Fair Use of the Week: Trollface – by “Shirley B”

This week on Fair Use of the Week we will be talking about Trollface.  Yes, trollface.  If you haven’t heard of it, or at least seen it, then you’re probably eighty and not spending enough time on the internet.  “Trolling,” which originally was used to describe a fishing technique in which one would drag a lure through the water to bait the fish out, now, in the digital world, describes the act of goading someone to elicit a reaction.  Whether someone does it “for the lulz” or some other reason, trolling has become annoyingly common, and Trollface is its symbol.  But now, Trollface’s widespread usage is under attack by its purported creator, a deviant art user who goes by the username Whynne.  Whynne alleges that users of the link aggregation and social media website Reddit.com, specifically of the subreddit “F7U12,” or “FFFFFFFUUUUUUUUUUUU,” has used his copyrighted image in a manner “devastatingly injurious to its original iconic value.”

Whynne's email complaining of copyright infringement.

Trollface purportedly first appeared in one of Whynne’s comics, seen here.  This week, we will determine whether or not Trollface and its use in rage comics on Reddit.com is fair.  To do that, we will look at the history of the image itself and the nature of the images as they are featured in specifically on Reddit.

This case is different from many of the others we have covered because Whynne is bringing a complaint against both Reddit and a group of Redditors, rather than a single independent actor. Because it would be impractical and essentially impossible to look at every single rage comic with Trollface that has ever been created, we will speak in generalizations and primarily about the role that Reddit.com has played in the alleged infringement.

Factor 1: The Purpose and Character of the Use: As we always do in our analyses, for this factor we will look at whether the work is transformative enough to stand up to a fair use claim and whether or not the work is being used in a commericial way.  First, the individual creators of rage comics (hereinafter “F7U12 Redditors”) juxtapose a high resolution image of Trollface with a person’s face that allegedly resembles the image.  While this may seem transformative, it is questionable whether the juxtaposition imparts new meaning on the Trollface.  In fact, the Trollface is probably imparting the meaning onto the actual faces, thereby making the use of Trollface non-transformative.  Second, some F7U12 Redditors may receive advertising profit from their individual websites.  As such, the use of Trollface by F7U12 Redditors who receive advertising profit is commercial and, thus, presumptively unfair.  When taking all this into account, this first factor seems to disfavor the F7U12 Redditors.

Reddit.com’s use, however, falls even more strongly in the realm of non-commercial use.  Reddit.com hosts thumbnail images of the Trollface and only links to the high-resolution images.  The low resolution images hosted by Reddit.com have little commercial value, and the use of them is practically non-commercial.  As such, Reddit.com is, in many ways, a link aggregation and search site like Google.

To understand why Reddit.com’s use of Trollface thumbnails is transformative, one must understand how Reddit.com operates.  Harnessing the wisdom of the crowds, Reddit.com uses a system called “karma.”   “Karma” makes sure that good posts “float” to the top, while posts that people don’t like are buried.  Users comment on the posts, and, similarly, their comments “float” to the top in the way that popular posts do.  From this persecptive, Reddit.com’s “karma” system provides public benefit by identifying newsworthy posts.

Here, the posts in dispute incorporate thumbnail images of Trollface.  These Trollface thumbnails are juxtaposed with Reddit.com’s karma ranking plus the community’s comments.  This makes Reddit.com’s use of thumbnails highly transformative because Reddit.com imparts new meaning on them.  As such, the trollface thumbnails serve an entirely different purpose than what Whynne intended.  This transformative use, coupled with the public benefit of Reddit.com, means that the first factor weighs in Reddit.com’s favor.

Factor 2: The Nature of the Copyrighted Work: Whynne originally made Trollface without any commercial motivation.  Trollface is itself a fair use of another’s drawing.   As Whynne admits, Trollface was his own attempt to draw Rape Rodent, and Rape Rodent itself was an attempt to draw Mighty Mouse.  The drawing of Mighty Mouse came out looking so creepy it earned the monikers “Rape Rodent” and “Molester Mouse.”  However, Whynne has registered his image with the U.S. Copyright Office and thus removed his image from the public domain.  Whynne has a right to make derivatives of his original comic, and because Trollface is a derivative work from Whynne’s original comic, it is protected by copyright.  As such, this factor weighs against the F7U12 Redditors.  Similarly, because the photos appeared on the internet before Reddit.com used corresponding thumbnail versions in its social news website, this factor weighs slightly against Reddit.com.

Factor 3: The Amount and Substantiality of the Portion Used: Trollface first appeared not as a standalone image, but as a single panel in a comic. Users of Reddit do not replicate Whynne’s entire comic, but only take the face itself.  Still, they replicate the face in its high-rez entirety.   This means that this first factor weighs against the F7U12 Redditors.

Conversely, Reddit.com only hosts and displays thumbnails on its site.  The high resolution images are kept on websites that specialize in image hosting, like imgur.com, to which Reddit links.  The use of thumbnails by a search provider, as the court in Perfect 10 v. Amazon.com held, constitute a reasonable amount of copying.  Using something less than a thumbnail would be unhelpful to a computer user.  Therefore, this factor weighs heavily in favor of Reddit.com.

Factor 4: The Effect of Use Upon Potential Markets: It is foremost important to identify the potential harm to the relevant markets.  Whynne makes a profit on his illustration by licensing it for merchandise. For example, he licenses his image with Deviant Art, which sells shirts, hats, buttons, bags, and even keychains on its site.  Whynne also has a line of Trollface soaps with the British website soapier.com and has tried to have Hot Topic carry a line of Trollface t-shirts.  These pieces of merchandise utilize high-resolution images of Trollface.

Whynne alleges in his complaint that the use of Trollface by F7U12 Redditors has harmed his original comic’s “iconic value.”  If Trollface fans were buying comics by F7U12 Redditors, we would agree.  However, from our research, no F7U12 Redditors are selling their comics.  Nevertheless, to the extent that F7U12 Redditors are reproducing high-resolution Trollface images without a license and then profiting from such use, we do think that they are harming Whynne’s potential licensing market.  Yet, this distinction between for-profit and not-for-profit F7U12 Redditors is artificial because none of the F7U12 Redditors’ uses are transformative.  When there is no transformative use, there is a presumption of market harm, which means this fourth fair use factor weighs against all of the F7U12 Redditors.

