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Copyright Essentials

https://bit.ly/LCO-CopyrightEssentials-Oct2024

Jeremy York, Assistant Director

U-M Library Copyright Office

This work is licensed under a Creative Commons Attribution 4.0 International License.

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About the Library Copyright Office

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About the Library Copyright Office

Founded in 2006 to provide copyright guidance to U-M faculty, staff, researchers, students; support creation and reuse of materials on campus (visit our Home Page)
We offer:

Expert guidance on copyright and copyright-related questions copyright@umich.edu, video consultations
Online resources: Copyright scenarios (New!), Copyright Basics, Permissions, Open Access, Dissertations, Using Video, Publishing, Course Websites, and more
Class visits and periodic workshops

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Learning Objectives

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Learning Objectives

Learn an intuitive framework for understanding copyright
Gain a general understanding of the origins and basis for US copyright law
Learn a framework for analyzing a copyright problem

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Learning Objectives

Learn an intuitive framework for understanding copyright
Gain a general understanding of the origins and basis for US copyright law
Learn a framework for analyzing a copyright problem

Develop skills to identify important issues and information

What is copyrightable and what is not
Who holds copyright
What rights copyright holders have; What copyright infringement is
Permissions and licensing
Conducting a fair use analysis

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Types of Intellectual Property

Copyright	original expression
Patent	useful inventions (products, processes, designs)
Trademark	corporate identities and products
Trade secret	formulas and processes that are not easily discovered

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Framework for Understanding Copyright

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Framework for understanding copyright - 1

Reuse is a relationship

Copyright is a tool

(to regulate relationships)

Copyright exists in a context

Copyright law can be complicated. There is complicated terminology, language that is difficult to parse and understand.

So I wanted to start by presenting a generalized or intuitive framework for understanding copyright

There are three parts to this framework

The first is a conceptualization of reuse as a relationship. This is the idea that whenever we use ideas, content, or even movements created by others, we enter a relationship of sorts with those creators. Sometimes this relationship is more explicit (e.g., when permissions or a license to use content are obtained) and sometimes more subtle (e.g., when the sight of a painting influences the way we create our next creative work).

There are different ways we acknowledge these relationships. In academic work we add citation information to quotations, figures, or images we use from other sources. In artistic work we might include recognizable references or gestures to prior works. We also might acknowledge relationships in conversations with others or written acknowledgements.

Understanding reuse as a relationship helps us understand the obligations we may feel (or not) to interact with and acknowledge sources of our content and inspiration. It can also help us understand why others may be happy, reluctant, or possibly angry when we reuse ideas or expressions they create.

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Framework for understanding copyright - 2

Reuse is a relationship

Copyright is a tool

(to regulate relationships)

Copyright exists in a context

The second is the idea that copyright is a tool; it’s is one of several tools we have developed over time to regulate the relationships of reuse we develop with one another.

In this framing, not only does copyright regulate relationships, but it does so in ways that support particular values in a society (including as these values may change over time). These are values like wealth, reputation, which are very important in our society, as well as the attainment of political, social, and economic power; but also values like free speech, privacy, the progress of science and the arts, and the public good.

The idea that copyright regulates relationships acknowledges that copyright law did not spring out of nowhere. It developed as players with competing goals and interests formed, negotiated, and re-formed relationships over time, developing the laws that are meant to regulate our relationships today.

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Framework for understanding copyright - 3

Reuse is a relationship

Copyright is a tool

(to regulate relationships)

Copyright exists in a context

The third idea, that copyright exists in a context, stems from the notion that relationships are more complicated than they may seem. It is thus important—in view of reuse as relationships—to seek to understand causes of tension and stress in relationships that go beyond a surface understanding of copyright. A few examples can illustrate:

Piracy. First, preventing copyright infringement—what some might pejoratively call “piracy” or the “stealing” of others' content—is often highlighted as a key goal of copyright law. However, social dynamics that operate on local and global levels can conspire to privilege some kinds of creations and creators over others. Today, the United States is one of the most assiduous protectors of intellectual property worldwide. But in the 19th century, literacy in the US was supported through the wide distribution and use of “pirated” reading materials from Europe, and especially from England (Baldwin, 2014).
Legal versus optimal. Second, what is legally permissible may not be optimal. For instance, I may have a legal basis to use a particular image of art in a book, but depending on who the rights holder is and the art community involved, doing so could damage the relationship I have with an author or community in a way that would inhibit my ability to work with the community going forward.
Legal versus ethical. Finally, what is legally permissible may not be ethical. For instance, I may take a photograph and be the lawful rights holder, but ethical issues could arise if I tried to reuse the image without the consent of the person or people in the photograph. Such situations abound in society today, where current or historical circumstances such as colonialism, occupation, or oppression of different kinds result in the production and distribution of content without individual or community partnership or consent. In some cases, apologies and reparations can be made, but there can be deep and lasting consequences and harm of different kinds if ethical considerations are ignored.

Understanding that copyright exists in a context and taking a critical view of reuse enables us to consider broader social and economic relationships that might drive people in some cases to engage in what some might refer to as “piracy” and in others to become assiduous enforcers against it. It raises our awareness of the systems we operate in and the ways these systems can divide different groups and advantage some over others.

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Origins and Basis of US Copyright Law

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Historical context - 1

Roman law
European law
Big debates

Are creative works property? To what extent is it private or public? Can it be inherited?
Does it cover some creations but not others? How long should protection last?

Our law comes out of a tradition with roots in ideas about property that go back to Roman law (Ver Steeg, 2000)

Modern notions of copyright did not arise until after the development of the printing press, which revolutionized the speed and scale at which materials could be copied and distributed

At this time, debates began to arise about creative works, particularly in European law as they affect the United States, that continue to the present

These include questions like:

Are creative works property?

To what extent is it private or public?

Can it be inherited?

Does copyright cover some creations but not others?

How long should copyright protection last?

[From Ver Steeg: “Roman law theories help to explain analogous principles in modern copyright: namely, theories of intangible property, public property (the public domain), the metaphysical components of property as a legal concept (types of copyrightable works), ownership (e.g., joint authorship and work for hire), the sale of copyrights, and theft and/or damage to property (infringement).”]

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Historical context - 2

Two main conceptions

Copyright as an author’s right (moral rights)
Copyright as a right granted by society (economic rights)

What does copyright do?

Controls who is able to produce, what content is available, who profits

Out of these debates over time, two main conceptions of copyright arose:

The first holds that an author's rights are inalienable or natural rights inherent to an author or creator of a work. We often refer to these rights today as “moral rights” and they are often associated with continental Europe, where a lot of the relevant theories originated and from which they’ve been propagated.

The second view sees copyrights as protections that society grants to authors only so far as it incentivizes them to create, so that society can benefit from those publicly shared creations. This view is often associated with Anglophone countries including the UK, the United States, Canada, and Australia and are referred to as “economic rights.”

Over the last 130 or 140 years, there has been a fair amount of convergence in the way these two conceptions have been expressed in law, catalyzed by the development of international treaties around copyright, but there are still significant differences, even among countries that adhere more strongly to one or the other of these conceptions.

