fair use – more lessons from the United States

This past week, Sergio Muñoz Sarmiento (writer of Clancoo—the Source for Art & Law) described a paper written by Andrew Gilden & Timothy Greene, titled “Fair Use for the Rich and Fabulous.” They compare two cases of appropriation, tried by the same district and appeals courts, and express relief that some earlier misconceptions of fair use are being resolved. However, they also express concern that célebre seems to factor into the final judgement.

Sarmiento writes, “Those artists that are not as well-known or that opt to side-step the gallery system will in essence become the producers of raw materials for those artists who have the financial resources, marketing savvy, branding, and major gallery representation.” Almost on cue, a day later stories are circulating about another judgement of fair use; this also in favour of appropriation carried out by what appears to be the more established party. In this case a street-art image was incorporated into a set backdrop for a rock band. Graham Bowley, writing for the NY Times, gives the story and the outcome:

A federal appeals court on Wednesday ruled that the rock band Green Day had not infringed the rights of the illustrator and street artist Dereck Seltzer when it incorporated his artwork “Scream Icon” without permission in a video backdrop at its concerts during its 2009 21st Century Breakdown tour.

[Perhaps unintentional, but the NYT headline emphasizes the disparity in stature: “Judge Upholds Green Day’s Right to Use Artist’s Image for Concert”. Again, the “Artist” in question is Dereck Seltzer.]

That fame and fortune might play its part in a decision should not come as a surprise. In all walks of life, the establishment carry an implicit (and sometimes even explicit) advantage over newcomers. Nevertheless, with the Utopian hope that eventually all copyrights will be created equal, exploring this issue is helpful. The root question will always be – how to judge appropriation? This is not an easy question to answer. Fortunately, regardless of one’s own jurisdiction, litigation in the United States means teachable moments for all other countries who endeavor to develop flexible exceptions of their own.

So: Fair Use, Dereck Seltzer and Green Day. What happened?

On Wednesday, 7 August 2013, the Ninth Circuit Court of Appeals filed their opinion that the inclusion of Seltzer’s artwork was sufficiently transformative and supported by the four-factor analysis that shapes decisions of fair use. This followed a district court decision that also decreed fair use.

The story begins with Seltzer’s creation in 2003 of a work titled Scream Icon, “a drawing of screaming, contorted face (p.5).” Seltzer reproduced the work in posters and adhesive prints; some were sold, and some were given away. Many were “plastered on walls as street art in Los Angeles and elsewhere.” Five years later, Richard Staub (later a video designer for Green Day) photographed one such poster, by now somewhat worse for wear, amid a wall covered in street art and graffiti.

The following year Staub was subcontracted to Green Day to create video backdrops for a concert tour to promote a new album titled 21^st Century Breakdown. The concerts featured thirty-two songs, each with their own backdrop. Seltzer’s work was modified for a video backdrop towards performance of a song titled “East Jesus Nowhere.” Staub explains that the song reflects “the hypocrisy of some religious people who preach one thing but act otherwise. . . . The song is about the violence that is done in the name of religion (p.6).”

[Seltzer’s original Scream Icon image, and the photograph taken by Staub, are in Appendix A and B of the opinion of the Ninth circuit.]  Writing for the court, Judge Diarmuid F. O’Scannlain explains the transformation:

What Staub ultimately created for this song is the allegedly-infringing work at the heart of this case, an approximately four-minute-long video. The video depicts a brick alleyway covered in graffiti. As “East Jesus Nowhere” is performed, several days pass at an accelerated pace and graffiti artists come and go, adding new art, posters, and tags to the brick alleyway. The graffiti includes at least three images of Jesus Christ, which are defaced over the course of the video. Throughout the video, the center of the frame is dominated by an unchanging, but modified, Scream Icon. Staub used the photograph he had taken at Sunset and Gardner, cut out the image of Scream Icon and modified it by adding a large red “spray-painted” cross over the middle of the screaming face. He also changed the contrast and color and added black streaks running down the right side of the face (p.6).

As to be expected, the case was examined via the four-factor analysis of American Fair Use; see 17 U.S.C. § 107

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Remarking on the abundance of cases that elucidate or obfuscate the meaning of transformation, the  Court turned to definitive guidance via Campbell v. Acuff-Rose Music, Inc.,  (as influenced by Judge Pierre Leval, see here) to emphasize the importance of bringing forward “a further purpose or different character, altering the first with new expression, meaning or message (p.10).”

Drawing from Seltzer’s remarks that the original work addressed “themes of youth culture, skateboard culture, [and] insider/outsider culture (p.11),” O’Scannlain emphasizes that a new meaning—that of religion—was instilled through the modification and new context of the work:

With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, Staub’s video backdrop using Scream Icon conveys “new information, new aesthetics, new insights and understandings” that are plainly distinct from those of the original piece (p.12).

With regard to the clause concerning commerciality, came this assessment: “Green Day’s use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise (p.14).”  Taken together, the first factor favours Green Day.

2. The nature of the copyrighted work.

Drawing from precedents that compare the creativity of the work against the degree  of first publication enjoyed by the creators, O’Scannlain writes “Scream Icon is a creative work meriting strong protection … [yet] Scream Icon was widely disseminated [by Seltzer], both on the internet and on the streets of Los Angeles before Green Day used it in their concerts (p.14-15).”  On balance, the court decides that the second factor “slightly” favours Seltzer.

