We publish great books and give them away. All we ask is that you make a voluntary donation to a charity or someone in need. Tell us about it. Then pass your book along so others can give.

The publisher boasts that more than $145,525 in donations have been reported from readers around the world.

At the unveiling (below), Espinel and Vice President Joe Biden summarize the plan, including proposed legislation to identify counterfeit products and thwart online piracy.

It’s clear the government is taking an uncompromising approach to piracy. As Vice President Biden put it, “Piracy is theft. Clean and simple [...] It’s smash and grab. No different than a guy walking down Fifth Avenue and smashing the window at Tiffany’s and reaching in and grabbing what’s in the window.”

However, Espinel’s report notes the importance of Fair Use as a means of supporting innovation and artistry.

Article I, Section 8 of the U.S. Constitution vests in the Congress the discretion to establish laws to promote science and artistic creativity “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Over the last two centuries, our Founding Fathers have been proven right. One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.

More from TechDirt. Read the Join Strategic Plan.

The Autumn brothers — pale-faced, half-worm, half-human villains named Johnny and Edgar — were gunned down in Volume #5. For them, the battle was lost, but for plaintiffs, Johnny and Edgar Winter (Winter brothers), it had just begun…

Miffed that DC Comics portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed,” the Winter brothers sued DC and the creators of Jonah Hex: Riders of the Worm and Such for appropriation of their names and likenesses under CA Civil Code section 3344 (right of publicity), among others.

CA Code § 3344 states, in part:

(a)Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent [...] shall be liable for any damages sustained by the person or persons injured as a result thereof.

The suit careened around the courts, finally coming to rest in the Supreme Court of California — charged with the task of balancing the right of publicity against expression under the First Amendment. To that end, the court implemented a test based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.

While Johnny and Edgar Autumn were “less-than-subtle evocations of Johnny and Edgar Winter,” they were not literally depicted, and instead “merely part of the raw materials from which the comic books were synthesized.” The court noted:

To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody, or caricature. And the Autumn brothers are but cartoon characters—half-human and halfworm—in a larger story, which is itself quite expressive.

In the end, the value of the expression in Jonah Hex outweighed the Winter bothers’ right of publicity based on the distorted caricatures. It’s important to note that parody was not the crux of the court’s reasoning, rather whether the offending work was sufficiently transformative so as to amount to “fanciful, creative characters,” not pictures of the
Winter brothers. As the CA Supreme Court said,

The distinction between parody and other forms of literary expression is irrelevant to the [] transformative test. It does not matter what precise literary category the work falls into. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression.

Read the entire opinion here.

(1) our lives are sharing, in part — which requires well protected spaces of fair use,
(2) this ecology of sharing needs freedom to create — without permission from anyone, and
(3) respect needs to be given to the creator [of remixes] through rights that are directly tied to them (e.g. copyright)

Watch Lawrence Lessig: Re-examining the remix:

More from TEDxNYED.

Sunday, May 30th 2010; 2 PM
Galapagos Art Space
16 Main Street
DUMBO, Brooklyn
FREE! (21 and over)

Presented by the League of Independents (LOFI):

The RE/Mixed Media Festival is our way of contributing to the ongoing conversation about remixing, mashups, copyright law, fair use, and the freedom of artists to access their culture in order to add to and build upon it.  While there are numerous events addressing these issues, they are usually discussion-based, featuring lectures and panel discussions about policy.  We believe that one of the best ways to make the general public aware of these types of issues is by demonstrating all the types of art and culture that remix touches.

Visit RE/Mixed Media Festival for more information.

Whether for financial or PR reasons, the tendency to settle stifles much needed paradigm shifts in the court system. It took the Supreme Court some 38 years (from 1956-1994) to hear whether parody has an obvious claim to transformative value in a Fair Use defense. While landmark cases are few, the following list touches on a variety of legal transgressions in the arts.

5. Serra v. U.S. General Services Administration, 847 F.2d 1045 (2d Cir. 1988).

In 1979, the United States General Services Administration (GSA) selected Richard Serra to create an outdoor sculpture for installation at 26 Federal Plaza in lower Manhattan. The sculpture was commissioned under GSA’s art-in-architecture program which mandated that one half of one percent of the construction cost of federal buildings is reserved for funding artworks by living American artists.

