This week, the Supreme Court must decide whether to delay the ban of TikTok in the United States, which is scheduled to take effect on January 19. Signed into law last March, the Protecting Americans from Foreign Adversary Controlled Applications Act was designed to compel owner ByteDance to sell TikTok to a U.S. or other entity with no ties to the Chinese government. But rather than seek a buyer over the last ten months, TikTok has fought the mandate, arguing principally that the “sell or be banned” law violates the First Amendment.
On January 10, the Supreme Court heard oral arguments, and based on comments by various legal observers, it’s a toss-up as to whether the Court will hold that the TikTok law violates the speech right. The Court could also postpone the January 19 deadline on the basis that it declines to issue an important constitutional decision on such a tight timeline. Personally, I am not persuaded that the law implicates the First Amendment because the forced sale targets TikTok as a product and foreign-based operation without regard to the content on the platform. In fact, blurring this distinction is why I believe we have thus far failed to hold social platforms accountable for the content they host, promote, monetize, and manipulate.
Briefs filed on behalf of TikTok include most of the parties with whom I typically disagree on speech and the internet, including the Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Fight for the Future, Cato Institute, and Copia Institute. One argument presented is that even forcing a change in ownership targets the content of the speech on the platform. A similar view was expressed by Dr. Mary Anne Franks during an interview on WPUR. I generally agree on most matters with Dr. Franks, but here, I disagree with the premise that compelling the sale of TikTok is tantamount to targeting the content of the platform or acting as a prior restraint on speech. Further, I worry that if either theory holds, this would only exacerbate the free-speech shell game played by every major social media site determined to avoid either government or self-regulation.
For context, foreign parties are historically prohibited from owning TV or radio networks on the basis that it is a threat to national security to place the tools of mass communication within the reach of foreign powers who might wish to meddle in U.S. policy. If that rationale applies to a mode of communication that merely broadcasts a limited volume of content in a limited manner, the same logic must apply with greater force to social media, which acquires information about its users and can micro-target those users with propaganda from any source in the world. As the brief filed by Professor Zephyr Teachout states:
While 30 years ago it was functionally impossible for foreign governments to engage in local races for Congress, or to track the vulnerabilities of local officials millions of miles away without considerable cost, social media now makes it nearly frictionless for a foreign adversary to engage in hyperlocal politics directly.
The prohibition on foreign parties owning, for instance, American radio stations was never held to be a prior restraint on the speech that would have been communicated by owners who do not have First Amendment rights under U.S. law. This same analysis cannot reasonably be amended on the basis that social platforms (unlike traditional radio or TV stations) reach audiences anywhere in the world, or the fact that TikTok is already used by 170 million Americans exercising their speech rights. So long as the Court finds that the target of the ban/sale law is the design, operation, and foreign influence over the site, it should not be persuaded that the question is a First Amendment issue at all.
As a very simple example, if a publisher distributed children’s books made from toxic materials, any government action to sanction the publisher could not reasonably be held to target the content of the books. And no rational consumer would think otherwise. Likewise, those aspects of TikTok that are toxic to American consumers and/or American interests are considerations separable from the speech rights of either the TikTok entity or its American users.
Finding for TikTok Would Exacerbate Our Social Media Problems
The speech rights of platform users have been cited ad nauseum by Silicon Valley as a rationale to reject government oversight of social media, and this despite the hypocrisy that a user’s speech can be willfully trampled by the platform itself. While Section 230 holds that social platforms are not publishers, they nevertheless act as super-publishers, who manipulate, stifle, amplify, charge fees for, and even ban the speech of users—often without any discernable rationale, and always without transparency or mechanism for appeal that would not astound Kafka himself. (Just last week, a colleague was sent to the Facebook penalty box, and near as we can tell, this was triggered by his posting comments critical of Facebook after the announcement that they would end fact-checking.)
Congress recognizes and yet fails to address the myriad intentional and unintentional hazards caused by social media’s unprecedented capacity to alter world events through data-driven targeting of false and hazardous material. They have yet to hold platforms, including TikTok, accountable for obvious harms like mass copyright infringement, drug-related scams or child suicides caused by algorithms. In this light, the argument that some new owner of TikTok might manipulate speech in a different manner than the current owner (as Musk did after buying Twitter) cannot be a basis for finding that the forced sale is a prior restraint on the speech that might have been expressed by maintaining the status quo. It is an untenable proposition.