On the other hand, Reddit.com’s use has hardly harmed the market for Whynne’s full-size images and Trollface licenses.  Reddit.com’s low resolution, thumbnail images were highly transformative, and any allegation of market harm would be purely speculative–especially since there is, arguably, no commercial market for thumbnail images.  Therefore, this fourth fair use factor weighs in favor of Reddit.com.

Conclusion: Weighing the fair use factors leads to the conclusion that the F7U12 Redditors’ uses were unfair as none of the factors weigh in their favor.  But weighing the factors also leads to the conclusion that Reddit.com’s use was a fair one, especially in light of the public utility served by its “karma” feature and the transformative nature of its use.

Fair Use of the Week: Obama, Son of Strelka, and a New Genesis – by “Aditya K”

Barack Obama’s voice is something else. It’s calming; it’s soothing; and it’s powerful. Dan Warren was listening to Obama’s 2005 audiobook Dreams From My Father when inspiration struck him: What if he utilized Obama’s “grandiose, epic language” and taletelling timbre to create his own story?

And thus, Son of Strelka, Son of God was born. The story—a creation myth like no other—tells the story of Stanley, the son of the creator. Stanley travels far and wide, his tale narrated seamlessly by our very own POTUS.

(Animation done by Ainsley Seago. Story and music by Dan Warren.)

I recently stumbled upon this amazing work via an article on Slate Magazine’s website. A major question surrounding this new piece was whether or not it infringed on the copyrights of the audiobook it drew from. The article’s author, David Weigel, mentions that artist Dan Warren did not worry too much about the legality of the remix:

If there was any question about fair use, he had an answer. “It could be seen as commentary on Obama’s story,” he explains. “People did think he was going to remake the world. I thought he was going to remake the world! Although maybe in less dramatic terms than in this story.”

When Warren first released his creation on the Something Awful forums, he stated: “It’s almost certainly fair use, but that doesn’t mean that there wouldn’t be legal hassles if I tried to sell it.” In our latest installment of Fair Use of the Week, we’ll explore exactly how and why Son of Strelka, Son of God qualifies for fair use protection.

Fair Use Analysis
As we’ve done in past Fair Use of the Weeks, I’ll don my faux judicial robes and analyze the four factors that help determine whether or not Son of Strelka, Son of God is a fair use of copyrighted works. If these factors, laid out in §107 of the Copyright Act, weigh in favor of fair use, then Dan Warren is not liable for copyright infringement.

Factor 1: The purpose and character of the use. This factor centers on the idea of how transformative the new work is. A transformative work, generally defined as having new expression or meaning, is protected by fair use.

Son of Strelka, Son of God consists of segments of Barack Obama’s audiobooks spliced together to give a whole new meaning. Warren rearranged Obama’s words and phrases over original musical tracks to create a novel myth. This repurposing of the audiobook’s recording should be enough to mark Son of Strelka as transformative; however, Warren poses a further argument. As he mentioned in his Slate interview, the new artistic meaning could be a commentary on the public’s conviction that Obama was going to remake the world. By presenting Obama as a storyteller of a new Genesis, Warren is doing just that.

Another aspect of this first factor regards the commercial nature of the use. Son of Strelka, Son of God is available for free online. (Warren himself figured that selling his work would probably bring more legal troubles.) Releasing his work for free strengthens the argument that his work was a good faith fair use of a copyrighted work for the sake of commentary.

Factor 2: The nature of the copyrighted work. The second factor pertains to the copyrighted work that was sampled from or reappropriated. In this case, the work is Barack Obama’s audiobook, Dreams From My Father. Though the audiobook itself is a derivative work based on a preexisting work—Obama’s original book—Section 106 of the Copyright Act gives the copyright owner exclusive rights “to prepare derivative works based upon the copyrighted work.” Section 103 guarantees this new work, however, its own independent copyright. Son of Strelka probably is transformative enough to not violate the original book’s copyrights—portions of text were jumbled together out of context—so the question of fair use centers on the recorded portion of the audiobook. Regardless, both the audiobook and the original text are copyrighted, widely published, and sold, so this factor weighs against fair use.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The idea behind this factor is somewhat logical: the more of a copyrighted work you use, the less of a chance it is a fair use. This is especially true when the bulk of the use is unchanged or verbatim.

With Son of Strelka, Son of God, lines of Obama’s audiobook were taken out of order and spliced together into a new context. In total, the new story is 32 minutes long, but a relatively small percentage of the original work was used—in total. Only a few sentences, if not a few words, were used at a time, and Warren’s finite use was enough to create a truly transformative work. I believe this limited use allows for the third factor to fall in favor of fair use.

Factor 4: The effect of the use upon the potential market for, or value of, the copyrighted work. This factor tests whether the use of the copyrighted work has an appreciable effect on the original work’s market. Essentially, if the fair use competes directly with the original work, it is harder to make an argument for fair use; if the new work complements the copyrighted original, fair use becomes a more viable argument.

Son of Strelka, Son of God does not appear to harm the potential market for Barack Obama’s audiobook, Dreams From My Father. This is not because Son of Strelka is noncommercial; just because something is free does not mean it wouldn’t harm the original’s market. Both works are audiobooks, so there is a potential market substitution. However, the nature of Barack Obama’s work—a nonfictional narrative performed by the current President of the United States—is quite different from the nature of Son of Strelka—a fictional, mythical tale. A simple factor such as difference in genre leads me to believe that market effect, in this case, is not an issue.

Another aspect of the fourth factor is whether the use hurts the potential market for derivative works. I might be wrong, but I don’t believe there is a large market for derivative works when it comes to audiobooks. Unlike musical works, audiobooks are rarely sampled or licensed. For these reasons, I believe that the fourth factor sides with fair use.

