Friday, April 26, 2013

What You See Is What You See

I also asked my friend Bob Clarida (author of the COPYRIGHT LAW DESKBOOK) what he thought of the decision.  His characteristically interesting response:

"Two stray thoughts I had:

(1) By remanding on the five works with fewer visible changes, has the Second Circuit now closed the door (at least a little) on the argument, seemingly well-settled since Bill Graham, that transformativeness is about context and purpose, not visible changes?  By the ruling's logic, it could be argued that Prince's Marlboro Man pieces, or Sherrie Levine or Barbara Kruger, are not transformative.  So by dwelling on the surface of the works the court may be turning back the clock a little.

"(2) The new standard seems much more like it invites a jury question.  If the standard is at least somewhat tied to artist intent, you can have a case where the parties clearly state on the record what their intentions and meanings were, and the court SHOULD be able to see the disparity and say it's fair use.  There's no disputed fact issue.  But if the standard is to compare the 'aesthetic' of two works, looking only at 'results,' the court has nothing to go on but the physical changes.

"So overall, I think the decision sort of de-conceptualizes the art and treats it as merely a bunch of marks on a surface -- very old-timey and reductionist.  If not a jury, you could program a scanner to do it: 88% optically similar is infringement, 38% optically similar is fair use.  The five sent back for remand were in the middle.  Maybe the court's implicit assumption is that visual differences are key here because both works were 'fine art,' so any asserted difference in purpose is not enough to warrant a fair use finding -- certainly the purpose, context and intent of the five remanded pieces are not much different -- if at all -- from the pieces that qualified for fair use; the only difference is the way they look."