Tag: fair use

Fair Use and Politics: Trump Denied Dismissal in Suit with Eddy Grant

This week, the SDNY denied the motion to dismiss requested by Donald J. Trump et al in the copyright suit filed by singer/songwriter Eddy Grant. The complaint stems from the unlicensed use of Grant’s song “Electric Avenue” which was synched with an animated, political video satirizing then candidate Joe Biden in 2020. The video was distributed via social media, including on Trump’s own Twitter account on August 12th. The defendants based their petition for dismissal on the grounds that use of the song was a fair use.

It is difficult in general to win a dismissal of a copyright claim based on a fair use defense. But that procedural standard notwithstanding, the fair use argument presented in this case is well-trod territory and, therefore, short work for a court in the Second Circuit, which is replete with copyright precedent. Specifically, Trump et al employed a familiar tactic by arguing a too-broad interpretation of what it means to “use a work for a different purpose” than its original purpose at creation. This argument is made under the first prong of the fair use test, which considers the purpose of the use, including whether the use is transformative. Here, the SDNY was clear:

While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation’s use of Grant’s song. As the Second Circuit Court of Appeals recently stated: ‘where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use’ is insufficient to render a work transformative.’

So, as I say, the court is not breaking any new ground in finding that the fair use test would most likely favor Grant in this case and that it must, therefore, deny the motion to dismiss. If this litigation proceeds, I believe Trump et al will continue to find that there is no precedent on which its fair use defense can survive; and considering the much darker legal clouds gathering around Trump’s world, I would not be surprised if this little civil dispute with one musician is settled in the coming weeks or months.

Is Political Speech a Little Different?

What can be tricky for many observers with this kind of case—and the court here alludes to the matter—is that political satire is a “rich part of our First Amendment tradition.’” The the anti-Biden video was satirical in general and produced by a third party, albeit as an endorsement of Trump for President. But the reason the transformative test fails is that no comment upon “Electric Avenue” itself is present in the use. The fact that the overall message of a work may be satirical does not favor a fair use any more than if the overall message is deadly serious. The essential ingredient that must exist under prong one of the fair use test is some comment upon the work being used without license. But what if a political video is satirical overall and achieves parody of a work being used?

In fact, this is close to what occurred in Henley v. DeVore in which Don Henley’s songs were used for political purposes, and about which the court in Grant writes, “In Henley, the defendants changed some of the lyrics to the copyrighted songs and even provided their own vocals. And because the defendants there used the songs as vehicles for their political messaging, in one instance to poke fun at Henley himself for his political affiliations, the court found that the secondary works were satire and parody, respectively.”

The Grant court notes that the fair use test still failed due to the amount of Henley’s work used for the purpose, but I underline the example to make the point that a political advertisement could conceivably be parody of a work and a satire at the same time and, therefore, be held a fair use of a protected work at issue. But might this raise an acute tension with the First Amendment?

It is considered self-evident that political speech is a paradigmatic subject of the speech right, but if this is so, then compelled political speech is a paradigmatic infringement of the speech right. Thus, when a copyrighted work is used without license in a political message, the use has greater potential to result in an especially egregious form of compelled speech. This principle is exacerbated in the current climate, where political divisions are sharp and hostile, but also in the digital landscape, where the distinction between the political satirist and the political operative is almost invisible.

Any smartass with a smartphone can, and does, make potentially very persuasive political commentary and distribute same via social media. And, of course, the low-cost tools of production and distribution are available to the many PACs and other third parties who are not in the satire business like South Park or The Daily Show, but are instead in the professional campaign business. Meanwhile, as viewers, we do not pay much attention to the sources of all the memes and videos that shape or reinforce our views and opinions—even where that information is available at all.

In principle, a court looking at a satirical video, whether it is produced by a PAC or SNL, should consider fair use in the same manner. As the court in Grant notes, “…denying the defendants’ fair use defense in this case—especially at this early stage in the litigation—will not chill legitimate political satire. Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law….” On the one hand, it is sensible that a court view the Biden satire video as it would any other “legitimate political satire” with regard to the fair use analysis; but on the other hand, it strikes me that if the creator of a political satire is a political operative with a clear political purpose (e.g. to win an election or advance a specific policy), that the speech rights of the copyright owner should perhaps weigh more heavily against a finding of fair use than might be considered in a use that does not have such a clear political purpose.

