Category: Intellectual Property

Seuss Nixes Six, Sowing So Many Cli©ks!

In late January, I published a post advocating that we go ahead and cancel some culture. That piece was addressing the subject of platform responsibility, asserting that Facebook et al should feel free to stop amplifying disinformation, hate-mongering, and (unfortunately) sedition and that it should do so without all the dithering about speech rights. There, I asserted that neither Facebook, nor anybody else, needs to apologize for “cancelling” fascism or, more broadly, any illiberal and violent agenda hellbent on ending democracy.

Still, I am loath to use the term “cancel culture” at all. Like other neologisms, it has been sapped of meaning by grumbling Trumpublicans, who make no distinction between, say, deplatforming a white supremacist and a decision in the creative world where authors and stewards of works amend how they express themselves because it may be offensive to the market.

Can the intent to avoid offense go too far? Yes, in my view, it can. I believe, for instance, that it is illiterate to demand only a sanitized version of Huckleberry Finn, or to apply certain sensitivities so aggressively as to mute authors from expressing honest observations about the human condition. (If a writer creates a misogynist character who never utters a sexist remark, the result would be ridiculous.) But such instincts are not the only path to illiteracy. It is also illiterate not to know that certain forms of expression have always been ignorant or hateful—the most obvious of these would be the anthology of Black caricatures in America—and acknowledging this truth in the present is not a “cancellation” of anything. In fact, it’s culturally additive, if you think about it.

Because while there may be pockets of society that would hyperextend the effort to avoid offending anyone (an impossibility), it does not appear that our cultural output comprises the kind of tedious homogeneity one would expect as a result. On the contrary, cultural works are more diverse and complex than ever; and perhaps it is this fact alone that certain “conservatives” find so offensive. If that’s the case, I would point to their tattered and neglected hymnals and suggest they sing a few verses of the Free Market Is Doing Its Job.

But why this sermon? Because the latest bit of news that has a certain brand of conservative frothing in the media was the announcement by Dr. Seuss Enterprises (DSE) that it will discontinue publication of six titles. These are And to Think That I Saw It on Mulberry Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The Cat’s Quizzer. 

The brief statement by the company declares without equivocation, “These books portray people in ways that are hurtful and wrong.” And in response, various pundits lashed out, blaming “post-modernist, woke, liberals” for wanting to erase or scrub the life out of all past works. And as much as I am willing to roll a jaundiced eye at excessive wokeness, that is only a fragment of the scorn I feel for all the hyperventilating reactions to DSE’s decision—especially the copyright nonsense it set in motion.

Copyright law was dragged into the conversation because, of course, it is copyright that enables DSE to cease the production of new copies of these titles. To be clear, however, it is first and foremost the speech right that safeguards us against coerced speech. Any author/rightsholder may choose to stop making a work available because it has become anachronistic, offensive to the market, unprofitable, or simply because the author has changed his damn mind about what the work says. The right to stop speaking is inherent to the First Amendment, and with published works, that right is enforced through copyright law.

Consequently, in response to DSE’s choice to discontinue these titles, some critics on both the left and right began noising that copyright law should be amended to prevent this sort of thing, although the motives for the prevention are obviously disparate. Culture editor Sonny Bunch, writing for the Washington Post, proposed that if an author/owner no longer wishes to profit from a work associated with offensive content, the work should fall into the public domain. But, as any author or copyright advocate can tell Mr. Bunch, merely divesting from the work financially does not dissociate the brand/author from the expression at issue.

But Can Everyone Please Get a Grip?

What I would say to nearly all parties reacting to this story is to please chill the hell out. Put the half-baked copyright theories back the in drawers and, by all means, stop whinging just because a franchise decides that some of its products are no longer appropriate for the children’s book market. Cultural works come and go. And nothing about the great “celestial jukebox” we call the internet has proven otherwise. On the contrary, one can argue that the short-attention-span reality fostered by social media has erased volumes of cultural literacy across all living generations. In fact, I have made that argument.

There’s a reason why illustrations of Pickaninnies and Sambos are found in museums and archives, but not on busses and billboards. Yes, these images are an unflattering part of the American story, and for that reason alone, they should not be erased from memory. But these images are rightly not part of contemporary culture because they are offensive and ignorant and anathema to peace and prosperity. Works come and go. And that’s fine.

Ever read The Castaway? Me either. It was a controversial (i.e. presumably racist) novel about the Civil War published in 1904, and it happened to be the subject of the lawsuit that gave us the first sale doctrine in copyright law. First sale is what allows you to sell or dispose of your copy of a work however you choose. And guess what? DSE’s right to stop making new copies of And to Think That I Saw It on Mulberry Street (1964) does nothing to prevent what may be a few million copies from existing as artifacts for collectors and, eventually perhaps, for archives and museums. Meanwhile, copies of the discontinued six are already selling for a small fortune on eBay and elsewhere. Thank you, first sale doctrine.