Serra received a fee of $175,000 for building a sculpture on Federal Plaza. The contract he entered provided that “all designs, sketches, models, and the work produced under this Agreement.. . . shall be the property of [the United States].”  Furthermore, the agreement contained no provisions restricting the Government’s use of the sculpture after it was purchased.

Tilted Arc was completed and installed at Federal Plaza in 1981. All was not well following the installation of the 120 foot long sculpture. According to the Second Circuit’s factual background,

The pigeons had barely begun to roost on “Tilted Arc” before the sculpture became the object of intense public criticism. GSA received hundreds of letters from community residents and federal employees complaining about the sculpture’s appearance and its obstruction of Federal Plaza’s previously open space.

Because the sculpture created such widespread dissent, the GSA held a public hearing on the matter. Many heralded the sculpture for its artistic merit while others bemoaned the obstruction of Federal Plaza and the sculpture’s “unappealing aesthetic qualities.” In May 1985, it was decided that Tilted Arc would be relocated.

Serra filed a lawsuit in December 1986 alleging that the GSA’s decision to remove Tilted Arc violated his rights under the Free Speech Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, federal trademark and copyright laws, and state law. In addition to a declaratory judgment and an injunction against removal of the sculpture, Serra sought damages in excess of $30,000,000. The district court dismissed his suit stating  that the decision to relocate Tilted Arc was “a content-neutral determination made to further significant government interests and that the hearing provided all the process that was due.”

On appeal, Serra would challenge the rejection of his free expression claim. Unfortunately, the Second Circuit did not agree with him, holding that while private works are protected under the First Amendment, nothing in that guarantee precludes the Government from controlling its own expression or that of its agents. The court continued, “Tilted Arc is entirely owned by the Government and is displayed on Government property. Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA.”

On March 15, 1989, Richard Serra’s Tilted Arc was removed from 26 Federal Plaza in Lower Manhattan. Just where is the sculpture today? Sold as scrap to a recycler? Chipped into bits and incorporated into a Richard Tuttle show? The answer is: None of the above. Apparently, the sculpture is languishing in a Brooklyn warehouse where it has been for the 20+ years since its removal from Lower Manhattan. According to Serra, Tilted Arc is site-specific and he will not sanction any attempts to relocate the piece.

Above all, the lesson to be learned from Serra v. U.S. General Services Administration is in the power of contract formation. When Serra entered the agreement with the GSA, he effectively relinquished control of the completed sculpture.

4. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

In 1989, Luther R. Campbell (a.k.a. Luke Skyywalker) of 2 Live Crew, wrote a song titled Pretty Woman. Based loosely the Roy Orbison and William Dees rock ballad Oh, Pretty Woman (published by Acuff-Rose), Campbell described his intent to to satirize the original work through comical lyrics:

2 Live Crew informed Acuff-Rose, Dees, and Orbison of the recording and offered to credit them with authorship of the original song in addition to paying a fee for its use. Acuff-Rose refused. A year and a quarter of a million copies later, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement.

The district court granted summary judgment for 2 Live Crew, reasoning,

that the commercial purpose of 2 Live Crew’s song was no bar to fair use; that 2 Live Crew’s version was a parody, which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” is; that 2 Live Crew had taken no more than was necessary to “conjure up” the original in order to parody it; and that it was “extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original.

The Court of Appeals reversed, noting that the effect on the potential market for the original (and the market for derivative works) is “undoubtedly the single most important element of fair use” and “harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.”

The U.S. Supreme Court did not agree. It reasoned that the presumptions by the lower court (commercial purpose of the 2 Live Crew album, etc.) amounted to a rigid application of copyright that threatened to “stifle the very creativity which that law is designed to foster.” The court noted that parody has an obvious claim to transformative value, and, like other comment or criticism, may claim fair use under 17 U.S.C. § 107 (Fair Use).

As with most things, all parodies are not created equal. The court went on to state that while parody may be a defense for some appropriation, it does not create bright line rule, rather,

[t]he threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use [...] While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree.

The take-away from Acuff-Rose is that a parodic appropriation, be it literary or artistic,  must reasonably be perceived as commenting on or criticizing the original in order to claim transformative value in a Fair Use defense.

3. Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003).

