Parody, or being lazy?

Someone in class commented the other day that under the fair use doctrine, in the context of parody, an artist can simply be lazy, copy the work of someone else, and change it a little to call it a parody. I found this article in the Wall Street Journal today that speaks directly to that. The article describes two works of one man. The man had created the works by downloading someone else's photographs, printing them directly onto his canvases, then adding to or detracting from them. In one case, a court found that the work was a parody, and had been transformative enough to constitute fair use. In the other case, it was merely copying, and was infringement because there was no parody involved. His work directly implicates the distinction between parody, or critique of art, and simple laziness.

It also suggests that an artists view of what is "transformative" might be different from a court's view of what is "transformative." The copying artist's claim is that in the art world, if there is both a change in medium, and a "re-presentation" of the work, then it is transformative. Some of this artist's work makes one question whether he was, in good faith, adhering to these claimed beliefs of what is transformative, but it nonetheless raises the issue that an artist may be unaware that s/he is infringing because the definition of "transformative" can easily be lost in translation from law to art.

Here is a link to the article: http://online.wsj.com/article/SB123319795753727521.html

Is it possible to contract around the safe harbor provisions of the DMCA?

The RIAA is shifting its approach from prosecuting individual users who pirate copyrighted material, to working with internet service providers to disconnect "persistent pirates." Here is a link to the NY Times article: http://www.nytimes.com/2009/01/30/technology/30digital.html?_r=1&ref=technology. Apparently, the RIAA decided to cease its strategy of targeting individual users because it was bad for its image. However, the effectiveness of its new strategy may be worse. The ability of an OSP to disconnect its users is a powerful tool. Denial of internet access is a greater deterrent than the mere threat of RIAA prosecution. Not only that, but if the RIAA works with OSPs under contracts, it can get more monetary damages for breach of contract than it could get from individual users for infringement. Does the approach allow inroads on the OSP safe harbors of the DMCA by creating liability contractually? Does it indicate the beginning of the uniting of RIAA and OSP interests?

Copyright & Work for Hire in the Seattle Glass Art World

More copyright on a local level - the suit was settled, but when glass artist Dale Chihuly sued former employee Bryan Rubino for copying his (Chihuly's) works, the nature of work for hire came into the picture as well as the idea/expression dichotomy:
http://www.thestranger.com/seattle/Content?oid=30734
http://seattlepi.nwsource.com/visualart/266884_dalelawsuit17.html
http://www.nytimes.com/2006/06/01/us/01glass.html?pagewanted=print

"Color This Area of the Law Gray"

The Wall Street Journal posted an article today discussing the trend in copyright law to find artwork, such as the art of Jeff Koons, transformative when the work can be characterized as a comment on previous works.  The article draws attention to a pending lawsuit concerning whether Richard Prince had transformed Patrick Cariou's photography when Prince scanned Cariou's pictures, printed them on a canvas, and then defaced the pictures.  The article notes that judicial characterization of whether art is transformative is a "gray" area in copyright law that serves an important function - mainly flexibility.

http://online.wsj.com/article/SB123319795753727521.html

  

Harry Potter Fair Use Case

The Vanderbilt Journal of Entertainment and Technology Law has an interesting article summarizing the recent case of Warner Brothers/J.K. Rowling v. RDR Books, in which J.K. Rowling sued RDR Books for copyright infringement of her Harry Potter novels as well as two accompanying encyclopedias that she had published - RDR had published a book written by a young man that catalogued the Harry Potter lexicon.  Here's a link describing the court's decision: The case is a nice example of how the court determines copyright infringement, especially with respect to the 4 fair-use factors.  

As to the first factor (purpose and character of use), the court found that the work was not particularly transformative when compared to the other encyclopedic works produced by Rowling.  Also, the work was for profit.

The second factor (amount and substantiality of use) weighed in favor of Rowling.  The book contained far too much verbatim copying from the book, even when such copying would not have been necessary.  Thus, the author appropriated more than was necessary to create the work.

The third factor (nature of the copyrighted work) also weighed against a finding of fair use because the Harry Potter franchise is entirely fictional.

Finally, the fourth factor (market harm) also weighed against a finding of a fair use. Although the lexicon encyclopedia would not likely compete with the Harry Potter novels, it would likely harm sales of Rowlings other encyclopedic works.

Parody as Fair Use in Europe

The copyright law of the members of the European Union has been harmonized by the Directive 2001/29/EC of 22 May 2001 on certain aspects of copyright and related rights in the information society. The members states are free to allow parodies of copyrighted work:

“Article 5
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 [Reproduction right] and 3 [Right of communication to the public of works and right of making available to the public other subject-matter] in the following cases:
(...)
(k) use for the purpose of caricature, parody or pastiche;
(...)”

The German Copyright Statute (Urheberrechtsgesetz) does not adress parodies directly. It does, however, recognize a right to ''free use'' (§ 24, Freie Benutzung). ''Free use'' can be described as a thin line between the exclusive right of the author to ''editings and transfigurations'' (§ 23, Bearbeitungen und Umgestaltungen) and the moral right of the author to be protected against “disfiguration'' (§ 14, Entstellung des Werkes).
The German Supreme Court held that a parody is ''free use'', when the elements of an existing work are picked up and reassembled in a different context in order to let them look weird and satirical. The court created for this purpose the word ''anti-thematically'' (antithematisch). The court had to deal with a modified image of the eagle in the German parliament. Guess which eagle is the original one!
An important exception exists with respect to pieces of music! The copyright statute provides a ''rigid music protection'' (§ 24(2)). The reconizable melodie of a song cannot be used freely. Thus, without the consent of the auhtor a parody of a song is barred!
This is, however, the law in Germany. The underlying European Directive enables other member states to deal with parodies in different ways.

Parody and caricature: right to one's own image?

Discussion in class today about parody and caricature reminded me of the Sarkozy voodoo doll fiasco last October and the relationship between parody, caricature, and the right to one’s own image. The French president Sarkozy sued K+B Publishers, the makers of the doll, (which was an image of Sarkozy and came with pins to stick into it, and a list of notoriously rude phrases Sarkozy has uttered over the years) alleging that the doll infringes on his exclusive right to his image. French courts didn’t go for it though. I had a laugh. I wonder if he’s considering suing the Canadian comedy duo who called Sarah Palin and pretended to be him for a whole six minutes. Here is a link to a voodoo doll lawsuit article:

http://www.iht.com/articles/2008/10/30/europe/france.php