Getting back to relationships and regulation—at all times, this exclusive right to copy (now refer to as copyright) been about

who is able to produce content
what content is available to the public be consumed (e.g., the exclusive rights of publishing in England in the 16th century was to suppress the propagation of new religious ideas during what is known as the Protestant Reformation) and
who profits

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Historical context - 3

Statute of Anne, 1710

Placed rights to print and reprint in the hands of authors
Limits to copyright duration
Copyrights for societal benefit
Required registration of works and deposit in libraries

United States Copyright Law, 1790

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Constitutional basis of copyright

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

US Constitution

Article 1, Section 8, Clause 8

https://constitution.congress.gov/browse/article-1/section-8/

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Copyright is a Balance

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Copyright and free speech

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

US Constitution

First Amendment

https://constitution.congress.gov/browse/amendment-1/

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https://uscode.house.gov/

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2. Copyright is Evolving and Contested

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1790 Only books, maps, charts protected

1802 Prints

1831 Musical compositions

1856 Dramatic works (owners of copyrights in books could control public performance)

1865 Photographs (added by statute)

1870 Paintings and drawings, statues (3-D works of fine art)

1903 Advertisements

1903 Movies (invented in 1890s)

1909 Lectures, sermons, addresses

1930 Fictional characters and plots recognized as protectable works

1909-1954 Useful articles (some types) protected

1972 Sound recordings (distinct from compositions)

1976 Pantomimes and choreographic works

1978 Software (though there were early forms of protection in the 1960s)

1990 Architecture

Progression of United States Copyright Law

More works

Longer duration

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Learning Objectives

Learn an intuitive framework for understanding copyright
Gain a general understanding of the origins and basis for US copyright law
Learn a framework for analyzing a copyright problem

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Framework for Copyright Analysis

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

If Not

Is an alternative available?
Do you need to seek permission?

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Scenario

You are a researcher working on a the publication of a new article. You would like to include a figure and an image in the article that you found on the Web. You would also like to use the figure and image in a blog post to announce the article.

Can you do this? What are the relevant issues?

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Framework of analysis

Is the work protected by copyright (by whom)?

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What is copyrightable? - 1

Copyright protects original works of authorship (published or not), fixed in any tangible medium of expression

Original

Independently created, with a “modicum” of creativity

A work of human authorship

literary, musical, dramatic, pictorial, graphic, sculptural, pantomime or choreographic, audiovisual, sound recording, architectural, etc.

Fixed

In a medium from which it can be “perceived, reproduced, or otherwise communicated directly or with the aid of a machine or device”

In the United States, copyright protects only “original works of authorship fixed in any tangible medium of expression” (Section 102(a) of Copyright Act). To be eligible for copyright protection, a work must be:

Original: To qualify as original, the work must be created independently and must have “at least a modicum” of creativity. [Link to Originality]
A work of human authorship: Copyright at this point does not protect works created by AI or other machines. The copyright act has a non-exhuastive list of protected works including ones that are literary, musical, dramatic, pictorial, graphic, and sculptural, pantomines and choreographic works, audiovisual works, and sound recordings, or architectural. [Link to Authorship and Joint authorship]
Fixed: A work must also be "fixed in a tangible medium of expression" [by or under the authorization of the author] in a medium from which it can be perceived, reproduced, or otherwise communicated directly or with the aid of a machine or device” Writing a work on paper or on a computer hard drive, recording a work on tape, and sculpting a work out of marble (or ice!) all satisfy this requirement. An unrecorded improvisation (e.g., in music or dance) would not satisfy this requirement. [Link to Fixity]

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What is copyrightable? - 2

Compilations: works formed through the selection, coordination, or arrangement of pre-existing materials or data “in such a way that the work as a whole constitutes an original work of authorship.”

17 USC § 101

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What is not copyrightable? - 1

Ideas, procedures, processes, methods (listing of ingredients or contents are not protected)
Concepts, principles, discoveries
Non-creative works (facts)
Prepared by employee of US government
Transitory works
Words and short phrases such as names, titles, and slogans

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What is not copyrightable? - 2

Generative AI and Postsecondary Instructional Practices. (2024). Ithaka S+R.

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What is not copyrightable? - 3

Generative AI and Postsecondary Instructional Practices. (2024). Ithaka S+R.

	Yes	No
Assessing students' assignments	13%	87%
Assisting in administrative tasks	16%	84%
Creating images or visualizations	15%	85%
Creating simulated or synthetic datasets	9%	91%
Creating tutoring or student guide resources	12%	88%
Designing course materials	22%	78%
Developing personalized lesson plans	13%	87%
Recording audio for lectures	7%	93%

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What is not copyrightable? - 4

Generative AI and Postsecondary Instructional Practices. (2024). Ithaka S+R.

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What is not copyrightable? - 5

The xkcd Money chart by Randall Munroe is licensed it under a Creative Commons Attribution-NonCommercial 2.5 License.

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What is not copyrightable? - 6

Generative AI and Postsecondary Instructional Practices. (2024). Ithaka S+R.

	Yes	No
Assessing students' assignments	13%	87%
Assisting in administrative tasks	16%	84%
Creating images or visualizations	15%	85%
Creating simulated or synthetic datasets	9%	91%
Creating tutoring or student guide resources	12%	88%
Designing course materials	22%	78%
Developing personalized lesson plans	13%	87%
Recording audio for lectures	7%	93%

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Idea / Expression Dichotomy - 1

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Idea / Expression Dichotomy - 2

Example from “Everything You Need to Know About Copyright” by Raven Lanier, licensed under Creative Commons Attribution 4.0 International.

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Idea / Expression Dichotomy - 3

Here are a lot of different kinds of ducks wearing sunglasses. There are similarities across all the ducks: they all have orange bills, they all have wings, most of them are yellow, and they’re all wearing sunglasses. Those attributes, the things you must have in order to create a duck wearing sunglasses, are the idea. Anyone can take the idea of a duck wearing sunglasses and draw one themselves. What is copyrightable is the expression that makes each duck unique, whether it is the swim trunks, eyebrows, or little details in the sunglasses. If you reproduce any of those unique details—the original expression—you may be infringing on the creator’s copyright.

A duck is a bit of a silly example, but could represent anything, including the chart we talked about earlier, or Star Trek

If I take the idea of a space ship traveling through space and make up my own story, I can avoid the risk of copyright infringement. However, as soon as I start taking particular unique elements, using characters like Dr. Spock and Scottie, and copying specific plot lines, I could run into trouble and need permission to make those uses.

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Idea / Expression Dichotomy - 4

Scènes à faire doctrine

Elements that are standard to a particular genre

Merger doctrine

Only one or a limited number of ways of expressing an idea

Some concepts related to the idea/expression dichotomy that have been developed in the courts are what are know as the merger doctrine and the scènes a faire doctrine. Scènes à faire refers to elements of a work that are standard, obligatory, or otherwise indispensable in the treatment of a certain subject matter. It holds that when an element of a work is customary in a particular genre, it is not protectable. For example, films in the Western genre commonly have gun fights at high noon, bar fights, and cowboy hats. Detective stories often have a crime scene investigation and a final revelation of the culprit. These are all scènes a faire that would not be protected.

