Just a couple quick bites of sausage.
- Congratulations to this year's new MacArthur Foundation Fellows. At last: The Bechdel Test has imprimatur from the wine-and-cheese class! All seriousness aside, this is an eclectic group to watch.
- Meanwhile, over across the Pond, Scotland votes tomorrow on full devolution — unwinding the union between Scotland and the other three members of the United Kingdom. Naturally, The Economist weighs in with a ridiculous and relentlessly upper-middle-class-oriented assertion that Scots will be "better off" staying in the UK. I hate to imagine what the corresponding item might have looked like in 1775 in Philadelphia as opposed to Edinburgh. The key problem is that the poll is inherently unfair and inaccurate: It asks only "Continue with the UK or do something else?" without specifying in any form what that "something else" might be. A binary decision of the specific against the aspirational is never accurate... or fair to either alternative, let alone to the people who have one particular vision of that aspiration but will be closed out of it, and would in the end have preferred Union to what actually emerges.
That said, I do think there's a significant risk of Balkanization, driven — as usual — by centuries-old tribal rivalries cloaked in religion. And I don't just mean financial or even civil chaos, either.
- There has been a lot of interesting copyright litigation activity in the courts in the last couple of weeks, but a fuller update awaits two more pieces of the puzzle in Europe. On this side of the Pond, though, Judge Easterbrook has rather expressly created a circuit split with the Second Circuit on the value — and perhaps even propriety — of the "transformative use" meme in fair use. In Kienitz v. Sconnie Nation, LLC, No. 13–3004 (7th Cir. 15 Sep 2014), he criticizes the Second Circuit's nonstatutory revision of the Copyright Act in Cariou (discussed here a while back).
Fair use is a statutory defense to infringement. The Copyright Act sets out four non-exclusive factors for a court to consider. 17 U.S.C. § 107. The district court and the parties have debated whether the t-shirts are a “transformative use” of the photo—and, if so, just how “transformative” the use must be. That’s not one of the statutory factors, though the Supreme Court mentioned it in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The Second Circuit has run with the suggestion and concluded that “transformative use” is enough to bring a modified copy within the scope of §107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). Cariou applied this to an example of “appropriation art,” in which some of the supposed value comes from the very fact that the work was created by someone else.
We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in § 107 but also could override 17 U.S.C. § 106(2), which protects derivative works. 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). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).
Slip op. at 3–4 (hyperlinks added).
Despite the rather understated rhetoric, this exposes a serious problem with current copyright litigation and theory. Once upon a time, fair use was a purely judge-made doctrine — a doctrine that was not consistent across the country, and especially not regarding the visual arts. Then along came the 1976 Act, which included a specific statutory framework for fair use. Unfortunately, there are also inconsistent statements in the legislative history of the 1976 Act claiming that this wasn't actually a substantive change, but merely codified the case law. Of course, that would have been sensible if, and only if, the case law had been consistent. There are several competing theoretical frameworks for fair use, which have varying relationships to the statute. Of course, fair use isn't just a matter of copyright law; as the Supreme Court pointed out in Campbell, there are constitutional dimensions to fair use... and similar, difficult constitutional dimensions to derivative works.