fair use in Adema 2009


rticulate itself?’ His website,
the [Society of Control](http://www.societyofcontrol.com/disclaimer1.htm) is,
as he states, ‘an independent organization whose profits are entirely devoted
to research into truth and meaning.’

Society of Control has a [library
section](http://www.societyofcontrol.com/library/) which contains works from
some of the biggest thinkers of the twentieth century: Baudrillard, Adorno,
Debord, Bourdieu, Deleuze, Habermas, Sloterdijk und so weiter, and so much
more, a lot in German, and all ‘typed out’ texts. The library section offers a
direct search function, a category function and a a-z browse function.
Dillemuth states that he offers this material under fair use, focusing on not
for profit, freedom of information and the maintenance of freedom of speech
and information and making information accessible to all:

_“The Societyofcontrol website site contains information gathered from many
different sources. We see the internet as public domain necessary for the free
flow and exchange of information. However, some of these materials contained
in this site maybe claimed to be copyrighted by various unknown persons. They
will be removed at the copyright holder 's request within a reasonable period
of time upon receipt of such a request at the email address below. It is not
the intent of the Societyofcontrol to have violated or infringed upon any
copyrig


fair use in Bodo 2015


-book would exhaust the distribution right are under consideration
by the Court of Justice of the European Union in a Dutch case (Rosati, 2014b). And while in another case
(Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG) the CJEU reaffirmed the rights of
European libraries to digitize books in their collection if that is necessary to give access to them in digital
formats on their premises, it also created new uncertainties by stating that libraries may not digitize their
entire collections (Rosati, 2014a).
US libraries face a similar situation, both in terms of the narrowly defined exceptions in which libraries
can operate, and the huge uncertainty regarding the limits of fair use in the digital library context. US
rights holders challenged both Google’s (Authors Guild v Google) and the libraries (Authors Guild v
HathiTrust) rights to digitize copyrighted works. While there seems to be a consensus of courts that the
mass digitization conducted by these institutions was fair use (Diaz, 2013; Rosati, 2014c; Samuelson,
2014), the accessibility of the scanned works is still heavily limited, subject to licenses from publishers,
the existence of print copies at the library and the institutional membership held by prospective readers.
While in the highly competitive US e-book market many commercial intermediaries offer e-lending
6

The notable exception being orphan works which are presumed to be still copyrighted, but without an identifiable
rights owner. In the EU, the Directive 2012/28/EU on certain permitted uses of orphan works in theory eases access
to such works, but in practice its practical impact is limited by the many constraints among its provisions. Lacking
a


omies. New York: Social Science Research Council.
Bodó, B. (forthcoming). Piracy vs privacy–the analysis of Piratebrowser. IJOC.
Commission on the Future of the Library. (2013). Report of the Commission on the Future of the UC
Berkeley Library. Berkeley: UC Berkeley.
Committee on the Public Libraries in the Knowledge Society. (2010). The Public Libraries in the
Knowledge Society. Copenhagen: Kulturstyrelsen.
Darnton, R. (1982). The literary underground of the Old Regime. Cambridge, Mass: Harvard University
Press.
Darnton, R. (2003). The Science of Piracy: A Crucial Ingredient in Eighteenth-Century Publishing.
Studies on Voltaire and the Eighteenth Century, 12, 3–29.
Diaz, A. S. (2013). Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after
Authors Guild v. Hathitrust. Berkeley Technology Law Journal, 23.
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the
information society. (2001). Official Journal L, 167, 10–19.
Elst, M. (2005). Copyright, freedom of speech, and cultural policy in the Russian Federation.
Leiden/Boston: Martinus Nijhoff.
Ermolaev, H. (1997). Censorship in Soviet Literature: 1917-1991. Rowman & Littlefield.
Friedberg, M., Watanabe, M., & Nakamoto, N. (1984). The Soviet Book Market: Supply and Demand.
Acta Slavica Iaponica, 2, 177–192.
Giblin, R. (2011). Code Wars: 10 Years of P2P Software L


lmer: a couple of
observations. IPKat. Retrieved October 08, 2014, from http://ipkitten.blogspot.co.uk/2014/09/copyrightexceptions-and-user-rights-in.html

