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I’ve Always Liked Judge Newman

The law sometimes takes its integrity in its hands when the Federal Circuit gets its hands on a copyright law question, and the Federal Circuit’s opinion the other day in Gaylord v. United States, involving fair use, bears out that proposition in spades.  Gaylord sculpted a column of soldiers as part of the Korean War memorial in Washington, D.C.  The Postal Service used an edited photograph of the column, covered in heavy snow, on a stamp.  Gaylord sued the U.S. Government for compensation.  The Court of Federal Claims ruled that the use of the sculpture, covered with snow, in the photo, on the stamp, was “transformative”; the parties stipulated that Gaylord had suffered no economic injury.  On appeal to the Federal Circuit, a divided panel reversed, holding not only that the fair use conclusion was clear error but that the stamp is not “transformative.”  Judge Newman dissented.

That thumbnail of the opinion omits a lot of interesting detail (here is a link to the whole thing), but the bottom line for me is that the majority opinion is both conclusory on the fair use merits and unfathomable on the procedural (clear error) question in ways that leaves me scratching my head.  But judge for yourself.  Here are a photograph of the plaintiff’s sculpture, and a copy of the defendant’s stamp.  Is the latter plausibly “transformative”? The majority wrote:  “Capturing The Column on a cold morning after a snowstorm-rather than on a warm sunny day-does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.”  That argument substitutes metaphysics and meteorology for the views of a reasonable audience.  The standard for “transformativeness” that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work “reasonably could be perceived.” Has the Federal Circuit followed its defense of the idea of property to the extent that it has substitute its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?

Judge for yourself. The images below are copied from the Federal Circuit’s opinion.

15 thoughts on “I’ve Always Liked Judge Newman”

  1. Mike, thanks for this post, I saw this opinion and thought about blogging it myself but didn’t have time.

    There are lots of screwy things going on here. Although it’s been a while since I researched Section 1498 I’m not convinced that it’s being applied properly by the majority. The whole idea that a subcontractor on a government contract can assert a copyright claim against the government with respect to the item produced under the contract strikes me as a little weird.

    Also, I think I see signs the case may not have been litigated well. The sculpture is a building? And the government decided to appeal on that issue?

    Re: fair use, I think the issue is difficult, particularly under existing law. 1) There are lots of cases out there that seem to suggest that putting an artwork somewhere in the frame is not fair use as long as the artwork is recognizable (the Seven case, the pinball case, Ringgold, Woods, the Devil’s Advocate case). If that’s the test the government loses.

    2) One thing I’ve noticed about transformativeness cases is that, somewhat like equal protection, the battle seems to be one or lost depending on how broadly or narrowly the relevant “purpose” is defined. Here it’s drawn very broadly–to honor Korean War veterans–but that can’t possibly be the relevant purpose to compare. A more limited purpose would be “decorating the National Mall.” The stamp clearly has a different purpose in that case.

    3) It would have been nice if there was some discussion about how a photograph (or a depiction of a photograph) transforms reality and is not simply a replication of reality, which courts have recognized going all the way back to Burrow-Giles.

  2. If you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be. The cases themselves, in my view, are almost all badly decided and in some cases badly reasoned. Ringgold in particular is a case that irritated me so much at the time that I made it an anchor of the critique that I wrote up in my first article, 12 years ago. If “recognizability of the artwork” is really the threshold that disables fair use, then we might as well throw section 107 out the window altogether, along with Campbell itself.

  3. “Purpose” is a misleading word that lends itself to equivocation. But let me ask those who think this is fair use: Should I have the right, without infringing copyright, to sell souvenir photographs of any copyrighted outdoor sculpture so long as I take the photograph under abnormal weather conditions? Is this really what is meant by “transformative”?

    It’s one thing to clarify the way in which a photograph transforms “reality” as Bruce Boyden suggested; whether it transforms an existing work of art is a far thornier question. I agree with the larger point that the reasonable audience’s vantage point is the relevant one, I’m just not convinced that snow (or any of the other elements noted in the opinion) transforms the work for that audience.

