Quoting Copyrighted Material In User-Generated Videos

If you represent someone who has gotten into trouble over making YouTube videos, there is an interesting and provocative report out by the Center for Social Media called "Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video." You might want to make it part of your defense case, or at least try to use it in early settlement discussions.

From the title, you can get a sense of how the authors view fair use: copyright hardliners use the word "stealing" instead of quoting. The Report reviews the types of uses of copyrighted works in online videos:

- parody and satire
- negative or critical commentary
- positive commentary
- quoting to trigger discussion
- illustration or example
- incidental use
- personal reportage or diaries
- archiving of vulnerable or revealing materials
- pastiche or collage

The Report distinguishes people who simply make copies of popular and widely available copyrighted works and simply forward them for fun. We all agree that's stealing and will get you in trouble.

The Report makes reference to many videos available on YouTube, many of them interesting and funny. It is clear that the writers of the report believe that this video revolution is a good thing, and I agree with their assessment that this is the type of activity that the copyright laws were meant to encourage. I am glad that they are doing what they are doing and think that they did an excellent job with the Documentary Filmmakers' Statement of Best Practices in Fair Use. I am not as certain that the general proposition that "'quoting copyrighted works of popular culture to illustrate an argument or point' can be fair use" has been entirely vindicated by the courts since 2005, and to the extent that it has, there is lingering contrary authority out there that may be used to trap the unwary.

The case cited as a "prime example" is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). It is the only case cited in the Report. That case involved a book published using a small image of a Grateful Dead concert ticket on a timeline illustrating the Grateful Dead's history. It was the only use in the entire book.

Another excellent example of "quoting" being permitted is Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), which involved artist Jeff Koons using a photograph of a woman's foot from a fashion magazine in a collage painting. But this "quoting" story has a sad ending: the artist got stuck with a million-dollar bill for legal fees even though he was successful in defending his work from a copyright claim. On May 9, 2007, Judge Stanton decided in Blanch v. Koons, 485 F. Supp.2d 516 (S.D.N.Y. 2007) that Koons would be stuck paying his own legal fees:

This case involves an "appropriation" artist. Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other's work.That is particularly the case with defendant Koons, who was aware of these risks from his personal experience in Rogers v. Koons, 960 F.2d 301 (2d Cir.1992) and other cases arising from an earlier work "in which Koons slavishly recreated a copyrighted work in a different medium without any objective indicia of transforming it or commenting on the copyrighted work." Blanch v. Koons, 467 F.3d at 262 (Katzmann, J., concurring). As Judge Katzmann stated in his concurring opinion on the appeal in this case (id. at 263): This is our Circuit's second encounter with Koons' work. His work, like that of other appropriation artists, inherently raises difficult questions about the proper scope of copyright protection and the fair-use doctrine. I would continue to answer those questions as necessary to decide particular cases, mindful that the fair-use inquiry is a fact-specific one that is "not to be simplified with bright-line rules." Campbell, 510 U.S. at 577, 114 S.Ct. 1164, 127 L.Ed.2d 500.This case, as well as the fact-specific issue of fair use on which it was ultimately decided, had other distinctive aspects. Most striking was the fact that Blanch did not suffer any damages. She did not suffer, nor sue to recoup, a monetary loss. When she first saw the portion of her work displayed in Koons's painting, her immediate reaction was one of gratification. If Koons had offered Blanch a fee for using her art, it typically would have been $750 or less. Koons's painting did not interfere with any of Blanch's intended uses of her photograph, nor decrease its value. And there were issues other than fair use in the case. Defendants' motions for summary judgment also rested on the statute of limitations, claimed non-infringement due to lack of substantial similarity, and unavailability of punitive damages as a matter of law.The Court of Appeals' primary and concurring opinions, with headnotes and exhibits, require nineteen pages in the 467 F.3d report: pp. 244-263. Defendants' fee application demonstrates their belief that the defense of the case merited well over $1 million in attorneys' fees, including more than $24,000 for computer research.[4] Applying the Fogerty factors as a guide to discretion in this unusual case, one can say that (1) it was not facially frivolous, (2) Blanch's motivation was reasonable, although it was less to recoup a monetary loss than to punish an artist who seemed to have embarked on a series of appropriations of others' work without credit or payment, (3) the legal precedents regarding Koons's work looked favorable, and (4) the particular circumstances do not demonstrate a need for imposition of fees as a deterrent to such suits. On the whole, this is not a case calling for an exercise of discretion in favor of granting attorneys' fees.[5]

Blanch v. Koons 485 F.Supp.2d 516, 518 (S.D.N.Y.,2007). I think the subtext here is that the Judge probably feels that Koons is highly successful and profits immensely from these controversies, win or lose, whereas Blanch is a working photographer whose lawyer probably got carried away. In an earlier decision, the court noted that she had never resold any of her photographs, which appeared in Allure magazine.

The fact that many of the people making YouTube mashups are not making money at it or doing it as hobbyists is probably the most important factor in gauging the dangers lurking in these "do it yourself" videos. A couple of the examples seemed to be corporate-created or used as vehicles to highlight a product or carry advertising. That is going to be the flash-point of the future.

If this is depressing to fair use proponents, a great case to mention is Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003), involving the Danish band Acqua's hit "Barbie Girl". In that case, the artist recouped his legal fees since Mattel kept suing him in violation of his First Amendment rights.

A good case on "quoting" copyrighted works is Perfect 10 v. Amazon.com Inc., 487 F.3d 701 (9th Cir. 2007) which found that making thumbnail low resolution copies of entire photographic works for a video search engine was "highly transformative".

But there is some very very bad precedent out there. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) involved a television production that had a poster in a background shot. The poster was made by the High Museum in Atlanta. On the poster was an image of artist Faith Ringgold's Quilt. In the television show, the poster was never clearly visible, one could see up to 80% of it in the background during scenes of about 20 seconds. The district court found the use "de minimus". The Second Circuit reversed and held that there is no "de minimus" exception to the Copyright Act.

Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997) cert. dismissed 521 U.S. 1146 (1997) is a very bad parody case. A parody called "The Cat Not In the Hat" was removed from the market by Dr. Seuss. The court felt that the author was only using Dr. Seuss to make fun of O.J. and was not making enough fun of Dr. Seuss to qualify as speech protected by the First Amendment. By the same reasoning, I can't put on Mickey Mouse ears and make fun of President Bush because I am not directly making fun of Mickey.

There are also some very mean copyright and trademark owners out there, lots of takedown notices and serious financial threats. For people who have to pay their lawyers and worry about losing their homes, exploring the boundaries of free speech is fraught with perils.

When I tried to click on some of the links to the videos cited in the Center for Social Media's Report, I found that they were links to YouTube that had been taken down. Why didn't they just copy them from YouTube and host those copies on their server? If "quoting" these works is key to understanding the Center for Social Media's work, and I think it is, they should rip them from YouTube, copy them, preserve them and make them available to scholars of the future.