In 1997, Utah artist Thomas Forsythe (a.k.a. Walking Mountain Productions) developed a series of 78 photographs entitled Food Chain Barbie, in which he depicted Barbie in various compromising  positions.  Forsythe used the word “Barbie” in some of the titles of his works, including Malted Barbie (Barbie in a malt machine),  Fondue a la Barbie (Barbie heads in a fondue pot), and Barbie Enchiladas (Barbie wrapped in tortillas and covered with salsa).

Forsythe described his intent to “critique the objectification of women [...] lambast the conventional beauty myth and the societal acceptance of women as objects.”  He chose Barbie because the figure is “the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture.” On August 23, 1999, Mattel sued Forsythe, alleging that Forsythe’s Food Chain Barbie series infringed Mattel’s copyrights, trademarks, and trade dress.

On August 22, 2001, the Los Angeles federal District Court granted Forsythe’s motion for summary judgment. The district court held that Forsythe’s use of Mattel’s copyrighted work was Fair Use, that use of Mattel’s trademark and trade dress caused no likelihood of confusion as to Mattel’s sponsorship of Forsythe’s works and dismissed Mattel’s trademark dilution claim because it found that Forsythe’s use had been “noncommercial.”

On appeal, the United States Court of Appeals for the Ninth Circuit would again balance the four Fair Use factors and readdress Mattel’s trademark and trade dress claims. The four factors considered in a Fair Use analysis are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Citing the U.S. Supreme Court in Campbell, the court first determined that because Forsythe, “transform[ed] associations with Mattel’s Barbie doll, [he] has created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act.” Additionally, the court addressed the commercial/non-profit dichotomy, noting that because of the extremely transformative nature and parodic quality of Forsythe’s work, its commercial qualities become less important.

As to the amount and substantiality used, the court found that Forsythe used only so much of Barbie as needed to convey his message and portions of the old work (Barbie) are incorporated into the new work, but “emerge imbued with a different character.”

The court went on to discuss Mattel’s trademark, trade dress and dilution claims in turn. It found that the Barbie mark in the titles of Forsythe’s works/website merely describe the subject of the photographs and do not explicitly mislead as to Mattel’s sponsorship of the works. Furthermore, the court found that artistic expression greatly outweighs its interest in potential consumer confusion as to Mattel’s sponsorship of Forsythe’s works. Thus, Mattel does not have the right to control public discourse via “trademark laws to . . . censor all parodies or satires which use [its] name or dress.”

If nothing else, this should be an example of how to stave off a corporate bully. The Ninth Circuit called Mattel’s case “objectively unreasonable” and “frivolous” and ordered Mattel to pay Forsythe’s legal team over $1.8 million to cover legal fees and court costs. Kudos to Forsythe and his legal team for seeing it through.

2. Wojnarowicz v. American Family Association, 745 F.Supp 130 (1990).

In 1990, artist David Wojnarowicz sued Donald E. Wildmon, Executive Director of American  Family Association (AFA). Wojnarowicz, a multi-media artist from New York, claimed copyright infringement, defamation, violation of the Lanham Act and New York Artists’ Authorship Rights Act (NYAARA).

Wojnarowicz’s Tounges of Flame exhibition dealt with the political and religious indifference towards the AIDS epidemic. Wildmon campaigned against the National Endowment for the Arts (NEA) for supporting what he claimed was “blasphemous” and “offensive” artwork. In an effort to undermine Wojnarowicz and the NEA, Wildmon made photo-copies of the purportedly offensive work, created a pamphlet articulating his agenda and circulated thousands of copies.

Wojnarowicz’s claims for defamation and violation of the Lanham Act failed. Similarly, his claim for copyright infringement was futile as the court found that Wildmon’s use of the images was “for the purpose of commenting and criticizing on an issue of public concern” and thus, protected as Fair Use. While his other claims failed, Wojnarowicz was successful in arguing that Wildmon violated his right to integrity under NYAARA.

NYAARA states that “no person shall knowingly publish a work of fine art (or reproduction) in an altered, defaced, mutilated or modified form.” Thus, under the New York act, an artist’s moral right to integrity includes the right to prevent the reproduction of a work in an altered form. It is important to note that the court discussed the defendant’s intention to harm Wojnarowicz’s reputation. The court stated,

By attributing the modified images contained in the pamphlet to plaintiff as his works of art, defendants have created a likelihood of damage to his reputation as a serious artist and to his earning potential, and have thereby violated New York’s Artists’ Authorship Rights Act.

