Tuesday, December 12, 2006

Copyright's a Fuzzy Thing, Sometimes

Parody: copyright infringement or fair use? It depends.

One interesting article that my colleague Amelia came across is "Who owns Barbie?;
CORPORATIONS ARE SUING ARTISTS OVER POP CULTURE ICONS" by John Petrick, in the September 25, 2005 Sunday Record (Bergen, NJ)

"Parody by its nature requires that you make reference to the original. So once something is determined a 'parody,' there's a lot of breathing room," says John Koegle, an attorney who represents artists.

Nevertheless, some companies feel they should be able to control any depiction of their work in public life. And in some cases, they have prevailed. There was the 1978 case in which Disney sued an underground cartoonist who depicted Mickey Mouse engaged in various adult behaviors. While the artist argued it was clearly parody - or "fair use" under the law - the court didn't buy it and ruled the images were copyright infringement.

In 1994, on the other hand, 2 Live Crew was sued for its rewritten version of Roy Orbison's classic song "Pretty Woman." The case ultimately went to the U.S. Supreme Court, which found the song was "fair use" in that it was a parody. It's a seminal case for artists and their lawyers, in that it's the first to make such distinctions.

Also in favor of artists' rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled "Food Chain Barbie." The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens...

Mattel didn't care what he was trying to show. He was using their property in his artwork. Though he earned only a few thousand dollars at the time in sales, the company sued in 1999 and pressed the case forward all the way to California's federal Ninth Circuit Court of Appeals. In a scathing ruling against Mattel in 2003, the court found no basis for the lawsuit and ordered the giant toy company to pay for all of Forsythe's legal fees and expenses - a whopping $2.1 million worth of pro bono work. The artist prevailed largely on First Amendment grounds.

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Images of deceased celebrities: There is no copyright involved, is there? Depends. In California, there is a Special Filing called Successor-In-Interest, where the use of the images of Babe Ruth, Kurt Cobain, Audrey Hepburn and many others is regulated. Also, check out the Corbis website.
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What if you can't find the copyright owner: The University of Texas has a list of steps for obtaining information, from asking scholars to publishing a notice in the newspaper. But when permission can't be gotten because the owner's unknown, can't be found, or won't respond, assert fair use. That's what the Library of Congress does here:

The Library of Congress has exhaustively researched the contents of this collection to ascertain any possible legal rights embodied in the materials. Items included here with the permission of rights holders are listed below. Many of the items in this collection are in the public domain, that is, not subject to copyright protection such as the works of employees of the federal government of the United States.

Despite extensive research, the Library has been unable to identify all possible rights holders in the materials in this collection. Thus, some of the materials provided here online are made available under an assertion of fair use (17 U.S.C. 107).


If the copyright holder then shows up, showing that a "good-faith" effort had been made will strengthen one's position. Use a disclaimer - if true - such as: "We have made every effort to obtain permission for all copyright protected images/text. If you have a copyrighted protected work in this publication, and you have not given permision, please contact us at..." - a piece I cobbled from several different sources.

For more on the limitations of copyright, go here.

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