Conclusion Even though they are public figures and their actions and statements may be newsworthy, presidents are entitled to all of the protections of copyright. That being said, their public persona makes them easy targets for fair uses of their copyrighted works—parody, criticism, news reporting, and other transformative works. Presidential mashups are not new, nor will they go out of fashion any time soon. In the case of Son of Strelka, Son of God, Dan Warren is completely justified in his assertion that his use of Barack Obama’s voice is fair and allowed according to the law.

Fair Use of the Week: Friends With Benefits v. No Strings Attached – by “Julie S”

Summer movies can range from epic cinematic prequels of beloved comics to formulaic rom-coms created to feast on the money of bored teenagers and pining singles.  One YouTube trailer that was a hit this week mocked the last type of blockbuster by using copyrighted materials from No Strings Attached and Friends With Benefits to create a mash-up trailer satirizing the painfully obvious formulas of the movies, and it is this mock trailer that provides the subject for this week’s fair use analysis.

When analyzing whether a mash-up is covered under fair use, we once again look to the four fair use factors set forth in §107 of the Copyright Act. We will examine each of these four factors to determine whether fair use protects BlindFilmCritic Tommy Edison’s mash-up, Friends With Benefits v. No Strings Attached.

Factor 1: The purpose and character of the use. The purpose of this trailer is non-commercial and for entertainment purposes only, intended to provide a “humorous & unique perspective on movies.”  In the mash-up trailer we examine today, Edison used bits of both movies and cut them together to show their similarities.  He interspersed the clips to highlight the similar characters and plot, and he even made new captions in the font used for Friends with Benefits to help make his mash-up seem like a more authentic mock trailer with funny captions like “same sidekick friend” “same wacky parents,” “same random gay jokes,” and “same camera angles.”

By putting clips from each film in the context of the other, the trailer transforms both of the original trailers, shedding new comedic light on the similar plotlines of these two predictable romantic comedies and making an even broader point about the lazy formulaic trend of the movie business. In Video Pipeline v. Buena Vista the Court acknowledged that there is valuable creativity fostered by choosing the snippets of a trailer, even while denying fair use to Video Pipeline (albeit because the trailer in that case was commercial nature whereas the one here is for entertainment purposes only).  Edison’s creativity is made all the more valuable  with the added captions and the obvious satirical and critical take on the two movies. Because of the importance of fair use to the fostering of creativity and the safeguard of free speech (parodies and criticism), the first factor favors fair use.

Factor 2: The nature of the copyrighted work. In his mash-up, Edison uses snippets from Friends with Benefits (the trailer) and from No Strings Attached (the trailer and other parts of the movie, e.g. the clip of Ashton Kutcher complaining that his father is dating his ex-girlfriend).  Because trailers are promotional and easily available it may not seem that they are commercial, but as it turns out they are derivative of the movie and protected by its copyright. Both No Strings Attached and Friends With Benefits are copyrighted and commercial in nature and so are the official trailers weighing the second factor against fair use.

Factor 3: The amount and substantiality of the portion used. The mash-up consists almost entirely of copyrighted materials but that doesn’t necessarily mean that Edison used an excess of copyrighted material to conjure up the work he was commenting on. He used enough materials to create a trailer-length mash-up to show rather than tell the audience of his opinions on the similarities of the two movies in a visual method of commentary that was both effective and funny.  Edison used just enough copyrighted materials from both films to accomplish this goal, and no clip lasted for more than a few seconds at a time. While the amount of copyrighted material comes out to a high percentage of the entire mash-up, each clip is short and on its own remains unsubstantial.  As a result, this third factor weighs in favor of fair use.

Factor 4: The effect of use upon the potential market. It’s possible that the mash-up could discourage moviegoers from paying to watch one of the movies by showing its audience that the movies seem to be interchangeable, potentially killing demand.  But we learned from Campbell v. Acuff-Rose that even when “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” So even if the mash-up discourages viewers from seeing Friends With Benefits in theaters or buying the DVD of No Strings Attached, that effect is not the concern of the uploader.  This fourth factor therefore seems to weigh in favor of fair use.  But since trailers are copyrighted as a derivative of the movie’s copyright we may want to examine whether Edison’s trailer replaces the derivative (namely the copyrighted trailers).  But unlike the copyrighted trailers for the two movies, Edison’s mash-up trailer is not intended to play in theaters or to replace the derivative works and so the fourth factor remains in favor of fair use.

With the court’s traditional emphasis on the first and fourth factors of §107 of the Copyright Act, and the critical nature of the mash-up, we believe that Blind Film Critic Tommy Edison’s mash-up is protected under fair use.

Fair Use of the Week: My Little Wu-Tang Clan by Viraus2 – by “Julie S”

Background

One meme that has reached a widespread audience is the series of trailer mashups, music videos and fan videos brought to the forefront of the internet from the minds of the growing adult-male diehard fans of – yes, you’re reading this correctly – the animated TV series, My Little Pony: Friendship is Magic. They call themselves “Bronies,” and their unforeseen and yet vested interest in a TV show whose intended audience was prepubescent girls was equally unanticipated by My Little Pony creator Lauren Faust. Regardless of how or why the 20 and 30 somethings were first drawn to Twilight Sparkle and the mystical land of Equestria, the fan base has caught the attention of the /b/ board of 4chan, a dangerous playing field of trolls and hackers.

The YouTube account of Brony Masterlinkx had been shut down and restored multiple times this year allegedly at the hands of Hasbro on account of copyright infringement, but without comment from Hasbro, it’s unclear whether the takedown notices were authentic,or the handiwork of meddling 4chaners. Uploading of verbatim episodes aside, this week we will examine the Brony mashup, My Little Wu-Tang Clan.  Note, this is NSFW for language.

Fair Use: My Little Wu Tang Clan by Viraus2

When analyzing whether a mashup is covered under fair use, we look to the four fair use factors set forth in the §107 of the Copyright Act. As in earlier installments, we’ll examine each of these four factors to determine whether My Little Wu Tang Clan constitutes fair use.

Factor 1: The purpose and character of the use. My Little Wu Tang Clan is noncommercial and intended for entertainment purposes. The video takes two disharmonious styles – the cuddly innocence of MLP and the hardcore thug syle of the Wu-Tang Clan’s Shame on a Nigga – and mashes them together, cutting up the visuals from My Little Pony to fit with the Wu-Tang Clan song through a convincing lip-synch.

