Richard Prince and the art of Fair Use

Posted on December 14, 2007 by John Bickerton

In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?

This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.

The article, written by Randy Kennedy, is about the working methods of the artist
Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.

One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.

The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society – images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.

But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.

The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”

Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition – the conception, the pose, the exact moment to capture – these things were decided by Krantz and re-used by Richard Prince.

The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…

Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.

My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
—————
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
—————

(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue – the effect upon the potential market for or value of the copyrighted work – when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.

Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”

Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
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UPDATE: A year later, in December 2008, Richard Prince would lose a copyright infringement suit when the judge ruled his use of photographs by Patrick Cariou was not Fair Use as outlined by copyright law.
——————————
UPDATE: Just want to reference this very good article which was published in the Wall Street Journal, March 25, 2011 entitled When Appropriation Masquerades as Reconceptualized Art. The writer, Eric Felten, reports on the Patrick Cariou vs Richard Prince/Gagosian Gallery copyright infringement case which involved Prince’s use of photographs from the book “Yes, Rasta,” by French photographer Patrick Cariou. Cariou spent six years taking pictures of Rastafarians in Jamaica. Prince lost the case.
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Copyright law for Photographers

Posted on September 3, 2007 by John Bickerton

While reading Geetesh Bajaj’s Powerpoint blog on his excellent Indezine website, I came across a Powerpoint presentation that I think would be useful to all media producers who struggle with copyright and licensing issues.

The powerpoint presentation deals exclusively with copyright infringement as it pertains to photography and is the work of PACA (the Picture Archive Council of America ). It lays out the basic copyright law but it is the case studies that are included that really make this document worth your time. You get to see actual infringement cases, what the infringement charges were, and you can see side-by-side, the actual photograph and the infringement photograph. Other points…there is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.

The presentation deals with Fair Use, the DMCA (Digital Millenium Copyright Act), ISP Safe Harbor and the public domain. All in all, it’s a really good document to know about if you are ever unsure about your usage of a photo or any other work which you want to use but don’t own the rights to.

A good take-away from this presentation that I would emphasize is that often permission and licensing is easily obtainable directly from the source. In other words, instead of going into competition against a photographer, by recreating a photo (the composition), it is cheaper in the long run to contact the creator and obtain permission to create a derivitive work.

The PACA presentation can be downloaded here

Court’s DMCA interpretation everything for YouTube

Posted on June 26, 2007 by John Bickerton

Florence-Marie Cooper, the judge in the Robert Tur vs YouTube/Google copyright infringement lawsuit has dismissed motions by both sides for a summary judgement in the case. Her ruling is that more evidence is necessary to determine if YouTube is protected from liability by the Digital Millennium Copyright Act.

As so many have now said, the copyright infringement cases against YouTube are going to come down to this – Is YouTube protected by the DMCA?.

Here are excerpts of her reasoning and decision…
I find it fascinating to see this play out, for a quick synopsis, read her final paragraph.
—————————————-
United States Disctrict Court
Central District of California

Robert Tur d/b/a Los Angeles News Service (Plaintiff)
vs
YouTube, Inc. (Defendant)

YouTube’s Motion
YouTube’s ultimate eligibility for “safe harbor” protection depends upon whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions.

YouTube must prove that:

1. it has adopted and reasonably implemented a termination policy for subscribers and account holders who are repeat infringers,

2. accommodates and does not interfere with “standard technical measures” that copyright owners use to protect their works,

3. its infringement is “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”,

4. it lacked actual knowledge of the infringing material or was not aware of facts or circumstances from which infringing activity was apparent on its system or network and/or acted expeditiously to remove or disable access to the material upon obtaining such knowledge or awareness,

5. it did “not receive a financial benefit directly attributable to the infringing activity,” if it had “the right and ability to control such activity”,

6. it responded expeditiously to remove or disable access to infringing material upon notification from the copyright owner, and

7. it has properly designated an agent to receive such notification.

YouTube maintains it does not receive a financial benefit directly attributable to the allegedly infringing activity and that it does not have the right or ability to control said activity. As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also “has the right and ability to control the infringing activity”.

As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the “financial benefit analysis.”

The “right and ability to control” infringing activity, as the concept is used in the DMCA, has been held to mean “something more” than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system. Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material.

There is insufficient evidence regarding YouTube’s knowledge and ability to exercise control over the infringing activity on its site. There is clearly a significant amount of maintenance and management that YouTube exerts over its website, but the nature and extent of that management is unclear. YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes. However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website. Thus, there is insufficient evidence from which the Court can determine YouTube’s right and ability to control the infringing activity.

Conclusion
Accordingly, the Court DENIES YouTube’s motion
June 20, 2007

—————————————-

Thus, the great debate is layed out. What makes it difficult is that clearly YouTube is in compliance with some safe harbor aspects of DMCA. If you look at the 7 provisions, as stated by Judge Cooper, I think YouTube is in compliance with 1,2,3,7 and maybe 6 (though that can be argued). Where YouTube is not in compliance, to me, and this is the main infringment argument, is provision 4 and 5.

4) YouTube lacked knowledge of the infringing material and
5) YouTube did not receive financial benefit from the infringing material.

That part of the DMCA case will be hard for YouTube to make.

More copyright lawsuits for YouTube

Posted on May 21, 2007 by John Bickerton

Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.

Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”

It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.

When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.

I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?

The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.

Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.

Copyright Filtering and Digital Fingerprints come to MySpace

Posted on May 15, 2007 by John Bickerton

The New York Times reports that Myspace, faced with possible legal action, has begun offering filtering technology that will the help prevent copyrighted videos from being uploaded and re-uploaded to the site. The new technology is called “Take Down Stay Down” and was developed by Audible Magic.

