Fair Use or Fair Game? Bad Copyright Behavior is Infectious

“Patent holders should be concerned that permissiveness towards creators and copyright affects them, too. The ‘free-for-all’ cat is out of the bag. Good luck getting it back in.”

Several carefully watched copyright developments are combining to have a significant impact on the invention as well as the content landscape. A judgment from the Supreme Court of the United States is expected any day that will address the potentially shape-shifting Warhol Foundation “fair-use” suit against rock photographer, Lynn Goldsmith.

This decision is also of concern to inventors and patent holders, few of whom see the writing on the IP wall: weaker intellectual property rights are gaining momentum, and lawmakers and the public don’t know enough to care.

Spotlight on Copyright

The New York Times Sunday Arts Section (yes, Sunday Arts) recently published a package of four articles focusing on challenges faced by copyrights and creators, including those engaged in contemporary art and songwriting. (Oddly, ChatGPT and artificial intelligence (AI) were excluded from this discussion. They have been covered frequently elsewhere in the publication). The grouping is indicative of the breadth and importance of recent IP rights disputes. One section was “Test Your Knowledge of Copyright Use.” This is sophisticated stuff, especially for Sunday Arts readers. But The Times is on to something.

Copyright, once considered a special interest issue for lawyers, content creators and publishers, is today something for everyone to consider, from music listeners to moviegoers. NYT is suggesting that copyright disputes in a predominantly digital and increasingly AI universe affect not only creators, but audiences and commerce, and they need to be better sorted.  If history is any indication, SCOTUS will provide scant guidance.

The Times’ package refrains from taking too strong a point of view. It dances around the impact of unprecedented levels of abundance, access and duplication. Technology has rendered content ubiquitous, and in some cases devalued it. It has commoditized content, questioning its meaning as property and commercial value. Re-creators, commentators, whatever we call them, believe that content is so pervasive and so much a part of the cultural and digital landscape that much of it can no longer be considered proprietary. It is there for the improving.

Yours, Mine, Ours

Areas and persons who are affected by declining regard for copyright:

  • Contemporary creators of art, innocent re-arrangers or driven skinflints, unwilling if not unable to pay for using all or parts of others’ work.
  • These creators are not against copyrights (especially their own); they are merely against having to pay for them if they don’t have to.
  • Questionable actors include entities like the Andy Warhol Foundation and songwriters like Ed Sheeran and Led Zeppelin, who prevailed over accusations they used parts of copyrighted songs without permission (Zeppelin 2020 “Stairway to Heaven” SCOTUS decision could provide some guidance). In the past, these disputes were often settled quietly with cash and a handshake. Not anymore.
  • AI-powered search bots like ChatGPT, which use a vast array of unsourced copyrighted content to provide users fast, cogent, but often inaccurate responses to complex queries. Subscriptions are inevitable. OpenAI does not mean free or forever.
  • After legal pushback, news content from news generators and publishers have fared better, with Facebook and other social platforms now taking licenses.

The Air and Water Defense

Some creators and their business entities, like the Warhol Foundation, employ what I call the “air and water defense.” It is not a very good one to me, but then I am neither judge nor jury. The argument goes something like this: Most content is readily available. Why should people have to pay for it? It should be free, like air and water (which, of course, are not in many cases). For creators, typically well-known ones, they add something to other works that is so valuable, a transformation takes place. Voila, a new and better work with no meaningful antecedents. In the patent world, businesses often attempt to create a moat around an invention with multiple rights to prevent an easy design-around. With copyright, that is not an option. If something is sufficiently different, it is usually considered new. Just how different is the big question.

The owner of a copyright such as a photograph, a sound recording, or even a software program, has five exclusive rights to the work: reproduction, distribution, performance, display, and derivative works. These rights do not disappear if a new work makes their existence less compelling. What is really at stake is which creators should be compensated for which works, and how much. Hiding behind fair use in an already overstuffed culture of images, music, news and other content may be unfair but, if recent rulings are any indication, often defensible.

Goldsmith photo (left) v. Warhol image (from petition for certiorari)

Goldsmith, the photographer, is not forbidding the Warhol Foundation from using her images. She simply would like to be paid when they are. The Foundation’s assets for the fiscal year ending April 2020 were just shy of $300 million. But why pay for something covered under copyright when you don’t have to? (Sound familiar, inventors?) This appears to be less a matter of fair use than fair game.

The idea is not to restrict creators (or coders or anyone else) who wish to take a work in new directions, but not encourage them do so at the expense of others whose livelihood depends on licensing. Content creation is a decidedly have and have-not industry. Would paying a license really prevent Andy from being Warhol, or deprive the Foundation of meaningful revenue? I don’t think so. Does Warhol’s Prince portrait – effectively the same as Goldsmith’s but with a red frame box added – transform the underlying copyrighted work?