The merger doctrine comes into play when there is only one or a limited number of ways to accurately convey a particular idea. In such cases, the idea and the expression merge, and the expression cannot be protected by copyright because to do so would effectively protect the idea itself. Thus, individual words and short phrases are not protected by copyright. Longer phrases that are very conventional or factual may also not be protected. For example, consider the sentence, “Michael Jackson was born on August 29, 1958.” This sentence is one of the only ways of expressing this information in English and is likely uncopyrightable due to the merger doctrine.

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What is not copyrightable? - 7

Works published when there were no copyright relations with the country

Works published outside the US pre-1891
Works published in Eritrea, Ethiopia, Iran and Iraq by their citizens

See USCO Circular 38A “International Copyright Relations of the United States”

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What about formal requirements?

No longer required:

Published
Registered
Renewed
Notice
Printed in the United States

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How long are works in copyright?

The extent and duration of a work’s copyright is determined by the law that was in place when the work was first published
As of 2024, works published before 1929 (more than 95 years ago) are in the public domain in U.S.
Unpublished works whose authors died more than 70 years ago are in the public domain (120 years for works of corporate authorship or where the author is anonymous, pseudonomous, or the date of death is unknown)

But a different copyright term can apply based on when a work was published

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Duration of

copyright

Cornell University: Copyright Term and the Public Domain

USCO Circular on

“Duration of copyright”

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The importance of registration today

Not required for protection
Required to bring a lawsuit, be eligible for statutory damages and attorney’s fees in litigation
Evidence, Public record
United States Copyright Office - Registration

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Watch out for…

Copyright Restoration in US for WTO, Berne Convention, and WIPO countries

For most countries: copyrights restored in 1996
Works from Somalia, Palau, and Nauru were never restored

In copyright

Public Domain

US

Country of origin

In copyright

1996

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Watch out for…

9th Circuit ruling in Twin Books (not recognized by USCO)

Some works published outside in US in language other than English before 1929 may be in copyright

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Framework of analysis

Is the work protected by copyright (by whom)?

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Who is the copyright holder? - 1

Single person, multiple people (joint authorship), corporate entity (work-for-hire)
University of Michigan: SPG 601.28

University holds copyright, transfers copyright in SCHOLARLY WORKS to FACULTY, while reserving some rights:

Use for educational or administrative purposes
Ability to preserve, archive, and host SCHOLARLY WORKS in its institutional repositories

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Who is the copyright holder? - 2

Student works

“Students hold the copyright in works they author, unless they have authored works as EMPLOYEES or transferred their copyright in writing to the University or other entity.” (SPG 601.28)

Joint Authorship

“intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” (US Copyright Act Section 101)
It is important to define relationships at the outset of a joint project

Regarding students, the SPG states that “Students hold the copyright in works they author, unless they have authored works as EMPLOYEES or transferred their copyright in writing to the University or other entity.”

I mentioned multiple authors can hold copyright. This is known under the law as Joint Authorship, and it refers to a work produced by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Joint authors of a copyright are treated as tenants in common for copyright purposes. Each has an independent right to use the work or grant a non-exclusive license to someone else. If they want to grant an exclusive license to use the work they need the consent of the other authors. In any joint work, a given author must share any proceeds from the work equally with the other joint authors.

A lot of creative and scholarly work at the University happens in collaboration with others, and it can be important at the outset of the project to define roles and relationships in the project, including which products might be considered joint wors of authorship and in which products an author might want to retain an individual copyright.

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What rights do copyright holders have?

Reproduce fixed, tangible copies
Distribute (publish)
Prepare derivative works (adapt)
Perform publicly (read the text)
Display publicly (as in a museum)

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What does it mean to infringe copyright?

Reproduce fixed, tangible copies
Distribute (publish)
Prepare derivative works (adapt)
Perform publicly (read the text)
Display publicly (as in a museum)

Proving infringement requires demonstrating

Ownership; the work is copyrighted (original, fixed)
Direct evidence of copying (e.g., verbatim), or
Access and substantial similarity

Infringement: use someone’s work in a way that violates these rights

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What rights do copyright holders have?

Reproduce fixed, tangible copies
Distribute (publish)
Prepare derivative works (adapt)
Perform publicly (read the text)
Display publicly (as in a museum)
Transfer or assign copyright
License

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?

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Permission and Licenses - 1

A License is a mechanism rights holder can use to grant some of their exclusive rights to others

Licenses can be more or less formal, verbal, or implied
Grants of exclusive rights and transfer of copyrights (e.g., to publish) must be made in writing

See the U-M Library guide on permissions

A license is a mechanism copyright holders can use grant some of their exclusive rights to others. We often call the act of obtaining a license obtaining permission, so these terms are often used interchangeably.

The rights holder could be the author of the work, or a publisher, or an employer or heir depending on the circumstances (so it can be difficult to determine who the rights holder is). Licenses can be formal documents or informal. They can even be verbal or implied. However, if you or someone else is transferring copyrights or granting exclusive rights, those kinds of rights must be granted in writing—this is why agreements with publishers have to be in writing - publishers are often asking for exclusive rights or a transfer of rights]. While permissions can be verbal, it can help avoid confusion and conflict later to obtain them in writing. You can find more information about permissions on our library guide.

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Permission and Licenses - 2

Helpful (not legal!) advice:

Be certain and clear about what you’re asking for
Save a copy of the permission request and (hopefully) acceptance
Start early!

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Permission and Licenses - 2

Scenario:

You are a researcher working on a the publication of a new article. You would like to include a figure and an image in the article that you found on the Web. You would also like to use the figure and image in a blog post to announce the article.

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Creative Commons licenses

Blanket licenses to the general public
Creative Commons is one of most common
Outline how you can and can’t use a work

The xkcd Money chart by Randall Munroe is licensed it under a Creative Commons Attribution-NonCommercial 2.5 License.

See the U-M Library guide on Creative Commons

Not all licenses are granted on an individual basis. Copyright holders can grant blanket licenses like the Creative Commons license to allow broad public use of their materials.

I’m not going to go into this further now but we offer a separate workshop on Creative Commons and of course are here to help if you have questions.

[Creative Commons (CC) licenses are a set of free, standardized licenses that allow content creators to grant the public permission to use their work under specified conditions. These licenses are designed to facilitate the sharing and reuse of creative works, making it easier to legally build upon the work of others.

They are designed to operate at three levels: First, they are legally actionable so there is a fine print version that contains all the legal terms and conditions. Second, there is a much shorter “human” readable version that is intended to make the licenses easy to use and understand. Finally, there is a machine-readable version so that search engines like Google can read them as well, making it possible to specifically search and filter by works that are openly licensed.]

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Creative Commons licenses

By Attribution
By Attribution, Share Alike
By Attribution, Non-Commercial
By Attribution, Non-Commercial, Share Alike
By Attribution, No Derivatives
By Attribution, Non-Commercial, No Derivatives

U-M Center for Academic Innovation and U-M Library Copyright Office. Finding usable materials.

