  That is not the purpose of fair use; and upholding this reasoning could be devastating to the author with much shallower pockets than a DSE.  

Courts do not weigh fair use based on which owners have been “successful enough” to tolerate a particular infringement.  Among other problems, such reasoning literally penalizes success.  “This unfair double-standard would effectively force copyright owners who wish to protect their works to enter all markets while at the same time being careful not to be too successful in those markets,” states the Copyright Alliance brief.  That is an aberration of the purpose of copyright law and, therefore, the purpose of the fair use doctrine.  

* A brief written for this case by Professors Peter S. Menell, Shyamkrishna Blaganesh, and David Nimmer cites both Judge Leval, the author of the “transformative” doctrine, and Justice Souter’s opinion in the seminal Campbell case stating, “it is clear they did not intend for fair use to swallow a large portion of the right to prepare derivative works.”

What Netflix’s ‘The Great Hack’ Gets Right

I’ll tell the story again.  This blog began the day a friend of mine—a very smart one—shared an article on Facebook that was patently untrue.  When I confronted him about this, he responded that he cared more about the “issue” than the veracity of the article.  The double-take triggered by his cognitive dissonance led me to poke around and discover that the false article he had shared was hosted on multiple websites, including The Huffington Post.  This sparked the hypothesis that the unprecedented volume of repetition (a.k.a virality) made possible by the internet breeds dangerous levels of consensus around false narratives.  Hence the name The Illusion of More. 

That was eight years ago and small potatoes.  Last week, I watched the new documentary The Great Hack, made for Netflix and directed by Karim Amer and Jehane Noujaim.  The film’s focus is Cambridge Analytica and the (now-dissolved) company’s use of social media data to manipulate major political outcomes around the world—including the UK’s Leave.EU campaign and the American presidential election of 2016.  For anyone who somehow missed this general story, the film provides a solid overview of events along with details you might have missed and engaging profiles of the key whistleblowers and investigators who shed light on Cambridge Analytica’s activities.

In an article for The Nation, Micha L. Sifry describes what the film “gets wrong,” namely its strong implication that Cambridge Analytica literally won the election for Donald Trump.  On this one binary question, we could certainly run around the barn ad infinitum.  Those who do not like Trump will be more eager to accept this conclusion while those who support him will remain understandably resistant to any allegation that his presidency is the result of tech-enabled chicanery.  Sifry writes …

“The inference, never blatantly stated but simply conveyed by all the tricks of modern documentary-making—striking digital graphics meant to illustrate how our data leaks into the hands of others, ominous music, and alluring close-ups of  [whistleblower Brittany] Kaiser as she watches the scandal unfold on television—is that Trump won because Cambridge Analytica gave him a secret edge.”

While not a completely unfair criticism of the film, Sifry is guilty of constructing at least a diminutive straw man when he focuses on the legitimacy of Trump’s election rather than the film’s broader and more urgent message—that the democratic process is unequivocally being hacked.  This is what the film gets right, and the point is emphasized by one of its main subjects, Carole Cadwalladr, The Guardian journalist most responsible for investigating the Cambridge Analytica story.  

Cadwalladr has made clear in her articles, talks, and in this film that billionaire ideologues, using “weapons grade” information technology and massive amounts of Facebook user data, sought to fracture the democratic process through calculated disinformation campaigns and, as she states, “It’s not about left or right, Leave or Remain, Trump or not Trump.  It’s about whether it is possible to have a free and fair election ever again.” 

“The Great Hack wants to make its viewers care about data rights and the dangers of modern misinformation campaigns, but unfortunately is itself a slick piece of misinformation that plays artfully on the prejudices and misunderstandings rife in its targeted audience,” Sifry states.

Again, this may be a fair criticism of the film itself, but one which Sifry uses to draw an unfair conclusion about its relevance. I personally agree that The Great Hack is often too slick for its purposes.  While it may be a market reality that documentarians often need to employ glossy, theatrical production values (e.g. lively compositing effects) in their films in order to compete for audience attention, Sifry is justified in asserting that the creative choices made by the producers do imbue the film with the tone of propaganda that can dilute the seriousness of its reportage. This is especially unfortunate when the film’s subject matter is propaganda and manipulation itself.  

Consequently, the fair critique that the film is, at times, heavy-handed provides Sifry et al the opportunity to dismiss its main narrative, which is to describe how Facebook, a platform marketed as a means to “connect people,” has been weaponized to drive people apart.  This phenomenon is irrefutable and should not be brushed aside just because the producers got a bit lost in style over substance.  The substance is still there.  The story itself is arguably the greatest conspiracy in the history of modern republics. And it is still happening.