The effect is jarring and potentially comedic because hearing obscenities come out of a pony/unicorn is not in line with the original style of either work. But what does transforming these styles and meshing them mean?  We could read social commentary into the recontextualization of these two pieces—the impotence of children’s television programming and the childishness of rap and hip-hop.  By mixing these two styles, the author, Viraus2, transforms these two pieces and dilutes the extremes of both ends.

While the transformation arguably sexualizes My Little Pony, obscene transformations fare no differently than decent ones under copyright law. In Pillsbury v. Milky Way, the court noted that “value judgments have no place in a [fair use] analysis.” The crude nature of the mashup alone cannot deem the use unfair. Because My Little Wu Tang Clan is noncommercial and transformative, this first factor favors fair use.

Factor 2: The nature of the copyrighted work. Both My Little Pony and Wu-Tang’s material are copyrighted and commercial in nature. As a result, this second factor weighs against the Brony mashup.

Factor 3: The amount and substantiality of the portion used. Snippets of visuals from My Little Pony were remixed to appear lip-synced to the audio from Wu-Tang Clan. Likewise, visual snippets from Wu-Tang’s music video were incorporated into the mashup. The final product consisted only of these copyrighted materials. This means that the Bronies used a substantial portion of the copyrighted visual works. Furthermore, the Wu-Tang Clan’s song was used in its entirety, which goes against the spirit of fair use. The quality or fidelity of the song, however, was reduced by its uploading to YouTube. Nevertheless, because the Bronies used more than enough copyrighted material “conjure up” the work that they were commenting on, this third factor weighs against fair use.

Factor 4: The effect of use upon the potential market. It’s important to identify the potential markets that Hasbro and the Wu-Tang Clan are targeting. My Little Pony targets young girls and the Wu-Tang Clan primarily targets adolescent males. It doesn’t seem that the demand of the Brony market would harm eitherof the other two markets.  My Little Wu Tang Clan is not a substitute for My Little Pony. At best, it complements the Wu-Tang Clan’s higher-quality soundtrack.

While Hasbro may have legitimate concerns that My Little Wu Tang Clan is tarnishing My Little Pony, these concerns do not weigh against copyright fair use. In Campbell v.Acuff-Rose, the Supreme Court recognized that when a “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” This means that devastating criticism may actually decrease the demand for the original work, but that is not the kind of market effect that justifies a denial of fair use. Here, this fourth factor favors the Bronies because their specialty market is limited and the potential harm to My Little Pony and the Wu-Tang Clan seem minimal.

Generally, courts recognize that the first and fourth factors are the most important in a fair use analysis. When we consider the weight of all these factors and the major recontextualization that My Little Wu-Tang Clan has done to both materials, we feel that the video is protected by fair use. If Hasbro would have recognized that the Bronies’ transformative work poses little threat to My Little Pony, it’s unlikely that Hasbro would have asked YouTube to takedown My Little Wu-Tang Clan.

Because the law permits companies like Hasbro to shield their fair use analyses from public view, these companies are not being held accountable for sending improper takedown notices. As mentioned last week, ISPs like YouTube and Tumblr have little incentive to find defects with a takedown notice. Without reform to the DMCA’s notice-takedown-putback regime, corporate might will continue to define the outermost limits of creativity that user-generated content fosters.

Fair Use of the Week: “Peanutweeter” – by “Shirley B”

In this fourth installment of the YaleLawTech Fair Use of the Week series, we would like to wish the Digital Millennium Copyright Act (DMCA) a belated tenth birthday. However, our installment this week is about Peanutweeter, a microblog devoted to humorous mashups of tweets and Peanuts comic strips. Tumblr, which hosted Peanutweeter, removed the microblog on June 16, 2011, after a DMCA takedown notice.

T. Jason Agnello is the creator of Peanutweeter, which mashed together Peanuts and tweets to create humorous images.  In essence, Agnello inserted funny tweets that he found in his browsing of Twitter into the speech bubbles of Peanuts characters.  Despite, or perhaps because of, the site’s growing popularity, Iconix Brand Group (Iconix), who owns the copyrights to the Peanuts comic strips and characters, requested that Tumblr remove the blog. Although Agnello believes that he has a good claim to fair use of the Peanuts characters, he feels that he has neither the energy nor the revenue to fight the takedown.

In this post, we will look at the DMCA’s notice-takedown-putback provisions. We will also examine Agnello’s fair use claim, and, from this perspective, look back at how the DMCA has affected creativity over the last decade.

DMCA: Notice, Takedown, Counter-Notice, and Putback
Section 512(g) of the DMCA requires service providers, like Tumblr, who are engaged in webhosting to adopt, reasonably implement, and inform their users of a policy that provides for the removal of user content when users infringe on another’s copyright. Although a service provider does not need to comply, it would expose itself to liability for copyright infringement.

When a company like Tumblr does comply, here’s how the process works.  In our example, John represents a mashup artist, and Jane represents the owner of a copyrighted work that John is using in his mashup.

Notice and Takedown

  1. John posts a copy of Jane’s work on his Tumblr-hosted website.
  2. Jane finds John’s posted copy.
  3. Jane notifies Tumblr, via Tumblr’s designated agent, that her work is being infringed upon.
  4. Jane sends Tumblr’s agent a sworn and signed notice, which includes:
    1. an identification of Jane’s copyrighted material, including “information reasonably sufficient to permit the service provider to locate the material,” and
    2. a good faith belief that John is using Jane’s copyrighted material without permission; e.g., without fair use.
  5. Tumblr takes down John’s content and tells Jane that it did so.

Counter-Notice and Putback

  1. John has the option of sending a counter-notification to Tumblr to put back his removed content.
  2. John, in his counter-notification, must swear that he has a good faith belief that Tumblr removed or blocked his content by mistake or misidentification.
  3. Tumblr must provide the counter-notification to Jane and then wait 10-14 days.
  4. If Jane does not respond, Tumblr must put back or unblock John’s material.

