Copyright

The Tyranny of Fair Use (Part III): A Judge's Critique, Explosive Data, and One Sad Saga

The increasingly muddy morass of the “fair use” doctrine.

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Last week we ruminated on how one individual with a novel idea about the Copyright Act’s “fair use” defense upended 150 years of established jurisprudence. Judge Pierre Leval, the individual in question, has been criticized in various fora for this upending, and the volume and velocity of those critiques has risen as his “transformative test” has made an increasingly muddy morass of the “fair use” doctrine.

Judge Easterbrook of the Seventh Circuit has particularly relished carving holes in Judge Leval’s wobbly “fair use,” analysis, trenchantly observing that the “transformative” test, which predominates in said analysis, is no more than a fanciful fabrication.

In Kienitz v. Sconnie Nation LLC, a 2014, a case addressing the use without consent of a photograph on a shirt, he begins by lamenting how the district court and the parties in the case had wasted loads of time arguing over whether the defendant had engaged in a “transformative use” of the photograph and “if so, just how ‘transformative’ the use must be” to trigger the defense. This was misguided and a woeful waste of resources, he wrote, because “transformative” is “not one of the statutory factors.” He then goes on to note that Judge’s Leval’s Second Circuit has “run with” the idea that Judge Leval had invented in his 1990 law review article. And done so despite the fact that this idea has no actual statutory support in the Copyright Act and in fact conflicts with the Act’s language protecting an author’s exclusive right to create derivative works as found in 17 U.S.C. § 106(2).

Judge Easterbrook then notes the Seventh Circuit’s “skepticism” of the notion that “transformative use” is enough to bring a modified copy within the scope of the “fair use” defense. As Circuit watchers know, a Judge expressing their “skepticism” is an enormous burn, the appellate court’s genteel equivalent of screaming “that’s madness!”

And it is madness, far-reaching and destructive. A reader of this column was kind enough to pass along an excellent Stanford Technology Law Review article by Jiarui Liu that provides massive empirical heft to the assertions being leveled in this humble “fair use” trilogy. The article surveys the state of “fair use” affairs and after crunching the data shockingly concludes that almost 90 percent of recent “fair use” decisions have turned on the “transformative” factor, a factor that literally did not exist before Judge Leval’s law review article. The Liu article also notes that courts routinely rely on a work’s “transformative” use to find it a “fair use” despite there being absolutely no consensus as to what “transformative” actually means in this context. Despite this lack of consensus as to what an invented factor in a statutory test means, the numbers tell the dark tale: pre-1995, there was a total of zero “fair use” cases where “transformative” use carried a successful “fair use” defense. Since then this single factor’s impact has risen to such dizzying heights that over 60 percent of the recent cases that analyze “transformative” use find the use to be fair. Pity the sad other “fair use” factors – the ones that are actually enumerated in the Copyright Act – which have been rendered virtually worthless in favor of a fabricated factor. A fab-fac.

And a fab-fac that contravenes the language of a sister section, in a true side-eye to one of our beloved canons of construction. As Judge Easterbrook has aptly noted, to “say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2).” In other words, a “transformative” work is not subject to special protection; to the contrary, it is a violation of an author’s exclusive Section 106 right to create derivative works.

Judge Easterbrook casts additional doubt on the propriety of the fab-fac by writing that in performing the “fair use” analysis, “[w]e think it best to stick with the statutory list, of which the most important usually is the fourth (market effect).” Yet, as found by Liu in the above-mentioned article, in over 90 percent of recent “fair use” cases, Judge Leval’s fab-fac won out over the “market factor” that Judge Easterbrook acknowledges and the Supreme Court had consistently confirmed as the most crucial “fair use” factor before this age of madness.

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To see how that madness plays out in quotidian district court-level copyright litigation, consider the the saga of Russell Brammer, over whose case I moped in this space last year.

He created a time-lapse photography series of a certain Washington, D.C. hood and licensed the work to his clients. Violent Hues, a for-profit production company, copied Brammer’s work from the internet and cropped it and then used it for advertising purposes. There is absolutely no way this use could be found fair, you are thinking. But, alas, in a world where the fab-fac dominates, and the fab-fac is so vague that it can be used for almost any purpose, it is difficult to conjure up a use that cannot be found fair.

Such was the fate of poor Brammer, with the judge offering the puzzling conclusion that the production company’s use in advertising of a cropped photograph without the author’s consent was both “transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” Nonsensical does not begin to describe this analysis and it certainly has no tether to any of the Section 107 fair use factors.

This is but one example of the madness that the fab-fac has wrought. Madness that unfortunately and improperly deprives artists of their rights in their work to this day. Hopefully, a higher court, perhaps the highest in the land, one with a bent for hewing closely to the language of U.S. statutes, will again take up the “fair use” question, dispose of Judge Leval’s fun but destructive fab-fac, and bring the analysis back within the cozy contours of the Section 107 language.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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