18

Bodó B. (2015): Libraries in the post-scarcity era.
in: Porsdam (ed): Copyrighting Creativity: Creative values, Cultural Heritage Institutions and Systems of Intellectual Property, Ashgate

Rosati, E. (2014b). Dutch court refers questions to CJEU on e-lending and digital exhaustion, and another
Dutch reference on digital resale may be just about to follow. IPKat. Retrieved October 08, 2014, from
http://ipkitten.blogspot.co.uk/2014/09/dutch-court-refers-questions-to-cjeu-on.html
Rosati, E. (2014c). Google Books’ Library Project is fair use. Journal of Intellectual Property Law &
Practice, 9(2), 104–106.
Rose, M. (1993). Authors and owners : the invention of copyright. Cambridge, Mass: Harvard University
Press.
Samuelson, P. (2002). Copyright and freedom of expression in historical perspective. J. Intell. Prop. L.,
10, 319.
Samuelson, P. (2014). Mass Digitization as Fair Use. Communications of the ACM, 57(3), 20–22.
Schultz, M. F. (2007). Copynorms: Copyright Law and Social Norms. Intellectual Property And
Information Wealth v01, 1, 201.
Sezneva, O. (2012). The pirates of Nevskii Prospekt: Intellectual property, piracy and institutional
diffusion in Russia. Poetics, 40(2), 150–166.
Solly, E. (1885). Henry Hills, the Pirate Printer. Antiquary, xi, 151–154.
Stelmakh, V. D. (2001). Reading in the Context of Censorship in the Soviet Union. Libraries & Culture,
36(1), 143–151.
Suber,

P.

(2013).

Open

Access

(Vol.

1).

Cambridge,

MA:

The

MIT

Press.

doi:10.1109/ACCESS.2012.2226094
Swartz,

A.

(2008).

Guerilla

Open

Access

Manifesto.

Aaron

Swartz


fair use in Dekker & Barok 2017


not as merely
mirroring or making backups, but opening up for possibilities to start new libraries, new platforms, new databases.
That is how these came about as well. Let there be Zzzzzrgs,
Ůbuwebs and Multiskops.

AD

What were your biggest challenges beside technical ones?
For example, have you ever been in trouble regarding copyright issues, or if not, how would you deal with such a
situation?
DB

Monoskop operates on the assumption of making transformative use of the collected material. The fact of bringing
it into certain new contexts, in which it can be accessed,
viewed and interpreted, adds something that bookstores
don’t provide. Time will show whether this can be understood as fair use. It is an opt-out model and it proves to
be working well so far. Takedowns are rare, and if they are
legitimate, we comply.
AD

Perhaps related to this question, what is your experience
with users engagement? I remember Sean (from Aaaaarg,
in conversation with Matthew Fuller, Mute 2011) saying
that some people mirror or download the whole site, not
so much in an attempt to ‘have everything’ but as a way
to make sure that the content remains accessible. It is a
conscious decision because one knows that one day everything might be taken down. This is of course particularly
pertinent, especially since while we’re doing this interview
Sean and Marcell are being sued by a Canadian publisher


fair use in USDC 2015


l,
them are fair game for anyone.
doctrine,

comment,

the discoveries within

Secondly,

codified at 17 U.S.C. § 107,

expressions,

as well as ideas,

news reporting,

Eldred v. Ashcroft,

the "fair use"

allows the public to use

nfor purposes such as criticism,

teaching .

.

.

scholarship,

or

research" without being liable for copyright infringement.

(emphasis added)

Under this doctrine,

themselves may be taken and used,
purposes,

Elsevier' s articles

bu.t only for legitimate

and not for wholesale infringement.

U.S. at 219.2

See Eldred,

537

The public interest in the broad dissemination and

use of scientific research is protected by the idea/expression
dichotomy and the fair use doctrine.