The Missing Fair Use Analysis
The most substantial problem that we find is that Iconix’s notice is missing any fair use analysis!  A redacted version of Iconix’s notice is provided here.

Many courts require that copyright holders conduct a fair use analysis before sending a takedown notice. It is not surprising that Iconix omitted this analysis because, when we balance the fair use factors, we find that they favor Mr. Agnello rather than Iconix.

In determining whether or not an artist has a valid claim to fair use, there are four factors that one must balance.  If an artist’s particular use of a copyrighted work is fair under these four factors, then the law excuses the artist’s copyright infringement.  See a prior post for an explanation of these factors, or visit the U.S. Copyright Office’s website.

First Factor: The Purpose and Character of the Use. First we look at the character of the use.  In the case of Peanutweeter, we have two different copyrighted works that are mashed up together with comedic effect: Peanuts and tweets. One could argue that the comic mashups are derivative works because they derive from others’ copyrighted material, i.e. Peanuts and tweets. However, Peanutweeter is transformative because it is more than the sum of its copyrighted parts. It imparts new meaning onto both tweets and Peanuts by placing them into new and interesting contexts.

Although Peanutweeter is certainly hilarious, we would not call it a typical parody, which courts have regarded as explicitly fair use.  Peanutweeter is not mocking or criticizing Peanuts, but sometimes it did poke fun at the Twitter-ers.  The fact that Peanutweeter, as a comic mashup, does not fall into any of the common fair use categories, does not make its character less transformative.

Next, we look at the purpose of the use. Peanutweeter was not-for-profit. It had no ads on its website, and it did not sell any of the comic mashups.  The creator of the site, Jason Agnello has stated, “I made PT for laughs.”  Based on the transformative character and not-for-profit purpose of Peanutweeter, the first fair use factor weighs in Agnello’s favor.

Second Factor: The Nature of the Copyrighted Work. Agnello used Peanuts and tweets in Peanutweeter. Peanuts comics are copyrighted and for-profit works. Tweets, however, are a different story. People have argued back and forth over whether or not these 140 character blurbs are protected material.  In our opinion, tweets are protected under copyright law.  If a work is fixed, original, expressive, and non-factual, its length has no bearing on whether or not the work is copyrightable.  Tweets are generally brief expressions of literary authorship based on what people post on their blogs.  That makes them copyrightable and, in all likelihood, removes them from the public domain.  (On the other hand, we think that tweets about facts, ideas, and unoriginal authorship are not copyrightable.) Because Peanuts and tweets are published and, in all likelihood, not in the public domain, this second factor weighs against Peanutweeter.

Third Factor: The amount and substantiality of the portion used. Peanutweeter used portions of Peanuts comics and others’ tweets.  Regarding the tweets, they were sometimes reproduced in their entirety, which goes against the spirit of fair use.   However, these tweets have inherently low quality and convey very little information.  Because they are so short, a critic generally needs to reproduce the entirety of the tweet to make a point or produce a comedic effect.  Regarding the Peanuts comic strips – the reason why Agnello’s microblog was removed – Agnello used an insubstantial portion of the content. Although he used Peanuts images, which is an important and central aspect to the comics, he used only one panel of what are typically four panel comics.  He used none of the text associated with the comics, which gives them humor and context.  When taking all this into account, this third factor neither favors nor disfavors Peanutweeter.

Fourth Factor: The effect of the use upon the potential market. Peanutweeter was not taking any business away from Iconix Brand Group.  It did not create a rival product or a replacement for Peanuts, nor did it decrease the market demand for the tweets.  It is unlikely that a rational person would accept a quote from Peanutweeter at face value.  Viewed from this perspective, Peanutweeter increased the demand for reading the original tweets and imputed nostalgia for Peanuts.  This fourth factor weighs heavily in Peanutweeter’s favor.

When balancing all of these factors together, we think that Agnello’s use was fair and that Tumblr erred in taking down Agnello’s blog. However, it is understandable why Agnello does not wish to counter the takedown notice. It is likely that Iconix, a large media conglomerate, will respond by filing a complaint in federal court.  It is unlikely that Agnello has the necessary resources to litigate his fair use claim, which is a defense to copyright infringement. The expenses of a drawn-out trial would burden Agnello.

Evaluating the DMCA’s Effect on User-Generated Content
Looking back at the last ten years of the DMCA, we can get some perspective on how it has affected content, especially on the internet.   Despite that Agnello has a very strong case for fair use, in all likelihood, Peanutweeter will remain gone for good.   This result is far too typical.  All but the most famous artists are unable to stand against the legal might of the large corporations that own copyright portfolios.  Your average artist is unaware of how to deal with a takedown notice. In a case like this one, where an ISP has removed content in response to a DMCA takedown notice, the artist can request that the content be put back up.  An artist can even sue because of improper removal.   However, for many artists, these takedown notices are intimidating.   The DMCA has put too much of the power in copyright disputes into the hands of copyright holders, which has certainly diminished the amount of creative content on the web. One simply has to look at YouTomb to get a perspective on how much content has been removed.

On the other hand, the DMCA has allowed ISPs, like Youtube and Tumblr, to flourish. By immunizing them from  copyright infringement when they comply with the notice-takedown-putback regime, the DMCA has given these content providers a great deal of freedom.  These providers can allow users to post content without first inspecting and approving it.  This means that providers don’t need to expend constant resources scanning for potential infringement.

At the moment, the DMCA’s effect has been mostly negative.  When copyright holders exercise their rights under the DMCA, content providers have more incentive to remove potentially infringing content than determine the correctness of a takedown notice.  The net result is to quash creativity.  Perhaps in the next decade, we will find generative versions of the DMCA that better promote creativity while still protecting the rights of authors.

