Fair use for the 21st century: if it adds value, it's fair; if it substitutes, it's not

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25 Responses to “Fair use for the 21st century: if it adds value, it's fair; if it substitutes, it's not”

  1. NealAppeal says:

    I think any concerns brought up over sequels can be mostly squashed if it is made clear which works are unauthorized, regardless of whether or not anything about the original work is trademarked. If it is unclear, I think it easily could be argued that unauthorized sequels devalue future official ones. But I still think any allowing for commercial unofficial sequels will be fought hard, because what movie studio would want to have to compete for the better product involving characters and worlds they originally introduced.

    The reason I originally brought up star wars is that there is enough love for the series and hatred for the prequels, that a skilled and well funded group of people could make a serious go at taking Lucas’s position as the go to guys for Star Wars stuff. If the law was on their side. It would benefit society, it wouldn’t directly substitute for any specific Lucas work, but it could run him out of the Star Wars sequel business. Which he or anyone in a similar situation would deserve, in my opinion.

  2. Ian Betteridge says:

    The problem with this is what amounts to “adding new value” – and, more importantly, adding value to what? Does sampling a record and using it, uncredited, in a remix “add value” to the original? No, of course not. In fact, using it credited may well not add value either.

    Does Gawker’s use of the Tom Cruise scientology video “add value” to the original? Of course not – if anything, it removes value, both to Cruise personally and to the CoS. It’s also a direct substitution, because I’m certain that it’s a video which was sold to CoS adherents. Of course, you can say that Gawker’s using it is fair use as it’s newsworthy – but that adds a second rule to what is and is not fair use.

    If, of course, what Cory and Tim mean by “adding value” is simply “creating something of value from the copyright material” then that’s a different matter – but it means that virtually any use of copyright material is permissible.

    The fact that you have to sit and think hard about what “substitution” means shows that, in fact, the rule isn’t clear at all. It includes as many grey areas as the current set of rules – grey areas that, over the years, lawyers would exploit to ensure that their clients – big corporates – got the most out of the law.

  3. Ian Betteridge says:

    Another point: What about non-substitutory work which, nevertheless, reduces the value of your original work?

    Suppose, for example, I am J K Rowling. My first thought it “hurrah! I’m rich!”. I’ve written a great Harry Potter novel and it’s sold in droves. Now some schmuck comes along and writes another Harry Potter novel, a follow up. It’s OK, and does OK – but it also spoils my plan to write a follow up, which I had plotted out and everything, because some of the fans were so disappointed in the schmuck’s novel that they’re put off the whole world of Harry Potter. I will, undoubtedly, lose sales.

    There’s no direct substitution here. I haven’t even finished my second book, and it wouldn’t have been a direct substitution anyway. But it’s definitely cost me sales – and if a hundred schmucks had done the same thing, it would have cost me a LOT of sales.

    Fair use? Under Tim’s rules I’d say yes – unless you’re going to add *another* caveat to the rules.

    The fact is that copyright is like every other law: there are broad rules which everyone can understand, and there are fine details which only lawyers can understand. And, unless you just dump the whole idea of copyright as a legal entity, that’s always the way it’s going to be. It’s the nature of law, not just of copyright.

  4. duke says:

    Does current legal interpretation of Fair Use exclude commercial testing of transformative use in any conceivable potential market? snip from since revised wikipedia Fair Use:

    Another important Fair Use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. As we indicated previously, depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work. For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all of the elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a Fair Use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. ( Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

    If I get this right, then current legal precedent says copyright owners may claim ownership to any transformative use, even if they haven’t even imagined, considered, or worked hard to deliver it? Any value we prove to add to their property, no matter the sweat on our brow, arguably violates their property rights? If so, practically speaking today, why bother trying to “add value”?

    Is there any legal precedent where transformative Fair Use is judged to add commercial value (ie indentifying, developing, testing, proving and opening a previously unconsidered but valuable new market, employing a clearly transformative new use), to Copyrights?

    is this talk of “adding value” supported, at all, by current law?

  5. BrooksT says:

    Wouldn’t there have to be some threshold for how much value one has to add for it to be fair use? And then wouldn’t that turn into a subjective and thorny issue?

