Fair Use and Political Speech

From Hyperallergic:

On June 19 of this year, artist Sir Anish Kapoor, a knighted and “renowned visionary sculptor,” filed a copyright infringement claim in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the National Rifle Association (NRA) used a fleeting image of one of his sculptures without permission in a video in order to “support its despicable platform of promoting violence, private ownership of all manner of firearms in the United States, including military assault weapons, and using its money and political power to block any kind of meaningful gun control.”

The NRA video, versions of which have been on YouTube since April 7 and June 30 of 2017, is alternately titled “Freedom’s Safest Place,” “The Violence Of Lies,” and “The Clenched Fist of Truth.” It features commentator Dana Loesch presenting what appears to be a critique of American liberalism and calling on NRA members to “fight this violence of lies with the clenched fist of truth.” For a second at the 0:17 mark, it shows a snippet of black-and-white footage of architecture, nature and crowds milling around Sir Anish’s “Cloud Gate” (2006).

Normally we would have another run-of-the-mill copyright and appropriation dispute concerning art. However, what is a bit unusual about this dispute is how Sir Anish chose to voice his politics and disagreement with the NRA by availing himself of US Copyright law. Whether Sir Anish should leverage a law meant to foster and incentivize creativity and debate to instead silence and censor speech is the question before us. Put another way, does US Copyright law grant a copyright owner the sole and exclusive right to control how their copyrighted work is used?

In general, the answer is yes. Under the US Copyright Act of 1976 (the Copyright Act), the owner of a copyrighted work has, among other rights, the exclusive right to (a) make and authorize reproductions of the work, (b) make and authorize derivative works based on the copyrighted work, (c) the distribution of copies of the work by sale, rental, lease, lending, or transfer of ownership, and (d) publicly display and authorize the public display of the work.

The Copyright Act does not, however, grant a copyright holder the right to keep a third party from using the copyright holder’s work based on the political nature of that third party’s speech. The reason for this is found in fair use doctrine of the Copyright Act.

Established primarily to address constitutional and free speech concerns under the First Amendment, fair use allows for certain exceptions as to how copyrighted works may be used by third parties. The fair use doctrine allows for certain uses of a copyrighted work without consent of or notice to the copyright owner for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. Whether any given use constitutes “fair use” is evaluated on a case-by-case basis using the following four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work (i.e. how factual or fictional is the copyrighted work), (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. These factors are non-exclusive.

Ordinarily, most copyright infringement cases would hinge on a thorough fair use analysis, but there is another defense to a copyright infringement claim that the law calls de minimis use exception, where a court does not go through a full fair use analysis because the amount of the material copied is so minimal.

De minimisin law is a shortened version of the Latin phrase “de minimis non curat lex,” which basically means “the law does not concern itself with trifles.” When applied to copyright law, de minimismeans that courts are not going to concern themselves with trivial copying.

Built into copyright’s substantial similarity inquiry, a de minimis analysis looks at both the amount and character of the copying through the eyes of the “average lay observer.” As with other copyright disputes, there are no bright line rules and the questions at hand must be decided case by case. Imperfect, perhaps, but the de minimistest serves a vital function, articulated best by federal appellate judge Pierre Leval, “Parents in Central Park photograph their children perched on Joséde Creeft’s Alice in Wonderland sculpture … When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.”

The Copyright Act also does not stipulate that a third party must first ask for permission before raising the fair use defense. In fact, Sir Anish’s insistence that he would “never have granted [the NRA] permission” to use his work for the NRA’s video is precisely why fair use exists.

Link to the rest at Hyperallergic

Here’s a link to the video in question. PG will warn some visitors that the video is intensely partisan in its support of the National Rifle Association’s political beliefs.

Here’s an excerpt from a New York Times Op-Ed written by law professor Lawrence Lessig and published in 2008:

Throughout this election season, Americans have used the extraordinary capacity of digital technologies to capture and respond to arguments with which they disagree. YouTube has become the channel of choice for following who is saying what, from the presidential campaign to races for city council.

But this explosion in citizen-generated political speech has been met with a troubling response: the increasing use of copyright laws as tools for censorship.

A recent dispute in a race for New York State Assembly is a perfect example. A Democrat, Mark Blanchfield, is challenging the Republican incumbent, George Amedore, in the Assembly district that includes the upstate New York city of Schenectady. Last month, Mr. Blanchfield released television and radio advertisements that included a clip from a video interview with The Albany Business Review in which Assemblyman Amedore said, “I don’t look at the Assembly position as a job.”

Mr. Amedore complained that the ads took his remark out of context, and the newspaper’s lawyers sent Mr. Blanchfield letters calling the ads “an infringement of our client’s exclusive copyright rights” (redundancy in the original), and threatening Mr. Blanchfield if he didn’t cease using the material. Never mind that Mr. Blanchfield’s use couldn’t possibly have harmed the financial interest of The Albany Business Review. Whatever the newspaper’s motive, the result is the censorship of Mr. Blanchfield’s campaign.

This problem isn’t limited to New York Assembly races. It has directly affected the presidential campaigns. Last year, Fox News ordered John McCain to stop using a clip of himself at a Fox News-moderated debate. Last month, Warner Music Group demanded YouTube remove an amateur video attacking Barack Obama that included its music, while NBC asked the Obama campaign to pull an ad that included some NBC News video with Tom Brokaw and Keith Olbermann. No doubt, these corporations are simply trying to avoid controversy or embarrassment, but by claiming infringement, they are effectively censoring political speech.

