Fair use is a mixed question of law and
fact. “[T]he doctrine is an equitable rule
of reason and no generally applicable
definition is possible, and each case raising the question must be decided on its
own facts.” (Gaylord v. U.S. 595 F.3d 1364,
1372 (2010), citations omitted.) Federal
courts agree that all four factors presented in the Copyright Act must be considered for copyright infringement claims.
Beyond that, however, the courts differ as
to what “fair use” is, and why its consideration is prescribed by the statute, with
some courts noting that it is an “
affirmative defense” to infringement, and others,
at least more recently, that it is “wholly
authorized by law.” 7 Reversals and divided courts are commonplace. Decisions
are not governed by consistent principles, but seem rather
to result from intuitive reactions to individual fact patterns.” 8
Beyond Copyright Considerations
In addition to copyright, artists of some forms of artwork
are afforded certain protection by the Visual Artists Rights
Act (VARA), 17 U.S.C. §106A, a codification of the doctrine
of moral rights that originated with an 18th century French
concept, droit moral. Droit moral “refer[s] to rights of a
non-economic but spiritual or personal nature, existing in-
dependently of an artist’s copyright.” Moral rights include:
• Disclosure or divulgation, which allows the artist to de-
termine when a work is complete and may be displayed;
• Paternity or attribution, which allows an artist to protect the identification of his name with his own work,
and to disclaim it when applied to another’s;
• The right of withdrawal, which permits the artist to
modify or withdraw a work following publication; and
• Integrity, which allows the artist to prevent his work
from being displayed in an altered, distorted, or mu-
tilated form. 9
17 U.S.C. §106A.
VARA contains a number of significant exceptions, however, and recent Ninth Circuit cases illustrate a trend toward
further limitations on artists’ rights. 10 VARA is also specifically subject to the fair use limitations of 17 U.S.C. §107.
Applications of Fair Use in Real Time
Copyright and moral rights are separate and distinct rights
that may help artists maintain the integrity of their artwork.
The waiver of one (e.g., a waiver of moral rights by contract)
does not affect the other (e.g., retention or transfer of copyright). Each is valuable and, in the instance of copyright, the
value may be equal to or exceed the value of the artwork itself.
As counsel for artist Dale Chihuly and Chihuly Studio, I am
tasked with protecting the value of copyright.
Copyright uses are pervasive. Photo software and the inter-
net have made reproductions of visual artwork easy to make and
easy to sell. Websites like Amazon, eBay, Redbubble, and Cafe-
Press cater to amateurs and professionals alike as platforms for
the advertising and sale of anything from posters and apparel to
phone cases and mousepads. The ubiquity of products potentially
diminishes the value of the copyrighted property and may affect
the value of past and future work created by an artist. They also
affect the market for other uses of artwork, including derivative
Protecting visual art copyright through digital searches is a
laborious process and the procedure for infringement removal
is equally time-consuming. A seller may have used one image in
multiple products sold in multiple locations. If a website subscriber does not use the artist’s name to sell products, 11 finding potential infringement is even more difficult.
In 1998, Congress passed the Digital Millennium Copyright
Act (DMCA) to address the ease by which copyrighted materials
are distributed through the internet. 12 DMCA is comprised of five
titles, the second of which created a safe harbor for online service
providers (OSP) to escape liability in the event a user of its service
violated copyright laws. Title II contemplates limitations on liability for OSPs that engage in four separate categories of conduct,
including where information resides on an OSP system or network at the direction of a user, such as a person selling products
on Amazon. There are steps an OSP must take to avail itself of the
protections afforded by DMCA, including designating a copyright
agent and establishing notice and take-down procedures when a
copyright owner notifies an OSP of an infringement. If the OSP
promptly removes the infringement, it is exempt from liability. 13
There are also burdens placed on the copyright owner for
making a take-down request. The owner must submit a notification to the OSP, under penalty of perjury, listing the specific
statutory elements of the notification. The subscriber has the
opportunity to respond to the notice and file a counter-notifica-tion complying with statutory requirements. Then, unless the
copyright owner files an action against the subscriber, the OSP
must repost the material within 10 business days after receiving
the counter notification.
A new Ninth Circuit decision interpreting the DMCA has
the potential to make this process even more difficult — and
risky — for in-house counsel and unrepresented artists alike.
In Lenz v. Universal Music Corp., the court interpreted a copy-
Copyright © 2016 Chihuly Studio. All rights reserved.