Tuesday, September 16, 2014

Judge Easterbrook Is Not A Fan Of The Prince-Cariou Decision Either (UPDATED 2X)

An interesting fair use decision in the Seventh Circuit, with echoes of Prince-Cariou and, even more so, the Shepard Fairey "Hope" poster case.  The defendants used a photo of the Mayor of Madison, Wisconsin on some t-shirts and tank tops; the photographer sued.

Judge Easterbrook begins by declining to follow the Second Circuit's approach in Prince-Cariou:

"We’re skeptical of Cariou’s approach, because asking exclusively whether something is 'transformative' not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).  Cariou and its predecessors in the Second Circuit do not explain how every 'transformative use' can be 'fair use' without extinguishing the author’s rights under §106(2)."

Later, he provides a very clear statement of the Cariou, get-your-hands-off-my-work position:

"[D]efendants did not need to use the copyrighted work. ... There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their [work], when so many non-­copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-­use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all parodies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)"

Having said that, however, he concludes that it's "not enough to offset the fact that, by the time defendants were done, almost none of the copyrighted work remained," and therefore affirms the district court's ruling of fair use.

UPDATE:  Copyright guru Bob Clarida emails:  "The Seventh Circuit continues to pretend that transformative use is some sort of Second Circuit aberration that merely got a 'mention' in Campbell."

UPDATE 2:  Fierce Prince-Cariou critic Sergio Muñoz Sarmiento responds here.  Nicholas O'Donnell says "it is hard to see yet how long a shadow this case will case relative to Prince."