The Trump Brief
As if to highlight how preposterous the world is thanks to social media, the TikTok matter is extra sticky at a moment when the American President-reelect demonstrates a hostility to American interests as if he were a foreign adversary. This existential challenge to the Republic is not germane to the First Amendment question before the Court, but the morass is difficult to confront when Trump himself has weaponized the same modes of propaganda that animate the rationale for the ban/sale law in the first place.
Trump is among the amici who filed a brief on behalf of neither party, but which nevertheless supports TikTok by arguing that the Court should postpone the January 19 deadline. The stated reason is classic Trump—namely that he, and he alone, can solve the problem through the art of the deal. Pregnant with self-aggrandized rhetoric, the brief states, “…President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns….”
So, on the basis that Trump is the master negotiator, he argues that the Supreme Court should decline to wade into the “‘unprecedented’ and ‘very significant constitutional questions’” presented by TikTok, at least until he has a chance to work his dealmaking mojo. Surely, the Court cannot fathom what Trump might really intend, let alone resolve the hypocrisy that a con man who owes everything to social media can “save” TikTok while protecting national security. But the Court can, and in my view should, find that the law forcing the TikTok sale does not violate the First Amendment.
The announcement that Meta will stop fact-checking material on its platforms is neither surprising nor, at this point, relevant. Mark Zuckerberg’s absurd announcement that the company is “getting back to core principles,” or whatever bullshit way he said it, is no more appalling today than that same rhetoric has been for decades. None of this conduct is news or purely about sucking up to Trump (though that is certainly a factor). Cyberlibertarian ideology, which is much older than Zuckerberg, has long relied on a rhetorical tactic by which Big Tech sells the public the idea that its business purposes enhance or support democratic principles while pursuing an agenda that is exclusively anti-democratic. And the public has a long history of falling for this shell game.
It is accurate but incomplete to say that when X or Facebook mothballs internal accountability this is motivated by profit. To be sure, Big Tech’s PR and lobbying assault on the very idea of regulation, whether by government or its own policies, is partly driven by the financial value of frictionless platforms. Thus, the tedious reiteration that we must “Save the internet!” from Policy X or Regulation Y, usually paired with alleged defenses of the speech right, have long masked the truth that allowing conspiracy theories, lies, hate speech, harassment, foreign propaganda, and material harmful to children is profitable. And like the NRA’s playbook, these harms are repackaged as the price we pay for a “free and open internet.”
So, yes, that message is motivated by money, but it is about more than money. Zuckerberg, in describing the decision to stop fact-checking as a move back to “core principles,” is merely fulfilling his destiny as a young cyberlibertarian, heir to a bizarre philosophy that is authoritarian at its core. Hence, the complaint that Meta does not care whether it harms democracy misses the trick that harm to democracy is the goal and not a byproduct. That harm will level up (though not to its zenith) on January 20th, when a felon will retake the Oath of Office he already violated while millions of citizens participate in an ersatz America brought to you by Silicon Valley’s new and improved democracy of the screen.
In nearly every article on this subject since 2012, I have tried to present variations on the theme that whatever policy matter may be the issue of the moment, Big Tech’s underlying opposition is not limited to the proposal itself but to the idea that government should even function as the instrument of democracy. No surprise that David Golumbia articulates this sleight of hand so clearly when he writes, “We seem to be talking about copyright, freedom of speech, or the ‘democratization’ of information or some technology. But if we listen closely, we hear a different conversation that questions our right and ability to govern ourselves.” That’s it in a bombshell. And although other industries (e.g., tobacco and fossil fuel) have adopted this same rhetoric, no industry has ever had so much power to control the message—let alone to argue that the messenger itself is the messiah of liberty.
While the traditional libertarian views democratic institutions as obstacles to liberty, the cyberlibertarian advocates digital technology as the workaround which obviates the need for those institutions. This, as stated many times, is the premise under which Big Tech’s anti-copyright agenda was sold to the public as a “right of access and speech” stifled by government’s authority to write copyright law. The access/speech narrative, which appeals in different forms to both right and left sensibilities, disguised the fact that Silicon Valley both objects to copyright enforcement as a business interest, but also to the principle that Congress should protect creators’ rights as an ideological matter.
