Tag: Featured

A Sound First Amendment Decision with an Odd Fair Use Kicker

A couple of weeks ago, in my post about ghost guns and trademark infringement, I argued that the EFF is wrong to defend the anonymity of the parties who flaunted their alleged infringements on Twitter. In that case, the individuals had manufactured DIY guns (ghost guns) in collaboration with the materials and tools provided by Defcad, Inc.; they had affixed their weapons with both word and design marks owned by the gun-control advocacy group Everytown For Gun Safety; and they had posted images of their products on social media along with deprecating comments about Everytown.

Because there appears to be a triable issue of trademark infringement in which the Doe defendants are plausibly implicated, I disagree with EFF’s view that the anonymous individuals used the marks for the sole purpose of protected speech. Consequently, pursuant to Everytown’s claim of infringement, its interest in discovering the identities of those individuals is reasonable in that light.

I further argued in that post that considering anonymity as coextensive to the speech right should be weighed on a case-by-case basis, and in that example, it is absurd to allege that anonymity is necessary for the general expression of anti-gun-control views in this country. There, the plaintiff has reason to argue that anonymity is merely a strategy by Doe defendants to avoid liability rather than a means of protecting their First Amendment rights.

A Poor Use of Copyright Law

By contrast, a colleague brought a new matter to my attention recently in which a wealthy claimant of questionable nature sought to use copyright law and the provisions of DMCA Section 512(h) to expose an anonymous critic—and apparently for no purpose other than to expose and intimidate the critic. No doubt, somebody will cite this story as an example of a powerful figure “weaponizing copyright” to stifle the speech of a defenseless individual, and that’s one reason I’m writing about it. Because let’s be clear:  copyright advocates don’t appreciate copyright law being used for purposes other than to protect creative expression and promote the progress of same.

This case involves an anonymous blogger who devotes his/her energy to mocking or criticizing the uber wealthy and politically powerful, including Jeff Bezos, Elon Musk, Nancy Pelosi, et al. I have neither an opinion about, nor interest in, the content of the blogs or tweets, as there is no question that anyone, whether anonymous or not, is free to criticize anyone else, especially public figures. But apparently, this party got the attention of billionaire Brian Sheth …

In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account.

That summary is at the top of the California District Court opinion denying Bayside Advisory’s subpoena to compel Twitter to unmask MoneyBags. Bayside had made the request under DMCA Section 512(h), which allows a copyright owner to compel an OSP to disclose the identity of an alleged infringer without first filing a claim against a Doe defendant and later pursuing the party’s identity in discovery.

The rationale of the statute, when all parties are acting in good faith, is that a copyright owner with a sincere intent to protect his rights, should want to identify an alleged infringer before deciding how or whether to remedy the matter. This knowledge can benefit both rightsholder and alleged infringer. But the presumption should be the contemplation of a meritorious claim of copyright infringement and not merely an intent to expose the anonymous speaker for other purposes. That should be the only reasonable basis for enforcing the subpoena to unmask a Doe defendant under Section 512.

Here, the available facts imply a narrative in which Bayside, a party with potentially limitless resources, is misusing copyright law for the sole purpose of exposing and censoring a critic. The entity LLC appears to have been formed exclusively for the purpose of hastily acquiring the rights to the six photos at issue and then registering the works with the Copyright Office after the alleged infringement of the images by MoneyBags.[1]

Although 512(h) allows a subpoena without first filing a claim of infringement, the court clarifies that the statute expressly states that the provision is subject to Federal Rule 45 and that, “A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment.”

Views will vary as to whether the First Amendment encompasses a right to speak anonymously. The EFF and similar organizations seem to think it always applies; others may say it never applies. As stated in that ghost gun post, I believe it depends on whether anonymity is reasonably necessary to protect the speech at issue and whether the speech itself may not be protected, which it is not if it amounts to copyright infringement.

In this instance, the resources and legal maneuvers the claimant appears willing and able to exploit merely to silence personal criticism makes a strong case for a nexus between the speaker and his/her anonymity. This is further emphasized by the court’s reasonable inference that Sheth is hiding his own identity behind the LLC, the website for which just happens to be a one-pager with no clear purpose.

If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter.  

Suffice to say, the complaint reeks of shadiness and a deplorable use of one fragment of the Copyright Act for a purpose that appears to have nothing to do with copyright. Based on the limited facts available, I believe the court acted correctly in finding that the First Amendment considerations outweigh Bayside’s dubious intent in exposing MoneyBags’s identity.

But About That Fair Use Analysis!

Bayside alleged that “to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the court states. I’ll be honest and say that I have no idea what Bayside is driving at here, and perhaps it is naïve about the circuit in which it attempted this argument.