Fair Use of the Week: “Kind of Bloop” – by “Max C.”

bloop

Jay Maisel took the iconic photo of Miles Davis on the cover of Kind of Blue (I’m listening to “So What” right now). Years later, Andy Baio used the same photo on the cover of Kind of Bloop, a remix of Kind of Blue into 8-bit sounds. To make a short story shorter (click through to read Andy’s full side of the story), Maisel thought Baio was infringing on his copyright, and Baio settled for paying $32,500. Andy Baio:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

Maisel goes through his post and does what we normally love to do here: analyze the four factors you know and love:

The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market

Baio and his legal gurus think that the first issue— the transformation— is the key one. It’s also the hardest to ascertain, so I’ll leave it alone for a second. In my entirely unqualified opinion, here’s the analysis on the second through fourth factors:

The nature of the copyrighted work
Is Maisel’s original photograph science? Fact? Biographical? Historical? It might be biographical and historical, but I’ve gotta side with Maisel on this one: it’s a creative work and thus falls squarely against a fair use finding.
No fair use: strike one.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
It used Maisel’s whole photograph. But it didn’t use the whole resolution. Baio points out the absurdity of this component of fair use: where do we draw the line on the resolution? resolution

Baio defends himself on the third factor by asserting,

With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements. Courts routinely find fair use even where the entirety of an image is used.

The reason why courts find fair use even where the entirety of an image is used is because fair use has more than just the third factor! I’m sure that were fair use only the third factor, it wouldn’t be fair use to use the whole image.

What are a photograph’s “protectable elements”? Some quick Lexis-Nexis arrives at an interesting holding from Metcalf v. Bochco, which states, “The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element.” Heck, “the arrangement of puppies in a photograph may constitute a protectable element.” (Corwin v. Walt Disney Co)

Big. Huge. (thanks for that one Tiger) Obviously, a pixel isn’t copyrightable. But a series of pixels, strung together, can be— and Baio’s string looks suspiciously like a sequence of unprotectable elements that end up being protected. No fair use: strike two.

The effect of the use on the potential market for, or value of, the copyrighted work.
Maisel claims that,

“[Maisel] is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”

OK, I get it— Maisel’s a purist. He felt violated. I feel violated every time I get touched in my naughty bits, but it still doesn’t lower the value of my goods. *rimshot*

(Jokes aside, there’s a worthy debate about artistic rights of control— we all are owners of copyrighted material, and I think most people feel that as owners we have the right to control our works. But that’s not the constitutional basis for copyright, nor can it possibly be comprehensively considered in this blog post. Suffice it to say despite making light of it, I care a lot about Maisel feeling violated, but have no final conclusion about artists’ rights.)

No one in their right mind was considering buying Maisel’s photo of Miles Davis, saw Baio’s album cover, and bought that instead, destroying the market value of Maisel’s photo. Or at least, no one would have prior to this lawsuit. But this whole press debacle probably cost Maisel’s work a lot of value. Fair use! Baio’s still alive!

The purpose and character of the use.
OK, so it all comes down to the transformation issue after all. Did Baio’s piece transform Maisel’s work into something new?

I really wish this one had been settled in court, by a judge, who would have had to write an opinion. This settlement denies us the richness of a judgment to refer to in future cases. Instead, I’ll just have to ask myself if there’s new expression or meaning in a pixelated photograph. In context, as an album cover to an 8-bit Kind of Blue, it adds meaning and transforms without stepping on Maisel’s toes. But on its own, I’m uncomfortable with a ruling that would lead to art that has merely had its resolution changed to leaping from the artist’s control into anyone with a copy of Photoshop.

Fair use, once and for all. But that unofficial-Max-Cho ruling has no standing anywhere except my own mind. And it doesn’t mean that resampling an image alone constitutes fair use: due consideration must be given to the transformation of the message— if something truly new is communicated.

Promoting Science and Useful Arts

Sorry Andy Baio, and sorry Jay Maisel for this rough legal ride. I doubt it was a pleasure for either of you, and am saddened and irritated by a legal process that leaves both parties upset, society pissed off, and the world less one fine album cover. I’d like to remind everyone that copyright doesn’t exist in a vaccum: copyright is granted to “promote the progress of science and useful arts.” Any fair use issue whose decision fails to promote the progress of science or useful art is a bad fair use outcome, and I think this is a prime example. It cost both Maisel and Baio a lot of money, harmed two artists, and left the spectators dissatisfied and concerned, and angry. There’s gotta be a better way.

Fair Use of the Week: “Bowling With My Beak” by Key of Awesome – by “chrisnofal”

Welcome to our second Fair Use of the Week, the YaleLawTech series where we analyze popular examples of fair use on the internet.  This week we examine Bowling With My Beak, a musical comedy sketch by Key of Awesome.

Key of Awesome is an online comedy show that spoofs celebrities, pop-culture, and the latest internet memes.  It satirizes pop icons such as Glee, Sarah Palin, and Justin Bieber.  This comedy show came onto the YouTube scene in October 2009.  Check out Bowling With My Beak here:

This mashup combines aspects of Adele’s music video Rolling in the Deep with characters and sound effects from the popular game Angry Birds.  Even though Key of Awesome labels their sketch as a parody, it is more than a parody because it mashes-up multiple copyrighted works: the music and video from Adele’s Rolling in the Deep and the characters and sound effects from Angry Birds.  It is the combining of multiple copyrighted works that makes this sketch a mashup rather than just a parody.

As an interesting side note, if Bowling With My Beak were a true parody, then it would be protected automatically by the preamble to § 107 of the Copyright Act, which lists “criticism” as a sanctioned fair use.  (Read our introductory post for more information about the Copyright Act.) Because we are dealing with a mashup, rather than a parody, we need to conduct a more extensive fair use analysis.

Fair Use Analysis
Courts balance four factors when determining whether it is fair to mash together multiple copyrighted works.  These factors are (1) the purpose and character of the use, (2) the nature of the copyrighted works, (3) the amount and substantiality of the portions used, and (4) the effect of the use on the potential market for, or value of, the copyrighted works.  If the factors weigh in favor of fair use, then a mashup artist is not liable for copyright infringement. (Check out last week’s posting about the song Mash it Up by artist Norwegian Recycling to see how we balanced these factors.)

Factor 1: The purpose and character of the use. A good question to ask when examining this first factor is whether the mashup transforms the copyrighted works by adding new expression or meaning.  A transformative work is protected by fair use, whereas a derivative work is not.  A second question to ask is whether the mashup is commercial or non-commercial.