Cyberliberatarianism, which guides (I would say infects) the minds of far too many tech leaders and tech industry evangelists, scorns the mechanisms of government as an inefficient and clunky way to run a society. And the profoundly unqualified Elon Musk, as the putative new head of “national efficiency,” is a manifestation of this same magical thinking. But who bought the bullshit? Who believed that digital technology can and should operate as the alternative to a functional representative government? Everyone. Left, right and center.
Yes, there are some prominent voices we can blame for carrying the cyberlibertarian flag, and these include the Electronic Frontier Foundation, Fight for the Future, Public Knowledge, Senator Wyden, Niskanen Center, Techdirt, Mike Masnick, Daphne Keller, Eric Goldman, Computer and Communications Industry Association, Cory Doctorow, Ed Snowden, Jonathan Band, Julian Assange, American Library Association, Brewster Kahle, John Perry Barlow, Eric Schmidt, the Cato Institute, and, at least in this context, the American Civil Liberties Union, to name a few representatives familiar to both liberals and conservatives.
Those parties, and far too many academics anointed with Silicon Valley oil, have all preached the cyberlibertarian gospel by advocating conveniently vague notions like “innovation” (appealing to conservatives) and “digital rights” (appealing to liberals). The former is a catch-all for the talking point that “regulation stifles innovation,” a thesis which never bothers to define either term. One need only watch the squabbles over AI to see this history repeating itself, with Big Tech arguing the deterministic importance of AI against any kind of statutory checks that might, for instance, bar the use of AI to exacerbate false information about real persons.
As for “digital rights,” if one wonders what distinguishes these rights from traditional civil rights, it’s a good question elided by the rhetoric of those who invented the term. That said, “digital rights” consistently include a presumed right to free and unfettered access to everything; a presumed right to remain anonymous under all circumstances; and the maximalist view that all material posted online, no matter how harmful, should be treated as protected speech. That these “rights” contradict the administration of civil rights everywhere other than cyberspace is an inconvenient truth that remains un-addressed.
In combination, these cyberlibertarian “core principles” add up to zero accountability for digital tech corporations promoting the illusion that their products foster greater accountability from the real enemy of liberty—democratic government. This is how I believe the ordinary imperfections of government became so much fuel for galloping conspiracy theories and preposterous narratives that rage across the web like a California wildfire. But if we vote as if the government is the enemy, then eventually it will be. And in this light, Meta’s announcement that it will shit-can accountability is not a pivot to the right, but a continuation of a long goose-step toward the far right that has been baked into that industry’s ideology for generations.
Assuming we will not all simultaneously cancel Facebook in protest, perhaps we can at least stop doing Big Tech’s bidding every time a policy proposal is made that the industry opposes. Whether the issue is Section 230 reform, artificial intelligence, countering mass piracy, image-based sexual abuse, child safety, etc., it might at least help if we reject any messaging promoted under that tiresome and disingenuous headline that we risk “losing the internet as we know it.” Facebook’s latest announcement is just another example that we can afford to take exactly that risk.
“One might expect a 140-year history of Supreme Court precedent would have led to a grant of summary judgment below, sparing everyone unnecessary time and money,” states the brief for Jeffrey Sedlik to the Ninth Circuit Court of Appeals. “Copyright infringement should have been decided by the district court as a matter of law, not at trial by a poorly-instructed jury swayed by a celebrity defendant.”
Jeffrey Sedlik v. Katherine von Drachenberg should have been an easy case. Tattoo artist Kat von D copied photographer Sedlik’s 1989 photograph of Miles Davis as a tattoo and also displayed the photograph in social media photos and videos featuring the production of the tattoo as promotion for herself and her business High Voltage Tattoo.
In 2017, Kat von D made the Davis tattoo on the arm of her colleague and friend Blake Farmer. She could have studied any number of photographs of the jazz artist as references and then inked her own portrait, but instead, she traced and copied Sedlik’s photograph in detail, thereby producing a derivative work without license. Upon discovery of the social media posts, Sedlik reached out to Kat von D to discuss the use of his photograph and was rebuffed. He then filed the first copyright suit in his career, which includes serving as an expert witness in hundreds of copyright cases. He took legal action because he believes artists should respect one another and obtain permission to use works when it is appropriate to do so.
As the quote at the top of this post states, the case should have concluded at summary judgment with an easy finding in Sedlik’s favor. Instead, a jury wound up deciding that 1) the tattoo is not substantially similar to the photo (ergo non-infringing); and 2) several of the social media posts made fair use of Sedlik’s photograph. Sedlik filed an appeal with the Ninth Circuit in October, citing errors of law by the lower court, including faulty jury instructions.