The Times reports that “copyright owners [will] have access to Take Down Stay Down free of charge. If the social-networking service receives a takedown notice regarding a copyrighted clip hosted through its MySpace Videos hosting service, MySpace’s new feature will take a “digital fingerprint” of the video and add it to a copyright filter that blocks the content from being uploaded again. “(It’s) the ability to have a piece of content imprinted and put in a database so we can identify it,” said Vance Ikezoye, CEO of Audible Magic.”

Similar to YouTube’s upcoming “Claim Your Content” filtering technology, Myspace has now done something concrete to contend with the unauthorized uploading of copyrighted video by its members.

YouTube will face its first copyright infringement lawsuit

Posted on May 10, 2007 by John Bickerton

The first copyright infringement suit against YouTube is coming to trial. The case was brought last July by Robert Tur, a helicopter pilot/journalist known for his famous footage of O.J Simpson’s low-speed Ford Bronco chase in 1994 and the brick attack on Reginald Denny during the Los Angeles riot of 1992. It is exactly this footage that is at the heart of Mr. Tur’s lawsuit against YouTube. The suit alleges hundreds of copyright infringements and hundreds of illegal downloads through the YouTube site.

In an interesting development, Viacom and NBC filed a “friends-of-the-court” brief on May 4th asking the court to deny a motion filed by Google to dismiss Mr. Tur’s suit.

Copyright and Process in the Age of User-Posted Content

Posted on May 8, 2007 by John Bickerton

Denis DeJong, a senior fellow at The Progress and Freedom Foundation has released a transcript from the foundation’s March 16 seminar titled What Goes Up Must Come Down: Copyright and Process in the Age of User-Posted Content. Mr DeJong is the director of the foundations’s Center for the Study of Digital Property.

The 27 page pdf transcript successfully frames the YouTube copyright infringement issue looking at remedies such as DMCA takedown notices and filtering technology.

The panel includes Donald Verrilli, a partner at Jenner & Block, the law firm that brought the suit by Viacom against YouTube and Google. Read his comments to see a glimpse of Viacom’s legal strategy. He rejects YouTube’s DMCA defense saying “And I don’t think we are getting any serious dispute from YouTube about whether this is infringing activity. After all, when these DMCA notices go to YouTube, YouTube does pull the works down… It’s not like this is a real fight about whether there is some great level of fair use or non-infringment use going on here.”

Along with Verrilli and moderator DeJong, the other panelists are Solveg Singleton, a senior adjunct fellow at The Progress & Freedom Foundation, Christian Dawson, of Servint Internet Services (in the discussion he gives the ISP side of the infringement debate) and William Rosenblatt, a recognized authority on digital media technologies.

A great discussion with very informative panelists.

YouTube/Google will see Viacom in court

Posted on May 4, 2007 by John Bickerton

The New York Times reports that Google is not interested in settling the copyright infringement suit brought by Viacom. They want a jury trial. Google is relying on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) which says essentially that Internet service providers, like ISPs or web hosts, are not liable for the copyrighted material uploaded by their subscribers as long as the service providers promptly remove the material once asked to do so by the copyright holder.

“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”

This story sparked over 80 comments on TechCrunch. One of those comments, by a poster name Raj, frames the issue very well.

“Ultimately, the even bigger issue that may arise from the ViaGoog lawsuit is whether DMCA may need to be re-visited to better reflect appropriate use of copyrighted material. The way it is written now, DMCA is being interpreted quite loosely by firms such as Google. DMCA was written to protect copyrighted material from inappropriate use but it seems in reality that firms which interpret it loosely are using it as a protection in a sense to get away with leveraging unconsented content for profit without properly compensating content owners for the material being used. The people who own/create content tend to get [angry] when others utilize their content without consent. Google has gone one step further by monetizing this material by displaying ads next to the video content in question. It will come down to which firm’s high priced lawyers can make a better case about DMCA compliance/non-compliance.”

I believe this case will come down to the court’s interpretation of DMCA and whether YouTube can successfully claim they are just a “service provider”.

Personally I think they are more than just a service provider. The Digital Millennium Copyright Act became law in 1998 under President Clinton. Back then it was intended to give ISPs some protection from liability if one of their hosted sites uploaded copyrighted content – like say – hacked versions of Microsoft Word.

But YouTube is more than a host – it tags all of its content, there are cross-referenced links to similar content. I can view a bootleg copy of a Rolling Stones performance and the site will show me tags for other similar bootleg Stones videos and it will then also offer linked recommendations to view similar bootlegs from Bob Marley for example. In other words, YouTube is actively engaged with its content, its not just sitting there as a mere host. There is a database in place that aggregates the content and offers users its results.

At some point in 2005 the folks at YouTube made a decision to allow the uploading of copyrighted material to the site. That decision led to the immense popularity of the site and an eventual $1 billion windfall. Now that decision will have its day in court.

Ad spots coming to YouTube this summer

Posted on May 2, 2007 by John Bickerton

Revenue sharing is indeed coming to YouTube. Red Herring Magazine says YouTube will begin experimenting with pre-roll and post-roll video ads this summer.

Suzie Reider, head of advertising for YouTube, told an audience at the Ad:Tech conference in San Francisco last week that, “we’re looking at executions like a very quick little intro preceding a video, then the video, then a commercial execution on the backside of the content.”

The revenues will be shared with YouTube’s “premium” content creators. In other words, not every video on the site will have advertising attached and not everyone who has uploaded a video will partake in revenues generated by the ads.

Sharing revenue with major content creators is a big step towards solving part of the copyright infringement problem for Google and YouTube. Another problem, that of broadcasting content without the permission of the copyright holder, is being addressed by technology like the new Claim Your Content filter that is supposedly close to being launched on the site.

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