Notably, in order to bolster his criticism of the documentary, Sifry cites evidence that manipulative advertising is only so effective, stating, “When it comes to voters’ decisions about their choice of candidate, most forms of paid political persuasion, including TV ads, online ads, mailers, phone calls, and door-knocking, have no discernible effect in terms of changing people’s minds.”  

That may be true if we are talking about traditional political advertising, especially in a pre-Facebook world; but we are far from that particular Kansas, Toto.  Sifry falls into the same trap many people do by mis-measuring this period using pre-digital-age metrics.  The psychological effects of online “engagement” are nothing like the psychological effects of traditional advertising; and this true even without an intermediary using your personal data to target your personal hot buttons.   

If we go back to the example of my friend sharing a false news article, he did not perceive that material as an advertisement.  He perceived it as information, which just happened to support a rationale for a conclusion (a.k.a. deep story) he had come to believe about the National Defense Authorization Act (NDAA) of 2012.  He was wrong about his underlying complaint, but not alone in his wrongness. Dozens of my friends were sharing the same misinformation about the bill, which was being sloppily reported all over the place; and the mere fact that this apparent consensus kept appearing on everyone’s newsfeed fostered a self-fulfilling prophecy.  But here’s the important common thread, in my view, linking that moment to the present …

The phenomenon that was metastasizing then, and which has come around to bite us now, was the steady erosion of trust in the pillars of democratic society.  If one of the most dangerous aspects of Donald Trump is that he consistently undermines or contradicts the intelligence community, it is noteworthy that many of my Democratic and left-leaning friends were doing exactly the same thing just a few years ago—usually because of some careless bit of fluff they found on the internet, and often because “digital rights” groups like the Electronic Frontier Foundation were sowing just as much distrust in those organizations as the current president does today.  This is not an indictment of the principle oversight, only an observation that living in a paradigm of universal distrust is a vicious cycle from which there is no escape.

Consider the moment we’re in this month.  The FBI says white-supremacist ideology—which just happens to have drawn strength from the techno-libertarian approach to cyber policy—poses a significant and growing threat to domestic security.  So, if one finds it appalling that Tucker Carlson can call the this evidence a hoax in the same breath in which he calls election interference a hoax, it is worth noting that the ground for his brand of bullshit was softened through social media by every user across the political spectrum finding different rationales to dismantle trust in agencies like the FBI.  

After all, it was not very long ago that most of my left-leaning friends were endorsing guys like Julian Assange and Ed Snowden as essential antidotes to the American intelligence apparatus.  This sensibility was also fueled by the steady drumbeat of tech-utopians, who continue to promote the illusion that “the internet” somehow provides us with transparency as an alternative to trusting any experts who might actually know what they’re doing—a folly that is admittedly complicated now that we have an Executive who is eager to undermine expertise in every department.   Consequently, it has been interesting to see that many of the same people who thought Wikileaks was the panacea to conspiracy are now hoping against hope that the men and women in the intelligence community are doing their jobs despite assaults on their integrity coming from their own leadership.

In this context of not knowing whom to trust, Sifry is not entirely unfair to criticize the filmmakers’ apparent infatuation with Brittany Kiaser, the former Obama intern, who became a major Cambridge Analytica executive and then turned whistleblower against her colleagues.  And he is almost certainly justified in saying that, “[Kaiser] is not the first person to pump a small role in [Obama’s] campaign into a career-making calling card; Cambridge Analytica is not the first political technology vendor to made [sic] big, unproven claims about its abilities. But we live in the age of silicon snake oil.”

We do live in an age of silicon snake oil, but that fact alone is one reason Sifry misses the point of The Great Hack as both information and metaphor.  Even if Cambridge Analytica achieved a fraction of what is presented in the documentary, it would still be a major scandal and, perhaps most importantly, demonstrates why the sales-pitch that social media would promote better forms of democracy was the apotheosis of modern snake oil swindles—so beautifully wrapped in its shiny hubris that the hucksters believed it themselves.  And many still do.  

Metaphorically, Sifry is naïve to recommend dismissing Kaiser for her character flaws rather than identifying with her because of them.  After all, to the extent that her personal narrative is accurately portrayed in the documentary, it seems to me that her arc from progressive-minded idealist, to overpaid hack for a technology company doing very bad things, to sobered individual trying to remedy some of what she did wrong, does mirror the broader narrative we have been watching unfold with regard to Silicon Valley over the last two years.  And that is fundamentally what The Great Hack gets right.