While it is true that the unlicensed use of a work to promote a brand or a message may feel to the copyright owner like a form of compelled speech (and may even violate his right of publicity), these private sector infringements lack the state action  necessary to implicate the First Amendment. And even though a work of political satire may be produced by a party like a PAC, which is in the private sector, when the satire’s purpose is arguably an extension of a political campaign—especially of an incumbent office-holder—the copyright owner may justifiably feel a more acute form of compelled speech than with a typical commercial infringement.

Specifically, when a sitting President uses his social platform to distribute a video endorsing his reelection, and the video is enhanced by an unlicensed copyrighted work, the compelled contribution by the rightsholder to that message may consider the experience awfully close to a constitutional, as well as a personal, violation of his speech rights. This may be true even with an incumbent who is more disciplined than Donald Trump when it comes to the distinctions between the office and the individual. The fact that this form of compelled speech will generally skirt a constitutional violation is a technicality mired in the tangles of campaign finance rules and the role of PACs, but the bottom line for the copyright owner is likely something like this: “The sitting President just used my voice to support his reelection, and I don’t support him.” But should that violation be allowed, if the use also succeeds in commenting upon the work at issue within the same political message? Perhaps, but alas …

Sadly, we no longer live in a world in which political theater plays a fractional role within a broader competition of ideas. Instead, our political process is too often nothing more than theater. No politician in modern history both exploited and exemplified this circus atmosphere more than Donald Trump, and no platform has ever amplified the cacophony like social media. It is simply too easy today to cobble together pictures and sounds into political performances that go viral; and at the very least, the authors of the works being used should be accorded the right to allow or disallow the exploitation of their creative expressions for those purposes.

The underlying principles of the fair use exception in copyright law are high-minded in theory. The exception supports the speech right—especially the right to comment upon protected works—and this, in turn, animates the foundation of copyright to promote more expression. But when considering fair use in regard to using unlicensed works for political speech, perhaps the identity of the user and the precise nature of his political intent should be considered under factor one—the purpose of the use—in deference to the copyright owner’s speech rights.

Photo source by: melis82

Second Circuit Soundly Denies Rehearing to Warhol Foundation

Many copyright observers, me included, believe the Supreme Court’s majority opinion in Google v. Oracle was deeply flawed because rather than answer the copyrightability question presented (i.e. whether APIs are properly a subject of protection), the Court instead deconstructed that analysis and spread it across the four factors of the fair use test. As a result of that decision, copyright case law was left with a fair use opinion so over-broad in some of its reasoning that it also explicitly stresses that its findings should be read as unique to that case and not interpreted to disturb fair use doctrine in general. Warhol

And rightsholders should be very glad the Court sought to limit that opinion because almost immediately on the heels of the decision, the Andy Warhol Foundation filed a petition for en banc rehearing at the Second Circuit, principally on the basis that Google v. Oracle had altered the fair use analysis in its favor. At issue is Warhol’s use of photographer Lynn Goldsmith’s unpublished photograph of Prince (see background below), and as stated in earlier posts, I would personally find non-infringement in the Warhol screens, but not for most of the reasons presented by AWF, and especially not for the reasons adopted in Google.

What was most concerning for creators about the Google decision was the very broad opinion (mostly discussed in the analysis of fair use factor four on potential market harm) that general social purpose may be served by finding fair use of even verbatim copying of protected works. Thus, AWF argued that, just like software innovation serves social purpose, so too, does fine art serve a social purpose, even where verbatim copying exists.. And while those generalizations are true, one can imagine how a too liberal reading of the “social benefit” premise might find fair use in almost anything.[1] Thus, AWF’s petition for rehearing was the first test of the Court’s stated limitations in Google, and here, the Second Circuit was unequivocal. In a withering 63-page opinion, it responded specifically to the argument that Google v. Oracle had changed the law thus:

In particular, the Supreme Court in Google took pains to emphasize that the unusual context of that case, which involved copyrights in computer code, may well make its conclusions less applicable to contexts such as ours. Thus, while Google did indeed find that the precise copying and incorporation of copyrighted code into a new program could (and did, on the particular facts of the case) constitute fair use, the opinion expressly noted that ‘copyright’s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function.’

