Supreme Court of the United States
Rolfeson v. Trips_93
Case №17–02, 101 M.S.Ct 101
BSDDC, J., delivered the opinion of the Panel, to which RestrepoMU, J., joins. Notevenalongname, J., dissents.*
This Panel is called upon to answer a dispute that has raged for months, consumed countless hours of the litigants’ time, and torn our news media in twain. At issue is, of course, the dispute between Rolfeson and Justice Trips_93. The dispute centers on the fair use exception to copyright infringement, under 17 U.S.C. §§ 106–07 (2012).
Because there are no disputes as to any material facts, we dispose of this case in the pretrial phase.
I. Background
Plaintiff’s Complaint was filed on January 18th, alleging that Defendant had violated Plaintiff’s copyright to a comic published on January 16th. Plaintiff alleges that Defendant has infringed on his copyright of the comic under 17 U.S.C. § 106 by “ stealing [Plaintiff’s] work and removing his signature.” The Plaintiff preemptively challenges any application of the fair use defense under 17 U.S.C. § 107. Defendant argues that his work is best defined as a parody, and thus the defense of fair use applies.
The Court granted review, but pursuant to R.P.P.S. 4(c) the Court decided to allow a three Justice Panel to resolve of this case. Under this order, the parties may seek the review of the Court en banc following this Panel’s resolution of the dispute.
We now turn to the questions raised by this case.
II. Legal Standards
A. Summary Judgment
Summary judgment is appropriate where there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We have reasoned that a genuine issue of material fact is one that could affect the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the courts must view all facts and draw all inferences in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). And if the facts are not in dispute, and all that remains is for the courts to apply the law, summary judgment is ideal.
B. Copyright and Fair Use
Copyright protection extends to original works of authorship fixed in a tangible mode of expression. 17 U.S.C. § 102 (2012); see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Copyright protection can extend to, inter alia, writings, drawings, paintings, and even song lyrics, as long as the work is both original and fixed in a tangible medium. Facts themselves are not covered by copyright protection; and other modes of expression that are not “fixed” fall outside of this protection as well. Accordingly, before courts move to the question of infringement, the threshold question is whether protection has extended at all.
Copyright infringement of a work protected under §102 occurs when: (1) the original work is directly copied; (2) a derivative work is created from that original work; (3) copies of that work are distributed to the public; (4)the works — if artistic — are performed publicly; (5) artistic works are displayed to the public; or (6) if a recording, when the protected work is performed digitally. 17 U.S.C. § 106 (2012). Relevant in this case is § 106(2), as the Plaintiff alleges that Defendant’s comic was derivative of his work. While Section 106 provides us with the overarching structure of proving infringement, the Plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist, supra at 361.
But even if infringement is shown, there are several defenses to alleged infringement. Most relevant here is the idea of fair use. See 17 U.S.C. § 107 (2012). Section 107 provides a defense to claims of infringement for uses such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . . .” Id. The defenses to copyright infringement allow for greater free expression and prevent a rigid freeze in the development of science and the arts. Although private property ownership is vitally important in our constitutional structure, it must certainly give way, in select cases, to prevent the strict exclusion of the public from beneficial developments. This occurs when a new work adds transformative value to a work already protected. See Feist, supra.
One area in which we have found transformative value is the realm of parodies. We previously found that “parody has an obvious claim to transformative value . . . . [l]ike less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). We held “that parody, like other comment or criticism, may claim fair use under [Section] 107.” Id. There, we also cautioned against the use of bright-line rules, and instead stressed that transformative value must be determined on a case-by-case analysis. Id. We reaffirm those principles today.
Our primary inquiry, at least for the defense claimed here, is whether the new work supersedes the objects of the older work. Folsom v. Marsh, 9 F.Cas. 342 (№ 4,901) (CCD Mass. 1841) (Story, J.). If the new work is able to add value and thus necessarily changes the older work it is drawing from, it can claim the defense of fair use. With this guiding principle in mind, we also turn to the four-factored test of Section 107. Campbell, supra. Those factors are: (1) the character of the use, including commercial or non-commercial purposes; (2) the nature of the work; (3) the substantiality of the original work used in the new work; and (4) the effect of the use upon the market value of the original work. Id.; 17 U.S.C. § 107 (2012).
With these principles in mind, we face the case before us.
III. Discussion
A. Findings of Fact
The following is undisputed. First, on January 16th, 2017, Plaintiff published his original comic for the world to see. That comic is reproduced below.