In the end, Wildmon was enjoined from further distribution or publication of his pamphlets (as he clearly sought to harm the Wojnarowicz’s professional and personal reputation) and ordered to pay damages of $1.00 (Yep, one dollar b/c Wojnarowicz could not prove actual damages).

The Visual Artists Rights Act (VARA) (17 USC 106A) of the Copyright Act embodies an artist’s “Moral Rights.” Moral Rights generally include the right to attribution of one’s work, the right of integrity, and the right to disclosure. While twelve states have moral rights acts, they serve to supplement VARA since its implementation in 1990.

1. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)/Blanch v. Koons, 396 F.Supp.2d 476 (S.D.N.Y.2005).

The number one spot is occupied by two cases. Taken together, Rogers v. Koons and Blanch v. Koons represent a marked shift in a transformative use analysis.

Artist Jeff Koons’ 1988 Banality series focused on the exploitation of elements of mass culture which are “typical, commonplace and familiar.” Prior to the exhibition, Koons discovered a note card entitled Puppies in a museum gift shop. The black and white photograph depicts a couple sitting on a bench holding eight German Shepherd puppies.

Finding Puppies to be an adequate study for his work, Koons commissioned artisans to create a three-dimensional wooden sculpture entitled String of Puppies. The puppies were painted varying shades of blue, given overstated, bulbous black noses and clown-like ruffled collars. Additionally, the couple’s clothing and flesh is painted and flowers were carved in the ears of the woman and emerging from atop the man’s head. The couple is situated on a bench with their legs truncated at the knees, but the sculpture is devoid of any further surroundings.

Puppies was photographed by Art Rogers, a successful portrait photographer from Point Reyes, California. According to Rogers, he does “groups, multi-generations, men, women, children, and babies [...] even animals. I’ve inserted into my portraits not only a wide array of cat and dog companions but I’ve also photographed horses, elephants, pigs, birds, and reptiles.” Upon finding that Koons made a sculpture based on his photograph, Rogers sued for copyright infringement.

The district court found that Koons’ use of Puppies in String of Puppies was copyright infringement. Further, it entered a permanent injunction enjoining Koons and Sonnabend Gallery (Koons’ representative) from “making, selling, lending or displaying any copies of, or derivative works based on Puppies.”

On appeal, Koons again mounted a Fair Use defense, arguing at length that his work is a fair social criticism, drawing from a tradition of American artists who incorporate mass produced images in order to criticize the political and economic system which created it. The Second Circuit held that for a secondary use to be parody, it must criticize the primary work directly.

The court noted:

[for a] copied work [to] be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist[…]The problem in the instant case is that even given that “String of Puppies” is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph “Puppies” itself.

It is notable, however, that this case predates the decision in Acuff-Rose where the U.S. Supreme Court held that a parodic work need only be reasonably perceived as commenting on or criticizing the original in order to claim to transformative value.

As to the amount and substantiality of the portion used, the court found that Koons appropriated Rogers’ photo nearly in toto.

In looking at the effect of the use on the market of the original in Rogers, the court focused very narrowly on the commercial nature of Koons’ work, reasoning, “it’s not implausible that another artist, who would be willing to purchase the rights from Rogers, would want to produce a sculpture like Rogers’ photo and, with Koons’ work extant, such market is reduced.”

In the end, Koons would not be triumphant. The court unequivocally found that use of Rogers’ photo was copyright infringement. More than a decade later, however, the court would take a very different approach in assessing Fair Use in the context of appropriation art.

In his 2000 suite Easyfun-Ethereal, Koons “combine[d] familiar yet unrelated images to create collage-like paintings rendered with photorealist perfection [which] recall[ed] the advertising iconography.” His painting, Niagara depicts four pairs of legs dangling in front of a surreal landscape of the waterfalls, sky, and pastries.

One pair of legs is derived from an Andrea Blanch photograph used in a Gucci Advertisement. Blanch is a well known fashion photographer. Her photograph, Silk Sandals, shows the lower part of a woman’s bare legs crossed at the ankles, with Gucci sandals dangling from her feet. The woman, resting her legs in a man’s lap, is seated in an airplane cabin. The photo captures elements of the cabin, such as the floor, wall, window and part of a seat.

