Category: Copyright

The Copyright Claims Board is Open for Service. Now We Wait.

section 1201

The small claim tribunal, the Copyright Claims Board, opened its virtual doors yesterday, and by EOD, about a dozen claims were on the docket. A glance at the named defendants reveals a list of commercial users who allegedly infringed protected works, which is no surprise and probably good news.

I say it’s no surprise because, despite the fearmongering about aggressive claims filed against grandmothers everywhere, most copyright owners know that the infringements that matter most tend to be made by commercial users who should know better. And the reason I say that it’s probably good news is that business entity respondents will an important test to see who opts out of participating in the small claim resolution.

It is no secret that the potential flaw with the small-claim alternative is the opt-out provision. Upon receipt of notice that a claim has been filed, the respondent has sixty days to opt out of the proceeding, at which point, the claimant may decide whether to file her complaint in federal court. The opt-out provision was necessary to enact the small claim into law because as a form of alternative dispute resolution, it cannot violate the constitutional rights of respondents to defend themselves in court.

The hope is that enough respondents, perhaps especially commercial entities, will see that federal litigation is a real possibility and that even losing a case at the CCB will be less costly than engaging counsel to draft a defense for a traditional lawsuit. This is a realistic expectation. In simple terms, the idea to create the small claim option was a typical scenario in which a party should have licensed a work (e.g., a photo for $1,000), and the copyright owner expects perhaps $5,000 or less in damages from the alleged infringer.

Those numbers barely cover the cost of a federal claim, which is why independent and small creators fought for over a decade to incorporate a small claim option into the Copyright Act. But respondents can do math, too, and the CCB may fosters quite a few settlements, which is generally what everyone wants. Or perhaps, just maybe, if the CCB is effective enough, users of creative works will get out of the habit of simply grabbing material off the Internet and remember that they’re supposed to pay for it.

From the time the CASE Act was introduced in committee until the day it was signed into law, and beyond, the copyright haters have portrayed the CCB as a body for rubber-stamping $30,000 fines for memes—especially if Grandma shares them. And while it may be foolhardy to make predictions this early, I suspect the copyright haters may be sorely disappointed to see that the majority of CCB claims and resolutions will be mundane. Just freelance workers trying to get paid.

It would hardly be the first time that peanut gallery predicted disaster without cause. But we shall see what comes.

FULL DISCLOSURE

I am now the co-founder of a new venture called RightsClick, a software suite designed to help independent creators manage their copyright portfolios and to take certain DIY enforcement actions. Very soon, the suite will include a CCB tool to facilitate filing and managing a claim. I do not intend to stop writing this blog, and I will make every effort (as I am right now) to be clear whenever a post implicates the interests of RightsClick.

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK

Warhol Foundation v. Goldsmith at SCOTUS Part II: The Derivative Works Right

In Part I, I wrote that I hope the Court will find that AWF’s central argument fails on the “transformativeness” question presented and that it will reaffirm that this part of the fair use factor one inquiry must find at least some evidence of commentary upon the original work. Warhol’s Prince Series does not comment upon the photograph used, which is why the Court should also reject AWF’s allegations that the speech right is at stake in case:  because AWF wrongly applies the fair use exception in context to speech.

Once again, the implication that fair use evolved to protect all uses resulting in any form of protected speech (i.e., nearly all uses) is where the anti-copyright crowd would like to go, but it is an aberration of the doctrine. Instead, the speech right lives in fair use because, at its core, the exception prevents the copyright owner from prohibiting various uses that comment upon or criticize her work. Under AWF’s doctrine, everything that speaks is fair use, even Sen. Hawley’s recent defense that his unlicensed use of a photograph on campaign merch should be fair use because it is obviously political speech.[1] This is simply wrong as a matter of law.

Many follow-on works that legitimately fall within the correct doctrinal boundary of fair use will continue to be made if the Court rejects AWF’s over-broad claim to defend speech and the entire world of appropriation art. With regard to the latter subject, uses that do not meet a proper fair use standard may still be made through licensing, which brings us to the question overshadowed by the fair use inquiry, which is whether Warhol prepared derivative works that infringe Goldsmith’s exclusive right under Section 106(2) of the copyright law. I have said in earlier posts that my own view is that the Warhol screens do not sufficiently copy enough of Goldsmith’s expression to be infringing, but that’s a matter for lower courts and juries. More germane to the moment is whether the Supreme Court might reaffirm the importance of considering prima facie infringement before responding to a fair use defense and, thereby, reaffirm the derivative works right, which has been gnawed upon, if not occasionally consumed, by the fair use hydra.[2] After all, the right to prepare derivative works is statutory law, while the “transformative” doctrine is not.

