[PLUG-TALK] Is Plagiarism Bad? Discuss.

[Michael M. Moore]

On Fri, Feb 6, 2009 at 2:15 PM, Michael <michael at jamhome.us> wrote:
>
> [2] Reviewing copyright infringement criteria I see that my take missing a
> couple of important points.  Fairey's reworking could not be mistaken for the
> original photograph and did not diminish the market for or value of the
> original work.  These criteria that are explicitly stated in the law as being
> required for infringement.

I don't follow.  Where does the law say that if the derivative work
can not be mistaken for the original, it's not infringing?  Or am I
not understanding your meaning?  Basically, *any* derivative work is a
violation of copyright unless it falls under fair use, which is
characterized as a "limitation on exclusive rights" of the copyright
holder.

The famous "four factors" [1] are guidelines for the courts to
consider in deciding whether a particular re-use of copyrighted
material constitutes infringement or fair use.  Those factors include,
first, "the purpose and character of the use," and what that often
boils down to is whether the use is "transformative."  I think it's a
pretty safe bet that most people would see Fairey's poster as
transformative in relation to the original photograph.  But the other
factors aren't so clear cut:

Two:  "the nature of the copyrighted work."

The original was a photograph.  That's bad for Fairey.  Photographs
generally enjoy very strong protection, because they are so easily
reproduced.

Three:  "the amount and substantiality of the portion used in relation
to the copyrighted work as a whole"

How much of the original did he use?  You can lift several paragraphs
out of a long book -- say, for a review or critical analysis, or for
your own comparison of treatments of the book's subject -- and get
away with it *because* the book is long.  You aren't really using all
that much of it.  But reprinting even a few lines of a short poem can
get you in trouble, because you're using a significant portion of the
whole.  If Fairey used most or all of the original, that counts
heavily against him.

Four:  "the effect of the use upon the potential market for or value
of the copyrighted work"

This is always a tricky one.  Fairey can justifiably make the argument
that the photograph is now famous because of his poster, thereby
increasing the market and value of the original.  But the AP can claim
that Fairey's poster made the original unsalable, because everyone
wanted the poster and not the original.  This one really depends upon
whether the AP can prove it's licensing revenue for the photo was
negatively impacted by the poster being so popular.

It will be an interesting case.

[1] http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000107----000-.html

Michael M.

-- 
"Rightful liberty is unobstructed action according to our will within
limits drawn around us by the equal rights of others. I do not add
'within the limits of the law' because law is often but the tyrant's
will, and always so when it violates the rights of the individual."
--Thomas Jefferson