    Suppose I take a classic CD, like Sgt. Peppers’. And here in my home studio I re-equalize it to make the bass punchier and more car-stereo friendly, and maybe speed it up 3% or so (with pitch correction, of course) to make it a little more lively. Surely I’ve added value, as it will be more enjoyable for some people. But should that really be fair use?

  6. l0k1 says:

    Cory: I think that reviews come under the same category as remixes and riffs. They refer to the work. Thus they are free advertising also.

    Regarding the Star Wars derivative works, that comes under trademark not copyright. I think that any fictional universes would fit into the same category, usually franchises involve a trademarked logo. Trademarks require an ongoing maintenance cost by the owners. I think even still, derivative work which is not charged for is permissible, again, it refers to the original works, it does not substitute. If one wanted to charge for such work because it is trademarked there would need to be a profit sharing deal negotiated. This is what registering trademarks is for. To license the use of a brand in the sale of a product. If the material is not sold, then the trademark is not being violated. Or at least it shouldn’t be.

    Expanding copyright is not neccessary, it needs to be cut right back to the bare basics if you ask me. Copyright is just about giving the originator of a work the exclusive right to profit from the work for a period of time which benefits society by encouraging the production of original work. Anything more than this is nonsense.

    Material that is distributed without charge but not under the authorisation of the originator of the work is not displacing any real sales. There may be some losses caused by this and setting up some kind of system where recording media has a nominal tax on it which is distributed to creators of work in proportion with the rates of sales would more than compensate for these losses. This has got to be more cost-effective for the publishers than paying stupid amounts of money to lawyers to try and bully fans into not putting their energy into promoting the published works.

    Just to exemplify why this is a good thing, think about how much awesome work was done by fans for the Matrix universe? Would anyone be so stupid as to say that it took anything away from the original works?

  7. Cory Doctorow says:

    Brookst — the question you need to ask is, “Does that substitute for Sgt Pepper’s?”

  8. JK_in_NYC says:

    Sounds good at first, but many copyright holders would gain new power to argue that, say, a negative review reduces the value of the original work, as in “don’t go see that movie” or “don’t read that book.”

    Likewise, satire (fair use) usually intends to tweak the self-importance of other works, ostensibly limiting the ability of these works to be persuasive, certainly a reduction in value.

    And what of something as simple as celebrity news coverage. Lindsay Lohan (who I assume has incorporated) might be able to argue under these grounds that photographs of her drunk at a party reduce the value of the Lohan brand and are therefore a copyright infringement, much like what Mickey Mouse is protected against.

  9. l0k1 says:

    i said this on slashdot recently, and i think this is relevant here because the topic is the same:

    “I’ve never understood why it isn’t simple – if you make money off it, it’s piracy, unless you negotiate a distribution license. Everything else is fair use. This breaks down a little bit in the context of sites like youtube or showing them on a television show. Thinking it through, I think that such a form of distribution is actually advertising and the copyright holders should leave them alone because it’s advertising that reaches fans directly, the people who they are marketing to, right?”

  10. ron___b says:

    So if Hollywood decides to adapt one of your stories or novels into a major blockbuster movie, that’s fair use and they owe you nothing?

  11. Cory Doctorow says:

    JC@3: No, you’re misunderstanding. Tim isn’t saying that it’s fair use until you cost the rightsholder money: he’s saying it’s fair use unless you substitute your work for his. Mixing your own Sgt Pepper’s levels might substitute for the Beatles’ album. Writing a negative review of Sgt Pepper’s that quotes the lyrics might reduce sales, but it won’t substitute for Sgt Peppers — people won’t buy the review instead of Sgt Peppers.

    LOK1@4: Your definition won’t work because it precludes many, many uses that are presently fair and considered vital: for example, a newspaper review of a book that quotes the book is a commercial use: should you need a license to write critical things about a book? If so, then how many negative reviews do you expect we’ll see in print?

  12. wrybread says:

    #4: all the points #3 made apply against your argument as well: satire is often used in a $$$ making venture, reviews often are, etc. And if you use money making potential for the copyright holder as a mitigating factor, then again that’s giving them leverage against negative publicity.