2

See Golan v. Holder,

The public interest in wide d1sseminat1on of scientific works

by the fact that copyrights are given only limited

464

15

U.S.

duration.

417, 431-32

132

is also served

See Sony Corp.

(1984).

S.

Ct. 873,

890 (2012);

Eldred,

537 U.S. at 219.

Given the

importance of scientific research and the critical role that
copyright plays in promoting it,

the public interest weighs in

favor of an injunction.

Conclusion

For the reasons set forth above,

It is hereby ordered that:

preliminary injunction is granted.

1. The Defendants,
agents,

their officers,

servants,

employees,

the motion for a

directors,

principals,

successors and assigns,

a


fair use in Mars & Medak 2019


tures Entertainment,2 Sony Music Entertainment3
and Sony Computer Entertainment coexist under the same roof
with the Sony Electronics division, which invented the Walkman
back in 1979 and went on to manufacture devices and gadgets like

home (and professional) audio and video players/recorders (VHS,
Betamax, TV, HiFi, cassette, CD/DVD, mp3, mobile phones, etc.),
storage devices, personal computers, and game consoles. In the
famous 1984 Betamax case (“Sony Corp. of America v. Universal
City Studios, Inc.,” Wikipedia 2015), Universal Studios and the Walt
Disney Company sued Sony for aiding copyright infringement with
their Betamax video recorders. Sony won. The court decision in
favor of fair use rather than copyright infringement laid the legal
ground for home recording technology as the foundation of future
analog, and subsequently digital, content sharing.
Five years later, Sony bought its first major Hollywood studio:
Columbia Pictures. In 2004 Sony Music Entertainment merged with
Bertelsmann Music Group to create Sony BMG. However, things
changed as Sony became the content producer and we entered the
age of the discrete and the digital. Another five years later, in 2009,
Sony BMG sued Joel Tenenbaum for downloading and then sharing
thirty-­one songs. The jury awarded US$675,000 to the music
companies (US$22,000 per song). This is known as “the second
file-­sharing case.”


fair use in Mars & Medak 2017


(Balázs, 2014), Library Genesis has built a robust infrastructure
with the mission to provide access to the largest online library in existence while
keeping a low profile. At this moment Library Genesis provides access to books,
and its sister project Science Hub provides access to academic journals. Both
projects are under threat of closure by the largest academic publisher Reed
Elsevier. Together with the Public Library project, they articulate a position of civil
disobedience.
PJ & AK: Please elaborate the position of civil disobedience. How does it
work; when is it justified?
MM & TM: Legitimating discourses usually claim that shadow libraries fall
into the category of non-commercial fair use. These arguments are definitely valid,
yet they do not build a particularly strong ground for defending knowledge
commons. Once they arrive under attack, therefore, shadow libraries are typically
shut down. In our call for collective disobedience, therefore, we want to make a
larger claim. Access to knowledge as a universal condition could not exist if we –
academics and non-academics across the unevenly developed world – did not
create own ways of commoning knowledge that we partake in producing and
learning. By introducing the figure of the custodian, we are turning the notion of
property upside down. Paraphrasing the Little Prince, to own something is to be
useful to that which you ow


king the law?
MM & TM: Marcell has been recently drawn into a lawsuit that was filed
against Aaaaarg for copyright infringement. Marcell, the founder of Aaaaarg Sean
Dockray, and a number of institutions ranging from universities to continentalscale intergovernmental organizations, are being sued by a small publisher from
Quebec whose translation of André Bazin’s What is Cinema? (1967) was twice
scanned and uploaded to Aaaaarg by an unknown user. The book was removed
each time the plaintiff issued a takedown notice, resulting in minimal damages, but
these people are nonetheless being sued for 500.000 Canadian dollars. Should
Aaaaarg not be able to defend its existence on the principle of fair use, a valuable
common resource will yet again be lost and its founder will pay a high price. In this
lawsuit, ironically, there is little economic interest. But many smaller publishers
find themselves squeezed between the privatization of education which leaves
students and adjuncts with little money for books and the rapid concentration of
academic publishing. For instance, Taylor and Francis has acquired a smaller
humanities publisher Ashgate and shut it down in a matter of months (Save
Ashgate Publishing petition, 2015).
The system of academic publishing is patently broken. It syphons off public
funding of science and education into huge private profits, while denying living
wages and access