From this Panel’s perspective it would appear that in Plaintiff’s work, the Democratic Party is represented as a salt-shaker. This is likely a reference to a decently known “meme” that the Democratic Party is obviously, for reasons that escape this Panel, salty. The salt-shaker is shaking hands with, or possibly dragging, a dead porcupine, which seems to symbolize the possible death of the Libertarian Party. Finally, the act of dragging the dead animal seems to imply the coalition between the two parties, known as the American Justice Alliance, is, in actuality, the Democratic party dragging the Libertarian party. This Panel, of course, does not endorse or evaluate the veracity of any symbolism. For all we know, the author may have intended an entirely different meaning. Epistemological problems aside, the actual symbolism of the work is entirely irrelevant to the Panel’s inquiry. We must instead ask if the Defendant’s work was transformative of its base work; whether it superseded the original work. See Folsom, supra.
The Panel was not provided with a value of the original work, or the interference that the new work caused, or could cause, to the value of the original. Damages in the millions were requested; however, damages cannot guide us in the determination of the fair market value of the work. Relevantly, the comic was published to the public at large, with no pay wall blocking access. The same is true of the secondary work in this case. And so, although this Panel does not make an exact determination of the market value of the original work, we place it dramatically below the request for damages amount.
Second, it is undisputed that on January 18th, 2017, Defendant published the second comic, which included Plaintiff’s entire work, except for the Plaintiff’s signature. That comic is reproduced below.
Turning to the Defendant’s work, we find the same comic as before; however, additional elements are added. To begin, an elephant and papal-esque character are holding hands, in a likely reference to the Sunrise Coalition. This electoral alliance includes both the Republican Party (elephant) and the Distributist Party (the papal-esque character). The papal reference seems to be tied to the idea that the Distributist party is influenced by Catholic practice. This is further confirmed because the character is shouting “[a]postates.” Beside this character, the elephant is shouting “Give them back!” In the Panel’s view, this is likely a reference to the older Sunrise Coalition, which included the Libertarians. Overall, the message of the Defendant’s work seems to be that the Republicans and Distributists are upset by the American Justice Alliance because the Libertarians aligned with the Democrats as opposed to their coalition. This expansion seems to contrast the message of the original work with a sort of retort back at the other two caricatures. Again, we pass neither on the veracity or actual meaning of the work. This Panel is not well suited to decide what symbolism is, or is not, definitively contained in a work. Luckily, that is not our role today.
B. Was Plaintiff’s Original Work Protected?
Plaintiff’s work easily qualifies under Section 102 as a work that is subject to copyright protection. It is, first of all, original, and thus easily makes the leap over Feist’s low hurdle. Second, it is “fixed” in a tangible mode of expression. Furthermore, the issue was not questioned by the litigants, and so this Panel is satisfied that the Plaintiff proved the ownership of a valid copyright.
C. Did Defendant’s Work Infringe?
We need not wade far into the actual delineation of infringement for this case. In the Panel’s opinion, Defendant’s work is clearly infringing under Section 106. While the caricatures of the “salty democrats,” “libertarian porcupines,” “republican elephants,” or the “papal distributists” are outside both the realm of this case and copyright protection, the actual depiction of these caricatures is not.
Imagine that Plaintiff’s work is the Mona Lisa (not that far of a stretch). Then imagine someone took a picture of the Mona Lisa and included it in a collage of other famous works. The secondary work is certainly derivative. Much like this hypothetical scenario, Plaintiff’s work was directly copied into another work, and so we are satisfied that either under Section 106 infringement has occurred. Because the Plaintiff has proven that he owned a valid copyright and there was copying of constituent elements of the work that are original, he has shown that infringement occurred.
Our inquiry, however, has not ended.
D. Did Defendant’s Work Fall Within the Fair Use Exception?
The final aspect of this case that the Panel considers is the fair use exception to Section 106 infringement. Our primary guidepost is whether Defendant’s work was transformative: did it change the original work through its infringement.
First, we must evaluate the nature of the use. Here, on first glance, Defendant’s use seems to be commercial. Although Defendant contends that The Bias is not for profit, the point in publishing content is for consumption. This leads to increased readership that drives demand, and thus the commodification of the publication. However, as we cautioned in Campbell, the line between commercial and non-commercial is blurry at best. For example, even non-profit universities still use copyrighted works in a commercial manner. It is impossible to draw the line between the two. Instead, we must look at the nature of the use itself. Defendant’s comic was not used for an ad, was not used to sell copies of any good, but instead seems more akin to a political comic in a newspaper. It is not pure copying for the sake of profit, but seems to include a message separate and beyond the original work’s meaning.