  4. Unfortunately, Gaylord seems to fit squarely within the fifth, nonstatutory, fair use factor that seems to end up deciding most close cases that don’t involve making fun of a judge.* It would have been administratively possible and convenient (indeed, trivial) for the US to explicitly obtain the right to create a derivative work at the time the sculpture was acquired by the US, so the fifth factor weighs heavily in the holder’s favor. Since at least two of the other factors are arguable either way, the administrative convenience determination controls. Thus, whether we like the decision or not, it’s consistent with precedent and practice.

    Yes, I am cynical about the actual process of deciding a fair use question.

    * Yes, that’s a snide comment on Dr Seuss Enters. v. Penguin USA.

  5. In response to the two questions posed by Joshua, who appears to endorse the Federal Circuit’s “metaphysics and meteorology” reasoning: Yes, and yes.

    In response to Joshua’s second paragraph, I think that whether a photograph “transforms” a sculpture is hardly a thorny question at all, snow or no snow. If I were the copyright czar, the case never would have been decided on fair use grounds. I would hold that the photograph is not a derivative work at all, obviating C.E. Petit’s administrative convenience analysis.

  6. “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — I think it’s hardly twisting things to infer that securing income streams is a part of the intent of that clause.

    Otherwise I’m a bit fuzzy on the distinctions you’re drawing. “Sculpture is an example of something where “creativity” (a word and concept that I am increasingly skeptical of) inheres in the object itself — its physicality — rather than in its mere appearance.” But how do we experience that physicality other than through appearance? We walk around a sculpture, we view it from different vantage points. I don’t really want to go too far down this rabbit hole, but I’m not sure how your argument relies any less on metaphysics than the majority in Gaylord.

    I prefer to avoid trying to figure out the essence of art and of objects. Instead, we can just balance the interest of artists in having incentive and means to continue their work against the interests of other artists and the public at large. We draw lines, some of them arbitrary. Where the lines are unclear, we should clarify them.

  7. I have to admit that I don’t know your work, so I may be asking questions that it already answers. But if a photograph of a sculpture is not a derivative work, what about a photograph of a painting? Is it the fact that a photograph transforms a 3-dimensional work into a 2-dimensional image that makes this example different? What if I frame the painting with some of the surrounding wall rather than just “reproduce” the image of the painting? What if it’s a mixed media painting with some protruding objects, and my photograph “flattens” it?

    What about a movie made from a novel? If anything I’d say the respective media render the respective works in that case far more different from each other than a photograph of a sculpture is from the sculpture itself, yet we accept that a film version of a novel is a derivative work. If you hold a consistent position that none of these things ought to be treated as derivative works, I can respect that position, though I disagree with it.

  8. In my view, what differentiates a sculpture is that the “authorship” is in the physical object itself. Copyright doctrine requires that the “expression” be separated from the physicality and from the “idea,” but personally I think that’s silly, and not reflective of what artists actually do. The sculptor’s claim to proceeds of photographs is not a claim to anything intrinsic to the art (therefore, the variants on the sculpture/photograph don’t change my view, and see Lee v. ART), but instead to an income stream that the sculptor would like to have, in order to support him/herself as an artist. I sympathize with the interest in making a living; I am reluctant to twist copyright law to make that happen.

    If the world were mine to make from scratch, a film based on a novel would not be a “derivative work.” (You can already tell that my normative view would be that 106(2) of the Copyright Act should be repealed, and the “substantial similarity” doctrine scaled back, though not eliminated.) It is accepted that a film adaptation is a derivative work, but in my view that reflects an accepted and now-irreversible fact of industry practice, not something that reflects some fact of “adaptation” or “transformativeness,” using those as legal terms of art, not colloquialisms.

  9. Michael, you think infringement should be medium-specific? Does it matter how “faithful” the adaptation is? If not, why not? It seems like sort of an arbitrary limit on the scope of copyright protection.

    For the record, I’m not a fan of “recognizability” analysis. But I think Ringgold et al. go in the bin of cases I label “wrong, but why?”