fair use in Sollfrank 2018


n the archive as long as there is no request for
removal.8 Its status, however, is precarious. We find ourselves in the
notorious gray zone of copyright law where nothing is clear and many things
are possible—until somebody decides to challenge this status. Exploring the
borders of this experimental playground involves risk-taking, but, at the same
time, it is the only way to preserve existing freedoms and make a case for
changing cultural needs, which have not been considered in current legal
settings. And as the 20 years of Ubu’s existence demonstrate, the practice may
be experimental and precarious, but with growing cultural relevance and
reputation it is also gaining in stability.

_Fair Use and Public Interest_

At all public appearances and public presentations Goldsmith and his
supporters emphasize the educational character of the project and its non-
commercial orientation.9 Such a characterization is clearly intended to take
the wind out of the sails of its critics from the start and to shift the
attention away from the notion of piracy and toward questions of public
interest and the common good.

From a cultural point of view, the project unquestionably is of inestimable
value; a legal defense, however, would be a difficult undertaking. Copyright
law, in fact, has a built-in opening, the so-called copyright exceptions or
fair use regulations. They vary according to national law and cultural
traditions and allow for the use of copyrighted works under certain, defined
provisions without permission of the owner. The exceptions basically apply to
the areas of research and private study (both non-commercial), education,
review, and criticism and are described through general guidelines. “These
defences exist in order to restore the balance between the rights of the owner
of copyright and the rights of society at large.”10

A very powerful provision in most legislations is the permission to make
“private copies”, digital and analog ones, in small numbers, but they are
limited to non-commercial and non-public use, and passing on to a third party
is also excluded.11 As Ubu is an online archive that makes all of its records
publicly accessible and, not least, also provides templates for further
copying, it exceeds the notion of a “private copy” by far. Regarding further
fair use provisions, the four factors that are considered in a decision-making
process in US copyright provisions, for instance, refer to: 1) the purpose and
character of the use, including whether such use is of a commercial nature or
is for non-profit educational purposes; 2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and 4) the effect of the use upon the potential
market for the value of the copyrighted work (US Copyright Act, 1976, 17 USC.
§107, online, n.pag.). Applying these fair use provisions to Ubu, one might
consider that the main purposes of the archive relate to education and
research, that it is by its very nature non-commercial, and it largely does
not collide with any third party business interests as most of the material is
not commercially available. However, proving this in detail would be quite an
endeavor. And what complicates matters even more is that the archival material
largely consists of original works of art, which are subject to strict
copyright law protection, that all the works have been copied without any
transformative or commenting intention, and last but not least, that the
aspect of the appropriateness of the amount of used material becomes absurd
with reference to an archive whose quality largely depends on
comprehensiveness: the more the merrier. As Simon Stokes points out, legally
binding decisions can only be made on a case-by-case basis, which is why it is
difficult to make a general evaluation of Ubu’s legal situation.12 The ethical
defense tends to induce the cultural value of the archive as a whole and its
invaluable contribution to cultural memory, while the legal situation does not
consider the value of the project as a whole and necessitates breaking it down
into all the individual items within the collection.

This very brief, when not abridged discussion of the possibilities of fair use
already demonstrates how complex it would be to apply them to Ubu. How
pointless it would be to attempt a serious legal discussion for such a
privately run archive becomes even clearer when looking at the problems public
libraries and archives have to face. While in theory such official
institutions may even have a public mission to collect, preserve, and archive
digital material, in practice, copyright law largely prevents the execution of
this task, as Steinhauer explains.13 The legal expert introduces the example
of the German National Library, which was assigned the task since 2006 to make
back-up copies of all websites published within the .de sublevel domain, but
it turned out to be il