  13. NealAppeal says:

    I like the definition, but I think where this might get thorny is the subject of sequels and similar types of derivative works. For example, an unauthorized sequel to Star Wars, or a work set in the same universe adds value and does not substitute for the original, but I doubt Lucas would like someone beating him to a Star Wars TV show, or publishing unauthorized Star Wars novels. I think his objections would be fairly reasonable. But a clause saying that works that substitute for derivative yet to be created would be ridiculously open ended. I don’t think it would be any great tragedy if anyone could publish sequels to serieses–that can’t be the real plural of series, but bear with me–or even to publish sequels to serieses still in progress. But it could be a hurtle for this definition would otherwise seem reasonable to even the squares.

  14. woid says:

    The first thing that occurred to me was “what about music that’s built on samples of other music?” And I can’t figure out the answer.

    To give an example, in the early 90s, De La Soul and their producer, Prince Paul, made masterpieces out of samples ranging from James Brown to kiddie records. They and others were sued, and lost. Thus ended the golden age of sample-based music.

    But what category does that kind of reworking fall into? The work doesn’t substitute for the original — it’s an entirely new piece. Does it add value? Maybe. But it’s indisputable that it takes value from the work whose content it’s repurposing. It’s appropriating the value of the original.

    So I think we need a third category. Does it substitute? Does it add value? Does it appropriate?

    And there we are again with the old three-body problem. Maybe it’s just not that simple?

    Please tell me why I’m wrong about this, so I can join the happy believers.

  15. Cory Doctorow says:

    Woid, I think you’ve missed the point. ALL fair use appropriates — fair use describes the circumstances under which it is permissible to appropriate.

    Sampling clearly falls into the adds value/doesn’t substitute camp. Take the Grey Album: it’s a good album (adds value) and no one who hears it will say, “Well, now I guess I don’t need to buy the White Album” (doesn’t substitute).

    The point of copyright isn’t to ensure that no one can “take value” for you — after all, the carpenter who builds the bookcase that my books sit on wouldn’t have a job if it wasn’t for the publishers — it’s to entice people to create. If you block De La Soul, Danger Mouse or other samplers from creating, you’re subverting the purpose of copyright.

  16. Brad Collins says:

    Tim’s definition can be seen as an embodiment of FRBR.

    FRBR (Functional Requirements for Bibliographic Records) is an emerging standard in library cataloging breaks down creative works into a hierarchy of “work”, “expression”, “manifestation” and “item”.

    A work is a concept representing a creative work, an expression is the actual content of the work (words, arrangement etc), the manifestation can be thought of as an edition of a manifestation (paperback, hardcover, large print etc) and an item is the physical instance of a manifestation (a specific copy of a book sitting on a shelf in a library).

    This approach is brilliant, but it’s been *very* difficult to get people to understand it and apply it. Tim’s definition of Fair Use can be used just as easily as a rule of thumb for how to know when something is a separate work in FRBR.

    If you add value to it, it must be a separate work, if you are only doing a variation of that work, it is an expression of the original work. If it is only a reformating of the expression then it is a manifestation. And if it is a duplicate of a manifestation it is a item.

    I mention this, because it just occurred to me that all the work done on FRBR could easily be used as the foundation for a legal definition for copyright law.

  17. asuffield says:

    Woid, I think you’ve missed the point. ALL fair use appropriates — fair use describes the circumstances under which it is permissible to appropriate.

    (“I have a store where I sell licenses to move your DVDs to your iPod; your DVD-ripper substitutes for my product.”)

    The first of those is the answer to the second – the creation of the DVD ripper does not involve any copyrights from the store, and in no way benefits from the existence of the store, so it doesn’t need to be justified as “fair use” in the first place.

    There are probably still thorny, subjective areas under this definition, that just isn’t one of them. And deciding thorny, subjective issues is what we have the courts for in the first place. You probably can’t have a copyright system without borderline cases that need to go to court; you can have a copyright system without rules so complex that pretty much every case can end up in court and nobody knows which way it will turn out.

  18. Tim Wu says:

    Great comments! Wow.

    One important answer. Non-substitutes that nontheless affect the value of the original work in a negative way (say, like a bad book review) are “negative complements”. They are like bad weather.