And to further emphasize that the outcome in Google had not altered fair use doctrine as AWF asserted, the opinion states:

And indeed, the Supreme Court did not leave that conclusion to inference, expressly advising that in addressing fair use in this new arena, it ‘ha[d] not changed the nature of those [traditional copyright] concepts.’

So, this is an odd one to comment upon for me because I believe the fair use reasoning in Google v. Oracle is very bad law, while I find the Second Circuit’s analyses in Goldsmith to be generally good law, albeit arriving at a conclusion with which I disagree. Most importantly for rightsholders, though, is that the first attempt to exploit the Google decision beyond the limits of a certain type of computer code has failed. And that is certainly very good law.

Background on AWF v. Goldsmith (reprinted from earlier post)

Lynn Goldsmith captured the photograph at issue in 1981, during a truncated photo session with the semi-reclusive musical artist Prince Rodgers Nelson, who was then barely known to mainstream audiences as Prince. Goldsmith contends that she made certain creative choices resulting in an image of the “vulnerable human being” behind the persona. The photograph was never published but was licensed in 1984 (unbeknownst to Goldsmith) to Vanity Fair as a “reference photo” to produce an illustration to accompany a story about musician’s rise to stardom. In fact, the photo was used by Andy Warhol make a series of silkscreens similar to those he has made of Marilyn Monroe, Mao Zedong, etc., all using photographs as original sources.

Goldsmith was not aware of the existence of the Warhol screens until 2016 when, after Prince’s death, Vanity Fair published a special edition with one of the Warhol versions on the cover. At that time, Goldsmith communicated to the Andy Warhol Foundation (AWF) that the works may infringe the copyright on her still unpublished photo, and in response, AWF filed suit seeking a declaratory judgment of non-infringement or, barring that, a finding of fair use. The district court held the Warhol screens to be fair use, primarily by following the Second Circuit ruling in Cariou v. Prince, but on appeal, the court reversed, finding the Warhol screens are not fair uses.

[1] Notably, the Court could have served the same intent by finding APIs to be uncopyrightable, which would have been a cleaner ruling with respect to copyright law in general.

About Quoting Song Lyrics in Books

As a member of the Authors Guild, I occasionally peek at the discussion board, and any topics pertaining to copyright naturally get my attention. It appears that a common question among authors of both fiction and nonfiction is whether they may quote song lyrics in their books. Further, it seems that a typical experience for many writers is that they will seek permission to quote the lyrics, but upon doing so, are presented with licensing fees so high that they wind up removing the quotes from their manuscripts.

Don’t get me wrong. I am obviously an advocate of permission and licensing when appropriate. But quoting lyrics, or anything else, in a literary work at least implies a consideration of fair use, and it would be a shame if book authors consistently avoid perfectly good quotations for fear of being sued. So, with the understanding that fair use is a case-by-case analysis, I offer the following general thoughts (i.e. not legal counsel) for authors to consider, organized according to the four-factor fair use test.

Factor One – Purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Right off the bat, assume the purpose of your book is commercial. Do not fall into the trap of thinking that a textbook or guide to cheesemaking or whatever is “educational” in a fair use context and, therefore, not commercial. If it’s going to have a price tag on it, it’s commercial. If not, ask your attorney. Though this is not the primary consideration with regard to quoting lyrics.

More importantly, factor one of the fair use test happens to pose the first question that any author should ask herself when quoting lyrics in the first place:  Why am I doing it? Interestingly enough, the legal considerations here can be instructive to the writing. For instance, do you or your characters comment in some way upon the lyrics (e.g. their meaning, lack of meaning, cultural influence, loss of relevance over time, etc.)? If so, commentary is a paradigmatic purpose of fair use. So, if you (in a nonfiction work) or your character (in a fictional work) speculates as to whether there might be, say, euphemistic meaning in the lyrics of “Spaceball Ricochet” by T Rex, that purpose favors a finding of fair use.

