Obvious fair use. Non-commercial, low-res (as displayed on Facebook), does not supplant the market for the original, etc. But technically, yes, an infringement of copyright prior to the affirmative defense of fair use. It's one of the interesting aspects of modern copyright; we violate it all day, every day, and just presume that most of the violations will pass by without incident. The whole Righthaven debacle reinforces that notion: U.S. courts may not be helpful on copyright issues all too often, but when they see copyright being truly abused, they can really lay the smackdown.
That's the overwhelming general rule, but there are some rare, wonky exceptions on the books. Presumably, this is one of them (though I confess not to know the full history of the particular painting at issue).
So while MoMA owns the actual canvas of “Les Demoiselles,” the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043.
Ridiculous, yes. But such is the state of copyright.
(Beyond that, though, the problem isolated in the article is just the mechanical result of the copyright system. Any exercise of a Section 106 right pertaining to a copyrighted work -- reproduction, distribution, adaptation, public performance, public display -- is presumed to require permission from the copyright holder unless an exception can be found in statutory/case law. In particular, you'd be looking at the first sale doctrine, which short-circuits the distribution and public display rights for artwork. Essentially, you are arguing for the first sale doctrine to also eliminate the adaptation right, which currently requires de minimus use or fair use to be mitigated. Again, a novel theory, and perhaps one worth discussing, but I'm not sure there's as strong a rationale for it when compared to existing exceptions.)
In the eyes of the copyright holder, it's a question of whether the product adds value to the movie. Presumably, a can of Coke isn't doing anything other than creating brand recognition for itself, so the primary benefit of its inclusion is not to the film. Artwork, on the other hand, adds an aesthetic appeal to a scene, which is why the filmmaker proactively seeks its use. After all [to use the article's example], if the primary benefit wasn't to Cameron, why would he use the painting without permission and open himself up to liability? The nature of the economics suggests that the primary value is to the filmmaker in such a scenario. Extrapolating out from what you're suggesting, though, *any* use of one copyrighted work (that you've purchased a copy of) within another work is product placement and shouldn't need permission. A novel theory, but not the way copyright is structured today.
Copyright is a license given to someone that under US law itself cannot be sold in part, only licensed in whole ... Copyright cannot be licensed piecemeal with parts stripped for the convenience of one side.
I'm not sure this is correct under US law. You are allowed to split your copyright into many different pieces to license out (which is why it's often referred to as a "bundle of rights" that can be unbundled in the marketplace), but at the very minimum, each license must pertain to one of the enumerated rights under Section 106 of the Copyright Act (reproduction, distribution, adaptation, public performance, public display). Righthaven stumbled by essentially giving the bare right to sue, which is not one of those 106 rights.
Also, I think a distinction might need to be made between the copyright itself and the limitations on copyright. The first sale doctrine is not a right of copyright, but a statutory limitation on the enforcement of copyright. Curtailing it doesn't actually adversely affect the rights of the copyright owners -- in fact, it increases their power. The principle of national treatment under Berne and similar agreements states that you cannot give foreign copyrights any less protection than native ones, but it doesn't mean you can't give them greater protection (i.e. not applying the first sale limitation until the copyright holder authorizes the first sale). So the lack of parity may be a moot issue.
Also, as you probably know, Berne isn't self-executing, and the US has arguably been out of lockstep with it for years. The question is, who's gonna call us on it? I think we paid a fine once under TRIPS for one of our statutory limitations on public performance rights that violates Berne and never bothered actually correcting the law itself; nobody's come after us for it. Yay for being too big to fail!
Re: Re: Re: Re: Well, I guess I have a stupid question then
If I recall, the argument being made was that first sale applying to foreign made goods would decimate the ability of copyright holders (like textbook makers) to charge different prices in different markets based on what is deemed "reasonable" from jurisdiction to jurisdiction. They can charge more for a textbook in the US because our per capita income is higher, but charge less in a third world country where money is tighter. The goal is actually somewhat laudable in that respect, ensuring that copyrighted products can still be made available at a reasonable price in less-well-off countries without companies having to worry about taking a bigger hit to their bottom line by someone importing those cheap copies into first-world-nations for resale.
It actually puts anti-maximalists into kind of a catch-22, myself included. We applauded the SSRC report on piracy in emerging economies for reporting that infringement isn't an enforcement problem, but a business model problem. That if more copyrighted content were made available at reasonable prices in those emerging economies, piracy would decrease. But what if those prices are untenable as a blanket one on the worldwide market? The solution would be region-locking, as the courts are doing with the first sale doctrine. So if we push for the first sale doctrine to apply no matter where a product was made, we're also destroying one of the few existing business models that allows copyright holders to address the issue of piracy by actually giving the market what it wants.
I don't think anyone defends the statutory damage schemes in the Copyright Act as being anywhere close to approximating actual damages. They're supposed to be a deterrence scheme and an incentive for copyright owners to police their rights even where actual damages wouldn't normally justify the expenditure. Problem is that Congress passed the statutory regime with no idea how lackadaisical our culture would become to strict copyright enforcement over the last 15 years, and as a result, copyright owners can reap windfall profits (where they're even collectible) while the damages do little, if anything, to actually "scare off" other would-be infringers (reminiscent of the RIAA's failed direct lawsuit campaigns against P2P filesharers). Obviously, the UMaple folk are not innocent infringers, but even if you can't cry for the defendants, are the statutory damages really doing their job? Seems like a pure money-grab at this point.