There are six CC licenses, each combining different permissions and restrictions:

CC BY (Attribution): Allows others to distribute, remix, adapt, and build upon the work, even commercially, as long as they credit the original creation.
CC BY-SA (Attribution-ShareAlike): Similar to CC BY, but new creations must be licensed under identical terms.
CC BY-ND (Attribution-NoDerivs): Allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the creator.
CC BY-NC (Attribution-NonCommercial): Lets others remix, adapt, and build upon the work non-commercially, and although their new works must also acknowledge the original creator and be non-commercial, they don’t have to license their derivative works on the same terms.
CC BY-NC-SA (Attribution-NonCommercial-ShareAlike): Allows others to remix, adapt, and build upon the work non-commercially, as long as they credit the creator and license their new creations under the identical terms.
CC BY-NC-ND (Attribution-NonCommercial-NoDerivs): The most restrictive license, allowing others to download the works and share them with others as long as they credit the creator, but they can’t change them in any way or use them commercially.

So, in our use scenario, if we determined that our figure or image was protected by copyright but found out or selected ones to begin with that were publicly licensed, we would not need to obtain permission. I’ve included a link to a guide on finding usable or openly licensed materials that was created in partnership with the Center for Academic Innovation here at U-M.

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Read the terms of service!

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

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Copyright is a Balance

Balance creator rights with public benefit

Balance exclusive rights and freedoms of religion, speech, and the press

Exceptions to exclusive rights

I mentioned earlier that copyright is a balance. Making copyright for a limited time so that content can fall into the public domain and be reused by all; granting copyrights, but protecting freedoms of religion, speech, and of the press. One way copyright seeks to keep these balances is through exceptions to the exclusive rights of copyright holders.

[Longer version: The Constitution grants Congress the power to grant exclusive rights to creators for “limited times” with the ultimate goal of promoting the progress of science and the useful arts or broadly, public benefit.

In addition, while the Constitution grants Congress this power, Congress cannot make laws that limit freedom of religion, of speech or of the press, which could be impinged if creators had absolute control over how their works were used. Imagine for instance, that we could not include clips of political speeches, sports highlights, or other footage in news reporting.

The way these balances are kept in the law is through exceptions to the exclusive rights of copyright holders]

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Exceptions to exclusive rights

Pumpkin-Pie-Whole-Slice.jpg by Evan-Amos is licensed under a CC-BY-SA 3.0 Unported License

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Lawful uses that do not require permission

Fair Use Section 107
Libraries and Archives Section 108
“First Sale Doctrine” Section 109
Classroom use; "TEACH Act" Section 110
Print Disabilities Section 121

So what are these exceptions?

One that pertains most to the general public and is perhaps the most frequently relied on is fair use. I’ll be talking more about this in a minute.

There are also particular exceptions for libraries and archives (for preservation purposes and purposes that enable services like inter-library loan)

There is what is known as the first sale doctrine. This is the idea that when I buy a book from a store, while I don’t own the intellectual property in the book, I own the physical book, and can decide how I use that physical copy. For instance, I can re-sell it, I can loan it, I can even destroy it. The first sale doctrine is what enables libraries to loan out books, and there is a lot of concern in this area today because with more licensed electronic materials it has become more difficult for libraries to own its own copies.

There are exceptions to copyright for uses in a classroom, including for online or distance education, though there are many prerequisites for online uses and many institutions including U-M do not rely on these exceptions in particular for those uses

There are exceptions that allow authorized entities to make copies of works that are accessible to users who have print disabilities.

And there are others exceptions for restaurants, religious services, and other purposes

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Fair use

Scenario:

You are a researcher working on a the publication of a new article. You would like to include a figure and an image in the article that you found on the Web. You would also like to use the figure and image in a blog post to announce the article.

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What is fair use?

Limited right to use copyrighted material without permission
Meant to encourage cultural development and creativity
Favored uses:

criticism, comment, news reporting, teaching, scholarship, research

Used for inclusion of quotes in scholarly articles, putting materials on course reserve, parodies, news reporting, and other purposes
Includes a four factor test

See the U-M Library guide on fair use

Fair use is a limited right to use copyrighted material without permission. It promotes certain favored uses including criticism, comment, news reporting teach, scholarship, and research. The law says that the fair use of a copyrighted work for these purposes “is not an infringement of copyright.”

Fair use is often used as a basis for including short quotes in scholarly papers, putting materials on reserve for a course, making a parody of another’s work, or including video clips in news reporting.

If you want to determine whether or not a use you want to make is fair use, you need to do an analysis that includes four factors. The analysis weighs each factor as working for or against fair use. No one factor is determinative, so all factors must be considered. This is complicated at first, but it makes more sense and gets easier the more you do it.

33:30 to this point

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Factor 1

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Fair use for purposes such as

criticism, comment, news reporting, teaching, scholarship, research

Commercial vs. Non-Profit
Transformative: gives original work new meaning

The first factor is the purpose and character of the use. If you are using a work for one of the law’s favored purposes, you already have an advantage. However, just because you are making a use for one of these purposes does not mean the use is fair use. You have to look at all factors together. This factor considers also considers whether a use is commercial (which could weigh against fair use) v non-profit (in-class versus sell on t-shirt).

A consideration that is not in the statute but has been become important through case law is whether a use is transformative, or gives a new meaning or message to the original work. For instance, the supreme court found that 2 Live Crew’s parody of Roy Orbison’s hit song “Pretty Woman” was transformative, and the 2nd Circuit found that Google’s digitization of books in order to provide full-text search was transformative: using the same content, but transforming it to give it a new meaning. Courts have indicated that the more transformative a work is, the less important the other fair use factors may be (Lombardo v Seuss), including considerations about commercial use.

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Factor 2

The nature of the copyrighted work

Creative vs. Factual
Published vs. Unpublished
Least weighty of factors

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Factor 3

Amount or substantiality of the portion used

Quantity; Quality and importance of amount used (“Heart” of the work)
No bright line rules
Take only as much as you need

The third factor is the amount or substantiality of the portion used. This factor deals both with the quantity and the quality and importance of the portion of the copyrighted work being used. Taking a smaller portion of a copyrighted work will typically weigh more in favor of fair use. However, even using a small portion of a work can weigh against fair use if the portion being used is the most important part or the “heart” of the work.

You may have heard people talk about specific limits to the amount of content that can be used under fair use, like 10% or less of a work. But there are really no strict rules about this. Use of a small part of a work may not be fair use, and on the other hand use of an entire work could be fair use. What is really important to consider in this factor is whether the amount of the copyrighted work is enough to achieve your purpose, and no more.

The more transformative the purpose is, the stronger a case may be for using greater portions of a work. But it is all about context and doing an analysis in relation to the other factors.

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Factor 4

Effect on the potential market for or value of the copyrighted work

Use shouldn’t substitute for / displace original work
Look at market and potential markets
Critical commentary protected

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

If Not

Is an alternative available?
Do you need to seek permission?

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

If Not

Is an alternative available?