Although courts are appropriately cautious about overturning jury decisions, the appellate court here should agree that the lower court made unfounded legal decisions (and oddly dismissive comments) that were prejudicial to the outcome. Highlights include the court’s failure to properly weigh substantial similarity as a matter of law; excluding Sedlik’s expert testimony at trial about photo licensing; and electing not to communicate to the jury the court’s own findings on fair use, thereby leaving the entire fair use inquiry to the jury, which is inconsistent with precedent.
As one example implicating a confused jury, the Sedlik brief notes, “…the jury determined that eight [social media] posts that were found to be not substantially similar were a fair use, a legal impossibility that the district court would later find to be ‘contrary to the form’s instructions.’” [emphasis added]. This legal impossibility is one of several head-scratchers in the administration of this case, yet the appeal has inspired three amicus briefs* in favor of KVD written by Professors Pamela Samuelson, Rebecca Tushnet on behalf of several law professors, and Christopher Sprigman with Molly Van Houweling.
I am unfamiliar with Van Houweling, but the other three are all prominent copyright critics, and if I can read between the lines, the three briefs express dismay with the Goldsmith v. Warhol decision because it stopped fair use from swallowing the derivative works right. Copyright critics don’t like the derivative works right, and so, each brief targets Sedlik’s underlying complaint from three different perspectives—on fair use, substantial similarity, and (believe it or not) standing.
The Tushnet Brief
Professor Tushnet and amici argue that the jury was properly instructed and arrived at a reasonable finding that the tattoo is not substantially similar to the photo. To support this view, the brief cites a litany of cases in which substantial similarity was not found because, as Tushnet states, “there can be copying without infringement.” Yep. There sure can. Just not in any of the case law relevant to Sedlik.
I agree with the brief that the courts should first focus on substantial similarity before getting bogged down in fair use. In fact, I have stated in other posts that if Warhol had been a substantial similarity case instead of a fair use case, I could see a plausible argument that Andy Warhol did not copy the protectable expression in Lynn Goldsmith’s photograph, but this same consideration is not nuanced in Sedlik. Kat von D painstakingly copied the expression in the Davis photograph, and Tushnet’s list of cases in which defendants’ works were not substantially similar offers no authority for finding lack of substantial similarity in this instance. For example, the brief highlights Rentmeester, in which the photographer of an iconic photograph of Michael Jordan unsuccessfully sued Nike for producing a photo and now-famous logo known as “Jumpman.”
Rentmeester demonstrates that, for instance, the plaintiff cannot protect the idea of a basketball player jumping toward a hoop with his legs posed in a jeté. And the Tushnet brief is right that this is a good example of some copying that is not enough copying to find infringement. Yet, one struggles to see how Rentmeester is instructive to Sedlik where we see meticulous copying of the protected expression. Kat von D shared images and video of herself tracing Sedlik’s photograph and stated publicly that she copied the image “100%.” But at trial, she sought to emphasize small changes made during the process of creating the tattoo.
Likewise, the Tushnet brief overstates the relevance of Kat von D’s “changes,” many of which are necessitated by the medium of drawing with ink on skin, and none of which excuse the substantial amount of copying that is plainly visible to an ordinary observer. The lower court, at various stages of its inquiry, and then by punting questions of law into the jury box, appears to have directed improper attention to the minor distinctions between the two works rather than the obvious and important similarities.
Because the Tushnet brief cites multiple cases of non-infringement that are not analogous to Sedlik, this implies criticism of copyright in photographs, which, as Sedlik’s brief notes in preface, has been settled law for 140 years. In fact, although it is true (as the Sprigman brief discusses) that the derivative works right was not statutory law in 1894, the Tushnet analysis suggests that the Supreme Court in that year should not have seen infringing copying of the photo on the left in the lithograph on the right:
The seminal Burrow-Giles v. Sarony decision, affirming copyrightability of photographs, was not a substantial similarity case, but there, the infringing lithograph is also different in several ways from the photograph—differences that are, again, partly necessitated by the medium. One could even argue that Burrow-Giles did not as precisely copy Sarony’s expression of Oscar Wilde as Kat von D faithfully copied Sedlik’s expression of Miles Davis. For instance, the face of Wilde is quite different in the lithograph, and if Burrow-Giles were litigating today, perhaps they would try to argue that those differences negate substantial similarity or favor transformative fair use.