Nowhere does the fair use exception “wholly account” for the First Amendment interests of a defendant, but here, Plaintiff invites a court in the Ninth Circuit to embark on a fair use analysis, which it should have declined in this instance. The court had already established a rationale for denying the subpoena and did not need to conduct a fair use consideration as though this were a case at the summary judgment phase with sufficient evidence presented. Nevertheless …

In response to Bayside, the court noted that it is bound by circuit precedent in Lenz, it calls fair use “colloquially an affirmative defense,” and then it states, “To make a prima facie case of copyright infringement for the purposes of obtaining a subpoena, then, a party must make a prima facie case that the infringing use did not constitute fair use.” And then, to add insult to speculation the court committed that chronic error in fair use factor one, writing …

… the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry. Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.

The court’s reasoning here is incorrect as a matter of law, especially without sufficient facts presented to consider the matter more fully. But based on that paragraph alone, the court errs when it opines that commentary about the subject(s) in a photograph is inherently “transformative” and, therefore, favors a finding of fair use. Such a generalized rule would excuse nearly any media company from licensing photographs simply because editors add captions and display images along with articles composed of text.

The court had not only found a basis to deny the subpoena, but it further stated that based on the record of plaintiff’s conduct that, “… even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.” That being the key finding, it makes even less sense that the court engaged in a half-blind fair use analysis and added yet another poor example of “transformativeness” to that circuit-splitting tapestry of opinions.

Independent copyright owners, who truly make a living from creative work, have a hard time protecting their rights as it is. Misuse of copyright law by wealthy and powerful individuals is both offensive and unhelpful in that it gives the anti-copyright ideologues and policy wonks grist for their mill. They cite these stories under general headlines like “copyright is broken,” and then the internet does its thing. At the same time, it is also unhelpful to the vast majority of creators when courts are tempted into fair use discussions that are speculative to the point of whimsy.

[1] The lack of timely registration is a barrier to litigation for most copyright owners because it precludes statutory damages and attorney’s fees, but if money is no object, and the intent is to censor rather than protect copyright rights, then timely registration is moot.

 

Maybe Don’t Talk About Your CCB Claim on Social Media

The copyright small-claim alternative, adjudicated by the Copyright Claims Board (CCB), was intentionally designed to accommodate pro se participants, meaning that both claimants and respondents can represent themselves without hiring attorneys. After all, the foundation of small claims court or alternative dispute resolution is to save money. And indeed, we are seeing some early pro se claimants file complaints with the CCB, which began accepting claims on June 16th.

It occurred to me while co-moderating a copyright page on Facebook because, of course, social media encourages a habit of saying or asking everything that comes to mind. But one aspect of legal training the copyright owner/claimants, or for that matter defendants, likely do not have is the discipline to keep mum about an active case. Or at least what should and should not be discussed publicly.

Asking questions or making statements about administrative procedures related to the CCB are safe topics to discuss in public, but parties to a case should remember that it is a legal proceeding with a discovery process. That means anything you say about the facts pertaining to the case itself—including intentions, timelines, beliefs, etc.—may be discoverable and may be entered into evidence by the opposing party. And announcing, griping, gloating, or just describing these matters on social media makes discovery very easy for the opposing party.

This is not to suggest that either claimants or respondents are going to lie or have much to hide of any relevance to a typical CCB case. But if you are a party on either side, it is just good practice to do what an attorney would tell you to do and simply not talk about the case publicly until it’s resolved.

Keeping this discipline could prove difficult for some. Both alleged infringers and anti-copyright ideologues are known to at least insult, if not harass, copyright owners looking to enforce their rights. “Greedy” may be the kindest thing someone calls you, but don’t take the bait, don’t feed the troll, and don’t talk about your case until it’s over. By the same token, if you’re the claimant and you’ve filed a CCB claim, it’s probably not a good idea to also engage in that odd form of digital-age justice generally called “shaming.”

The copyright antagonists want to see the CCB fail. As copyright owners and advocates, we want the small-claim alternative to work, and work in a serious and fair manner grounded in the merits of claims and defenses. As such, both for your own sake and the overall effectiveness of a brand-new system, if you are party to a claim, it’s a good idea to exercise some social media discipline and keep most of the conversation about your case to yourself.

More “Transformativeness” Run Amok

Jeff Sedlik has been a fine art and commercial photographer for over 30 years and has served as an expert witness in more than 400 copyright cases. But until celebrity tattoo artist Katherine Von Drachenberg (Kat Von D) inked his famous portrait of Miles Davis in 2017, he had never been in court as a plaintiff claiming infringement of his work.

