ANSWER: YES, FAIR USE!

I know, right? Here’s the opinion. The webpages in question are here and here. Note that neither photograph is currently being used.1

If you got here without reading the problem, click here.

Let’s go through the court’s reasoning, factor by factor. I’m afraid I have Opinions about most of these.

Does changing the context make a use transformative?

First Factor: The court found the use of photographs to be transformative and non-commercial. In finding transformative use, the court reasoned that the purpose of the photographs was to portray Kenny Chesney and Kid Rock as performers, whereas the non-profit only wanted to use the photographs to identify the musicians as supporters of the non-profit’s point of view.

Respectfully, this makes little sense. What if the photographs were your classic 8×10 glossies that musicians used to sign once upon a time, like you can still see at the Acklen Post Office2?

The back wall of the Acklen Post Office, Nashville, Tennessee 37212. Every glossy has been signed. Photo Credit: David “Too Early to the Party” O.

The purpose of a 8×10 glossy is to identify the musician, and to portray the musician in a good light. What if the non-profit had used such a photograph, rather than one showing the musicians in concert? The purposes would be the same now, so, by the court’s logic, the use would no longer be transformative.

OK, but what about the context? The non-profit is using the photographs to help convince people of its point of view: Kenny Chesney and Kid Rock agree with us about X (and here are photographs that prove it somehow?). Fine. Let’s say the photographs weren’t of Kenny Chesney and Kid Rock performing, but rather of them at a rally supporting the same issue the non-profit cares about. Surely, then the uses wouldn’t be transformative.

But in all cases, the photographs primarily serve only to identify the musicians, and that’s all the non-profit is really using it for. Indeed, the one clearly non-transformative use is actually the best fit for the non-profit’s purposes: not only can we identify Kenny Chesney or Kid Rock, but we have evidence that they, too, believe in the same thing the non-profit believes in.

I wish we could stop talking about transformative uses as though it was an either-or proposition. I wish we could say: this use is transformative, but only a little bit. The (objectively determined) purposes of a work isn’t irrelevant for the first fair-use factor, but it shouldn’t be determinative.

The finding of no commercial use makes considerably more sense. Not only did the non-profit make hardly any money, but the photographs were hardly a draw for that money. Parsing out whether any of the money was attributable to the photographs seems a hopeless task.

Second Factor: The court correctly describes photographs as (usually) a mixture of factual and expressive elements. Then it decided that the two elements cancel each other out. They don’t. By this logic, only the weirdest photographs would be no more expressive than factual because almost all photographs depict something. Also by this logic, paintings of still lifes and people are no more expressive than factual.

Let’s instead give photographers their due. If they’re making any creative decisions not dictated by the circumstances, photographers deserve to have their works treated as creative. Some have minimal creativity, such as an accidental (right-place-right-time) photograph, or your Christmas day photograph of your kid opening a present (where the framing is dictated by the subject, and your creative choices reduce to: “I happened to be sitting there”). But anyone fussing with getting into a dramatic position, waiting for a dramatic pose, waiting for the lighting to be better, etc., is a creator and should be treated so.

Third Factor: The court held this factor to favor the photographer because the non-profit used the entirety of the photographs.

Is the value of a creative work always measured in money?

Fourth Factor: The court found this factor favored fair use, mostly because the photograph didn’t charge for the use of the photograph.

Let that sink in for a moment. If you don’t charge for a work, the first or second most important fair use factor (depending on whom you talk to) is automatically against you. You are nearly half way to being unable to enforce your copyright. Throw in some light transformation—i.e., someone uses your work for a somewhat different purpose than you intended, or in a different context—and your case is done for. Why even bother with Creative Commons? You can hardly control your work at all.

This throws into sharp relief one of the key divisions among those who think about copyright law. Is copyright primarily economic or is it primarily artistic? Does copyright law primarily serve to incentivize creation by protecting revenue, or does it primarily serve to protect what we might call “artistic integrity”? The world is divided along these lines: Great Britain, the United States and other (mostly English-speaking) “common law” countries favoring the economic view, and the rest of the world favoring the (French) artistic view. It is not a coincidence that the English developed copyright law before the Romantic period and its cult of the artist, and the French developed theirs during the Romantic period. Indeed, before the Romantic period, even the most creative and innovative writers and artists sought to cast their works as imitations of the (mostly Classical) masters. It is also not a coincidence that the English developed copyright law at a time when artists found themselves able to make a living by selling their work, rather than through patronage.3

The economic model works because we assign the person most interested in the exploitation of the work—the copyright owner—with the task of authorizing copies of the work. The copyright owner could thus gauge demand and authorize enough supply to maximize profit.4 It has been pointed out that this model depends on a certain transaction cost to making copies—e.g., printing, binding and trucking books—and, hence, an artificial but real scarcity of the finished product. It has has been further pointed out that this no longer really applies when, as is now often the case, there is hardly any transaction cost to making copies. I can copy my entire collection of music in just a few minutes now. (In the old days, I had to painstakingly record vinyl records onto tape, which you can’t really automate when you’re flipping the record every 20 minutes. I used to block out entire weekends for this.)

In my view, the breakdown of the economic model has exasperated nascent divisions in copyright law. Those who are consumer-oriented and wish for weak (or even non-existent) copyright see this as a sign that copyright has run its course. Those who are producer-oriented and wish for strong copyright see this as a need to strengthen copyright.

And, here we are, with a digital work that was obtained digitally under a license designed for the digital era that was used in a digital publication. Under the court’s economic view, the photographer was SOL: what is easily distributed is also easily appropriated. Charge money next time.5 Under an artistic view, however, we’d give the photographer some control over how his work is used, especially over what messages the photographer would want his works associated with.

You don’t need to subscribe to the artistic view, however, to be bothered by the court’s ruling. Even under the economic view, we still must choose somebody to be primarily responsible for controlling the work, and that person is the copyright owner (who, in this case, is the photographer himself). We must give the copyright owner some agency to decide how and whether to exploit the work. If the copyright owner chooses to use a Creative Commons license, then that choice has to be afforded some respect. If we say that distributing a work under a Creative Commons license—or, for that matter, many types of open source licenses—automatically turns a major fair use factor in favor of fair use, then we don’t respect the owner’s choice about how to exploit the work.

I’m sympathetic with the judge here. He’s got to be wondering what this case is even doing in his court. Since the photographs were offered for free, there are no actual damages. The photographer is entitled to statutory damages, but under the circumstances, would a jury really issue a judgment of much more than the minimum $750 per work? The non-profit has already stopped using the photographs, so an injunction is meaningless. Copyright law is complex. A jury trial on this issue would be a colossal waste of time. The non-profit’s use of the photographs is trivial compared to its political message.

Aggressive use of summary judgment is a good way to clear out weak cases, but it wasn’t appropriate here.

Thanks for reading!