Finding usable materials (U-M Center for Academic Innovation and U-M Library Copyright Office)
Would it be acceptable to link to the content (e.g., in blog post)?

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

If Not

Is an alternative available?
Do you need to seek permission? (see library guide on seeking permission)

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Summary

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Framework for understanding copyright

Reuse is a relationship

Copyright is a tool

(to regulate relationships)

Copyright exists in a context

Helps understand the extent to which we may (or may not) feel the need to obtain permission, credit or acknowledge sources

Copyright is one of many tools we use to regulate relationships, and does so in ways that support and promote particular values in a society

We define “piracy,” what is optimal, what is ethical in the context of broader social and economic relationships

We started with a framework for thinking about reuse of content in terms of relationships, thinking about copyright as one of a variety of tools we use to regulate relationships of reuse, and thinking about copyright as a tool that exists in a broader context of social and economic relationships. Understanding copyright in these ways can help us to think intentionally about how to build healthy relationships with respect to the content we reuse:

Where appropriate attribution and credit are given, where we take advantage of the balances built into copyright law—both ones that protect us as creators and ones that allow us to use content created by others—and where we are sensitive in a more holistic way to the consequences and implications of our use, allowing us to make reuse decisions that are consistent with our ethics and values.

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Reuse decisions in practice

What is the potential injury?

What is the potential benefit?

What is the risk?

Think about the relationship

What is the broader framework?

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Origins and basis of US copyright law

Roman law
European law
Big debates (nature of property)

Moral rights (natural rights)
Economic rights (limited rights granted by the state)

Statute of Anne, 1710

Placed rights to print and reprint in the hands of authors
Limits to copyright duration
Copyrights for societal benefit
Required registration of works and deposit in libraries

United States Copyright Law, 1790

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Framework of analysis

Is the work protected by copyright (by whom)?
Does a license exist for your particular use?
Does a user right such as fair use apply?

If Not

Is an alternative available?
Do you need to seek permission (see library guide on seeking permission)

Read the terms of service!

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Questions?

copyright@umich.edu

Learning Objectives

Learn an intuitive framework for understanding copyright
Gain a general understanding of the origins and basis for US copyright law
Learn a framework for analyzing a copyright problem

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Now it’s your turn

Read the “Background” and “Issue” section in the notes on the following slides.
Walk through the Framework of Analysis we just learned and determine whether you think each use infringes copyright. Do you need more information than is provided? What information?
Read the “Court Decision” and “Reasoning” sections in the notes for each slide. Are you suprised by the outcome? Why or why not?

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Lombardo v Dr. Seuss Enters., L.P.

Did the play Who’s Holiday infringe Dr. Seuss’s rights in How the Grinch Stole Christmas?

Lombardo v. Dr. Seuss Enters., L.P. (279 F.Supp.3d 497 (2017) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/lombardo-v-dr-seuss-enters-lp

Background

In 2017, Matthew Lombardo premiered an off-broadway play in which a middle-aged Cindy Lou Who recalls the Christmas Eve when she first met the Grinch and the turns her life has taken since that time.

Issue�After receiving numerous cease and desist letters, the plaintiffs sought a declaratory judgment that their play, "Who's Holiday," constitutes fair use and does not infringe on the defendant's copyright in "How the Grinch Stole Christmas!" ("Grinch"). The defendant counterclaimed, alleging copyright and trademark infringement.

Court Decision�The court ruled in favor of the plaintiffs, declaring that "Who's Holiday" is a fair use parody of "Grinch" and dismissed the defendant's copyright and trademark infringement counterclaims. The case was closed, and costs were taxed in favor of the plaintiffs.

Reasoning

First Fair Use Factor: Purpose and Character of the Use

The play "Who's Holiday" is a parody of "Grinch," which is transformative. It recontextualizes and subverts the original work by placing the character Cindy-Lou Who in adult-themed, vulgar scenarios, thus making fun of the original's innocence and utopian qualities.
The play's use of the original work's characters, setting, and rhyming style is for a parodic purpose, altering the original with new expression and meaning.
Although the play is commercial, its transformative nature diminishes the significance of its commercial aspect.

Second Fair Use Factor: Nature of the Copyrighted Work

"Grinch" is a creative work, which typically weighs against fair use. However, in parody cases, this factor is less significant. The court acknowledged this factor but did not give it much weight due to the parodic nature of the play.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

The play uses substantial elements of "Grinch," but this is reasonable given its parodic purpose. The amount taken is necessary to "conjure up" the original for the audience to recognize the parody.
The play does not copy any language verbatim and uses the character of Cindy-Lou in a different context and setting.

Fourth Fair Use Factor: Effect on the Value or Potential Market for the Copyrighted Work

The play does not usurp the market for "Grinch" or its derivatives. "Grinch" is a children's book, while the play is intended for adult audiences with its off-color humor.
The play is unlikely to serve as a market substitute for "Grinch" or its authorized derivatives.

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Dr. Seuss Enters., L.P. v ComicMix LLC

Image from NYT article, 12/21/2020

Did the play Oh, the Places You’ll Boldly Go! infringe Dr. Seuss’s rights in Oh, the Places You’ll Go?

Dr. Seuss Enters., L.P. v ComicMix LLC (2016) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/dr-seuss-enters-v-comicmix-llc

Background

Dr. Seuss Enterprises, L.P. ("DSE") owns the copyrights to the works of Theodor S. Geisel, known as Dr. Seuss. In 2016, DSE sued ComicMix LLC for copyright infringement and other claims. The lawsuit was in response to ComicMix's publication of a comic book titled "Oh, The Places You’ll Boldly Go!" which combined elements from Dr. Seuss's book "Oh, the Places You’ll Go!" with elements from the science fiction franchise Star Trek.

Issue

The central issue in the case was whether ComicMix's work constituted copyright infringement. Specifically, the court had to determine if "Oh, The Places You’ll Boldly Go!" was a fair use of Dr. Seuss's copyrighted material. The work by ComicMix closely mimicked the title, story structure, and illustrations of the original Dr. Seuss book, raising questions about the extent to which it copied the original work and whether it transformed the material sufficiently to qualify as fair use.

Court Decision

The Ninth Circuit Court of Appeals ruled in favor of Dr. Seuss Enterprises, affirming that ComicMix's work did not qualify as fair use and thus constituted copyright infringement.

Reasoning Behind the Decision

The court's reasoning was based on several key points:

First Fair Use Factor: Purpose and Character of the Use

The court found that ComicMix's work was not transformative enough to qualify as fair use. While it combined elements from Star Trek, the work closely followed the original Dr. Seuss book in both structure and sentiment, without adding significant new expression, meaning, or message.

Second Fair Use Factor: Nature of the Copyrighted Work

The original Dr. Seuss book is a highly creative work, which is given strong protection under copyright law. This weighed against a finding of fair use.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

The court noted that ComicMix copied substantial portions of the original work, including its distinctive illustrations and textual structure. This extensive copying was not justified under the fair use doctrine.

Fourth Fair Use Factor: Effect on the Value or Potential Market for the Copyrighted Work

The court considered the potential market harm to DSE. ComicMix's work could potentially usurp the market for authorized derivative works of Dr. Seuss's book, thereby harming DSE's ability to license and profit from its copyrighted material.