Correct me if I'm wrong (I haven't read these cases in a while), but didn't the courts say the first sale doctrine applies to foreign-made goods if they're subsequently lawfully imported/sold within the US? If I manufacture products in China, then have them shipped over here and sold, they're subject to exhaustion (i.e. first sale) even though technically not made under our laws. So the only advantage to manufacturing copyrighted products offshore would be if the owner never intends to distribute those copies domestically in the first place. In that regard, it's not so much "killing off" the first sale doctrine as it is trying to squeeze the goods into a region-lock, where they get to limit the domestic supply regardless of how much they sell worldwide. But still, once those domestic copies are sold, they can be resold infinitely. (Mind you, I'm not disputing the fact that it's still a stupid limitation on the first sale doctrine solely intended to preserve a particular business model at the expense of a proper globalized market. It's just not the doctrine's death-knell, as some seem to be framing it.)
Again, not about the ruling, not about the Constitution. All the Copyright Clause says is that IP is there to "promote the progress" - after that, there is a general deference to Congress (absent rational basis, at least), but there is also judicial buttressing of what can be generally said to promote the progress. Incentivizing creation is the classic one, and nobody is arguing against it. Incentivizing distribution is another one, and that's the one that the Golan court seizes upon. But it never draws a distinction between incentivizing initial distribution (which is what the case law it cites to supports and was not at issue here) and general distribution (which is what a retroactive grant concerns and doesn't glean any logical support from the case law). The Supreme Court basically leapfrogs from "copyright promotes distribution under certain circumstances through certain rationales" to "copyright always promotes progress by greater distribution" and doesn't ever bother to check whether the logic carries (or if it did, didn't bother to explicate how in its decision).
Well, in the absolute, the FSD isn't going anywhere; it's been in the case law for over a century and codified into the copyright act. SCOTUS will be addressing how regioning effects the FSD, which is definitely an important issue as markets globalize, but doesn't come up incredibly often as far as I've seen. I'm actually waiting for them to take up licensing as an obstacle for defeat the FSD, since I think Vernor v. AutoDesk set up a blueprint just waiting to be abused...
The article never denied that. Congress is entitled to determine what system of copyright best promotes it's purpose under the Constitution absent a change in its fundamental contours, and that's all the Supreme Court had to say to justify upholding the law. But instead the majority tries to rebut every last assertion the plaintiffs brought, and they do so by denying how distribution methods in the digital age have changed the game. The last paragraph sums it up:
If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law.
Clearly, you didn't bother reading past the first paragraph. The article never argued that we don't need to reward people (in fact, the Golan court admits its decision isn't promoting progress by prospective reward, since these are all retrospective grants). It argued that the traditional doctrinal arguments for copyright promoting distribution of public domain materials don't stand up in the digital age any longer. It's a very isolated, nuanced issue - one your knee-jerk response didn't even come close to addressing.
He was able to make a million bucks because he offered people a product they wanted to pay him for. The entire point of the experiment was to get people to choose between getting it for free (which he admitted they could probably do quite easily) and supporting the creator. Each route presented distinct advantages and disadvantages to the consumer, but what on earth would have enticed someone to give money (the disadvantage of the paid option) to get the product from someone other than the creator (the disadvantage of the free option)? You're using a hypothetical harm that [a] never actually manifested and [b] wouldn't make sense to have manifested anyway to justify the necessity of rights that, ultimately, had nothing to do with the experiment's success. And I say this as a supporter of the general notion of copyright.
And if the court deems it isn't slavish copying, that's their prerogative. All I'm asserting is that artists should have some recourse when the copying of their work crosses from inspiration to wholesale misappropriation, whereas some of the comments here are taking an "all copying is good all the time always" approach, which I find slightly obtuse.
I was going to set aside some time to unpack all the assumptions and generalizations you just tossed out, but then I got to the end where you started to personally insult me and realized it's just not worth my time. You're a bomb-thrower, not actually here for civil discussion, but simply to be pejorative against those whose views differ from your own. Thus, I will politely excuse myself to get some actual work accomplished.
Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm
I'm all for open source. I believe that there is plenty of progress that can be made and social utility gleaned from products that lack copyright, that crowd-source and spread as widely as possible. But there are also products that are not economically feasible without the benefits of copyright, and I believe the world is better off having both sides of the coin. Just because copyright maximalists ignore the proper balance (mindful that, as Mike often writes about, copyright isn't necessary as zero-sum game) doesn't mean that copyright minimalists should feel free to do the same, not if they want to be seen as taking the higher road on the issue.
As for your argument that she didn't do the work, that's like saying an architect didn't do any work when a contractor uses their blueprint without paying them. They laid the foundation, and it denigrates the value of that labor to claim that they should have no equitable claim in such a scenario.
Re: Re: Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm
Because the mechanisms you've outlined are far less certain to yield the outcome necessary to properly remunerate the wronged artist, and without the knowledge that they have a safety net against unfair competition (i.e. copyright), they may abandon the prospect of being able to self-sustain through their craft. You're making a great case for less zealous copyright enforcement, or at least fewer wishy-washy claims clogging up the court every time someone feels "ripped off" because the general concepts and basic framework of their product has been co-opted, and I'm right there with you. But I still feel like copyright skeptics (of which I am one!) are being a little disingenuous when they say even blatant cases of infringement shouldn't have judicial recourse.