Richard Prince, It’s All Over (2008)

Last year I wrote an essay for the book Media Authorship in which I traced the issues surrounding copyright’s fair use doctrine in the context of contemporary appropriation art. Specifically, I compared two of art’s most notorious copyright infringement lawsuits, Rogers v. Koons (1992) and Cariou v. Prince (2013). Artist Richard Prince’s appeal in the latter case was still pending by the time my words went to press; on April 25 of this year, the Second Circuit Court of Appeals overturned the lower court opinion. It found that, for the most part, Prince’s appropriations of photographer Patrick Cariou’s pictures constituted fair use. Many in the art world saw the ruling as a decisive victory for appropriation art—a type of practice seemingly doomed to perpetually teeter on the precipice of illegality.

Indeed high stakes were riding on the outcome of the case. Had the appeals court upheld district court Judge Deborah Batts’s opinion, the previous gains made for appropriators—exemplified in cases such as Campbell v. Acuff-Rose Music (1994) and Blanch v. Koons (2006)—would have been all but erased, and the fair use doctrine taken a giant step backwards. Importantly, the implications would very likely have reverberated beyond the confines of the art world. Judge Batts’s interpretation of fair use requiring secondary expressions to comment on or criticize their original sources (e.g., parody) could have had a chilling effect across experimental film, music sampling, Youtube remixes – any areas in which there is a culture of creatively copying, which is to say, everywhere. And this just at a time when legal scholars Patricia Aufderheide and Peter Jaszi call for renewed approaches to fair use policy and practice across today’s media landscape. Perhaps it comes as no surprise that, along with ten venerable arts institutions as well as the Andy Warhol Foundation, Google filed a brief in conjunction with Prince’s appeal. In it, the technology company stressed the importance of a copyright law flexible enough to allow for copies of cultural works to be created without a requirement that they expressively refer to their sources. From Google’s perspective, the gravity of the court’s ruling was plain; the company’s business model relies heavily on copy-reliant technologies employed towards non-expressive ends (e.g., indexing algorithms and book scanning). A finding of infringement premised upon lack of referential expression would have put Google’s enterprise in jeopardy.

Fortunately for Google and the art world, the circuit court concluded that Judge Batts had applied the incorrect standard in her fair use determination. The court’s majority opinion clarified that appropriating works are considered fair uses when, irrespective of commentary or criticism, they are transformative, “altering the first with new expression, meaning, or message.” We might understand the decision as affirmation of what Jaszi proposes is a “postmodern turn” in copyright jurisprudence, in which authorial rights as absolute property entitlements subordinate to the flux of meanings inherent in the works today’s consumers-turned-producers create.

Patrick Cariou, Untitled from Yes Rasta (2000)

But how are appropriating works determined to be “transformative”? In alignment with not only a postmodern turn in copyright but also “death of the author” rhetorics commonplace in poststructuralist-infused academia, the circuit court judges came to their conclusion based upon how art works “appear to the reasonable observer.” That is, transformativity is primarily determined not by deciphering authorial intention but with side-by-side analysis of the disputed works, which, as lawyer and artist Sérgio Muñoz Sarmiento cogently points out, amounts, ironically, to a kind of formalist analysis reminiscent of yesteryear’s modern art criticism. The district court judges did cite Prince’s testimony as evidence of his different (and presumably transformative) approach to art-making, but no doubt avoided wading further into the subjective territory of artistic intent given that courts have tended to abide by the century-old wisdom of Supreme Court Justice Oliver Wendell Holmes: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”

For artists, filmmakers, musicians and writers working with appropriated content, Cariou v. Prince may signal a more open horizon for fair use determinations. Yet when the thought processes behind the artistic production are de-emphasized, the very goal of copyright—the promotion of progress in the arts—is called into question. Increased freedoms should not necessarily be equated with artistic progress. The advancement of art occurs precisely when works enter into dialogue and debate with one another, and much of that rides on artistic intent and concept. Reshuffling the deck of our glutted mediascape and re-presenting a new, decontextualized permutation may now be legal, but it is not clear if it is ethical. Cariou v. Prince should not absolve cultural producers from their responsibility toward the images, texts and sounds they take, for maintaining a “semiotic integrity” in the name of progress in the arts.

Lesson 2: Teachers need to be aware that they may be personally liable for their use of copyrighted materials through digital interfaces.[1]

There are a host of factors to consider when reading about this case. First, the plaintiff publishers named the following figures as defendants: the university President, Provost, Dean of Libraries, and the Board of Regents. Individual teachers, though cited by name in the decision and asked to testify at trial about their pedagogical use of publisher-owned materials, were not in this instance directly sued by the publishers. This seems an important item for further discussion. When I asked an attorney whether I may myself be personally liable in the future, I was told by said attorney that I was not named in this case. That is the sole comfort I received as I was seemingly legally bound to participate in this process.  Certainly one presumes a member of the Board of Regents may have deeper pockets than an early-career academic, but the fact that the elite of our university were named in this case does not mean that they are exclusively vulnerable to this type of claim.  The lessons of the individuals sued over Napster remain significant when considering copyright protection.[2]

