University of Detroit Mercy Law School Professor Peter Friedman says my post on the Gaylord stamp decision is "ridiculous" and (possibly) "disingenuous." I wrote that the case is a good example of "how you can make the traditional four-factor fair use analysis do whatever you want it to do," and I cited Judge Kozinski's comment that "the analysis can always go in either direction."
Nonsense, says Friedman. This is an "easy case." "The court's conclusion that the stamp significantly reworks the sculpture is pretty convincing." Why? Because (1) when you look at the stamp, "you can't tell you're looking at figures that originate in a sculpture" (you can't? what do you think you're looking at then?) and (2) "other than the figures themselves the entire image set forth on the stamp is not present in the sculpture" (I'm not sure what that means, exactly).
But it certainly doesn't undermine my point -- let alone show that it's "ridiculous" -- to say that the court's conclusion was "pretty convincing." My point is just that it's easy to imagine another judge making a "pretty convincing" case in the other direction. Would it not also be "pretty convincing" to say what we really have here is a photograph of a sculpture, only in the snow, and that simply isn't "transformative" enough to be a fair use? Why did the author of the Catcher in the Rye sequel recently lose? Was there not a "pretty convincing" case to be made that he "significantly reworked" the original? Did his book not have (to use the Gaylord court's phrase) a "different expressive character" than Salinger's? Did it not have a "new and different character"? Was that an "easy case" too?
And what about Shepard Fairey's case against the AP?
Or Patrick Cariou's suit against Richard Prince?
Does anybody really have any idea how those cases will turn out?
Or are they "easy" too?
In fact, not everybody agrees that the court got it right in the Gaylord case. Here is IP lawyer Pamela Chestek:
"In my book what [the court] describes is two derivative works, not a transformative use. I'm in the school that the 'transformation' in the fair use analysis refers to whether the second work has a different use and purpose than the original, not how far removed the second is from the original (which instead goes to substantial similarity)."
That's actually very close to what Gaylord argued in one of his post-trial briefs:
"The adaptation of 'Harry Potter and The Sorcerer's Stone' from a book into a movie effected a dramatic 'transformation' of the work from literary to motion picture . . . . But that is not what 'transformative' means in the context of 'fair use' . . . . Thus, the Government erroneously equates 'transformative' to 'changed' or 'different' and thereby confuses the fair use doctrine with the 'derivative works' principle. . . . [The photographer's] contributions are 'additive,' not transformative, and the Government's transformative argument is a 'derivative works' argument in disguise . . . ."
Friedman also argues that "if you want to look at the other [fair use] factors, those too are pretty convincingly [again with the 'pretty convincingly' - DZ] on the side of fair use." He mentions (1) that "the sculpture is public art and therefore constantly viewed for free," (2) it was "done for the government," which, "last [Friedman] heard, is one of the people, by the people, and for the people," and (3) because the stamp "is a government product," it's a "non-profit product." The first two seem completely irrelevant to me, and, as for the third, the Postal Service sold $29 million worth of these stamps. That seems pretty commercial to me.
I'm not convinced (or even pretty convinced) this is as easy a case as Friedman seems to think it is.
UPDATE: Friedman responds (at length) here. I still don't see anything in it that remotely suggests that it's "ridiculous" to think that, in any interesting fair use case, there's no way to predict with any degree of confidence which way a court will rule. He says he "wouldn't be shocked" if the Catcher in the Rye case is reversed on appeal. But that's just my point. I wouldn't be shocked if it's reversed either, but I also wouldn't be shocked if it's upheld. I wouldn't be shocked if the Gaylord decision is reversed. I wouldn't be shocked if Richard Prince wins. I wouldn't be shocked if he loses. I wouldn't be shocked if Fairey wins his case against the AP/Garcia. I wouldn't be shocked if he doesn't. As I said in my initial post, what we have now is a situation of massive uncertainty.