Much like the Dolby Surround Sound demonstration before a movie in a theater, when you practice in the field of copyright and trademark law, you soon realize copyright law and trademark law is “all around.” The Hubs and I decided to visit the Smithsonian American Art Museum while in Washington, D.C. My biggest takeaway was how some original works of art actually incorporated other previously copyrighted elements in order to create something entirely new and thus subject to copyright protection. It was fair use on display in its purest sense.
The art installation I was most drawn to was Nam June Paik’s Electronic Superhighway: Continental U.S., Alaska, Hawaii. While bright colors and film will always get my attention, what really drew me in was the use of previously copyrighted film elements to create an entirely new piece. The artist Nam June Paik displayed 336 televisions and mapped out each individual state with neon colors. All televisions grouped within the outline of a specific state simultaneously stream the same images and bits of film. For example, within the boards of Kansas, all televisions grouped together stream the beloved film The Wizard of Oz
Read More from the Smithsonian’s Official Site on the Project, HERE
For this media nerd, it was sensory overload. The size of the installation is huge. The moving images, each different than the state beside, below and above it, felt overwhelming. When you couple all of those things with my knowledge of copyright law and electronics, my head almost exploded. In fact, I was so carried away with trying to figure out how all of it worked, that I inadvertently stepped over the “Do Not Cross Over This Line” indication only to be reprimanded over the loudspeaker by an ominous voice stating, “PLEASE STEP BACK!” You know I was really into it if this policy-follower did not even notice printed rules. You can see better photography and an interactive map of the installation by going HERE.
How did Paik use other’s copyrighted films, news programs and music videos without creating copyright infringement? Did he take the time and more importantly, spend the money to get licensing for all of those film clips? Paik’s work is the embodiment of transformative use, as has developed thru the doctrine of fair use.
Any court would take part in analyzing Paik’s use of film footage under the four-prong test of fair use. One factor is not completely determinative of whether a use is allowable. However, they are looked at and balanced as a whole. The four factors a court would consider are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work
In the Bill Braham Archives v. Dorling Kindersley, Litd., 448 F.3d 605 (2nd Cir. 2006) case, Dorling printed a book about the band the Grateful Dead. Within the 480 page book, Dorling reprinted (in smaller sizes) seven (7) concert posters, which appeared on seven (7) of the 480 page book (1.45% of the overall book). The posters were combined with other commentary and put on a timeline to show an overall growth over a period of years. The court ultimately found fair use because the posters were used in a transformative way. I think the same arguments can be made for the Electronic Superhighway.
I. Purpose and Character of Use and III Amount and Substantially Used. The controlling case of fair use asks “whether the new work merely supersedes the object of the original creation, or instead adds something new, with further purpose or different character, altering the first with new expression, meaning or message.” Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 579 (1994). The use of small clips of film surrounded by neon lights, coupled in groups of televisions and displayed on a giant wall is THE visual definition of transformative. It is fundamentally different from how the creators of the films ever imagined it being used. It is so creative and adds so many other creative elements that one could not argue it could be a possible logical derivative work originally anticipated by the film creators. As the court stated in Bill Braham, “DK’s purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created.”
In analyzing purpose and character of use, the court also relied on the amount the possibly infringing work made up of the overall book, which also speaks to factor three, the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The court notated how the poster images were smaller than they originally appeared. How the overall book was 480 pages and the infringing part only made up a small percentage. Here, the film clips simultaneously stream for 15 to 20 seconds (as best I could count) and then it changes to a different scene. The amount is small enough for the viewer to recognize it is the film The Wizard of Oz, but is not so much that you could stand there and view any one film in its entirety.
II. Nature of the Copyrighted Work. The court in Bill Braham found this factor in favor of the plaintiffs because posters are highly creative and receive protection. The court gave the factor limited weight because the purpose of the posters were to emphasize the historical context of the band. Here, with the film clips, I think the same determination would be made. One single factor is not determinative. Because the other three factors weigh so heavily against infringement, I think the same outcome would be reached.
IV. Effect of Use Upon the Market for or Value of the Original. A court will look to not only the market harm caused by the particular infringement, but also to whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work. There is no doubt film studios have the exclusive rights to reproduce and publicly display their created films. The issue for the court in Bill Braham was, “whether DK’s unauthorized use usurps BGA’s potential to develop a derivative market.” It would be considered infringement under this factor when the market is harmed because the use serves as a substitute for the original to consumers. The court ended up finding no harm to BGA to license the images simply because the book did not pay a fee to license the posters. Here, the short film clips would not serve as a substitute for the film or the news report as a whole.
Fair Use is the system’s way of balancing the First Amendment of free speech with copyright law. We want for new art to build upon past generations so the next great visual American artist can emerge. Oftentimes that includes borrowing from others created work. Copyright law is for the “promotion of science and the useful arts.” Creating new art is something society and copyright law should favor.
What do my legal minds think? Is this transformative? Have you seen the art in real life? What was your experience? Take part in the Comments section below and Stay Tuned In!
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