But as the Sedlik brief states, “It defies one’s eyes and the law that there could be any result other than summary judgment in Plaintiff’s favor.” If Tushnet et al. argue that the von D tattoo is not substantially similar to the Sedlik photograph, then it seems they believe that only literal copying is a basis for infringement—i.e., that Sedlik’s right to prepare derivative works should be narrowed to the point of irrelevance.
The Samuelson Brief
Professor Samuelson’s brief addresses fair use, which can only refer to the jury’s finding that some of the social posts displaying Sedlik’s photograph were fair use.[1] In summary, she argues that 1) juries can properly decide fair use where facts are in dispute; and 2) the Warhol decision does not disturb fair use findings where the secondary use does not comment on the work.
Samuelson also misstates that Sedlik requested that the jury decide fair use and now appeals because he does not like the outcome,[2] and she implies that Sedlik’s claim of infringement would require a narrow application of fair use inconsistent with the Supreme Court’s holding in Warhol and Google v. Oracle. By my lights, the Samuelson brief argues a straw man because nothing about Sedlik’s claim is inconsistent with Warhol—and Google is inaptly cited.
As noted in several posts, Warhol reaffirmed the principle that when one creator uses the work of another, finding transformative fair use requires a colorable claim that the follow-on use express some “critical bearing” (i.e., comment) about the work used. Kat von D cannot plausibly argue that the social media posts displaying the Sedlik photograph express any commentary about the photograph itself. Display of the photo was done solely to promote Kat von D and High Voltage. Consequently, both the transformative question and the commercial purpose of the posts should have been found to favor Sedlik on factor one without going to trial.
To emphasize my point that this is a straw man brief, I note that Samuelson states, “Warhol also made clear that ‘targeting is not always required, highlighting that uses unrelated to criticism or commentary—such as those that facilitate interoperability or reveal new information about the original work—can also be fair.” That is absolutely true and utterly irrelevant in this case. Samuelson refers to software “interoperability,” as weighed in Google v. Oracle and to “revealing new information,” as considered in Google Books, neither of which has much to say about cases where one artist copies or uses the work of another artist.
Samuelson and Tushnet, in their joint brief to SCOTUS in Warhol argued against the “critical bearing” doctrine, favoring the broader discussion of fair use articulated in Google v. Oracle. But because computer code (at issue in Google) is highly utilitarian, its protection fosters a tension in copyright law that is distinct from the more common considerations presented in cases like Sedlik. The “critical bearing” doctrine may be characterized as “narrowing” by advocates for broader fair use, but that does not make Sedlik’s arguments against fair use inconsistent with Warhol or the substantial volume of similar cases. Samuelson’s brief is consistent with her views on fair use, but, like the Tushnet brief, it cites to authorities that do not apply.
The Sprigman/Van Houweling Brief
This brief is a doozy. It can arguably be read as a companion to the ALI Restatement of Copyright Law (led by Sprigman), and it proves the point that copyright critics really do not like the derivative works right. Because forget substantial similarity and fair use. Professors Sprigman and Van Houweling argue that under the Supreme Court’s 2021 ruling in TransUnion v. Ramirez, copyright owners lack standing to sue in federal court unless they can prove “concrete injury” (i.e., monetary harm) caused by the alleged infringement. I know this is how some people think copyright works, or how many believe it should work, but this brief seeks to unravel the law as it does work.
The TransUnion opinion holds that just because Congress writes a statute allowing for remedies in federal court, this does not excuse a plaintiff from showing a concrete injury, even when he can show a statutory violation. One can imagine how this ruling could be applied to standing in copyright claims, but only if the courts agree that failure to obtain permission/license is not a concrete harm, or if they agree with this brief that violation of some of the exclusive copyright rights in §106 should be accorded less weight than violation of others.
The brief states, “It is doubtful whether a presumption of harm should apply at all to copyright claims, like Sedlik’s, that do not involve the reproduction and distribution of a copyrighted work as such, but rather its use in a derivative work.” Amici imply that the courts should dismiss, or view skeptically, a failure to license as a concrete harm when the use at issue results in a derivative work. To be fair, here is Sprigman and Van Houweling’s fuller description:
If a derivative is close enough to the original that it competes with it, or perhaps preempts a product or licensing market that the author might otherwise plan to enter, then the derivative work at issue may harm the original author. In such an instance, if the copyright law did not reach conduct in this category, we might fear overall harm to author incentives to create. However, if—as is the case here—the derivative “is not closely similar to the original, does not compete with it for audience patronage, and does not preempt a market that the original rightsholder realistically is positioned to exploit, then the existence of the derivative is unlikely to harm the original author.