Kat Von D tattooed Sedlik’s Davis portrait onto the arm of Blake Farmer, a lighting tech, with whom she had worked on a film project. She allegedly did not charge Farmer for the tattoo, but the inking was highly publicized (millions of impressions) via Kat Von D’s social media accounts, and this included displays of Sedlik’s photograph. By any definition, the use was commercial. There are various bits and pieces to this case, including the unique nature of tattoos, which become part of a person’s body and likeness. But the most important matter to copyright law, once again, is the fair use defense presented—especially while we wait to see what SCOTUS has to say in the Andy Warhol Foundation v. Goldsmith case.

The portrait Sedlik created in 1989 is all about silence. Davis appears almost ghostlike, as though he has leaned his head from deep shadow into a pool of soft light to hush the viewer, holding the index finger over his lips with the other three fingers positioned as if playing an invisible trumpet. Or, as Sedlik explains to the district court, he intentionally had Davis pose those fingers “in a cascade visually representing aurally perceived musical notes.”

That description comes from compelled response to an interrogatory, demanding that Sedlik, “Identify and describe in detail each and every element in the PHOTOGRAPH that you contend is protected by copyright law.” The response provides a full account of Sedlik’s process, including 51 brief paragraphs describing every creative choice he made to achieve the final image, right down to Davis’s eyeline and the positioning of those fingers.

It is an impressive anecdote. Just looking at the photo, I know how challenging it is to control shades of black but had no idea that, for instance, Sedlik was required to work with Davis outside at high noon and, therefore, constructed a mini studio of sorts to retain the control necessary to execute the image he had in mind. But that’s photography fan me talking.

Copyright observer me has other questions, beginning with an objection to the court’s demand that any author describe “each and every element” he believes is protected. Not only are few complainants as experienced as Jeff Sedlik in describing such things in terms a court can evaluate, but more broadly, one attribute this case shares with Goldsmith is the folly that “transformative” defenses seem to lead courts to stray too far into the realm of art appreciation to settle questions of law.[1] From the opinion on cross motions for summary judgment, ordered May 31 …

Here, the Court finds the Portrait is entitled to broad protection because there were a great number of choices involved in creating the Portrait, such as Davis’s highly specific pose, facial expression, lighting and shadows, camera angle, and background for the image.

Part one of that opinion about “choices” goes to the aforementioned objection because the expression, as alluded to in the second part of the sentence, is observable without knowing anything about how the photographer created the image. The reason I mention this is not hypothetical but doctrinal. Copyright rights attach to a work upon fixation, regardless of how it was made, and it is settled doctrine that bars consideration of “sweat of the brow” to base copyright protection on process rather than creative choices resulting in a protectable expression.

Choice and process are often intertwined for the creator, but they must be separated as a question of law lest courts err in granting greater protection to the author who appears to have worked “harder” to achieve his vision. When a court demands the kind of defense of copyrightability as it did in this instance, there is a risk of over-emphasizing process, thereby potentially stripping another photographer of her rights because her choices are compressed into an instant, which may seem “easier.”

The question in Sedlik, as I believe it should be in Goldsmith, is whether the secondary work copies the protectable expression or the unprotectable facts of the original—not how either photographer achieved the expression, or what any of the images at issue necessarily convey. I have opined that “message” can be a fickle consideration, especially with non-verbal media. I have also written that I personally find the Warhol screens copy more fact than expression from Goldsmith’s photo, though I would say the opposite about Kat Von D’s tattoo copy of Sedlik’s photo. But regardless of outcome in either case, what is most important for copyright law is that the fair use blob called “transformativeness” be contained.

The Transformative Blob Eats Everything in Its Path

Kat Von D asserts a fair use defense, arguing that the tattoo is “transformative” under factor one, which considers the purpose and character of the use. It is typical of many alleged infringers to argue that using a work in a new medium is sufficient to find the use “transformative,” but here, the defendant cites myriad facts that are irrelevant to a fair use consideration at all. From the court’s summary:

First, Defendants contend the Tattoo presents a “new expression, meaning, or message” that is personal to Farmer because it relates to his study of jazz music in college, and because he personally identifies with Davis and “remains an avid listener of jazz and Miles Davis’s music.”

As I have argued in the past, the “new meaning or message” standard is already too broadly or too subjectively applied. But the idea that this consideration should encompass the personal, sentimental relationship the tattoo wearer has to his tattoo is capricious even for the most extreme view of fair use. Yet, the defendant doubles down on the idea …

Second, Defendants argue that tattoos inherently create a new expression, meaning, or message as a result of being permanently imprinted on a human body because tattoos have personal meanings, which may not be immediately obvious to someone unfamiliar with the significance of the tattoo to its wearer.