If your personal view is that nothing in the Seuss books is nearly so offensive as the Black caricatures I mentioned above, I would be inclined to agree, but that is entirely beside the point. Offense is in the eye of the beholder. And both the speech right and copyright law grant that judgment call to the rightsholder of the work. As a matter of business, DSE has every right to discontinue products it deems bad for the brand and to protect the market for the rest of the franchise. How anyone calling himself a Republican could argue with that is a mystery. But we live in strange and preposterous times.

Meanwhile, copyright law does not need amending to address a problem that does not exist. Authors and their assigns have the right to express themselves and decide whom they are willing to risk offending. And the market has a right to respond. Doubtless, there are hardline conservatives who consider The Lorax a work of liberal, tree-hugging indoctrination. And those people are free to shun the book or even write a parody extolling the economic value of Thneed production.* But otherwise, I really think everyone should chill the hell out.  

*I do not subscribe to this view; I still agree there is no need for Thneeds.

See also: Is It Fair Use to Reproduce Out-of-Print Seuss? by Aaron Moss

Fair Use & The CASE Act

Although this week marks the eighth annual observation of Fair Use Week, I remain unconvinced that the fair use doctrine is any better understood today than it was before this ritual began. I see fair use errors all the time—e.g. in chat threads where creators are trying to do the right thing—and I maintain that it is often the fair use advocates themselves who cause confusion by promoting theories that have not thrived terribly well in court. And it is confusion about the legal use of works, especially online, that was a major reason why the small-claim copyright provision was finally adopted with the passage of the CASE Act in December.

I mention the CASE Act because the site fairuseweek.org led off this week with a post written by scholar Kenneth D. Crews which asserts the “defense of fair use will be on the docket” when the Copyright Office implements the law and establishes the small-claim copyright tribunal, the Copyright Claims Board (CCB) at the end of this year.

Granted, none of us can say for certain how events will transpire at the CCB, but Crews raises concerns that seem to predict that the doctrine itself may be amended by the decisions of the Board—and presumably not in a way the fair use advocates would endorse. Specifically, one statement by Crews caught my attention because it seems to echo a wishful thinking principle about factor four of the fair use test, and one that was recently rejected (again) in Dr. Seuss Enterprises v. ComicMix. Crews writes:

Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.  A court will often need confidential economic data about the sales of the work in question and the revenue earned.  The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.  They can “request” documents and information.  As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.  The choices at that point will be far from satisfactory.

While financial data may be relevant evidence when considering the potential harm to the rightsholder’s market under the fourth factor, the case law generally holds that this analysis is agnostic with regard to such details. In fact, ComicMix attempted to assert this exact defense, arguing that DSE should be required to prove with financial evidence the direct harm their mash-up book would do to the plaintiff’s market. The district court in that case erred when it agreed with this argument, but that error was overturned by the Ninth Circuit Court of Appeals, which held that ComicMix’s fair use defense failed on all four factors. As the court stated directly on this matter:

Not much about fair use doctrine lends itself to absolute statements, but the Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use. ComicMix tries to plow new ground in contending that fair use is not an affirmative defense and that the burden shifts to Seuss to prove potential market harm.

So, turning to the CCB, it seems the most logical assumption is to expect that, as a small-claims body adjudicating relatively straightforward cases, the Officers will not be eager to “plow new ground” in fair use doctrine. In fact, the Board is obligated by statute to follow the law. Its fourth factor analyses, therefore, should be consistent with the courts and largely ignore detailed financial information (as Crews indicates may be necessary) because those facts are not especially germane to that prong of the test. At the same time, where there may be a circuit split on any matter, including fair use, the CCB is required by the CASE Act to follow the precedent of the circuit where the case would be decided if it went to court.

To reiterate a point made many times on this blog and elsewhere, because potential market harm implies a market the rightsholder has never exploited, including possible derivative works, there is no financial data available in such an instance. And despite attempts to argue the contrary, recent case law has reiterated the principle that fair use does not extinguish the copyright owner’s exclusive right to prepare derivative works, or to prevent the preparation of derivative works if that is the copyright owner’s decision.

