Meera Nair

fair use and a would-be scrapbook

In Posts on July 24, 2011 at 10:10 pm

A recent post from Jesse Brown caught my eye; something about Céline Dion banning the content of a website titled Ridiculous Pictures of Céline Dion. As reported, the proprietor of the website was instructed by Ms. Dion’s lawyers to remove the pictures. Compliance followed, although the proprietor claimed that his use was fair use.

Without knowing the wording of the actual complaint, and being unable to see the content, it is difficult to assess the situation. However, since the proprietor of the site has claimed fair use, I assume that Ms. Dion’s lawyers were claiming copyright infringement. In which case, they would have to confirm (or at least assert) that Ms. Dion owned the copyright of all the content used and that she had not authorized such use.

Coverage of the story from the Guardian did not address the issue of who held the copyrights and describes the site as something parodic. But the Winnipeg Free Press gives more detail as to the source of the materials and the manner in which the website proprietor used them:

The blog had images and videos of Dion that Angiolillo found online through Google searching. The images spanned several decades of her career and highlighted everything from her fashion choices to her costumes and funny facial expressions. Angiolillo also provided commentary or edited the images for comedic effect.

This suggests that some of the copyrights under question may not have been held by Ms. Dion – some of the material may have been created by third-party sources. At best, the legal team could only request removal of Ms. Dion’s holdings. In any case, with respect to all the material, fair use may apply.

However, Mr. Angiolillo stated that he didn’t have the wherewithal to engage a lawyer to speak on his behalf. [Note: by the time I posted this entry, his remarks had been removed.]

The removal of the material may be for the best. The legal team of a pop-culture superstar could make anyone’s life miserable. However, the collection sounds like a digital-age version of a scrapbook. Collecting memorabilia is not a new practice, neither is displaying it to interested friends. That such a community could exist on a larger scale is part and parcel of our contemporary networked society. In the absence of a formal legal analysis of the applicability of fair use, and without having seen the collection, this story lends itself to a “what if” exploration.

Literature on fair use abounds but for this speculative exercise I turn to a work by internationally renowned legal scholar, Pamela Samuelson. In Unbundling Fair Uses, Professor Samuelson conducted a qualitative examination of fair use caselaw, organizing her analyses by way “policy-relevant clusters.” She writes:

Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but it provides another dimension to fair use analysis that complements the four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.

While fan-based work is not a defined cluster within the article, Section II deals with “Authorship-Promoting Fair Uses”. It includes social and critical commentary, and provides some insight as to this situation. And the article in its entirety offers much reassurance as to the viability of fair use.

In any event, analysis of fair use has a pattern.

First, establish the language of fair use as it exists today and include the factors listed for determining fair use. Section 107 of Title 17 of the United States Code states:

Notwithstanding the provisions of sections 106 and 106A the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

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 non-profit 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.

Then proceed with the four-factor analysis. The first task is to consider the purpose and character of the work. The site in question (as I understand it) was a noncommercial, personal undertaking. The content included many representations of Ms. Dion’s public persona and chronicles her rise to stardom. The site can ascribe to itself the persona of a scrapbook — created by a fan and to be enjoyed with other fans.

The compilation could carry historical value; it serves as a repository of imagery of a popular cultural phenomenon. And, the compilation maintains a creative value;  it perpetuates the practice of scrapbooking beyond the confines of any particular media.

Moreover, the compilation was not just a passive reproduction of prior works. As reported by the Winnipeg Free Press: “Angiolillo also provided commentary or edited the images for comedic effect. He said he started the blog several months ago because he loves Dion.”

This suggests a modestly transformative effort; commentary places the imagery in context and better serves the historical record. Transformative works have often been looked upon with greater favour in disputes of fair use.  And while the comedic elements may not resonate with everyone, in the genre of scrapbooking such additions carry a playful mood that is very much a part of the custom.

As Professor Samuelson writes:

It was common to take custom into account in fair use cases prior to the 1976 Act; there is nothing in the legislative history of this Act that repudiates custom as a factor. Its resurrection as part of purpose analysis would be a sound development since copyright law should accommodate practices that contribute to the availability of new works of authorship.