Every time any attorney addressed me in an email or at the start of a meeting, they called me professor, and every single time I reminded them of my status as a graduate student. I don’t think the lawyers necessarily understood the full implications of my insistence on this distinction, but I felt uniquely vulnerable as a graduate student. While other non-tenured faculty called to testify bore the burden of different professional stakes than tenured faculty members, my status as a graduate student identifies unique risks for a young teacher. In addition to my relative inexperience compared to other GSU teachers asked to testify about our classroom use of E-Reserves, I also question my relationship with the university. Am I an employee with the same protections as faculty? Would the university defend my role in the classroom on an equal level?  Are there deeper dangers in my testimony as someone building a CV and entering the job market? More broadly, to what extent are graduate student teachers being prepared for education in the digital age? Should universities and departments be even more active in mentoring and overseeing graduate student teaching, including advice about the use of digital course sites (from E-Reserves to uLearn to a personal website) and instruction about the requirements for a claim of Fair Use? I voluntarily attended sessions offered through our Center for Teaching and Learning that allowed me to chat with a University attorney and to learn more about copyright issues.  But this is not necessarily typical behavior for extremely busy graduate student teachers. Given the current institutional context in which we live, departments and universities should require more education about copyright law and fair use exemptions for both undergraduates and graduates.

Lesson 3: This case highlights the limits of the symbiotic relationship between academic scholar and the academic publisher.

My use of ‘symbiotic’ implies that we each offer the other something, sharing a mutual dependency. Publishers need content, and scholars need an outlet for their work. Yet is symbiotic too generous a term for a system in which our work is commodified with little or no remuneration for our individual effort? Also consider this next example which is not hyperbole or hysteria—one of the professors called to testify in this case was asked about her classroom use of an essay she herself wrote.  This professor did not hold the rights to her work, though, so the publisher alleged that her provision of that essay for her students through the library’s E-Reserve was a violation of the publisher’s ownership of the content she produced.[3]

At a minimum, I’d like this post to remind any readers entering into a contract with an academic publisher to consider the details of the contract. Do you maintain any ownership rights to your work? Has the contract accounted for digital reproduction and classroom use? Does the publisher have an official policy on what qualifies as Fair Use? Sage, Cambridge and Oxford were the plaintiffs in the GSU case, but academics should demand more equitable terms with any publisher with which we partner.[4]

Some of you may have heard that this week a Georgia judge issued a long-awaited legal decision in a case entitled Cambridge University Press v Mark P. Becker. If you haven’t paid attention to it before, it is important to read up on it now, as the ruling impacts each and every academic and student.

In case you haven’t been following the suit, here’s a quick summary: In 2008, three academic publishers (Oxford, Cambridge, and Sage) filed suit against Georgia State University [GSU] for copyright infringement. At issue was how instructors were using the library’s E-Reserve system—a password-protected site that offered for students scanned copies of chapters from books and journal articles from reading lists for individual courses. After a three-week trial in May 2011 and one year of deliberation, Judge Orinda Evans found GSU guilty of five cases of copyright infringement. That may sound like a loss but in fact GSU was not considered liable or viewed as acting within the bounds of Fair Use for 94 other alleged infringements.[1] You can read the decision here and there are already a few legal interpretations of the decision offered online here and here. There is certain to be more legal analyses of this decision because its implications for broader academic and pedagogical practices may be significant.

In general, there seems to be reason for GSU and other universities to pop the cork on some champagne—the limited “wins” for the plaintiff have likely made future cases of this type more trouble than they are worth. The wider implications of the case, however, are more concerning.

I should note up front that I am not a law student. I’m a media studies doctoral candidate with an interest in policy. Nothing I write here carries with it the authority of a legal degree. Instead, I offer an experiential discourse because I provided a deposition for this trial. I’d really love this post to be a detailed discussion of the deposition process, because I found it fascinating, but as this case will likely continue on appeal, I don’t want to implicate myself further. This concern—my worry of implicating myself—is what I’d like to focus on for the rest of this piece, offered in two parts, sharing a few lessons learned.

Lesson 1: Universities and departments have a responsibility to educate faculty and student teachers about Fair Use and official policy regarding copyright.

Even as we worry that libraries are losing their role as community centers of learning and gathering, Fair Use has infused many of these sites with a new mission. The GSU legal team advanced an argument that our use of digital materials on E-Reserve equaled the placing of hard copies of a book chapter owned by the library on a tangible reserve list. This argument seems persuasive to me, but it demonstrates the thorny issues involved in digitally reproducing materials for instructional purposes. The fact that faculty use of library resources formed the heart of this case should not be read as a validation of similar use of uLearn (formerly Blackboard) and personal faculty websites. Any time teachers upload copyrighted material to a website without adequate attention to Fair Use, they are potentially liable for copyright infringement.[2]

My favorite tidbit about this case is that one dispute between the plaintiff and the defendant centered on the question of what qualifies as a book or work in a Fair Use claim. The plaintiff argued that any numerical interpretation of Fair Use should not include in the page count the table of contents, figures, index, or footnotes. For example, a common perception of Fair Use posits that use of 10% of a book, when that 10% does not constitute the “heart of the work,” may be Fair Use. The 10% here must be calculated against the page total of the chapters only. This struggle over semantics indicates the intricacies involved in understanding the constantly evolving case law of copyright and Fair Use, underscoring the urgent need for a common set of practices across academia, or at least within disciplines.[3] As the GSU case documents, many professors do not share a common understanding of how our university defines Fair Use. Education of our educators is essential.

In the comments, please feel free to offer ideas for how universities can better address the challenges of copyright and Fair Use. Did your pedagogy course address these topics? Does your university host mandatory continuing learning sessions about Fair Use and university policy? Do you partner with an organization that advocates for Fair Use?

In part two of this post, I will address lessons for individual scholars and teachers.