A purpose that may be less favorable to a fair use defense would be a use in which you are over-reliant upon the lyrics to do the heavy lifting in your writing. For instance, if your characters enter a party and instead of simply writing, “Low was playing on the stereo,” you write out several lines of that song’s lyrics as a mood-setter (almost like a soundtrack in a film), the rightsholder of that song could argue that this not a fair use under factor one because you are relying on the songwriter’s expression without adding anything new like commentary. (I also just implicated factor three, but let’s not jump ahead.)

Factor Two – The nature of the copyrighted work.

At least with respect to the jurisprudence on copyright to date, factor two is very straightforward for the book author quoting song lyrics. Principally, this factor asks whether the work being used is expressive or informational. By definition, even the most informative jingle is expressive because lyrics are arranged in the form of verse. In a fair use analysis, this one likely goes to the songwriter every time, but since factor two is often treated like the red-headed stepchild of the fair use test (inappropriately so in many cases), it would likely be weighed as null with regard to quoting song lyrics in most cases.

Factor Three – The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This would likely be the most important factor in a fair use consideration in this context, but may also be controlled by the fact that, as a writer, you probably do not want to quote too much of a songwriter’s work. While there is no standard percentage of copying that favors or disfavors fair use, the factors to consider are: how much you quote relative to the entire work, whether you quote the least amount necessary to your purpose, and whether you have quoted the “heart” of the work.

To expand on that, quoting a line or two from a typical song is very likely in your favor under factor three. But, going back to why you’re quoting the song in the first place, it is worth asking, both legally and creatively, whether you’ve quoted only the amount needed to meet that purpose. Finally, think of the “heart” of a song as the most widely recognizable aspect of it, which is often going to be the refrain or some portion of the refrain. That does not mean the heart of the work is off limits for fair use; but it is worth keeping in mind that you could copy the heart of a song with a relatively short quote.

Factor Four – The effect of the use upon the potential market for or value of the copyrighted work.

Good news! Just like factor two would almost always favor the songwriter, factor four almost always favors you. In fact, it is nearly impossible to imagine how quoting lyrics in a book could serve as a market substitute, or otherwise harm the value, for a license in a song. But do not confuse “harm the value” with “adverse effect” on the market for the original work. You could write a scene in a book in which you quote a lyric and comment upon it in a way that harms market interest in the song, and that is NOT what the fourth factor in the fair use analysis looks for. If your criticism, through fiction or nonfiction, turns readers sour on another creative work, that may piss off the other creator, but it is in no way actionable under copyright law. (And as long as you don’t commit libel or defamation, it isn’t actionable at all.)

Other Limits on Copyright

Although factor three weighs the “amount used” question under fair use, there are other limits under copyright that are related to amount used, and which may also protect the author quoting song lyrics. De minimis use literally means that you use such a small amount of a work that there is no need even to consider infringement or a fair use defense.

Short phrases are not properly a subject of copyright protection. So, what lines do you intend to copy, and how original are those lines standing alone, if you did not tell your reader that a song is present in the scene? You might write the words love stinks in a context that evokes a song by that name such that the phrase has double meaning in your writing, and that should not implicate a need for a license from the songwriters.

Finally, scenes a faire is the doctrine that commonly used elements are not protectable. So, when I wrote above that factor two is “treated like the red-headed stepchild,” the estate of Warren Zevon has no grounds for a complaint just because almost that exact line appears in his song “Dirty Little Religion” (which is definitely not about the fair use doctrine). “Red-headed stepchild” is a commonly used metaphor which nobody may own through copyright.

While book authors should be judicious when quoting song lyrics—and this rule probably applies more to the writing than the legal questions—it should not be necessary that the writer’s default is to abandon an otherwise clever or poignant use of a lyric quote out of fear of litigation. One problem is that once you ask an agent or anyone whose job it is to collect fees, you’re probably going to get a price quote, but that party may not have any idea how you are using the lyrics.

Before even approaching the copyright owners in this situation, it may be worthwhile to get an analysis from qualified counsel in your corner in order to make informed decisions about what to quote and how; and you might even consider having a fair use analysis written to keep on file in case of potential conflict or to present to a publisher. After all, songwriters’ attorneys are well aware that their clients rely on fair use all the time. So, why shouldn’t book authors?