23 April 2006

Moral Rights, Moral Responsibility

Over at Copyfight, Wendy Seltzer opines:

But fair use, as U.S. courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the U.S., protect the "integrity" of artists' works — but even that was hardly under threat [by Google's logo-homage to Miro].

"Miro Heirs Quash Google Tribute" (21 Apr 2006) (emphasis added). Except for the word I've put in bold, Ms Seltzer is correct.1 That one word, however, is so wrong that I almost don't know where to begin.

Fair use has nothing to do with asking permission; nor with "moral rights"; nor with good manners. Instead, fair use obviates the need to obtain permission. That difference is a critical one, both in terms of the abstract issues of copyright law and the specific (albeit far from "concrete") issues of dealing the the myriad of temperaments present in the creative world. Probably the best example of this is the unacknowledged difference between 2Live Crew and "Dr. Juice." 2Live Crew requested permission to parody "Oh, Pretty Woman"; the rightsholder denied permission, 2Live Crew went ahead and recorded its parody anyway, and Justice Souter specifically noted the request in recounting the facts when he ruled that 2Live Crew's parody was protected fair use.2 Conversely, "Dr Juice" did not request permission of Dr Seuss Enterprises for The Cat NOT in the Hat, a satiric/parodic use of Dr Seuss's easily recognizable style to comment upon the OJ Simpson trial. The Ninth Circuit, with only lip service to Campbell (and unsatisfactory understanding of the literary theory at the border of satire and parody), refused to grant fair use status to a work that comments upon the style of the original through radical change of substance. Significantly, the Ninth Circuit noted that nobody ever requested permission for The Cat NOT in the Hat.3

There's an old saying that it's easier to ask forgiveness than to obtain permission. Perhaps in many contexts this is true; it is emphatically untrue regarding intellectual property rights, whether characterized as copyright, patent, or trademark. That old saying completely neglects the emotional component of intellectual property, and the intense endowment effect that comes from creation of "something" from "nothing."4 This is where Ms Seltzer's analysis fails: She equates the bare right to make a fair use with a complete and unrestricted right to never ask permission. Again, this may be slightly unfair, but I think it consistent with both Ms Seltzer's other writings and the general sentiment one finds at Copyfight.

The key here is "good manners." It is virtually always good manners to ask permission to make a fair use, particularly a fair use that does not appear to be at the boundaries of good taste. Perhaps this explains Penguin's failure to ask permission of Dr Seuss Enterprises; it does not excuse it. The generally neglected teaching of Campbell—that refusal of permission does not bar finding fair use—is logically mandated by the way that § 107 appears in the Copyright Act.

Copying is an infringement, but copying that is fair use is not an infringement

The sentiment behind Ms Seltzer's statement, though, is closer to

Everything is fair use, and therefore noninfringing, that is not clearly unprotected copying

In short, the premise and conclusion are inverted; and that is inconsistent with the IP Clause's admittedly less-than-elegant language. Thus, Ms Seltzer's statement should have begun:

But fair use, as U.S. courts recognize it, eliminates the need to obtain permission.

The "good manners" rule of thumb is pretty simple: If you have any question about whether your reuse might not be fair, ask permission. That doesn't keep you from later deciding that the use is fair, and going ahead; but it does keep you from engaging in a time-consuming analysis of fair use at an early stage. Frankly, many creative rightsholders are thrilled to even receive a permission request, as it validates their ownership of their work and reflects respect for the work itself—even as to a raunchy parody of a Nashville standard. (A standard that was more deserving of parody than most, but that's for another time.)

  1. I am perhaps being a bit unfair to Ms Seltzer; her comment appears colloquial, and not technical. Nonetheless, I think the comment reveals an underlying attitude with which I disagree. Vehemently.
  2. Campbell v. Acuff-Rose Music, 510 U.S. 569, 572–73 (1994).
  3. Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
  4. Cf. Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263 (1979).