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Bill Graham Archives v. Dorling Kindersley, Ltd.

Did the Billy Graham Archives infringe the rights of the Grateful Dead?

Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2006) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/bill-graham-archives-v-dorling-kindersley

Background�The case began during the pre-production of a coffee table book titled "Grateful Dead: The Illustrated Trip," published by Dorling Kindersley (DK). This book included a variety of information and imagery presented in a timeline format, documenting the history of the band Grateful Dead. DK was negotiating licensing terms with the Bill Graham Archives (BGA), which held the rights to several images created to promote Grateful Dead concerts. After failing to reach an agreement on the terms for seven images, DK decided to use them in the book, which was published in October 2003.

Issue�The lawsuit arose because BGA claimed that DK's use of the images without a licensing agreement constituted copyright infringement. BGA sued DK in the Southern District of New York for this alleged infringement.

Court Decision

The United States District Court for the Southern District of New York granted summary judgment in favor of DK in 2005. This decision was later affirmed by the United States Court of Appeals for the Second Circuit in 2006.

Reasoning Behind the Decision�The court held that DK's use of the images was a transformative fair use. The images, which were significantly reduced in size, were used to illustrate historical moments in the band's history, transforming them from their original promotional purpose into historical artifacts. This transformation enhanced the understanding of the Grateful Dead's history, thereby limiting the importance of the original expressive nature of the works.

The court also addressed the four factors of fair use:

First Fair Use Factor: Purpose and Character of the Use

The use was deemed transformative as it repurposed the images for a historical context rather than their original promotional intent.�

Second Fair Use Factor: Nature of the Copyrighted Work

While the original works were creative, the transformative use as historical artifacts diminished the relevance of their artistic value.�

Third Fair Use Factor: Amount and Substantiality of the Portion Used

The images were used in a reduced size, which supported the argument for fair use.�

Fourth Fair Use Factor: Effect on the Potential Market for or Value of the Copyrighted Work

The court limited the assessment of market impact to traditional markets for derivative works. It found that DK's use did not harm the market for the original works or their derivatives. Additionally, the court noted that a reuser's willingness to license a work does not preclude them from later claiming fair use if they choose not to license it.

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Perfect 10, Inc. v. Amazon.com, Inc.

Did Google infringe the rights of Perfect 10 by using Perfect 10’s photos in its image search?

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir., 2007) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/perfect-10-inc-v-amazoncom-inc-1

Background

Perfect 10, Inc., an adult entertainment magazine publisher, operated a subscription-only website. Some of these images were illegally copied by third-party websites and made available without authorization. Google indexed these third-party sites and provided thumbnail images in its search results. Amazon.com, through its subsidiary A9.com, used these thumbnails obtained from Google. Perfect 10 filed a lawsuit against Google on November 19, 2004, and later added Amazon.com as a defendant on June 29, 2005.

Issue

The core issue was whether Google and Amazon.com's use of thumbnail versions of Perfect 10's copyrighted images in their search engine services constituted copyright infringement. Perfect 10 sought a preliminary injunction to prevent both companies from using these thumbnails and linking to websites displaying full-size infringing images.

Court Decision

The United States Court of Appeals for the Ninth Circuit held that the use of thumbnail versions of Perfect 10's images by Google and Amazon.com was a transformative use and fell within the fair use provisions of United States copyright law. The court affirmed in part, reversed in part, and remanded the district court's decision, which had granted partial injunctive relief against Google but denied the injunction against Amazon.com.

Reasoning

The court reasoned that the use of thumbnails in search engines was highly transformative because it served a different purpose than the original images. While Perfect 10's images were intended for entertainment and commercial use, the thumbnails in Google's and Amazon.com's search engines were used to improve access to information on the internet. The transformative nature of this use outweighed the potential market harm to Perfect 10, thus qualifying it as fair use.

Here is the court’s fair use analysis:

First Fair Use Factor: Purpose and Character of the Use

The court emphasized that the use of thumbnail images by Google and Amazon was highly transformative. The thumbnails were used for search engine purposes, which provided a new context and meaning to the original images. This transformative use was a significant factor in favor of fair use.

Second Fair Use Factor: Nature of the Copyrighted Work

The court acknowledged that the original images were creative and thus entitled to strong protection. However, this factor was not heavily weighed in the overall analysis because the transformative nature of the use was deemed more critical.

Third Factor: Amount and Substantiality of the Portion Used:

The court noted that the entire image was used in the thumbnails, but this was necessary for the transformative purpose of the search engine. The use of the whole image was justified given the new context in which it was placed.

Fourth Fair Use Factor: Effect on the Value or Potential Market for the Copyrighted Work

The court considered whether the use of thumbnails harmed the potential market for Perfect 10's reduced-size images. Although the district court had suggested that Google's thumbnails could harm Perfect 10's market for cell phone downloads, the appellate court found that this potential harm was hypothetical. There was no concrete evidence that Google users were downloading thumbnails for cell phone use. Therefore, this factor did not favor either party.

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Gaylord v. United States

Did the play Who’s Holiday infringe Dr. Seuss’s rights in How the Grinch Stole Christmas?

Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/gaylord-v-us-2

Background

Frank Gaylord, a World War II veteran and renowned sculptor, created a work known as "The Column," which consists of nineteen stainless steel statues depicting soldiers on patrol (bottom image). This work is a central part of the Korean War Veterans Memorial located on the National Mall in Washington, D.C. Gaylord was compensated $775,000 for his contribution, including time and materials.

In January 1996, amateur photographer John Alli photographed "The Column" during a snowstorm and titled the photograph "Real Life." In 2002, the United States Postal Service (USPS) decided to issue a stamp to commemorate the fiftieth anniversary of the Korean War armistice and chose Alli's photograph of "The Column" for the stamp (top image). USPS paid Alli a one-time fee of $1,500 for the photograph but did not seek Gaylord's consent to use his work.

Issue

The lawsuit arose because the USPS used Gaylord's work, "The Column," on a stamp without his permission. Gaylord claimed that this was a copyright infringement since the photograph was a derivative work under 17 U.S.C. § 106(2).

Court Decision (Gaylord I)

In the initial case, known as Gaylord I, the court held that the government was liable for copyright infringement because it used Gaylord's work without permission, and the use was not protected as fair use. The court also determined that "The Column" was not a joint work, which could have allowed joint authors to grant permission individually.

Reasoning

First Fair Use Factor: Purpose and Character of the Use

The court found that the Postal Service's use of the photograph was not transformative. Although the photograph created a surrealistic environment with snow and subdued lighting, the court concluded that the stamp and the original sculpture served the same purpose—honoring Korean War veterans. Therefore, this factor weighed against fair use.

Second Fair Use Factor: Nature of the Copyrighted Work

The court acknowledged the creativity involved in Mr. Gaylord's sculpture, which is a factor that typically weighs against fair use.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

The court noted that the Postal Service used a substantial portion of the sculpture, which also weighed against a finding of fair use.