  10. “Progress” in the Constitution – *Which* income streams is, of course, the relevant question. Any copyright owner should get some of these; no copyright owner should all of them.

    Beyond that, I don’t think that the distinctions are so difficult; sometimes metaphysics do matter, if the metaphysics aren’t declarative and conclusory, as in Gaylord. (It’s the conclusory, patent-ish “right to exclude” language that I object to, just as a reminder.) And sometimes, it’s not metaphysics – it’s actual physics. In my view, a sculptor doesn’t create “expression” that we “experience” via its “appearance.” The law tells us to find and use these abstractions, but I think that the law misleads us. A sculptor creates a sculpture. If I re-produce that sculpture in copies, I infringe the copyright. I don’t see the metaphysics. Now, that is *not* a universal rule for all sculpture or all 3D works of art, but if we want to think about where incentives and rewards matter, we need to think carefully about what is being produced, and reproduced. I’m no fan of simple-mindedly identifying the essence of anything – when you get around to reading my work, you’ll see that. “Just” balancing interests of artists against those of other artists and the public is, of course, the standard rhetoric of basic IP, and if that’s all that anyone does, then we get the IP rules that we all deserve — including the occasional really crudely reasoned Federal Circuit opinion. Who is an artist? What incentives do they need? How should the law supply them with means, and how much “means”? What is “their work”? These aren’t idle metaphysical questions. They are the details of the law in practice.

  11. Bruce, I would be more fine-grained than that. Sculpture is an example of something where “creativity” (a word and concept that I am increasingly skeptical of) inheres in the object itself – its physicality – rather than in its mere appearance. That is sometimes true of conceptual art, and sometimes not; it is sometimes true of painting, and sometimes not. It is rarely true of photography or film, I suspect; it is almost never true of text. Obviously, I know that copyright purports to be “medium-neutral,” but — and I know that I am heading off the reservation — I have never understood why that particular value should be sanctified, except to ensure that copyright claimants can maximize the value of their claims. There are all kinds of medium-specific limits on the scope of copyright protection as it is, some arbitrary, some not, but all of which are policy-based and therefore subject to reconsideration when we refine or redefine the policy.

    “Faithful”ness is no better than “transformativeness” at judging whether or not something is or should be infringing, medium-neutrality or not. Generally, I think that focusing on “the work” and “the infringing work” as abstractions does not generate a stable and reasonably predictable set of rules and guidelines in copyright law, in business, and in artistic practice. (Again, I recognize that I am off the proverbial reservation.) All of copyright should be recharacterized in discipline-based and institution-based terms, and individual deals and lawsuits interpreted with reference to those things (see, for example, the Pattern-Oriented Fair Use paper from 2004). The goal is to balance micro-flexibility with macro-stability and predictability.

  12. I think some of the metaphysics involved comes from the problem with transitioning between the set-defining “progress” and the instance-delineating “creativity” (or “originality,” or “nonobviousness”, or whatever other work-specific measure we’re examining).

    A copyright dispute inherently concerns a single member (or, at least, finite number of members) of the set, where the set itself is supposed to engage in “progress.” “Original” is not congruent with that consideration. It is, however, a relatively manageable proxy* for what an individual work must do to be a contribution to “progress.” “Original” also has the advantage of appearing to be a work-specific inquiry.

    In this instance, I think we can all agree that whether we like the result in Gaylord, nobody likes its reasoning very much. Now, if you’ll just hand me that pin, I’ll proceed to show you exactly how much we dislike it by counting the number of angels dancing on the head of that pin (which is not necessarily representative of the universe of “pins”)…

    * One of the things that frightens and frustrates me the most about copyright and patent law is that we leave judgments of propriety in the hands of a profession that is taught, from day one, that originality is bad. A legal argument that cannot cite authority — that is, that someone else has said much the same thing before, in an at least analogous context — doesn’t get much credibility, and certainly doesn’t get a very good grade in class or on the bar exam.

  13. Need that pin? Here you go.

    I would be happy, by the way, to jettison the foundational concept of originality, and the creativity concept that lives on top of it. I have a paper coming out later this year . . . .

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