Further, the nature of Defendant’s use is one that necessarily involves copying and transforming another work in order to make a point: parody. As the Supreme Court explained in Campbell, the very power and innovation of parody derives from the act of infringement. Campbell, supra. A good parody draws substantially from the original work; copying lyrics, rhythm, themes, and yes, imagery. A parody that does not copy is a bad parody. If this Panel were to hold that parody cannot use any elements of the original work, we would be stiffing parody, thus artistic growth. As such, this factor weighs in Defendant’s favor.
Second, we must look at the nature of the original. Much in the same vein as the Defendant’s work, it is a comic. And so, it would seem on first blush that it was designed to generate a profit — however defined — for the Plaintiff. And as we stressed above, Plaintiff released his work to the public as a whole. He did not restrict access too, nor charge money for the ability to view, his work. Unlike a song recording which is distributed through controlled networks, this work was published for the world to see. This factor also weighs in Defendant’s favor.
Third, we must evaluate the degree to which the original work is copied by the secondary work. Here, the infringement was complete. The only element of the original work not copied by Defendant’s work is the Plaintiff’s signature. While the signature may raise questions of attribution under the Visual Artists Rights Act of 1990, that question was not presented to this Panel in the pleadings or at any point during this litigation, and we decline to consider it now. Regardless, the infringement here is best described as complete, and although Defendant added what we roughly estimate to be fifty percent more content, the original work was indeed copied. Much like in our above hypothetical, where the Mona Lisa is directly copied into a collage, infringement has occurred. But had Defendant merely copied and reposted the Plaintiff’s work, without any additional elements, we would be presented with a much weaker case for fair use. Because the Defendant’s work adds additional elements, this issue is not dispositive in favor of the Plaintiff; instead, it merely weighs in favor of his case.
Fourth, we must consider the effect of the infringement on the value of the original work. As mentioned above, we were not briefed on the value of the work. Suffice it to say that Plaintiff published his work to the world at large free of charge. While inherent value may remain, for our purposes here, the work’s value is not substantial. Further, it is a dramatically small fraction of the overall damages the Plaintiff requires. On this factor, the Panel finds that no weight is added to either the Plaintiff’s or the Defendant’s sides of the scale.
And so, with those factors in mind, and remembering that this test is not guided by bright lines, we must answer the ultimate question: Was Defendant’s use of the original work transformative? We caution against keeping score in these matters; just because two factors weigh in favor of the Defendant this case is not closed. These factors simply inform our overall inquiry.
We hold that Defendant’s work is transformative of the original work. It superseded the original work, to use Justice Story’s formulation from Folsom. While the original work was copied directly, Defendant added substantial content to the secondary work. Further, and as we found above, the Defendant’s work added to, criticized, and parodied the Plaintiff’s work’s original meaning. The essence of parody is copying the original. And here, where the parody builds upon, modifies, and comments on the original work, the secondary work qualifies as transformative.
We find that the Dissent’s reasoning emanating from Harper is unconvincing. That case dealt with an unpublished work, and the Court’s holding largely relied upon that fact, and thus only binds in those circumstances. Because we find that the case at bar is more analogous to Campbell, we follow suit with that later decision. Parody and critique frequently and easily clear the bar in relation to published materials. We note that this holding is limited to the facts before this Panel. We find fair use in the case before us: nothing more; nothing less.
IV. Conclusion
Private property ownership forms a pillar of our constitutional governance. Exclusion and exclusive use encourage development of new ideas, and reward innovation. But rigid pillars collapse when stressed. There must but play in the joints, or the system will crumble.
Fair use provides for needed stress relief, and encourages transformative use. It allows for the growth and development of the arts and science. And it is certainly a valid defense to alleged infringement. Because Defendant’s work fits within fair use, we find that he has shown a valid defense to his infringement. Considering there are no genuine issues of material fact, and the Defendant is entitled to judgment as a matter of law, we will grant the Defendant Summary Judgment. An appropriate order follows.
Summary Judgment for the Defendant is GRANTED and this case is dismissed with prejudice.
It is so ordered.
Notevenalongname, J., dissenting.
We are faced here with the question whether Defendant can successfully claim that the Fair Use Exception applies to his use of Plaintiff’s work. The facts of the case are sufficiently laid out in the majority opinion, and its finding of infringement is uncontested.