I would also add that a fair use analysis is a mix of law and fact, and to the extent that anyone may be concerned about the fate of the doctrine itself, it is opinions of law that matter. When, inevitably, a case is presented to the CCB that contains errors of fact on either side, the outcome of that individual case may be unfair as a result, but the law remains unaffected. Still, I homed in on Crews’s comment about factor four because it highlights why I would question his thesis that fair use doctrine somehow hangs in the balance as the CCB is formed and begins to adjudicate cases. Concerned that the CCB might begin to write its own common law, Crews states:

Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.  Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.  As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.  Individual rulings will in some manner be referenced in later proceedings.  Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.

This apprehension appears to hinge on an assumption that the Board would make decisions or render opinions that might reshape fair use doctrine, even though, as Crews notes, there is nothing officially controlling about the Board’s opinions. This is doubtful. For one thing, the types of cases in which both parties agree to adjudication by the CCB are very unlikely to present revolutionary legal challenges not already answered by case law. Although we correctly describe fair use as a case-by-case consideration, that does not mean each case presents a novel consideration. Further, if this assumption is not a sufficient guardrail, the CASE Act contains a provision that allows the CCB to dismiss any case that presents a novel theory of law.

In the last ten years alone, we have seen a compelling variety of contemporary fair use defenses; and if the CCB merely follows that guidance, Crews’s concerns should be allayed. Unless, of course, the concern is not that the CCB will be inconsistent with case law but that it will further solidify case law. After all, advocates of a broader, or looser, fair use doctrine have generally not faired too well in a number of headline cases in federal courts. So, I imagine that if the CCB renders decisions that affirm ComicMix, ReDigi, KinderGuides, Brammer, and VidAngel, to name a few, this might not be very popular among those who currently advocate a more expansive approach to fair use.

Crews does state explicitly that fair use can “survive” the work of the Copyright Claims Board, and he is certainly not wrong to say that the efficacy of the Board has to prove itself—frankly in all aspects of copyright litigation, and not just fair use. Moreover, the rubber-meets-road decisions by the CCB may serve to better educate both plaintiffs and respondents about copyright’s protections and limitations. And finally, I disagree with Crews that a respondent who believes he has a fair use defense is safer opting out of a CCB adjudication in the early days of its existence. As discussed in this post about Brammer v. ViolentHues (a very typical digital-age litigation), the defendant might have arrived at the same rejection of his untenable fair use defense for a fraction of the cost.

Photo by Corgarashu

 

IP Rights & the Bernie Meme

The Bernie meme has been a lot of good fun and probably the kind of release valve many of us needed by the time we arrived battered, exhausted, and relieved to watch a peaceful Inauguration Day. My personal favorites are Bernie Merch Table, Bernie Yalta, and Bernie Chicago. And by now, almost everyone knows that Sanders’s campaign team had sweatshirts made with the photo and that 100% of the proceeds from the sale of those shirts—nearly $2 million so far—is being donated to Meals on Wheels and other charities in Vermont.

But viral memes—and separately the sweatshirt story—reprise some common copyright issues and likely misconceptions worth mentioning, beginning with a general reminder that no matter how rapidly or broadly a meme goes viral, this does not transfer the original photo into the public domain. The bemittened Bernie photo was taken by staff press photographer Brendan Smialowski and is owned by Agence France-Presse (AFP). It can be licensed for editorial use via Getty Images, which means it’s rather pricey. But what does that even mean after the image has been reproduced in hundreds (thousands?) of satires in the biggest game of Where’s Waldo ever played?

Memes, Fair Use, & Grandma

Memes are a favorite topic whenever the anti-copyright crowd aims to criticize online enforcement. From technical measures used to identify and flag protected works to the small-claim tribunal that will be established by the CASE Act, the critics either predict the death of the meme as a cultural phenomenon and/or that innocent sharers of memes will wind up inadvertently owing some rightsholder a big pile of money. The familiar hypothetical alleges that your grandmother will share, for instance, Bernie at the Last Supper and end up on the hook for a damage award shortly after the Copyright Claims Board (CCB) is formed under the terms of the CASE Act.

But in addition to the many protections for “grandma” in the CASE Act, most memes—and omnipresent Bernie is a good example—would be protected under the doctrine of fair use. To review, the fair use analysis weighs four factors. Factor 1 considers the purpose of the use, including whether that purpose is commercial; Factor 2 considers the nature of the original work, namely whether it is more factual or expressive; Factor 3 considers the amount of the original work used to achieve the purpose; and Factor 4 considers whether the use may cause potential harm to the market for the original work.

These factors are weighed interdependently, and here’s what the Bernie memes look like as a rough analysis:  Under Factor 1, the memes generally add new expression to the original and are not made for commercial purposes; under Factor 2, the original photo is slightly more informative than it is expressive;* under Factor 3, the heart of the work is used in every meme, but the amount used is arguably necessary to the purposes under Factor 1; and under Factor 4, no single meme is likely to cause harm to the market for the original work. But put a pin in that last point because it prompts a slightly different conversation.