Affirming Authorship in Photography

Oddly enough, my instinct here is that reasserting the value of the derivative works right in this case would, in addition to fostering better copyright law, possibly shore up the foundation of authorship in works like photographs. I say this regardless of the outcome for either party, and others may disagree, but I’ll do my best to explain.

Begin with the acknowledgement that nearly all photographs—and certainly many portraits—are a mix of unprotectable fact and protectible expression. In a photograph like Goldsmith’s 1981 portrait of Prince, the expression (i.e., Goldsmith’s authorship) is subtle in that we understand, as a matter of law and common sense, that she is obviously not the author of Prince’s face. This nuance in photographic authorship is a conceit the anti-copyright ideologues would like to obliterate, and quite often they attempt to do so by arguing a very broad interpretation of “transformativeness” that would swallow the author’s exclusive rights.

Copyrightability in the medium of photography rests substantially on two principles articulated in two Supreme Court cases—Sarony in 1884 and Bleistein in 1903. In Sarony, the case which challenged the constitutionality of protecting photographs at all, the Court had a relatively easy time identifying the photographer’s authorship in the observable creative choices he made to produce the resulting portrait of Oscar Wilde …

[“Oscar Wilde No. 18”] is a useful, new, harmonious, characteristic, and graceful picture, and . . . plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff.

But that same decision also theorized that an “ordinary” photograph—perhaps one of the many portraits typical of the day depicting regular folks posed in front of plain backgrounds—might not be protectable. But nine years later, although the Bleistein case did not involve photographs, Justice Holmes introduced the metaphysical notion of the “personality of the artist” as a foundation for authorship, an idea which prefaces the doctrines of “modicum of originality” and automatic copyright upon fixation. Holmes writes:

The [creative rendering] is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.

In Bleistein, Holmes also famously cautioned courts to avoid playing the role of art critics …

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.

If the Sarony Court might have found a portrait like Goldsmith’s of Prince too “ordinary” for copyright to attach, thankfully she and the rest of the photography world are rescued by Holmes’s “personality of the artist” principle. But to accept this principle, and continue to affirm it, we must acknowledge very subtle forms of authorship in works like photographs, which are always a paradoxical combination of truth and fiction, of human vision and mechanical reproduction.

Moreover, because many visual arts, are non-verbal works, they often defy any effort to describe what they are or what they communicate, much like a consideration of instrumental music. Hence, concepts like “meaning and message” are easily bent out of shape in cases like AWF v. Goldsmith, as was manifest in the Second Circuit’s efforts to square its decision with its prior holding in Cariou v. Prince, which failed to heed Holmes’s counsel to avoid art criticism

The “transformative” analysis invites meandering discussion about “meaning and message,” which is distracting to questions of law but also may not exist in the works at issue.[3]We must keep in mind that copyright is about expression—the subject matter of authorship—and not about meaning and message—the subject matter of audiences and critics. When inquiries become un-moored from this principle, fair use makes a hash of cases like this, and cases like this make a hash of fair use.

Where a secondary work is clearly based upon a primary work but does not meet the fair use qualification of commenting upon the primary work, the courts can agree that the derivative works right under Section 106(2) is implicated. Then, at trial, it may be determined whether the secondary work copies enough of the expression in the original to be infringing.

Observers of good intent will disagree as to whether Warhol copied more factual or expressive elements in Goldsmith’s photograph, but this inquiry under the light of Section 106(2) affirms the value of authorship in the former while allowing a reasonable consideration of possible non-infringement for the latter. In contrast to AWF’s sprawling view of fair use, the derivative works inquiry forces a court, or a jury, to begin with an analysis of the authorship in the work used with proper deference to the bundle of copyright rights attached to that authorship upon fixation.

[1] Not that this is the worst copyright mistake made by the senator. See Stephen Carlise and Aaron Moss.

[2] Recognizing that the Court failed to do exactly this in Google v. Oracle, and because only the fair use argument is presented in this case, copyright advocates have reason to be anxious about the outcome in AWF v. Goldsmith.

[3] Indeed, Richard Prince insisted that there was no meaning or message other than “art” in his works made from elements of Patrick Cariou’s photographs.