  19. Jeff says:

    The issue of negitive reviews has be raised. That issue, reduced to its basic level is covered by the First Amendment. The press has the right to give opinion, as do we all. And in the US you can sue anyone. The Lawyers are still the ones playing this for all it’s worth.

  20. johen says:

    An observation:
    “On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.[sic]”

    This is the part that I think so few will want to swallow (*cough* Pirate Bay owners/users/defenders, *cough*)

    Observation 2:
    I think the example of the Beatles re-eq is a very interesting one. As opposed to the Grey album example, I can easily imagine people saying ‘well, now I don’t need to buy the Beatles original’. The problem is in the statement “easily imagine”, since other people would argue otherwise. The terms adding value and substitute need to be very very well defined before one could actually use this idea to replace current copyright laws.

  21. yesno says:

    Cory, great post and great comments.

    Wu’s proposal would presumably remove a revenue stream (licensing) from many content owners, and would be vigorously opposed on that ground.

    Copyright law can be circular in that if the law says that you need a license to use a sample, using a sample without getting the license causes a “harm” to the original song owner: he doesn’t get his license fee. But if the law didn’t recognize that right, and if the sample was used without a license and the second song didn’t substitute, then there would be no harm.

    Another tricky area would be derivative works, which Wu does mention in his update where he talks about “adaptations.” For instance, I would not support a system that allowed movies to be made of a novel without the author’s permission, even though the movie does not substitute for the novel.

  22. robin_hood says:

    There would also be a grey area for “abridged versions” of books – For example, something like Cliff Notes clearly don’t substitute (contrary to what you thought in high school English class), but a more judiciously abridged version of a book might.

  23. The Life Of Bryan says:

    Brilliant. I have an uncle who is an attorney and we have argued over the concepts underlying copyright and other IP laws more than once. Now I can’t wait for the next family gathering.

  24. risser says:

    IANAL, but the question of sequels &c isn’t so much a copyright issue as an intellectual property/trademark issue.

    Clearly, if I make a fan-fic sequel to Star Wars, I’m not violating copyright, as I’m not using any parts of the actual original work. I am using Lucas’ intellectual property, in the form of worlds, characters and whatnot.

    That’s why I think Rowling hasn’t a case in copyright court, but she could argue intellectual property. The existence of the Potter encyclopedia does two things. It potentially prevents her from profiting off her own intellectual property in a similar way. If this thing exists, it will be more difficult for her to create one of her own & sell it. At the very least you can easily argue that she will suffer reduced sales as some people buy the other product.

    Second, it’s possible that her property is used in a way she doesn’t agree with. For example, if the creators of the encyclopedia add their own interpretations and additions that aren’t supported by her or by the text. For example, they might say something like “Potter was engaged in a homosexual, pedophilic relationship with Dumbledore.” You could argue that this sort of statement reduces the value of her intellectual property.

    In any case, I think we need to distinguish between copyright infringement, which is the appropriation of part (or all) of an implementation of a work, and other forms of intellectual property, such as trademark and, well, the concept of intellectual property.

    Peter

  25. Cory Doctorow says:

    Peter, there is no “concept of intellectual property” in law as distinct from trademark, copyright, patent, trade secret. Indeed, the term intellectual property wasn’t widely used until the 1970s, when “author’s monopolies” (the traditional term) was rebranded by a bunch of giant corporations that figured it would be easier to ask governments for help with their “property” than it would be to ask for help with their monopolies.

    Regarding trademark, I’m afraid you’ve got it rather backwards. Unlike copyright — which confers exclusive rights to creators — trademark only gives rightsholders the ability to sue competitors who mislead the public about the origin of goods or services.

    So if you want to bottle a perfume called “Smells like Chanel 5, but it’s not, it’s just a cheap knockoff,” then Chanel can’t say a word. No one will be confused about the origin of the perfume — no one will think it’s a Chanel product — so your use of their mark is just fine.

    Same with things like Star Wars characters (which are both copyrighted and trademarked). If you make a fair use (copyright) of R2D2, AND that use makes it clear that you’re not authorized by Lucasfilm, then you’re in the clear.

    For an example of this, just pick up an issue of MAD Magazine: it’s full of fair uses (parodies) of copyrighted and trademarked goods. The trademark doesn’t come into play because no one will mistake MAD for an authorized Star Wars comic.

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