I recently attended the University of Washington School of Law’s fair use conference: Fair Use in the Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test.” What is Campbell v. Acuff-Rose and what’s the big deal about the “transformative use test” you may be asking yourself. In Campbell v. Acuff-Rose, the question was whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use. In addressing that question, the U.S. Supreme Court asked for the first time whether the new work “adds something new, with a further purpose or different character, altering the first work with new expression, meaning, or message; in other words, whether and to what extent the new work is ‘transformative.’” Judge Pierre N. Leval created the transformative use test in his article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). Judge Leval honored us with a key note speech at the fair use conference.
Over forty fair use scholars and practicing attorneys from across the country gathered at the conference and gave presentations on various aspects of fair use. It was mindboggling to attend a day and a half conference focusing on fair use and to rub elbows with so many fair use super stars! I can’t possibly describe the entire conference in detail in one blog post. Instead, I’ll recount a few moments that I found particularly insightful.
A number of speakers made the point that copyright law has not kept pace with the changes in technology. In many ways, copyright law is stuck in the analog world. Do you know or even care if you own a particular digital file, as long as you can access that file whenever you want? Fair use provides an outlet for addressing technological change when other sections of the Copyright Act don’t fit the occurring events. Authors Guild, Inc. v. HathiTrust, in which the Second Circuit upheld book digitization for full text search and for print-disabled access as fair uses, is an example. The longer the delay in amending the Copyright Act to bring it into the digital world, the more litigants will rely on fair use.
Technology leaves a record behind. Technology makes it easier to find and easier to take creative works. Today’s appropriation art is the same as the blues era practice of taking the basic blues structure and making it your own.
The world of creativity encompasses various kinds of authors. Examples are novelists, visual artists, musicians and architects. The fair use statute is a one size fits all statute that doesn’t work well across all areas of authorship.
The innovation policy question is who benefits, who subsidies and how do we divide up the pie? Business models are now going toward giving it away for free and relying on data collection to make money. Technologies are designed for all kinds of uses, not designed around traditional copyright law. People are going to use devices for everything. Device manufacturers and others are not going to be able to segregate out uses.
Professor Barton Beebe, New York University School of Law, provided a statistical analysis of fair use cases. Statistics show that fair use cases are no more likely to get overturned than other kinds of copyright law cases.
Professor June Besek, Columbia University School of Law, made the point that fair use has become a one factor test instead of a four factor test. Transformative use is not everything. Don’t rely on transformative use to bring about broad copyright law revision.
Professor Jessica Silbey, Suffolk University School of Law, spoke about what artists care about. Artists care about reputation, but U.S intellectual property law doesn’t protect reputation. Copying is part of being an artist and is how artists learn and develop their art. Artists distinguish between expected copying and protected copying. Attribution and financial equity are the flip side to fair use. Fair use is a community resource among artists.
Professor Steve Tapia, Seattle University School of Law, distinguished between the moment of creation and the moment of analysis. Artists don’t put artist creation into words. Artistry is the technique of creation. Fair use focuses on the wrong thing by focusing on the moment of analysis.
Judge Pierre N. Leval, Second Circuit U.S. Court of Appeals, compared transformative works to derivative works. Some manner of change is at the heart of both transformative and derivative works. But the transformation required for transformative fair use can’t be the same as transformation required for derivative works. A derivative work represents a different form to an audience that would appreciate the original. Fair use transformative use comments on or criticizes the original manner of expression. In addition, bad faith in fair use is irrelevant. There is no such thing as bad faith in fair use.
Professor Lydia Loren, Lewis & Clark School of Law, spoke about fair use as a defense. The courts have taken to calling fair use an affirmative defense. However, the statute states that fair use is not an infringement of copyright. This distinction matters because of the burden of proof. The defendant has the burden of proof for an affirmative defense. Courts should stop calling fair use an affirmative defense and should treat fair use as part of the scope of the plaintiff’s copyright case. In other words, the copyright owner should be required to prove that fair use does not apply.
Professor Peter Menell, U.C. Berkeley School of Law, thinks mashup is the new break out musical genre. There’s no public performance right in sound recordings. Remixing live in clubs is therefore pretty safe. Is fair use the right solution? If you make a cover, i.e., a version of a song the author has already released, you pay a compulsory license. Why not have a compulsory license for remix music?
Christopher Newman, George Mason University School of Law, thinks that the fair use factors are not being weighed together, but are being weighed against each other. Factor 2, the nature of the copyrighted work, is the neglected factor. The fair use analysis should start with Factor 2. What kind of work is it? The alteration needed to transform varies from type of work to type of work. We should develop lines of precedence based on types of works.
Karl Quackenbush, Valve Corporation, opined that more use is fair use and fun use. Valve creates video games and has a digital distribution platform. When a user buys a game from Valve, the user can have as many copies as she wants. Valve controls access through user authentication. Users can create value for each other by creating things that make the game more fun, as long as the user doesn’t make a commercial use. Valve thinks of intellectual property as more like a service and less like a thing.
Thanks to University of Washington School of Law Professors Zahr Said, Sean O’Connor, Robert Gomulkiewicz, Signe Naeve and Toshiko Takenaka for putting on a fabulous conference!