Senator McCain has taken a lead in responding to this copyright extremism. In a letter addressed to YouTube last week, the McCain campaign rightly criticized the Web site’s decision to remove work that is “clearly privileged under the fair use doctrine” of copyright law and called upon YouTube to be more protective of political speech by conducting a more extensive review of material before it gets taken down.

. . . .

The digital copyright act gives the alleged infringer an opportunity to demand that the content be restored. But in the height of a political campaign, even a few hours of downtime can be the difference between effective and ineffective. The law thus creates a perfect mechanism to censor political speech during the only time it could matter. Recognizing this, campaigns and their allies are beginning to exploit this weapon.

. . . .

What content owners need to recognize is that in the long run, it’s unwise to ask for a definition of “fair use” in the middle of a presidential campaign. Judges are very unlikely to find copyright infringement in a political ad, and a law of “fair use” expanded to allow such uses could well weaken the legitimate claims of musicians and Hollywood studios.

It would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function — encouraging innovation and ensuring that artists get paid for their work — and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make.

Link to the rest at The New York Times

If PG ruled the world, he would substantially dimish the use of lawfare in politics. If you’re not familiar with the term, lawfare, here’s one definition:

Lawfare is a form of asymmetric warfare,consisting of using the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory. The term is a portmanteau of the words law and warfare.

Carl von Clausewitz famously said, “War is the continuation of politics by other means.” Unfortunately, in contemporary western societies sometimes “Politics is the continuation of war by other means.”

Regardless of one’s personal feelings about gun rights under the Second Amendment of the United States Constitution, the NRA commercial referenced above certainly conveys a sense that the NRA believes it is at war with its political opponents.

PG knows nothing about Sir Anish Kapoor or his reasons for filing his lawsuit for copyright infringement, but PG does have his doubts about whether Sir Anish has suffered significant financial damage as an artist from the NRA’s very brief inclusion of his public artwork in the commercial.

The practice of filing a legal action against a political opponent is, unfortunately, becoming more and more common. Sometimes, the real purpose of such litigation is not to take a dispute through trial and appeal to vindicate a significant legal right so much as it is to cause the opponent to lose focus on the political campaign and divert scarce funds from campaigning to paying expensive lawyers. Hence the common practice of dismissing or abandoning such lawsuits after the election is over.

PG will remind one and all that:

Passive Guy is an attorney, but he does not provide legal advice on this blog. He is most definitely not your attorney unless you and he both sign a retainer agreement. Only then will he give you legal advice and it will be delivered privately, not in a blog post.

Passive Guy’s rants, examples of contract language, discussions of litigation issues, etc., are for discussion purposes only. What PG says may not be appropriate for your circumstances and may make your problems worse instead of better. PG’s ideas may ruin your life, cause bolts of lightning to strike you dead or trigger premature balding. Talk to your lawyer before you use any legal ideas, contract language, etc., etc., etc. that are discussed on this blog. You obtain legal advice from an attorney you hire, not a blog.


7 thoughts on “Fair Use and Political Speech”

  1. I think it’s telling that you felt the need to post a ‘trigger warning’ due to a favorable look at the NRA. I saw a similar warning in a movie trailer the other day due to ‘historical smoking’. WTF? If the smoking in question was pot instead of cigarettes, would you still need such a warning?

    Will I ever see a trigger warning for a piece involving a favorable look at Planned Parenthood?

    • I, too, saw a warning about “historical smoking.” I think it was on the movie Chappaquiddick.

      • WAREHOUSE 13 did it best:
        “It was the 60’s. Everybody smoked.”
        Then the characters went on with their business.

      • Historical smoking? Is there contemporary smoking and historical smoking? Contemporary eating and historical eating?

        • I guess there must be. In the Trigger & Friends anthology, editor Eric Flint has an afterword where he addresses cutting a line where Quillan offers Trigger a cigarette:

          The issue of smoking in the Schmitz stories was handled case by case. In most instances, we left it in. But this was an instance where the social obsolescence was glaring. Try offering a cigarette today to an unknown woman in an aircraft, and you are likely to get arrested. When I read it while editing the book, my reaction was to break into laughter.

          I don’t smoke so I have no anecdotes about his assessment of the probable reaction of the audience. And he does leave in Telzey’s father smoking. I just thought it was funny that he believed that current out-of-fashion behaviors would never come back into vogue. At the time of the anthology, back in 2000, I don’t think e-cigarettes existed. It would have been safer to assume that in the future, smoking would “evolve,” and leave the scene alone.

          I still see smokers taking cigarette breaks, so I’m puzzled by a need for a “warning” depicting their existence. I don’t think I ever saw a warning for Sherlock and his cocaine habit.

        • Of course there is!
          Historical smoking burns tobacco and contemporary smoking burns cannabis.
          As for eating, historical eating was whatever you could afford and contemporary eating is whatever fad diet is popular.

  2. Way back in high school when I was on track to a journalism career, we were taught that whoever takes a photo owns the copyright to that photo. I’m sure there’s some issues regarding taking a photo of a copyrighted work, but does the fact that someone else had to have taken that video matter?

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