Like a derivative work, Bowling With My Beak is based on one or more underlying copyrighted works.  Unlike a derivative work, this mashup adds new expression and meaning to the underlying works. Rachel McPhee, who plays Adele, adds new expression to Rolling in the Deep because she lip-syncs to vocals by Anastasia Douglas and lyrics by Mark Douglas with Michael Reisman.  Key of Awesome brings new meaning to both Angry Birds and Rolling in the Deep because the mashup likens Adele, someone in the physical world, to an Angry Bird, something in the virtual world.  These transformative aspects favor fair use.

Although Bowling With My Beak is more than a parody, it would be wrong to say that elements of parody are absent.  Having Rachel McPhee, an Adele look-alike, play Angry Birds while sitting in a chair is clear parody because it exposes the mediocrity and pretentiousness of Adele’s serious music video.  McPhee lip-syncs, “Water glasses are strewn about the room / Got to make a plan to do the dishes soon / This cocaine ninja is smashing dishes / My drummer was naughty so I made him face the wall.”  The lyrics also expose the addictive hold that Angry Birds has over gamers, such as in the lines “I have to get three star-ee—ars / And I’m playing it in my sleep / This 99-cent app purchase is destroying my life.”  Like a parody, this mashup forces us to examine serious issues from a comic standpoint, which makes the use of the underlying works seem fair.

Lastly, we must examine whether the use is commercial or non-commercial.  A commercial use is one that earns a profit.  In short, fair use is not a license for corporate theft. Here, Key of Awesome distributes their mashup for free on YouTube, but charges $1.29 for their music-only version of Bowling With My Beak on Apple’s iTunes. Because the use is not exclusively commercial, it splits our analysis.  When taking all of this into consideration, this first factor favors fair use for the YouTube video but against fair use for the iTunes version.

Factor 2: The nature of the copyrighted work. The second factor favors scientific, factual, biographical, or historical works more than works of entertainment.  This factor weighs against fair use when the underlying copyrighted works are published and sold.  Here, both Rolling in the Deep and Angry Birds are published, sold in the marketplace, and created for entertainment purposes.  This means that this second factor weighs against fair use.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The third factor focuses on whether the mashup artist has taken more than is necessary to make a transformative work.  A mashup artist must take something from a copyrighted work to make a mashup, but not so much as to copy the original work verbatim.  The artist may appropriate only enough to remind the public about what he or she is commenting on.

Here, Key of Awesome takes very little from Rolling in the Deep and Angry Birds.  They imitate the likeness of the Adele’s music video, rather than copying it, and they depart from the video near the end of their mashup.  Key of Awesome uses stuffed animals, rather than computer graphics, to parody Angry Birds.  Bowling With My Beak has a novel melody that combines the tune of Rolling in the Deep with sound effects from Angry Birds.  Anastasia Douglas uses her own voice to sing new lyrics to this creative melody.  Because Key of Awesome takes no more than is necessary to create a successful mashup, this third factor favors fair use for both their iTunes (paid) and YouTube (free) version.

Factor 4: The effect of the use on the potential market for, or value of, the copyrighted work. The fourth factor focuses on whether the use of a work threatens the incentives for creativity that copyright law tries to protect.  If a use is complementary to, rather than a substitute for, the copyrighted work, then the use does not harm the market for the copyrighted work and the use is regarded as fair.

It is clear that the use of Angry Birds does not harm the potential market for the Angry Birds application.  Quite the opposite, Bowling With My Beak can remind gamers to buy the latest version of the application, Angry Birds Rio. For similar reasons, Bowling With My Beak is not a substitute for Rolling in the Deep.  The mashup has entirely different lyrics and vocals, departs from Adele’s music video, and intertwines sound effects from Angry Birds with music from Adele’s song. Bowling With My Beak does not fulfill the demand for Rolling in the Deep or Angry Birds.  Because there is little harm to the potential market for the underlying works, this fourth factor favors fair use for both their iTunes (paid) version and YouTube (free) version.

When weighing all of the above four factors together, we think that both versions of Bowling With My Beak are protected by fair use.  The interest in dissemination of this mashup outweighs the possible harm to incentives for producing creative works.  The mashup comments on some serious social issues through parody.  Adele and the developers of Angry Birds might be less than eager to license their works for ridicule, which is why protecting Bowling With My Beak through fair use is very important.

Fair Use of the Week: “Mash It Up” by Norwegian Recycling – by “Aditya K”

Welcome to our first Fair Use of the Week, a new YaleLawTech series where we analyze new, exciting examples of fair use on the internet. For a little more background on the project and what fair use is, be sure to read our introductory blog post.

This week’s fair use example is a mashup, appropriately called “Mash It Up”, by artist Norwegian Recycling. Norwegian Recycling, whose real name is Frans Peter Bull Enger, has been on the remix scene since 2006. He has produced three mashup albums, and his publishing style is fairly unique in that he pieces music videos together to go along with his tunes. Check out “Mash It Up” here:

 

 

A mashup, as you could probably tell from the video, is the combination of clips from other works of art in order to create a new piece. Most popularly done with music, mashups can comprise of videos, books, collages—really, almost anything. These remixes can feature two songs (e.g. tracks from DJ Danger Mouse’s The Grey Album) or hundreds (e.g. Girl Talk’s Night Ripper). Wikipedia has a great article covering the history and types of mashups.

Norwegian Recycling’s “Mash It Up” combines twelve different songs and music videos to create a new piece with a different meaning. The artist has carefully placed lyrics from all twelve songs to describe—wait for it—the nature of creating a mashup. Very meta, I know.

Fair Use Analysis

Fair use is normally a legal defense against a claim of copyright infringement. For the purposes of this series, however, we’re going to forget that fact and run through a fair use analysis anyway. When courts examine fair use, they look to (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for, or value of, the copyrighted work. If the factors weigh in favor of fair use, there is no copyright liability.