This is almost the same argument as the first using different words. A tattoo is no more “inherently new expression” than an oil painting or a silkscreen. And obscure meanings “not immediately obvious” to an observer is anathema to the purpose of the fair use exception. This argument is another variation of the refrain “new medium favors fair use under factor one.” Thankfully, the courts have been fairly consistent, at least on appeal, in rejecting this view. (e.g., Brammer v. Violent Hues)

In the 1884 case affirming copyrightability of photographs under U.S. law, the infringing lithograph is subtly different from the photograph it copied. This is partly because no matter how skillful the lithographer, drawing in grease on stone will produce differences between the paper print made from that medium and the paper print made from a photographic plate etched by light. Likewise, ink on human skin will result in certain distinctions between the tattoo and any photo the tattoo artist copies. I mention this to preface Kat Von D’s final rationale to assert “transformativeness.”

Third, Defendants argue that the Tattoo is transformative because while Kat Von D used the Portrait as a reference, she inked the Tattoo in the “freehand” method and added her own interpretation to it: “one that added the appearance of movement by adding and shading waves of smoke around the perimeter of Miles Davis’s hair and hand; created a sentiment of melancholy; and eliminated the stark, black background that dominates the Photograph.

This is as close as the defendant comes to presenting a foundation for “transformativeness,” and where her defense has a kindship with AWF by alleging a “different message” achieved by some alteration to the original work. But in addition to the fact that I think Kat Von D exaggerates the creative distinctions between the two images (that they are really differences in media), this is another example as to why the “message” test allows the “transformative” blob to swallow the other fair use factors and, quite often, the derivative works right.

The limitations of one medium to precisely reproduce a work in another medium cannot be the foundation of fair use without erasing the author’s right to prepare derivative works. This logic would lead to the conclusion that, for instance, a book author has no interest in the motion picture based on her novel simply because movies function differently for the audience than words meant to be read. Of course, they do. But that is not the test.

Relatedly, the allusion to Kat Von D working “freehand” is both questionable and irrelevant. The promotional images show her tracing Sedlik’s photograph, but it almost doesn’t matter. Whether an alleged infringer achieves literal copying by her unaided hand or through some intermediary medium, it is the copy that infringes, not the method by which it is made. Indeed, where the copyright owner must prove copying, identifying how the copy was made may be a relevant fact. Here, there can be no doubt that Kat Von D’s tattoo is a copy of Sedlik’s photograph, and Sedlik has no burden to prove copying.

Sedlik portrait and Kat Von D tattoo.

Again, I will argue in this case, as in Goldsmith, that the “transformativeness” blob can be contained if the Court reaffirms a rule that the secondary work must assert at least some evidence of commentary upon the original for factor one to tilt toward a finding of fair use. Like AWF, Kat Von D asserts “transformativeness” without claiming any commentary upon the original work (because no such commentary exists), but the case law being what it is, the district court held that there were triable issues of fact—namely that Defendants had met the “different purpose or meaning” test by changing the appearance of the image to “create what [Kat Von D] characterizes as ‘adding movement and a more melancholy aesthetic.’” The court further stated…

However, Sedlik disputes whether Kat Von D’s rendering of the Tattoowas transformative by virtue of the small changes she made. Sedlik opines thatall of the alleged dissimilarities between the Portrait and the Tattooresult from Kat Von D’s replication of the Portrait onto a three dimensionalsurface (Farmer’s arm). TheCourt finds Sedlik has raised a triable issue as to transformativenessthat is more appropriately left to a jury.

And so, Sedlik v. Kat Von D heads to a jury to decide, though it is concerning that the court seems to have punted core questions of law into that panel. Where juries are supposed to decide questions of fact, the question of “transformative” as argued here strikes me as a question of law. That said, juries are summoned as ordinary observers in these cases, and it is difficult to see how any reasonable person, even without any knowledge of photography or tattooing or the fair use doctrine, cannot readily see that the Kat Von D tattoo is a copy of the heart of Sedlik’s expression.

Broadly, Kat Von D argues that tattoo artists rarely, if ever, license the images they use, implying that Sedlik is an outlier for litigating this matter at all. It appears from facts presented by Sedlik that this assertion is as untrue as it is irrelevant, but I will leave the discussion that allegation provokes for another post.

[1] Of note, Sedlik served as Goldsmith’s expert witness at the district court. His testimony on factor four, asserting that the Warhol screens conflicted with Goldmith’s licensing interests was cited in the Second Circuit’s holding.