Fourth Fair Use Factor: Effect on Potential Market for or Value of the Copyrighted Work

The court agreed that the stamp did not harm the market for Mr. Gaylord's sculpture or its derivative works. The stamp was not seen as a suitable substitute for the original sculpture. However, this factor alone was not enough to tip the balance in favor of fair use.

Given that three out of the four factors weighed against fair use, the court ruled that the government had infringed on Mr. Gaylord's copyright by using the photograph of his sculpture without permission. The court also determined that Mr. Gaylord was entitled to compensation for this infringement.

Court Decision (Gaylord II)

In Gaylord II, the Court of Federal Claims initially awarded Gaylord $5,000 as "reasonable and entire compensation" under 28 U.S.C. § 1498(b). However, this decision was vacated by the Federal Circuit Court, and the case was remanded to the Court of Federal Claims to determine the fair market value of a license for Gaylord's work based on a hypothetical negotiation with the government.

Upon remand after Gaylord II, the Court of Federal Claims reopened the record for additional discovery and expert reports and held a two-day trial on damages. The court broke down the damages into three categories of infringing goods:

1. Stamps used to send mail

2. Commercial merchandise featuring an image of the stamp

3. Unused stamps purchased by collectors

The court awarded no damages for stamps used to send mail, agreed on a 10% per-unit royalty for commercial merchandise, resulting in an award of $33,092 (plus prejudgment interest), and determined a 10% per-unit royalty for unused stamps purchased by collectors, resulting in an award of $540,000 (plus prejudgment interest) based on $5.4 million in revenue from these stamps. The government appealed the unused-stamp award. The decision was based on evidence from surveys regularly conducted by the Postal Service, which indicated that the revenue from unused stamps was almost pure profit. The trial court's approach to calculating damages was upheld as sound by the parties involved.

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Blanch v. Koons

Did Koons’ mash-up infringe the rights of Blanch in her magazine photo?

Koons’ mashup

Blanch v. Koons, 467 F.3d 244 (2006) (produced by U-M Maizey, 9/30/2024)

Background

Fashion photographer Andrea Blanch sued appropriation artist Jeff Koons for copyright infringement. The issue arose when Koons used an image of a woman's lower legs from one of Blanch's photographs, originally shot for a 2000 article in Allure magazine, in his collage titled "Niagara." This collage was exhibited at the Guggenheim Museum in 2001. Blanch filed the lawsuit in the United States District Court for the Southern District of New York after discovering her work had been used without her permission.

Issue

The lawsuit centered on whether Koons's use of Blanch's photograph constituted copyright infringement or if it was protected under the fair use doctrine. Blanch argued that Koons had infringed on her copyright by using her photograph without authorization. Koons, on the other hand, claimed that his use was fair because he had transformed the original image sufficiently by placing it in a new context and creating new meaning.

Court Decision

The District Court, presided over by Judge Louis Stanton, ruled in favor of Koons in 2005, granting summary judgment. This decision was affirmed by the Second Circuit Court of Appeals in 2006.

Reasoning Behind the Decision

The court's reasoning was based on the four factors used to determine fair use:

First Fair Use Factor: Purpose and Character of the Use

The court found that Koons's use was transformative. He placed Blanch's photograph in a new context that created new meaning, which is a key consideration in favor of fair use.

Second Fair Use Factor: Nature of the Copyrighted Work

This factor was considered neutral.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

Koons did not use the entire photograph but only a portion of it, which supported the fair use claim.

Fourth Fair Use Factor: Effect on the Value or Potential Market for the Copyrighted Work

The court found that Koons's collage did not impact the market for Blanch's photograph. Blanch had never licensed her work and had no plans to do so, and "Niagara" did not serve as a substitute for her original photograph.

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Rogers v. Koons

Did Koons’ sculpture infringe the rights of Rogers’ photograph?

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (produced by U-M Maizey, 9/30/2024)

Background

The plaintiff, Art Rogers, is a professional photographer. The defendant, Jeff Koons, is a well-known artist. Art Rogers took a photograph titled "Puppies," which depicted a man and a woman holding a litter of puppies. Jeff Koons used this photograph to create a three-dimensional sculpture called "String of Puppies" without Rogers' permission. Koons instructed his artisans to replicate the photograph faithfully, ensuring that specific details from the photo were captured in the sculpture.Rogers sued Koons for copyright infringement, claiming that Koons copied his photograph without authorization.

Issue

The central issue was whether Koons' use of Rogers' photograph constituted fair use, specifically under the defense of parody. Koons argued that his work was a parody of the photograph and thus should be protected under the fair use doctrine.

Court Decision

Initial Ruling: The District Court granted summary judgment in part to Rogers, finding that Koons had infringed on Rogers' copyright.

Appeal: The case was appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals upheld the District Court's decision, rejecting Koons' fair use defense. It remanded the issue of damages to the District Court, but Koons and Rogers ultimately reached a confidential settlement.

Reasoning

In the court case Rogers v. Koons, the United States Court of Appeals for the Second Circuit analyzed the fair use defense in relation to Jeff Koons' use of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies." The court rejected Koons' claim of fair use based on several factors:

First Fair Use Factor: Purpose and Character of the Use

The court found that Koons' work did not constitute a parody of Rogers' photograph. While "String of Puppies" was a satirical critique of materialistic society, it did not specifically parody the original photograph "Puppies." Thus, this factor weighed against a finding of fair use.

Second Fair Use Factor: Nature of the Copyrighted Work

The court did not find this factor to be in Koons' favor. The original photograph was a creative work, which generally receives stronger protection under copyright law.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

Koons had copied the photograph in substantial detail, which weighed against fair use. The court noted that Koons had not merely taken inspiration from the photograph but had replicated it closely in his sculpture.

Fourth Fair Use Factor: Effect on the Market

The court found that Koons' use of the photograph could potentially harm the market for Rogers' original work. By creating a high-priced art piece that closely resembled the photograph, Koons could impact the commercial value of Rogers' photograph.

Overall, the court concluded that all four statutory fair use factors weighed against Koons, leading to the determination that his use of the photograph did not qualify as fair use. This decision suggested that appropriation artists might struggle to successfully claim fair use unless the appropriated art was well-known and clearly parodied.

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Andy Warhol Found. For the Visual Arts, In. v. Goldsmith

Did the Andy Warhol Foundation violate Goldsmith’s rights in licensing Goldsmith’s photograph of Prince?

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) (produced by U-M Maizey, 9/30/2024)

https://casetext.com/case/andy-warhol-found-for-the-visual-arts-v-goldsmith

Background

The case involves a series of silkscreen prints and pencil illustrations created by the artist Andy Warhol, based on a 1981 photograph of the musician Prince taken by photographer Lynn Goldsmith. Goldsmith holds the copyright to this photograph. In 1984, Goldsmith's agency, Lynn Goldsmith, Ltd. (then known as Lynn Goldsmith, Inc.), licensed the photograph to Vanity Fair magazine for use as an artist reference. Unbeknownst to Goldsmith, Warhol was the artist commissioned by Vanity Fair, and he created not just the image for the magazine but an additional fifteen works known as the "Prince Series." Goldsmith remained unaware of these additional works until 2016.

