In writing posts for this blog, I receive helpful feedback from Dee, my partner, and staff members at LexBlog. In response to my post AP and Fairey Fair Use Dispute Resolved, one of the LexBlog staff members asked me how the AP/Fairey fair use situation differs from the Cooks Source Magazine controversy. The specific question was whether my argument in the AP/Fairey post that Fairey created the market for the AP photo is valid when the editor of the Cooks Source Magazine was severely criticized online for copying a web article, editing it to improve it and publishing it in the magazine without permission. The editor of Cooks Source Magazine arguably created a greater market for the web article. The argument that the editor of Cooks Source Magazine helped the writer by copying her online article is invalid as a defense to copyright infringement, so why is a similar argument in the AP/Fairey case not also invalid?
For readers unfamiliar with the Cooks Source Magazine controversy, Caitlin Fitzsimmons provides a nice description in Cooks Source Magazine Forced to Close, Following Facebook Backlash. Monica Gaudio posted a story called A Tale of Two Tarts on the Gode Cookery website. She discovered that Cooks Source Magazine republished the article without her permission. When Ms. Gaudio contacted Judith Griggs, the editor of Cooks Source Magazine, about the infringement, she was told that content on the web is in the public domain and she should compensate Ms. Griggs for editing the story. This account of the story was posted by Ms. Gaudio on her blog under Copyright Infringement and Me. Ms. Griggs and the magazine became the subject of enough negative reaction on the Internet that the magazine lost advertisers and was forced to go out of business.
Ms. Gaudio points out on her blog that the Gode Cookery webpage displays a copyright notice. A writing on the Internet is protected by copyright law even though it does not display a copyright notice. Copyright is created by the act of fixing an original work in any tangible medium of expression, such as posting an article on a website. The use of a copyright notice has the benefit of eliminating the innocent infringer defense. For example, the copier cannot credibly argue that she thought the copied work was in the public domain if it contains a copyright notice. Most of the material posted on the Internet is not in the public domain. The general rule for copying material from the Internet is that if you didn’t write it, the copyright belongs to someone else and that if you want to repost it or republish it without infringing the copyright, you need to get permission.
Getting back to the question from the first paragraph, how is it that creating the market for a copyrighted work is a valid argument in the AP/Fairey case but not in the Cooks Source Magazine controversy? There are some important differences between the two cases. Firstly, the Cooks Source editor admitted copying Gaudio’s article and did not claim fair use. Instead, she reportedly made the outrageous claim that material posted on the web is in the public domain. Secondly, in a fair use case, the statute requires the court to consider “the effect of the use upon the potential market for or value of the copyrighted work.” So in a fair use case, arguing that the copier created the market for the original work is a valid argument, as the court is required to examine the market for the original work.
What makes a case a fair use case? It starts off with the alleged infringer claiming fair use. Fair use is not merely copying, but creating a derivative work. A derivative work is based on a preexisting work and involves recasting, transforming or adapting the preexisting work. Creating a derivative work is one of the exclusive rights reserved to the copyright owner. Fair use is a defense to copyright infringement, hence the name of the fair use statute: “Limitations on exclusive rights: Fair use.”
Fair use is not an available defense for the Cooks Source editor, as she argued that the web article was in the public domain. The fair use defense does not apply unless there is first an infringement. If something is in the public domain, it is not copyrightable and the Copyright Act does not apply. There can be no copyright infringement of a work in the public domain. In the AP/Fairey case, Fairey made an AP photo of Obama into a stylized poster. Whether Fairey’s transformation of the AP photo into a new work was sufficient to gain the protection of the fair use statute is the unanswered question from the AP/Fairey case.