The first factor regards the purpose and character of using the copyrighted material. For this factor, I must determine how “transformative” the new work is. One helpful question to ask, suggested by Stanford’s Fair Use & Copyright Center, is, “Has the material you have taken from the original work been transformed by adding new expression or meaning?” In the case of “Mash It Up,” Norwegian Recycling pieced together multiple copyrighted works to create a new song with an entirely different meaning from the original works. The artist used copyrighted lyrics, often out of context, in order to express his own idea. This is a clear transformation, rather than a derivation, of the copyrighted works. The first factor test also takes into account the commercial nature of the use; in this case, Norwegian Recycling is giving away his mashup for free on his website. His intent, it appears, is noncommercial. It seems that this factor falls in fair use’s favor.

It can be further argued that “Mash It Up” falls under one of fair use law’s sanctioned purposes: commentary. Because of the “meta” nature of the lyrics, including lines like “Now I know that I had to borrow / And try something new / Without being disrespectful,” Norwegian Recycling was commenting on the nature of mashups. He goes on to note, “Ain’t no wonder there’s panic in the industry,” and, “Cuz you’re a criminal / And it’s alright with me.” His lyrics are a clear commentary on the tensions between the music industry, intellectual property, and the remix community. This point of view bolsters the song’s fair use argument.

Norwegian Recycling

The second factor is about the nature of the copyrighted work. The works that “Mash It Up” features, including Cee Lo Green’s “Fuck You,” Lady Gaga’s “Bad Romance,” and Sean Kingston’s “Beautiful Girl,” are all popular, published, and heavily sold songs. Because these are not in the public domain, the factor seems to weigh in their favor.

The third factor covers the amount and substantiality of the portion of copyrighted material used. In “Mash It Up,” Norwegian Recycling uses short lyrical clips—all of which are no more than a few seconds long. Because of this minimal and insubstantial quantity, use of these clips should be fair. That being said, the entire song’s background music is a looped section of Cee Lo Green’s “Fuck You.” Cee Lo’s clip—especially the opening chords—are pretty recognizable, and a rational observer would associate those notes with his song. The “heart” of the work, generally the most memorable part of the tune, often gets more protections than other, more minor portions. This is where things get a little tricky: yes, Cee Lo’s track makes up the background of the entire Norwegian Recycling tune, but do the short cuts of the other songs trump this use? If I had to judge this, I would say yes; the lyrical portions are clearly the more important parts of the mashup, and the combination of lyrical cuts over an edited background seems transformative enough to still render this clip fair use.

The fourth and final factor is the effect of the use on the copyrighted material’s market or value. Norwegian Recycling’s mashups are seemingly noncommercial, as I determined above. I don’t think the song “Mash It Up” serves as a market substitute for the original songs; “Mash It Up” is no replacement for Lady Gaga’s “Bad Romance.” In fact, as has been claimed by other remix artists, mashups encourage listeners to seek out and buy the original tunes. It helps that Norwegian Recycling has listed all twelve sampled works on his song’s YouTube page. This factor weighs in favor of Norwegian Recycling.

As Justice Souter notes in Campbell v. Acuff-Rose Music, fair use doctrine purposely contains vague language so issues would be addressed on a case-by-case basis. He states, “All [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.” Mashups—and other digital-era forms of creativity—force us to consider the nature of copyright, industries, and social norms very carefully. Using my analysis, it seems clear that “Mash It Up” is protected by fair use.

As an interesting side note, Norwegian Recycling may be worried about remixing “without being disrespectful” for good reason. Although being respectful has no place in U.S. copyright law—in fact, potentially harsh criticism is strongly protected by fair use—the issue of respecting the integrity of a copyrighted work is very real in other parts of the world. European law, including Norwegian copyright law, contains a set of rights known as “moral rights.” Criticism, commentary, and parody can offend or detract from a work, thus potentially violating the creator’s moral rights. In this case, cutting songs and mashing them into a new context could raise some alarms. However, since the commentary in “Mash It Up” is directed at a greater industry and culture, rather than directly at the artists themselves, it doesn’t seem like he is violating any of their moral rights.

Fair Use of the Week – by “Aditya K”

FUOTW

Hello YaleLawTech audience! I hope you’re enjoying your June, wherever you may be. I’m happy to announce a new feature on the YLT blog: Fair Use of the Week.

Fair Use of the Week, as the name implies, will be a weekly blog post exploring some current example of fair use. These examples run the gamut of anything on the internet—a mashup, a parody, a compilation, a remix, or a collage. These works might take many forms—digital videos, songs, computer code, or the latest meme. We plan to explore how and why each week’s example embodies the idea of fair use by looking to the text of the Copyright Act, examining judicial precedent, drawing on the historical purposes of copyright, and evaluating the transformative nature of the work.

Fair use is a limitation on copyright infringement. It has often been said that culture builds on the past; this concept is sometimes taken more literally, with works drawing from and incorporating previous works. When this “remix” occurs in a limited amount, in a transformative manner, or for a legally defined purpose (such as commentary, criticism, or parody), it is considered an example of fair use.

In the United States, fair use is defined in Title 17, Section 107, of the United States Code:

    [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means [such as selling, renting, leasing, publicly performing, displaying, or digitally transmitting] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

      (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

      (2) the nature of the copyrighted work;

      (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

      (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This language sets out a broad balancing test and does not draw a “bright line” or mark a clear limit on the quantity or quality of a work that someone can use in order for that use to be “fair.” In fact, only a court can definitively say whether or not a work falls under the protection of fair use, and courts make this determination on a case-by-case basis. (Check out Folsom v. Marsh, which first recognized the court-made doctrine of fair use.) Because of this, there is an unresolved tension between protecting and promoting works experienced by both content owners and remixers. In this blog series, we will show you how the above factors can apply in a variety of ways.

The ability to appropriate material into new pieces is easier than ever. In our digital ecosystem, fair use plays an increasing role as it embodies heartfelt criticism, creation of homage, or affectionate (or not so affectionate) parody. Taking full creative advantage of the internet and new technologies thus relies on the concept of fair use—and a strong commitment to upholding it. Without fair use, much of the novel productions we are used to in this day and age would not exist, putting a cork on these newly explored media. Through this series of blog posts, we hope to show not just the prevalence of fair use, but also its potential, its power, and its importance.