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Ben: Greeks and Ginsburg

By William Patry, Esq

I think we all veer between cynicism and naïvité when reading Supreme Court opinions. I think your reading of Justice Ginsburg's opinion in Eldred suffers from more cynicism than warranted when you write, "The Supreme Court?s stated deference to Congress seems to me entirely window-dressing. When the Court agrees with Congress, it righteously claims it is deferring, when in reality it merely reached the same conclusion." I don't read her opinion as suggesting that adding 20 years to the term was such a great policy move; indeed, she concludes by stating, "we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." (emphasis added). I take the italicized clause as Ginsburg suggesting that the term extension was at least arguably unwise.

What would I think of a 200-year term extension? Exceedingly unwise. Way longer than necessary to provide the necessary incentives to authors, and to allow their heirs (or great, great, great, great, etc., grandchildren) to benefit from their works. And I shudder at the thought of trying to trace a work's chain of title back several centuries. But unconstitutional? Nope. Two hundred years is a "limited time[]," though, admittedly, a ridiculously long one. (And is answering a question with a question really "typically Jewish"? Law school convinced me it is "typically Greek." But I digress....)

Let me refine my Studio A/Studio B hypo a bit, by making it concrete. Let's say two years after the release of Star Wars, and before the release of The Empire Strikes Back, Studio B (which owned no rights in Star Wars) released a sequel. It had all the same characters -- Luke, Han Solo, Darth Vader, etc. -- and picked up the story where Star Wars left off. The sequel was brilliant: well plotted, great dialogue, special effects that put those in Star Wars to shame. "A great creative achievement," the critics roared. "A blatant rip-off, and a clear infringement of the derivative work right," a court evaluating a copyright suit by Lucasfilm would surely rule. Do you disagree?

And you had to ask about Shepard Fairey and the AP. I'm still clinging to my tentative conclusion that whatever Fairey copied was the unprotectable "fact" of Obama's face (which of course would render the fair use analysis unnecessary). But I think this is a hard case, and I remain persuadable. As I suspect you'd agree, copyright in photographs presents some very difficult conceptual questions of how to separate idea and fact from expression. See, e.g., the Ninth Circuit's two opinions in Ets-Hokin v. Skyy Spirits, here and here. It may seem anomalous, but I think Fairey is actually on stronger ground with an "I didn't copy protectable expression" argument than with a fair use defense. Assuming arguendo that he did copy the AP's (or Garcia's) protectable expression, I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work? (By contrast, the news organizations and musicians who complained about the McCain campaign's use of their material all made crystal clear that they would never let us use their works for political purposes -- which I thought made our fair use arguments stronger.) And I have to admit, maybe I'm a bit influenced by the depiction of Fairey in the AP's counterclaim (see Paras. 107-124) as a colossal hypocrite, who zealously attacks alleged infringers of his own works, and yet invokes fair use pieties when he finds himself in the dock. The four fair use factors are, as Professor Nesson constantly reminded us in the Tenenbaum case, non-exclusive. Can hypocrisy be the fifth?

Full post as published by Moral Panics and the Copyright Wars on September 14, 2009 (boomark / email).