I ran into a friend, and loyal reader of the blog, this morning, who immediately said: "Okay, okay, we get it: the movie isn't any good!"
Point taken, and so let's take a break from The Art of the Steal for a while (though I reserve the right to come back to it if someone has something especially interesting to say about it). How about a little more on the Gaylord fair use decision (mentioned last week here)?
Pitt's Mike Madison says: "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 ... substitute[d] 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?"
In the comments, Marquette's Bruce Boyden says the fair use 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."
In response to which Madison concedes that "if you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be." But he maintains that "the cases themselves, in my view, are almost all badly decided and in some cases badly reasoned."