Month: August 2022

The Philosophy of Copyright

The Internet has created an existential crisis for copyrights. Well, not really. It has impelled some people to consider, for the first time, the rationale for copyrights and the legal protection of them. That sounds a lot less dramatic and thrilling than “existential crisis,” though.

The two frameworks

There are two basic frameworks for thinking about copyright law: deontological and utilitarian. Deontological approaches focus on rights and duties. Utilitarian approaches focus on the usefulness of copyrights in promoting or accomplishing some social good.

In simpler terms, we can think of copyrights as deserving of protection because respecting individual property rights is a moral good. That is the deontological way of thinking about them. On the other hand, we can think about protecting copyright in terms of how protecting copyrights benefits society – the greatest happiness for the greatest number of people. That is the utilitarian approach.

Generally speaking, European countries have tended toward the deontological, while the United States has tended toward the utilitarian. Droites de suite, the rights of an artist to attribution and integrity (the rights to be credited as author and to the preservation of the integrity of a created work) originated in Europe. The United States Constitution, by contrast, declares that the purpose of giving authors and inventors exclusive rights is simply “[t]o promote the Progress of Science and useful Arts,” (U.S. Const. Art. I, sec. 8(8)), a clearly utilitarian expression of the rationale for protecting intellectual property.

These are just generalities, of course. The amendment of the U.S. Copyright Act to include protection for the integrity and attribution rights of visual artists is an example of how the European approach has been “coming to America.” At the same time, European policy-makers are increasingly influenced by utilitarian ways of thinking.

The difference between the two approaches comes into sharp relief in the area of Fair Use. Viewing copyright as a personal right and infringement as a moral wrong, the concept of “fair use” is difficult to justify. Instead, resort is usually had to utilitarianism, the idea that infringement of individual rights can be justified if it makes a lot of people happier (the “public benefit” consideration in fair use analysis.)

The nature of the right

German law developed on a view of copyright as a personality right. Personality rights are recognized to some extent in American law, too. In the United States, however, only a person’s name, voice and likeness are considered to be elements of a person’s “personality.” The products of one’s mind, the works the person creates, are not. Those things are considered property rights in the United States.

Among those who view copyrights as property rights, there is a divide between those who view them as natural rights and those who view them solely as creatures of positive law. John Locke is the most celebrated proponent of the natural rights theory. Proponents of the positive law approach (as I call it, for purposes of this blog post) do not view authors’, artists’ and inventors’ rights as inalienable natural rights, but as rights the law will protect if and only to the extent that a government sees fit to create a law protecting them.

Proponents of the view that copyrights are solely the creatures of positive law, of course, measure the value of copyright protection in terms of public benefit. If, for example, they think that an Internet free from the restrictions of prohibitions against copyright infringement will make a great number of people happy (“public benefit”), then they will likely advocate for laws and interpretations of laws favoring a broad and expansive “fair use” exception to copyright protection.

The slack of utilitarian tension

Differences of opinion can arise among those who adopt the utilitarian approach to copyright because a variety of conflicting arguments about what will best promote the greatest happiness for the greatest number of people exist.

On one hand, there is the incentive theory expressed in the Intellectual Property Clause of the U.S. Constitution. The idea expressed there is that giving creators rights in their creations will ultimately lead to scientific and artistic progress. Protecting copyrights might not be enough to incentivize creativity but failing to protect them can be a disincentive to creative effort.

Conflicting with this, there is the argument that allowing more people to access and use other people’s ideas and inventions facilitates progress. This is the thought behind Open Source and other approaches focusing on the benefits of social collaboration in the development of ideas and inventions.

Conclusion

Anyhoobie, that is the nutshell version of the philosophy of copyright. Feel free to explore the subject in greater depth on your own. Philosophy can be fun, right? Right?

Who Am I?

That, too, is a great philosophical question. In my case, it is easy to answer. Cokato, Minnesota attorney Thomas James.

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Photographers’ Rights: Warhol Case Tests the Limits of Transformative Use

The U.S. Supreme Court will soon hear Andy Warhol Foundation for the Visual Arts v. Goldsmith. Attorney Thomas James explains what is at stake for photographers

In a previous post, I identified the Second Circuit’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith as one of the three top copyright cases of 2021. It has since been appealed to the United States Supreme Court. Oral argument is scheduled for October 12, 2022.

The dispute

The underlying facts in the case, in a nutshell, are these:

Lynn Goldsmith took a photograph of Prince in her studio in 1981. Later, Andy Warhol created a series of silkscreen prints and pencil illustrations based on it. The Andy Warhol Foundation sought a declaratory judgment that the artist’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of Warhol and dismissed the photographer’s infringement claim.

The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use.

The United States Supreme Court granted the Warhol Foundation’s certiorari petition.

The issue

In this case, the U.S. Supreme Court is being called upon to provide guidance on the meaning and scope of “transformative use” as an element of fair use analysis. At what point does an unauthorized, altered copy of a copyrighted work stop being an infringing derivative work and become a “transformative” fair use?

The Conundrum

In the chapter on copyright in my book, E-Commerce Law, I predicted a case like this would be coming before the Supreme Court at some point. As I noted there, a tension exists between the Copyright Act’s grant of the exclusive right to authors (or their assignees and licensees) to make modified versions of their works (called “derivative works”), on one hand, and the idea that making modified versions of copyrighted works is transformative fair use, on the other. The notion that making changes to a work that “transform” it into a new work qualifies as fair use obviously threatens to swallow the rule that only the owner of the copyright in a work has the right to make new works based on the work.

Lower courts have not been consistent in their interpretations and approaches to the transformative use concept. The Warhol case presents a wonderful opportunity for the Supreme Court to provide some guidance.

Campell v. Acuff-Rose Music

The “transformative use” saga really begins with the 1994 case, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Unable to secure a license to include “samples” (copies of portions) of the Roy Orbison song, “Oh Pretty Woman” in a new version they recorded, 2 Live Crew proceeded to record and distribute their version with the unauthorized sampling anyway, invoking “fair use.”

In a decision that took many attorneys and legal scholars by surprise, the Supreme Court held that 2 Live Crew did not need permission to copy and distribute the work even though the work they created involved substantial copying of the Orbison song. To reach this conclusion, the Court propounded the notion that copying portions of another work — even substantial portions of it — may be permissible if the resulting work is “transformative.” This, the Court held, could hold true sometimes even if the newly created work is not a parody of the original.

In the years that followed, courts have struggled to determine what is a “transformative” modification of a work and what is a non-transformative modification of it. Some courts have demonstrated a willingness to apply the doctrine in such a way as to nearly nullify the exclusivity of an author’s right to make modified versions of his or her works.

Courts have also demonstrated a lack of consistency with respect to how they incorporate and apply “transformativeness” within the four-factor test for fair use set out in 17 U.S.C. Section 107.

Why It Matters

This might seem like an arcane legal issue of little practical significance, but it really isn’t. People are already pushing the transformative use idea into new realms. For example, some tattoo artists have claimed in court filings that they do not need permission to make stencils from photographs because copying a photograph onto skin is a “transformative use.”

Of course, making and distributing exact copies of a photograph for sale in a stream of commerce that directly competes with the original photograph should not be susceptible to a transformative fair use claim. But how far can the claim be carried? If copying a photograph onto somebody’s skin is “transformative” use, would copying it onto somebody’s shirt also be “transformative”?

Clarity and guidance in this area are sorely needed. Hopefully the Supreme Court will take this opportunity to furnish it.

Contact Cokato copyright attorney Thomas James

Need help with registering a copyright or with a copyright problem? Contact attorney Thomas James.