In a Warhol-like irony, Prince (for a time, “The Artist Known as Prince” because of trademark dispute with his former record label), was famously protective of his intellectual property, which included patents. He is among the first recording artists to own his own masters. He is also likely rolling in his purple grave.

Unfair Use of Fair Use

Successful songwriters, filmmakers and their businesses may feel as if there is a big fat target painted on their back every time they have a hit. Apple and Samsung feel that way, too. But they can well afford to pay legitimate claims that may have been preempted in the first place and not resort to protracted litigation if they want to.

Better tracking of content ownership can lead to more proactive licensing that lowers the risk of infringement even if it may also lower ROI a tiny bit. Poaching in the guise of fair use is questionable coming from those who can easily afford to take a license. Shareholders may be surprised to see not only a return on more ethical behavior but a return on business investment from constructive relationships. Taylor Swift and Beyonce seem to be mindful of this. They have been known to collaborate with other singers, writers and producers, for which they pay.

The public is not typically on the side of the infringed creator. For businesses and celebrities, the fear is that easy payment for source IP will open a floodgate of licensing demands. Perhaps these costs of doing business need to be factored into their overhead?

Shareholders today are much less tolerant of ecologically unfriendly behavior. In time, they will become similarly mindful of bad IP behavior. It hurts everyone. Do investors even know what bad behavior looks like? Are they aware of its impact on culture, commerce and creators’ lives? On the quality of invention and creative expression?

Cheaper to Litigate than Secure

Patent holders should be concerned that permissiveness towards creators and copyright affects them, too. The “free-for-all” cat is out of the bag. Good luck getting it back in. The Warhol foundation people will not be so generous with the images it owns. (This and other IP challenges and opportunities will be addressed by an all-star cast of speakers at the IP Awareness Summit. The event is being held by the nonprofit I co-founded, the Center for Intellectual Property Understanding, in Boston on May 2. Anyone can attend, either in-person or virtually).

Digitalization has resulted in huge amounts of content that is easily accessed and readily duplicated. People and businesses alike are often unaware they are infringing or don’t care. Refusal to pay for IP unless forced to has become a way of life for many. The way some businesses see it, it is cheaper to litigate for forgiveness than secure permission. That is, if they are caught. Abundance and easy access are not convincing arguments for IP theft. Nor is ignorance. The technology exists to monitor where IP-protected works exist and if they are being used. Accepting it as necessary and fair is another matter.


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Join the Discussion

5 comments so far. Add my comment.

  • [Avatar for Flann Lippincott]
    Flann Lippincott
    March 17, 2023 03:07 pm

    I’m going to try to tackle this dearth of IP education for the public with an online course in IP licensing directed at design entrepreneurs, using visual and experiential learning styles to keep them engaged. I’ve been wanting to do this for years but now the stars are aligned. Stay tuned!

  • [Avatar for Yenrab]
    March 16, 2023 09:53 am

    I can see the usefulness of something we do all the time in Patent World, getting a legal opinion of non-infringment as a defense (at least to trebling damages) if you are attempting a fair use of some copyrighted work. That would limit potential damages and perhaps make it less worthwhile for the copyright holder to bring a high cost law suit in federal court. Perhaps at the same time the defendant can come up with the affirmative defense that the “original work” was the creation of AI and thus not validly covered by copyright?

  • [Avatar for Anon]
    March 15, 2023 05:32 pm

    Newsflash: the assault on IP has LONG been underway in the patent world, far longer than any of the calamities in the copyright world.

  • [Avatar for Bruce Berman]
    Bruce Berman
    March 15, 2023 05:08 pm

    I am fearful that a culture of infringement is becoming ingrained. It is supported by businesses wishing to avoid paying licensing fees and the public, that doesn’t want to pay for anything unless forced to. The attitude impacts both invention and creative expression, as well as brands. Businesses executives and investors need to learn IP right from wrong. What is good IP behavior for businesses and individuals? Consumers like to support eco-friendly companies; they need to learn to believe in IP-friendly ones.

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 15, 2023 02:26 pm

    You hit the nail on the head, Bruce. The place where excusable copying as a victimless activity first emerged several decades ago with file sharing copyists like Napster. Those kids that just wanted music for free are now grown up and inside corporations across the country and their beliefs and understanding has not matured since they days they were “sharing” music in violation of copyrights. Widespread infringement has been excused and has become a way of life. Unfortunately, patent owners who didn’t want to get involved and continue to want to stay under the radar are their own worst enemies. I don’t know how you get this genie back in the bottle.

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