Issue

The legal dispute arose when the Andy Warhol Foundation for the Visual Arts licensed one of Warhol's Prince Series images, "Orange Prince," to Condé Nast in 2016. Goldsmith claimed that this use of her photograph infringed her copyright. The central issue was whether Warhol's alterations to Goldsmith's photograph constituted "transformative" use under the fair use doctrine, particularly when the altered work was used commercially for a purpose similar to that of the original photograph.

Court Decision

The United States Supreme Court ruled in favor of Lynn Goldsmith. The Court held that minor alterations to a copyrighted work are not transformative under the fair use doctrine when the altered work is used commercially for a substantially similar purpose as the original. The Supreme Court affirmed the Second Circuit's decision, which had reversed a prior summary judgment in favor of the Warhol Foundation.

Reasoning Behind the Decision

Justice Sonia Sotomayor, writing for the majority, stated that courts must analyze the specific use of an allegedly infringing work before determining whether that use is transformative. The Court found that the licensing of "Orange Prince" to Condé Nast did not create new expressive meaning and was used commercially in a manner similar to Goldsmith's original photograph. The Court emphasized that ruling in favor of Warhol would significantly expand the ability of copyists to appropriate existing works, undermining the original creator's copyright protections. Justice Neil Gorsuch, joined by Justice Ketanji Brown Jackson, wrote a concurring opinion, while Justice Elena Kagan, joined by Chief Justice John Roberts, dissented.

First Fair Use Factor: Purpose and Character of the Use

District Court's View: The District Court found the Prince Series works to be "transformative," arguing that they gave Goldsmith’s photograph a new expression, character, and aesthetic. The court noted that Warhol's works transformed Prince from a vulnerable figure to an iconic, larger-than-life persona, making the works recognizable as "Warhols" rather than as mere photographs of Prince.
Appellate Court's View: Goldsmith and LGL argued that the District Court's assessment was subjective and focused on the artistic message rather than an objective evaluation. The appellate court agreed, stating that the District Court erred by not properly assessing the purpose and character of the use. The appellate court concluded that the first factor favored Goldsmith.

Second Factor Fair Use Factor: Nature of the Copyrighted Work

District Court's View: Although Goldsmith’s photograph was creative and unpublished, which would typically favor the original copyright holder, the District Court deemed this factor of limited importance because they considered the Prince Series works transformative.
Appellate Court's View: The appellate court did not specifically re-evaluate this factor in detail but implied that the District Court's error in the first factor affected its analysis here as well.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

District Court's View: The District Court held that Warhol removed nearly all protectable elements of Goldsmith’s photograph, favoring AWF.
Appellate Court's View: The appellate court disagreed, concluding that the Prince Series works were substantially similar to Goldsmith’s photograph, thus favoring Goldsmith.

Fourth Fair Use Factor: Effect on the Value or Potential Market for the Work

District Court's View: The District Court found that the Prince Series works did not serve as market substitutes for Goldsmith’s photograph and did not harm her market potential.
Appellate Court's View: The appellate court again disagreed, concluding that the Prince Series works could potentially harm the market for Goldsmith’s photograph, thus favoring Goldsmith.

Conclusion:

The appellate court found that the District Court erred in its fair use analysis, particularly in its subjective evaluation of the transformative nature of the works. Upon reassessment, the appellate court concluded that all four fair use factors favored Goldsmith. Consequently, the Prince Series works were not considered fair use as a matter of law, and they were deemed substantially similar to Goldsmith’s photograph.

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Rentmeester v. Nike, Inc.

Did Nike’s photograph of Michael Jordan dunking (which became the basis for the Jumpman logo - top left) infringe the rights of Rentmeester (bottom left)?

Summary of Rentmeester v. Nike, Inc. (883 F.3d 1111, 9th Cir. 2018) (produced by U-M Maizey, 9/23/2024)

https://casetext.com/case/rentmeester-v-nike-inc-2

Background

Jacobus Rentmeester, a renowned photographer, took a photograph of Michael Jordan in 1984 while Jordan was a student at the University of North Carolina (bottom left). The photograph depicted Jordan leaping towards a basketball hoop with a basketball raised above his head, as if attempting to dunk. The photo was taken on a grassy knoll on the university campus, with a basketball hoop and backboard brought in specifically for the shot. This photograph was published in Life magazine as part of a photo essay featuring American athletes who would compete in the 1984 Summer Olympics.

In 1987, Nike created its iconic "Jumpman" logo, which is a solid black silhouette that mimics the outline of Jordan's figure as it appears in a photograph commissioned by Nike (top left). Over the years, the Jumpman logo has become one of Nike's most recognizable trademarks and has been used in connection with the sale and marketing of billions of dollars worth of merchandise.

Issue

Rentmeester filed a lawsuit in January 2015, alleging that both the Nike photograph and the Jumpman logo infringed on his copyright of the 1984 photograph. He claimed direct, vicarious, and contributory infringement, as well as a violation of the Digital Millennium Copyright Act (DMCA), specifically 17 U.S.C. §1202 (Integrity of Copyright Information). Rentmeester sought damages for acts of infringement occurring within the three-year limitations period specified by the Copyright Act, i.e., from January 2012 onwards.

District Court Decision

The district court granted Nike's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), concluding that neither the Nike photograph nor the Jumpman logo infringed Rentmeester's copyright as a matter of law. The court dismissed Rentmeester's claims with prejudice.

Ninth Circuit Court of Appeals Decision

The Ninth Circuit Court of Appeals reviewed the district court's decision de novo, meaning they considered it afresh without deference to the lower court's ruling.

Substantial Similarity Test:

The court applied the "extrinsic test" to determine whether the two works are substantially similar in their protectable elements. This test involves an objective comparison of specific expressive elements.

The court found that the protectable elements of Rentmeester’s photograph (such as the pose, the angle, the setting, and the overall composition) were not substantially similar to those in the Nike photograph and the Jumpman logo.

Originality and Protectable Elements:

While Rentmeester’s photograph was recognized as highly original, the court emphasized that copyright protection extends only to the specific expressive elements of the photograph, not to the general idea of a basketball player jumping with a ball.

Decision:�The Ninth Circuit affirmed the district court’s dismissal, agreeing that the Nike photograph and the Jumpman logo did not infringe on Rentmeester’s copyright. The court concluded that the differences in the expressive elements between the works were significant enough to preclude a finding of substantial similarity.

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Selected References

The Statute of Anne, April 10, 1710. The Avalon Project.

U-M Center for Academic Innovation and U-M Library Copyright Office. Finding usable materials.

U-M Library Copright Office. Copyright Basics: Copyrightability.

U-M Library Copright Office. Copyright Basics: Fair Use.

U-M Library Copright Office. Copyright Basics: Permissions.

Ver Steeg, R. (2000). The Roman Law Roots of Copyright. Maryland Law Review, 59, 522–552.

United States (1787). United States Constitution. Article 1, Section 8, Clause 8.

United States (1791). United States Constitution. First Amendment.

United States. United States Code.