Once again, suggesting that the tattoo is not “closely similar to the original” is an insult to empirical evidence. But beyond that, amici misstate the consideration of market harm in general and Sedlik’s claim in particular. Licensing creative works for uses the author may not actively pursue or anticipate describes the nature of the potential market in which the copyright owner may choose to participate.[3] Failure to license by the user of a work is a concrete harm as a matter of law, whether the unlicensed use is the result of literal copying, preparing a derivative work, or violation of any of the making available rights in the Copyright Act. This is why, under fair use factor four, the courts consider whether the unlicensed use at issue, if it were to become widespread, would cause significant harm by persistently depriving the copyright owner of fees to which he is entitled.
But under the theory of the Sprigman/Van Houweling brief, TransUnion must upend the practice of copyright law by, among other things, overwriting fair use factor four case law, abolishing statutory damages, and at least weakening the derivative works right. Only a narrow group of rightsholders would be allowed to file suit by showing actual financial damages caused by an infringement stemming from reproduction or distribution of literal copies.
Sprigman/Van Houweling would leave independent and developing creators out of the copyright system altogether, while the owners most likely to have standing would be parties like private equity firms that have bought large catalogs of works whose value is easier to quantify. It is notable, though not surprising, when the anti-copyright crowd, which claims to advocate democratic values and fairness, would propose an interpretation of the law that can only benefit the wealthiest and most powerful copyright owners.
Further, amici’s application of TransUnion to copyright would vitiate any basis other than proven monetary harm for rightsholders to control uses of their works. For example, the author who does not want a motion picture adaptation or a sequel made from her novel; the musician who does not want certain politicians using his songs in campaign ads; the artists who do not want their works used for any form of advertising would be unlikely to show “concrete harm” for violation of those choices under this brief’s interpretation of TransUnion as follows:
If harm caused by violation of the copyright owner’s right to exclude is not generally presumed to be irreparable, then absent some showing that such harm is irreparable in a particular case, it is, by hypothesis, reparable by money damages—if it is harm at all.
Turning down a use that would otherwise be licensed—I doubt Sedlik would license the Davis photo to the KKK at any price—is a right retained by the copyright owner. And if the rejected party uses the work anyway without permission, Sprigman and Van Houweling suggest that the owner cannot sue for infringement because he not only did not suffer monetary damage, but he turned down monetary gain!
The copyright owner retains the right to select which parties, and under what circumstances, derivative works may be created, and unlicensed derivatives can devastate the author’s opportunity to create the derivative works she prefers—including projects that may be more lucrative than those she turns down. Thus, any limiting of the author’s right to choose how her work is used for derivatives forecasts myriad results that would easily meet the definition of concrete harm.
Notably, despite arguing that Sedlik does not have standing, Sprigman and Van Houweling do not ask the court to toss the whole case but instead write that the court can “avoid the constitutional questions” by upholding the jury’s decision below. How does that make sense? As long as amici are writing a brief that is unlikely to make much legal headway, they might as well stick to their guns. If they truly believe Sedlik doesn’t have standing, why ask the court to affirm the outcome?
Conclusion
For Jeff Sedlik’s first (and perhaps only) copyright case as a plaintiff, he drew a strange hand. In what should have been short work for the court, the legal questions are straightforward with ample precedent for guidance. I strongly suspect the Ninth Circuit will reverse and remand based on evidence that the lower court committed errors of law. Meanwhile, it is not surprising that some of copyright’s most notable critics were inspired to argue that the aberrations in this case reflect copyright law as they would see it applied.
[1] The appeals court may reverse the finding on substantial similarity and also opine on the question of fair use with respect to the tattoo itself.
[2] Samuelson elides the fact that this request came from counsel whom Sedlik immediately replaced for making that unauthorized request, after which, Sedlik corrected the record with the court.
[3] A friend of mine received word from officials in the UK that they wanted to use one of his photos on a stamp, and he certainly never saw that opportunity coming.
*NOTE: A fourth brief was submitted by Authors Alliance, but 1) this post is long enough; and 2) their argument mirrors the “narrowing fair use” claim alleged by Prof. Samuelson.
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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