fair use in Stankievech 2016


means—every
Web 2.0 platform is bound to find such examples, from Youtube
to Facebook; however, such examples occur as a result of a small
number of participant users, not because of two dedicated individuals who logistically support the platform. A strength of Arg.org
and a source of its experimental vibrancy is its lack of policing,
which fosters a sense of freedom and anonymity which are both
vital elements for research within a democratic society and
the foundations of any library system. As a result of this freedom,
there are sometimes violations of copyright. However, since
Arg.org is a committed, non-profit community-library, such transgressions occur within a spirit of sharing and fair use that characterize this intellectual community. This sharing is quite different
from the popular platform Academia.edu, which is searchable
by non-users and acquires value by monetizing its articles through
the sale of digital advertising space and a nontransparent investment exit strategy. Arg.org is the antithesis of such a model
and instead fosters a community of learning through its platform.
Please do not hesitate to contact me for further information,
or to testify as a witness.
Regards,
Charles Stankievech,
Director of Visual Studies Program, University of Toronto
Co-Director of K. Verlag, Berlin & Toronto

… Medieval works, as diverse as the tapestry, the glass window,
the miniature


fair use in Thylstrup 2019


on as something that _cannot_ be
secured and controlled in the same way as analog commodities can. Indeed, it
seemed that authors and publishers were part of a world entirely different
from Google Books: while publishers and authors were still living in and
defending a “regime of scarcity,” 23 Google Books, by contrast, was busy
building a “realm of plenitude and infinite replenishment.” As such, the clash
between the traditional infrastructures of the analog book and the new
infrastructures of Google Books was symptomatic of the underlying radical
reorganization of information from a state of trade and exchange to a state of
constant transmission and contagion.24

Foregrounding the fair use defense25, Google argued that the public benefits
of scanning outweighed the negative consequences for authors.26 Influential
legal scholars such as Lawrence Lessig, among others, supported this argument,
suggesting that inclusion in a search engine in a way that does not erode the
value of the book was of such societal importance that it should be deemed
legal.27 The copyright owners, however, insisted that the burden should be on
Google to request permission to scan each work.28

Google and copyright owners reached a proposed settlement on October 28, 2008.
The proposal would allow Google not only to continue its scanning activities
and to show free snippets online, but would also give Goo


ing its universalizing mission regarding
information, also countered the accusations of monopoly building, arguing that
potential competitors could just step up, since nothing in the agreements
entered into by the libraries and Google “precludes any other company or
organization from pursuing their own similar effort.”35 Nevertheless Judge
Denny Chin denied the settlement in March 2011 with the following statement:
“The question presented is whether the ASA is fair, adequate, and reasonable.
I conclude that it is not.”36 Google left the proposed settlement behind, and
appealed the decision of their initial case with new amicus briefs focusing on
their argument that book scanning was fair use. They argued that they were not
demanding exclusivity on the information they scanned, that they didn’t
prohibit other actors from digitizing the works they were digitizing, and that
their main goal was to enrich the public sphere with more information, not to
build an information monopoly. In July 2013 Judge Denny Chin issued a new
opinion confirming that Google Books was indeed fair use.37 Chin’s opinion was
later consolidated in a major victory for Google in 2015 when Judge Pierre
Leval in the Second Circuit Court legalized Google Books with the words
“Google’s unauthorized digitizing of copyright-protected works, creation of a
search functionality, and display of snippets from those works are non-
infringing fair uses.“38 Leval’s decision marked a new direction, not only for
Google Books, but also for mass digitization in general, as it signaled a
shift in cultural expectations about what it means to experience and
disseminate cultural artifacts.