[Note: Prof. Samuelson is indicating that this would be a positive development on the part of the Courts, not necessarily as Courts in the United States function today. Interestingly though, the Supreme Court of Canada has already placed custom as a point of exploration in analysis of fair dealing.]

A challenge for Mr. Angiolillo to overcome is the very name of his site – it could be construed as having malicious intent. The article by the Guardian supports that interpretation.  This will not help in the claim of fairness; however, Mr. Angiolillo explained his intention to the Winnipeg Free Press:

There were some sour people who thought it was made to mock her, but I and most of the fans never saw it that way. If you’ve seen Celine’s documentary ‘Celine: Through the Eyes of the World’ you would know she has a great sense of humor and is always the first one to laugh at herself. The blog never once slandered or implied anything negative about Celine.

Of course, without comment from Ms. Dion herself, it remains an open question if she was comfortable with the collection. At this stage, we can only assume that the collection lived up to Mr. Angiolillo’s description.

Continuing with the four-factor analysis, consider the nature of the copyrighted work. As the material was derived from Google, it seems evident that the images and videos were already present in publicly available sites. If those sites were created as part of Ms. Dion’s publicity effort, it can be argued that Ms. Dion’ s legal team had implicitly authorized the works for use in a manner consistent with the expected behaviour that accompanies Internet access. Meaning to say, people will copy, edit, and save the material.

If the sources of the material were from unauthorized sites, Ms. Dion has greater recourse to complain of their use, but this in and of itself is not sufficient to deny fair use. No further comment can be made on this point unless one is familiar with the source material. (But, generally speaking, fair use may not hold when material is fraudulently obtained, resides in a private collection, or might be considered something akin to a trade secret. )

Some may feel fair use will suffer on the third factor, that of the amount and substantiality. Typically, the less one takes of a copyrighted work the stronger the argument for fair use. But again, this condition has to be set against the context of use. Popular culture is rife with imagery and sound. Arguably, one cannot reproduce a portion of a picture or song and still convey the full meaning or effect of the entire work. A scrapbook is not a work of literature that builds upon the past, the very intention of a scrapbook is to memorialize the past. Reproduction of whole works is desirable to this objective.

The last factor, concerning the effect on the market, could be seen as a deterrent to fair use. A popular misconception of fair use is that the commercial element takes precedence over all else. (As I have written elsewhere, Prof. Samuelson’s work, and earlier work by Prof. Barton Beebe, clarifies this element.) The challenge for creators is the language of “potential market”. Some copyright holders will insist that any use is a potential market and therefore an unfair use.  (Fortunately, again, the Supreme Court of Canada has positioned Canada to avoid this circular argument.)

Attorney Fred von Lohmann, in his work Fair Use as Innovation Policy, makes a cogent point:

Copyright law has never given copyright owners complete control over their works … Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works.

It seems unlikely that Ms. Dion had created a humorous collection of her own images for sale and lost an existing market to Mr. Angiolli. But might she have wished to create such a scrapbook for commercial purposes? Did Mr. Angiolillo’s site impede her future income? Even in that scenario, is it reasonable to prioritize those potential losses against the public enjoyment of Mr. Angiolli’s site? The very popularity that gained Ms. Dion such fame and fortune lead to the creation of the  fan site. Popular culture feeds on itself; in the interests of promoting the musical industry or any pop-culture related industry, should a court intrude on the relationships that develop between artists and audiences?

Which leads to an entirely different question: Did Ms. Dion even care about the site?

Mr. Angiolillo seemed confident that he had not caused offense; he said: “… she has a great sense of humor and is always the first one to laugh at herself.” That may not be sufficient; poking fun at oneself is quite different from having others do it for you. But in any event, the opinion of the copyright holder is relevant. Was Ms. Dion aware of the action taken in her name? Did she support that action? Ms. Dion may have enjoyed the site, or, may not have wished to harass a fan. While the four-factor analysis has been coded into American law, more than four questions can be asked.

Fair use exists explicitly to allow the use of copyrighted material (under American law) in a manner that supports the constitutional purpose of copyright. Quoting from the U.S. Supreme Court, Professor Samuelson writes: Fair use “‘permits . . . courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’” Creativity will take many shapes and forms, each designed to appeal to audiences of differing tastes. Fair use is capable of facilitating this range of challenge.

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