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

It is taken as a matter of logic that the less of a work copied, the more likely the copying will be seen as fair. However, courts are increasingly cognizant that copying is to be examined under both qualitative and quantitative assessment. Here the unavoidable starting point is, “Green Day copied most of Scream Icon, both quantitatively and qualitatively (p.15).” But O’Scannlain continues:

“However, unlike an episode of the Ed Sullivan show or a book manuscript, Scream Icon is not meaningfully divisible. … [T]he use of the entire work was necessary to achieve Green Day’s ‘new expression, meaning or message.’”

He concludes the third factor examination with “this factor does not weigh against Green Day.”

4. Effect of the use upon the potential market

In the past, this factor has led to a stunting of fair use (largely because of the flawed view that any use was a licensable use and thus a denial of market). Fortunately, American courts have progressed in their fair use doctrine. Closer attention is paid to the actual market enjoyed by the original creator, and the question raised is whether the newer use serves a different market function?  With this more logical directive, outright piracy where duplicate copies serve the same market cannot be sheltered as fair use (nor should they be) but newer uses of work are given a fairer hearing.

On this factor, O’Scannlain writes:

The original [work] created six years before Green Day’s use, was primarily intended as street art. Green Day’s allegedly infringing use, on the other hand, was never placed on merchandise, albums, or promotional material and was used for only one song in the middle of a three hour touring show. In this context, there is no reasonable argument that conduct of the sort engaged in by Green Day is a substitute for the primary market for Seltzer’s art (p.16).

Curiously though, the documents from both the district and appeals courts indicate that Seltzer had already  licensed Scream Icon for use in a music video. But, he did not provide any information about those terms, or how the work was used by the licensing band. As O’Scannlain points out, the first and fourth factors “dominate case law (p.17)”; why did Seltzer’s counsel not emphasize this point and provide more information? O’Scannlain concludes the analysis by saying “Without further context, this fact does not suffice to show that Green Day’s use harmed any existing market or a market that Seltzer was likely to develop. Thus, this factor weighs in Green Day’s favor as well (p.17).”

And so Fair Use was the outcome. The only bright spot for Seltzer was the appeals court’s decision to overturn the lower court’s insistence that Seltzer was liable for the legal fees of Green Day.

However, discussion should not stop here. From both courts’ examination of the case, it is evident that what bothered Seltzer was precisely the manner by which his work had been transformed. O’Scannlain notes:

At Seltzer’s deposition, he repeatedly testified that the value of his work was unchanged, but that he subjectively did not care for Green Day’s use of his art. He admitted that no one had ever told him that he would not buy his work as a result of Green Day’s use; instead, he claimed that Scream Icon was “tarnished” for him personally… (p.16).

The district court decision gives more detail on this matter; in his deposition Seltzer states that the use made by Staub and Green Day:

… [T]ainted the original message of the image and [ ] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with….. I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, puts a red cross on it. I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people (p.6).

In the eyes of both courts  Seltzer’s own remarks confirmed the transformative requirement necessary to a successful claim of fair use yet both courts seemed unable to factor in his concerns of artistic integrity.

The difficulty here is that Seltzer’s discomfort is not that of copyright infringement, it is moral rights infringement. These are rights that take ancestry from droits moreaux which means personal or intellectual rights.  To be sure, moral rights are no panacea of clarity, but it is worthy to recognize the emotional connection a person has to his or her work and reputation.

But the United States does not openly observe moral rights; it concedes such personal desires only through the Visual Artists Rights Act (VARA) which addresses: “a restricted category of visual artworks, extends only limited rights, and is subject to loopholes, exclusions, and waiver provisions that substantially erode its powers.”

This leaves most American creators without useful recourse in terms of the law.

One cannot argue that the fair use analysis by the courts was mishandled — it was not.  And yet, the case leaves an unsavoury air in its wake.  The disparity in stature between the parties is glaring. To a reasonable observer, it seems odd that a band who (according to the press coverage and an extensive Wikipedia entry) has sold over 70 million albums worldwide and expanded its presence through musical productions, documentary, and art-shows, could not summon the courtesy to contact the up-and-coming artist and discuss using the work? It is a matter of record that Seltzer “used Scream Icon to identify himself and his work’s presence by placing it on advertisements for his gallery appearances (p.5);”  it seems plausible that Seltzer could have been found.  It is also a matter of record that once he became aware of the use, Seltzer contacted Green Day to  “work out a resolution to this issue (p.7).”  If Seltzer had been presented with an option to license, or perhaps even recognition as the artist of the original work, he may have felt comfortable with the alterations.

The absence of courtesy becomes even more puzzling in light of Green Day’s declared affinity to street artists; showcasing the artworks created for the songs of 21^st Century Breakdown at an art exhibition in 2009, musician Billie Joe Armstrong is quoted as saying: “Many of the artists… show their work on the street, and we feel a strong connection to that type of creative expression.”

My sense of puzzlement is answered in part by Sarmiento; he reminds us that the art world can equally fall prey to a weakness of  liberal ideology: “property ownership is ‘bad’ until you have enough financial resources to create and own any kind of property, tangible and intangible.”

But given that courtesy may not be forthcoming from individuals, it is all the more important that courts give consideration to the matter. Regrettably, the inelasticity of the American four-factor analysis does not appear to permit such discussion. Whereas in Canada, when the multi-factor analysis for fairness of use appeared, our Supreme Court Justices were careful to emphasize that the proposed questions were not exhaustive.  Different situations may require different questions (CCH Canadian, para. 60).

Matters of good faith and courtesy are worth discussing.

Update — August 16, 2013  Marc Belliveau of Stewart McKelvey provides the “what if the case had been tried in Canada” analysis; see here.