Blanch sued Koons for copyright infringement.  Again, Koons mounted a Fair Use defense. This time, however, the district court agreed with Koons’ transformative use argument, and finding that Niagara was fair use, granted him summary judgment.

The Blanch court began its Fair Use analysis by assessing the transformative elements of Koons’ work under the purpose and character factor. In his affidavit, Koons stated “for Niagara I removed these anonymous legs from the context of the photograph, and totally inverted their orientation. I then added these legs to other contrasting images of legs…and along with ice cream, donuts and pastries, floated them ethereally above a liberating landscape of grass, a waterfall and sky.”

Koons further commented on the nature of his artwork, “in order to make statements about contemporary society…I must present real things that are actually in our mass consciousness.” The court agreed with Koons’ description and found that Niagara did not duplicate the objective of Blanch’s photo, rather was transformative and “used it as raw material in a novel context to create new information, new aesthetics, and new insights.” The court only noted in passing that both works were created for commercial purposes.

Regarding the amount and substantiality of the portion used, the court noted that the copyright protection for the crossed legs is very weak. The court reasoned, “without the Gucci Sandals, all that is left is a representation of a woman’s legs, crossed at the ankle” which “is not sufficiently original to deserve much copyright protection.”

It also found that Niagara does not harm the market of the photograph because it isn’t a market substitute for the original. “Niagara’s market” the court stated “is one in which the photograph had no chance to capture.” Further, the court explained that when the only possible adverse effect is a potential market or value which the copyright holder has not typically sought to, or reasonably been able to obtain or capture, this factor will favor Fair Use.

As the Blanch court recognized, a derivative transformative use will often only appropriate elements which have very thin copyright protection. When taken from their original context these elements become scènes à faire and not copyrightable. A typical American scene-a smiling husband and wife holding a litter of charming puppies, for example, becomes banal.

if approved, the settlement would grant Google automatic rights to exploit digitally millions of books found throughout the world without requiring Google to obtain any authorization from any foreign copyright owner. On its face, this eviscerates copyright owners’ exclusive rights under Berne to authorize the reproduction of their works.

In 2005, the Authors Guild, the Association of American Publishers and numerous authors and publishers filed a class action lawsuit against Google Book Search claiming copyright infringement. Google initially expressed its intent to promote “authors whose backlist, out of print and lightly marketed new titles will be suggested to countless readers who wouldn’t have found them otherwise” and further claimed that digitizing books (or portions thereof) comes within the ambit of fair use:

Google respects copyright. The use we make of all the books we scan through the Library Project is fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews.

As of October 28, 2008, the parties reached an accord, which the Author’s Guild praised, “acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online and enables them to receive compensation for online access to their works.”

The settlement has invited criticism from a string of domestic and international groups.

Most recently, various groups representing the interests of visual artists filed a separate class action suit last month claiming the Google Book program fails to adequately compensate artists for the use of their work.  Previously excluded from the Google Book Settlement, representatives include the American Society of Media Photographers, the Graphic Artists Guild, the North American Nature Photography Association, the Professional Photographers of America, as well as individual photographers and illustrators.

Amidst all of the criticism that Google is receiving, it announced last week that its long-awaited digital bookstore is slated to open this summer. Google Editions, a universal eBook format which allows for titles to be read on any browser-enabled device, will tie-in the controversial Book Search.

Read the entire memo here. More on the Visual Artists’ suit from Wired. More on the Google Editions announcement from PC Magazine.

I agree with Bollier — Lambert’s juxtaposition of Nabokov’s anxiety-ridden prose with Lessig’s musings works uncannily well.  An excerpt from A Tangle of Thorns:

I am dead against the changes we are seeing, but it is too much to believe I could convince you that the full range is wrong. My aim is much more limited. My hope is to show you the other side of what has become a taken-for-granted idea: the view that control of some sort is always better.

An example: to control my urges, I decided to take a wife, leveraging the money from my inheritance and my somewhat brutal good looks. Let me be honest here, in these temporarily infixed notes: I’m slow-moving and tall, with soft dark hair and a gloomy but seductive demeanor.

More from OnTheCommons.org (Thanks, Willem!). Read A Tangle of Thorns. Download Lawrence Lessig’s Future of Ideas.