I. Fair Use
The Fair Use Exception is commonly characterized as an affirmative defense to an allegation of copyright infringement under 17 U.S.C. § 106. It protects the “fair use of a copyrighted work […] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. 17 U.S.C. § 107. Although only codified through the Copyright Act of 1976, it existed before that time in various forms as a judicial doctrine; its roots stretch back into the English common law of the 18th century. Section 107’s “case-by-case determination” was “intended to restate the [preexisting] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” Harper & Row v. Nation Enterprises, 471 U.S. 539, 549 (1985), citing H.R.Rep. №94–1476, p. 66 (1976).
Section 107, like the common-law doctrine, requires us to take into account four notoriously flexible factors. We must consider the character of the infringing use, including whether it was used for commercial or noncommercial purposes, the nature of the copyrighted work, how much of the copyrighted work was used, and what effect the infringement has on the value of and market for the original.
II. Discussion
The majority argues that the Defendant in this case is favored by the fair use criteria because the infringing work was not used in a classical for-profit manner, because the Plaintiff had already released the work to the entire public, because the Defendant added around half of the final infringing work himself, and because the value of the original work is not substantial.
As the majority notes, “the line between commercial and non-commercial is blurry at best”. Ante. That copying did not take place for the sake of profit is not dispositive here, and the majority rightfully finds that this portion of the analysis only barely favors Defendant.
Next, the majority argues that, because Plaintiff has made his work available in public for free, his copyright interest is somewhat diminished, and a defense of Fair Use is favored by Plaintiff’s distribution model. I disagree. It is the copyright owner’s exclusive statutory right to display his work publicly, 17 U.S.C. § 106(5), and that right is not contingent on limiting the potential audience. Much like how a free public performance of a piece of music, the exhibition of a painting in a freely accessible gallery, or the distribution of a book through public libraries do not usually allow reproduction under the Fair Use Exception, the free public display of a piece of art, or in this case, of a comic, does not impact the owner’s rights, nor his options to defend against infringement. Certainly, this factor would favor Plaintiff, had he included any form of access control, but the absence of such measures does not grant a defense of fair use additional credence.
Third, we look at the amount of the original work that was copied. Defendant duplicated Plaintiff’s original work in full, sans signature or attribution. The majority contends that this is mitigated by Plaintiff’s additions to the copied comic, because they “changed […] Plaintiff’s original meaning”. Ante. Unfortunately for Plaintiff, the majority disregards that the copied portion of the original (which in this case is the entire work) maintains its exact meaning. Indeed, Plaintiff’s work has become essentially insignificant, because it could in full be substituted by Defendant’s work. It is universally recognized that a use that “supersede[s] the original” is not protected by the Fair Use Exception. Harper, supra, at 550. To find support for this statement, we need to look no further than the case that is now commonly credited with establishing the doctrine within common law:
“[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear that, if he thus cites the most important parts of the work, with a view not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”
Folsom v. Marsh, 9 F.Cas. 342, 344–345 (№4,901) (C.C.D. Mass. 1841).
The transformation from a common-law doctrine to a statutory defense did not do away with this concept. S.Rep. №94–473, p. 65 (1975).
Including the full copy of a copyrighted book with a derived story of sorts would not be protected by the Fair Use Exception, and neither should including the full copy of a comic in what amounts to little more than a collage of Plaintiff’s and Defendant’s work. Merely adding additional elements is not sufficient to claim transformation.
Even if this does not immediately dispose of the fair use analysis, this factor heavily favors the Plaintiff’s arguments.
Finally, we also take into account the effect of the infringement on the value of the original work, and on its potential market. By virtue of being entirely superseded by the infringing work, the original work’s value and potential market are essentially reduced to zero. That the absolute value of the original work is unknown, and likely not very large, matters for the calculation of damages owed, but not for the analysis under the Fair Use Exception. Even when following the majority’s rather misguided view that no monetization remains possible after Plaintiff published his work for free once, such a finding would merely impact the damages stage, and not the determination whether the infringement happened at all or whether the Fair Use Exception applies.
Accordingly, the majority erred in applying the Fair Use Exception to Defendant’s conduct, and his motion for summary judgment should be denied.
I respectfully dissent.
*Because of the involvement of an Associate Justice in this case, all deliberations of the Panel took place in separate chambers. At no point did the Panel have ex-parte communications with the Associate Justice on any matters related to this case.
