How to Pirate a Book on Copyright Law
What I learned remixing a 250 page copyright treatise into a website about fair use.
by Eric Adler
“Although copyright infringements are quite generally termed piracy, only a minority of infringers fly the Jolly Roger.” Shapiro v. Green (2nd Cir. 1963). The minority flying the Jolly Roger are a dull lot compared to artists who copy to transform and create. Fair use would encourage this creativity, if we only understood the rules. Copyright law doesn’t give us clear-cut rules like “using less than 10% of an original is OK.” The actual fair use rules are not only subjective and imprecise, they’re scattered across an archipelago of boring legal decisions. While I can’t make the rules more precise, I can at least collect and organize them.
I started my collection by copying Professor Robert Gorman’s 250 page treatise, “Copyright Law, 2nd ed.” (huge pdf). He spent years writing the book, and it’s really a great resource. I spent a few days remixing it into Copyright Codex, a website that draws on the visual elements of copyright cases to ease the tedium of learning fair use. Here are some of my favorite examples:
Fair Use
“Sorry for Partying” is an easy win for fair use. “The photograph was posterized, the background was removed, and Soglin’s face was turned lime green and surrounded by multi-colored writing… almost none of the copyrighted work remained.” Kienitz v. Sconnie Nation (7th Cir. 2014).
Sorry for Partying was fair use because it used only a sliver of the original photo. However, fair use isn’t just about the amount of art copied. Fair use weighs four central factors: (1) is the copy transformative or non-commercial? (2) Was the original work factual or creative? (3) How much was copied? (4) Does the copy harm the market for the original work?
Keep these questions in mind as you look at the next images.
Infringement
The Jeff Koons sculpture (right) infringed the original Art Rogers photo (left). Why isn’t a blue-puppy sculpture a fair use copy of a photo? The Koons work had a commercial purpose (he sold it for $376,000), it copied from an artistic (rather than factual) source, and Koons copied nearly every detail of the original. But the real gist of Koons’ fair use argument was that his sculpture was satire, and criticized societies’ fascination with mass-produced commodities. The Judge disagreed, deciding that copying an artists’ work to criticize society at large was not fair use —to be fair use the copy must criticize the original work. Rogers v. Koons (2d Cir. 1992).
(But check out Cariou v. Prince (2d Cir. 2013), “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative…”).
Fair Use
Photographer Andrea Blanch took the original photo (left) and published it in Allure Magazine. Jeff Koons used the photo in his “Niagara” painting (right). A New York court decided the Koons painting was transformative because:
The use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in an art-gallery space. Blanch v. Koons (2d Cir. 2006).
Infringement
A video game copying Pac-Man’s design and game play was copyright infringement:
The K. C. Munchkin gobbler has several blatantly similar features, including the relative size and shape of the “body,” the V-shaped “mouth,” its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured. An examination of the K. C. Munchkin ghost monsters reveals even more significant visual similarities. In size, shape, and manner of movement, they are virtually identical to their PAC-MAN counterparts. K. C. Munchkin’s monsters, for example, exhibit the same peculiar “eye” and “leg” movement. Both games, moreover, express the role reversal and “regeneration” process with such great similarity that an ordinary observer could conclude only that North American copied plaintiffs’ PAC-MAN. Atari v. Philips (7th Cir. 1982).
Fair Use
In a complicated case, Microsoft’s copying of Apple’s GUI was fair use. Microsoft had licensed several GUI components from Apple. The handful of unlicensed components Microsoft copied were mainly functional (rather than artistic). This tipped the scales for fair use. Apple v. Microsoft (9th Cir. 1984).
Fair Use
Photoshopping Leslie Nielsen’s face onto a photo of pregnant Demi Moore for a movie poster was fair use as a parody:
Plainly, the [Nielsen photo] adds something new and qualifies as a “transformative” work. … Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. Leibovitz v. Paramount (2d Cir. 1998).
Infringement
Showing a quilt in the background of a sitcom for 27 seconds is copyright infringement. Despite the brief appearance, this was not a transformative use. The purpose of the original quilt was to decorate and depict African-American church culture. The purpose of the duplication was to decorate an African-American church set in a TV show. Ringgold v. BET (2d Cir. 1997).
Infringement
Mayor McCheese infringed H.R. PufinStuff. McDonalds tried to avoid copyright infringement by highlighting some trifling details differentiating McCheese from PufinStuff. It didn’t work:
We do not believe that the ordinary reasonable person… will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat’s sash. Krofft v. McDonalds (9th Cir. 1977).
I’m not sure why the court analyzes the cummerbund vs. sash while ignoring the fact that MAYOR MCCHEESE’S HEAD IS A GIANT GOD DAMN HAMBURGER.
Lightning Round
Richard Prince created 30 works of art, each using different amounts of Cariou’s original photography. Cariou v. Prince (2d Cir 2013). The appeals court decided 25 were clearly fair use, but 5 were too close to call without more information. Here are four examples:
Fair Use:
Close Call:
Fair Use:
Close Call:
The appeals court sent the five “close call” works back to the trial court for further analysis, but Cariou v. Prince settled out of court before the fair use issue was decided.
Remixing the original treatise into a more visual, more interactive website was a great excuse to dive into copyright law and fair use. I think the resulting Copyright Codex website is itself a fair use copy of the original. I copied from a factual work rather than a creative work, which favors fair use, and I copied for a non-profit, educational purpose, which also favors fair use. I also transformed the original book into a website, but changing the medium doesn’t always help. For example, copying a photo to make a sculpture didn’t save Jeff Koons in Rogers v. Koons, but copying parts of a photo to make a painting was fair use in Blanch v. Koons. The purpose of the original book wasn’t really transformed in making the website: both exist to teach copyright law. Since it’s a close call on fair use, and since I’m a boring lawyer, I got a license from the copyright owner (it was free!).
Law librarians and students like Copyright Codex. Duke Law School called it “a great starting place for copyright law research.” Stanford Law called it a “work in progress” that’s trying “to make U.S. copyright law useful and accessible for designers, coders and lawyers.” If you’d like to pitch in, I need help researching, copy editing, sys-admining, and information architecting. Get in touch!
Eric Adler is a technology lawyer at Adler Vermillion LLP in NYC. His monthly newsletter covers everything interesting in law and technology.