Meme makers are everywhere, and those of us who share their lampoons number in the millions. But aside from the practical reality that memes cannot be stopped, it also happens to be true that, very often, there would be no legal basis for stopping them. But having said that, there were quite a few commercial enterprises that jumped into the fray with their own Bernie variations, promoting everything from local stores to major brands. And that’s where things can get a little trickier, both from the perspectives of the copyright owners and the subjects in the photographs.

Using a work for a commercial purpose tilts away from fair use under Factor 1; and in these examples, Factor 4, potential harm to the market for the original, would likely be the deciding consideration if, say AFP were to sue a business for turning their Bernie image into an advertisement. But even this consideration may be influenced by the fact that AFP does not have the independent right to license the photo for commercial use either.

As with nearly all photographs of famous people, AFP only offers a license for editorial use. Photojournalists do not obtain commercial releases, and no subject in his right mind would sign such a thing on the spot. Although confusion on this matter persists, the simple rule to remember is that the photographer (or his employer) owns the copyright in the image, but the subject(s) own their right of publicity (ROP). So, in this example, Bernie may not mind if the local bookshop memes him sitting in front of their store, but he might feel quite different if his likeness were used to promote, say, a Wall Street firm.

The point is that with regard to both copyrights and rights of publicity—and ROP vary state to state—commercial users both large and small should at least think about what they’re doing before leaping into a meme mosh pit. Just because everyone is doing it does not mean the rules are the same for commercial users as non-commercial ones. And without careful consideration, the commercial user could easily find itself on the wrong side of a litigation under copyright or ROP law, or both.

The Sweatshirt is a Commercial Use

Prospective users of photos, etc. should also remember that commercial use is not about profit per se. Raising money for charity is still commercial use under the law. I sent an email to Friends of Bernie asking whether they had contacted AFP regarding the sweatshirt, and I was not very surprised that they did not respond (**see note below). But regardless of this unusual circumstance involving a popular progressive senator, a sudden meme frenzy, and raising money for charities, nobody following this story should be confused about the fact that you do not automatically own the right to reproduce an image of yourself. In general, if you want to make shirts or coffee mugs or keychains—even to raise money exclusively for a worthy cause—you need permission from the copyright owner.

At the time of first publication, I did not know whether Bernie’s people obtained permission, but I am confident that the this story will confuse many potential users of photos into thinking that Team Bernie did not have to consider doing so. To put this in perspective, as a matter of copyright law, Bernie’s reproduction of the photo onto sweatshirts is no different from the McCloskeys’ reproduction of their infamous gun-wielding photo onto Christmas cards. And in that case, the photographer did take legal action. So, prospective users of works should remember that the legal standard is not one thing because we applaud Bernie’s use and another because we revile the McCloskeys’ use—or vice versa for some.

The Market Value of Photographs

I mentioned above that most memes under Factor 4 of the fair use test will be considered non-harmful to the market for the underlying work; but this is a tough subject that provokes lot of sympathy for professional photographers. A single meme, analyzed on its own, would likely be considered non-harmful, depending on certain aspects of the original photo and how it was used in the meme. But it cannot be ignored that the cumulative effect of a meme gone viral—or even widespread sharing of an unaltered image—can obliterate the market value of an original photograph—and licensing photos is how photographers pay their bills.

In this instance, Smialowski commented to Rolling Stone, “The picture itself is not that nice. It’s not a great composition. I’m not going to be putting this in a portfolio.” But the broader point is that meme frenzies make no distinction about the relative market value of the image being used. On that topic, photographers and all authors of works are acutely aware that the insidious commercial users in these viral phenomena are the social platforms themselves. While it is true that the meme-maker who put Bernie on Forrest Gump’s bench had no commercial interest, and neither did anyone who shared the image with friends, the data produced by all the sharing is worth a fortune to Facebook, Google, Twitter, et al.

Resolving that issue remains a challenge for professional journalists and millions of authors of creative works in the digital age. And in that effort, I hope that Senator Sanders himself, as an avowed champion of labor, takes note that creative professionals comprise a substantial segment of the American middle class and that copyrights are the equivalent of their labor rights.

*As stated in the Rolling Stone quote, even the photographer would likely say that the photo is not highly expressive with respect to his authorship.

**NOTE: Thanks to comments on Twitter, according to ABC and other news sources, Getty Images was contacted and agreed to donate licensing fees to the causes. Bernie Sanders’ mittens, memes help raise $1.8M for charity – ABC News (go.com)