Levels of Transformativeness

Joseph Landor on July 3, 2011 in College Entry

Brian Frye has an interesting post up over at Concurring Opinions on Friedman v. Guetta, a recent Central District of California copyright case involving an altered photograph of Run-D.M.C. Somewhat like Fairey v. AP, the issues on summary judgement included whether the original photograph was copyrightable and whether Guettas use of it was fair. (You can see the original and altered photographs here.)

Theres lots of interesting issues there, but one that caught my eye is one that has been bugging me more and more every time I teach the fair use section of Copyright Law: the seemingly infinite manipulability of the transformativeness inquiry of the first fair use factor. The fair use exception to copyright infringement liability, as defined in the Copyright Act, requires the court to weigh four factors: the purpose and character of the defendants use; the nature of the plaintiffs work; the amount and substantiality of the portion used; and the effect of the use on the potential market for the plaintiffs work. The first factor—the purpose and character of the use—is typically determined by looking at whether the defendants use of the plaintiffs work was transformative—that is, whether the defendant used the plaintiffs work for some new and different purpose, or whether the defendants use merely supplanted the plaintiffs work.

In resolving the transformativeness issue, much seems to depend on how broadly or narrowly the purposes of the two works are defined, but that categorization is almost never accompanied by any discussion of the proper level of generality. Heres how Judge Pregerson in Friedman defined the purpose of each work:

Here, Defendant has not offered a transformative alternative use of the Photograph image. Both Plaintiff and Defendant are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendants use a transformation of Plaintiffs copyright.

Works of visual art for public display is a pretty broad category; almost every photograph for any purpose will fit that description. Surely that cant be the proper level of generality. What was the more specific purpose for which Friedmans photo was shot? To document the rise of a rap group? For an album cover? And what was Guerras purpose in making his alterations? The opinion doesnt say.

Compare Friedman to the Second Circuits opinion in Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006), a case involving a coffee table book about the Grateful Dead that included images of copyrighted concert posters owned by the plaintiff:

In the instant case, DKs purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGAs images fulfilled the dual purposes of artistic expression and promotion. The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band’s forthcoming concerts. In contrast, DK used each of BGAs images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trips timeline.

Certainly the posters were being used in each instance as works of visual art for public display. But the Bill Graham Archives court conducted a more searching inquiry than that. To similar effect is Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006), in which appropriation artist Jeffrey Koons used fashion magazine advertisements to create a million-dollar collage:

Koons does not argue that his use was transformative solely because Blanchs work is a photograph and his a painting, or because Blanchs photograph is in a fashion magazine and his painting is displayed in museums. He would have been ill-advised to do otherwise. We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work. . . . But Koons asserts and Blanch does not deny that his purposes in using Blanchs image are sharply different from Blanchs goals in creating it. Compare Koons Aff. at ¶4 (I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.) with Blanch Dep. at 112-113 (I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.). The sharply different objectives that Koons had in using, and Blanch had in creating, Silk Sandals confirms the transformative nature of the use.

This is not a Ninth Circuit vs. Second Circuit issue. Other Second Circuit courts, ultimately finding no fair use, have defined the defendants purpose more broadly. In Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, 142 (2d Cir. 1998), the court defined the purpose of both works—the Seinfeld television series and a Seinfeld quiz book—as to entertain Seinfeld viewers. Only in Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 79 (2d Cir. 1997), a case involving the use of a poster of the plaintiffs quilt for set decoration on a television show, did the court reflect on the issue at any length, if only in a footnote:

The defendants have used Ringgolds work for precisely a central purpose for which it was created to be decorative.n10 Even if the thematic significance of the poster and its relevance to the ROC episode are not discernible, the decorative effect is plainly evident. Indeed, the poster is the only decorative artwork visible in the church hall scene. Nothing that the defendants have done with the poster supplants the original or adds something new. The defendants have used the poster to decorate their set to make it more attractive to television viewers precisely as a poster purchaser would use it to decorate a home.

n10 Of course, the creation of visual works serves other, often more important, purposes such as illuminating human understanding, providing inspiration, or provoking thought. Ringgolds work, in telling and illustrating an informative story, might well serve these purposes, but it also significantly serves a decorative purpose.

The issue here reminds me a bit of one criticism of Justice Whites infamous opinion in Bowers v. Hardwick, which framed the legal issue as whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, as opposed to how the 11th Circuit framed it, whether private sexual conduct between consenting adults is constitutionally insulated from state proscription. But the solution is not as simple as always looking for a more specific purpose. At some level, every defendants purpose will be somewhat different than the plaintiffs; if nothing else, a defendant will always wish to use the plaintiffs work in a specific way that the plaintiff did not authorize. But that cant be the optimal categorization of purpose either.

This is not an issue that copyright law, or constitutional law for that matter, struggle with alone. Just today I came across this relevant passage while reading a draft article by Jonathan Cardi, The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm:

The inherent instability of categorical formulations of plaintiff-foreseeability stems in part from the lack of any principle by which courts define the scope of the foreseeable class. Take, for example, the police chase case cited in the previous paragraph. Although the Montana court defined the class quite broadly—people using the streets and highways where the chase occurred—the class would have excluded a plaintiff injured by the careening police chase while watching it from the front porch of his house. A broader definition—for example, people present in the area of the chase—would allow recovery by such a victim. In the alternative, a court might deny liability by defining the class more narrowly—people asleep in their car on the side of the road, people interfering with the chase, or drunk drivers. I discern no guidelines according to which courts determine how narrowly or broadly to define the class of plaintiffs into which a particular plaintiff must fit. In fact, courts rarely even disclose the reasoning by which they have derived the class.

Cardi then notes in a footnote that [t]his is a common scope problem in the common law, documented famously by Herman Oliphant. See Herman Oliphant, A Return to Stare Decisis, 14 A.B.A.J. 71 (1928).

So its a problem that affects all common-law decisionmaking, which might fairly be said to include copyright, and certainly the fair use doctrine. And while I dont have an immediate solution, Ill settle for now for courts at least expressly recognizing the difficulty.

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