Once again, the story of Google Books took a new turn. What was first
presented as a gift to cultural memory institutions and the public, and later
as theft from and threat to these same entities, on closer inspection revealed
itself as a much more complex circulatory system of expectations, promises,
risks, and blame. Google Books thus instigated a dynamic and forceful
connection between Google and cultural memory institutions, where the roles of
giver and


e.org/web/20091015172156/http://www.authorsguild.org/advocacy/articles
/settlement-resources.attachment/authors-
guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf>. 21. As the
Authors Guild notes, “The problem is that before Google created Book Search,
it digitized and made many digital copies of millions of copyrighted books,
which the company never paid for. It never even bought a single book. That, in
itself, was an act of theft. If you did it with a single book, you’d be
infringing.” Authors Guild v. Google: Questions and Answers,
. 22.
Peters 2015, 21. 23. Hayles 2005. 24. Purdon 2016, 4. 25. Fair use constitutes
an exception to the exclusive right of the copyright holder under the United
States Copyright Act; if the use of a copyright work is a “fair use,” no
permission is required. For a court to determine if a use of a copyright work
is fair use, four factors must be considered: (1) the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the copyrighted work; (3)
the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work. 26. “Do you really want … the
whole world not to have access to human knowledge as contained in books,
because you really want opt out rather than opt in?” as quoted in Levy 2011,
360. 27. “It is an astonishing opportunity to revive our cultural past, and
make it accessible. Sure,


tml>. 36.  _The Authors
Guild et al. vs. Google Inc_., 05 Civ. 8136-DC, United States Southern
District of New York, March 22, 2011,
[http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115](http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115).
37. “Google does, of course, benefit commercially in the sense that users are
drawn to the Google websites by the ability to search Google Books. While this
is a consideration to be acknowledged in weighing all the factors, even
assuming Google’s principal motivation is profit, the fact is that Google
Books serves several important educational purposes. Accordingly, I conclude
that the first factor strongly favors a finding of fair use.” _The Authors
Guild et al. vs. Google Inc_., 05 Civ. 8136-DC, United States Southern
District of New York, November 14, 2013,
[http://www.nysd.uscourts.gov/cases/show.php?db=special&id=355](http://www.nysd.uscourts.gov/cases/show.php?db=special&id=355).
38.  _Authors Guild v. Google, Inc_., 13–4829-cv, December 16, 2015,
81c0-23db25f3b301/1/doc/13-4829_opn.pdf>. In the aftermath of Pierre Leval’s
decision the Authors Guild has yet again filed yet another petition for the
Supreme Court to reverse the appeals court decision, and has publically
reiterated the framing of Google as a parasite rather than a benefactor. A


stratagems in digital media, they do “not cohere into a system”
but rather operate as “extensive, open-ended listing[s]” that “display a
certain undecidability because inevitably a stratagem does not describe or
prescribe an action that is certain in its outcome.”39 Significantly, then,
failures and errors not only represent negative occurrences in stratagematic
approaches but also appeal to willful dissidents as potentially beneficial
tools. Dušan Barok’s response to a question about the legal challenges against
Monoskop evidences this stratagematic approach, as he replies that shadow
libraries such as Monoskop operate in the “gray zone,” which to him is also
the zone of fair use.40 Barok thus highlights the ways in which Monoskop
engages with established media infrastructures, not only on the level of
discursive conventions but also through their formal logics, technical
protocols, and social proprieties.

Thus, whereas Google lights up gray zones through spectacle and legal power
plays, and Europeana shuns gray zones in favor of the law, Monoskop literally
embraces its shadowy existence in the gray zones of the law. By working in the
shadows, Monoskop and likeminded operations highlight the ways in which the
objects they circulate (including the digital artifacts, their knowledge
management, and their software) can be manipulated and experimented upon to
produce ne


255. Samimian-Darash, Limor, and Paul Rabinow. 2015. _Modes of Uncertainty: Anthropological Cases_. Chicago: The University of Chicago Press.
256. Samuel, Henry. 2009. “Nicolas Sarkozy Fights Google over Classic Books.” _The Telegraph_ , December 14. .
257. Samuelson, Pamela. 2010. “Google Book Search and the Future of Books in Cyberspace.” _Minnesota Law Review_ 94 (5): 1308–1374.
258. Samuelson, Pamela. 2011. “Why the Google Book Settlement Failed—and What Comes Next?” _Communications of the ACM_ 54 (11): 29–31.
259. Samuelson, Pamela. 2014. “Mass Digitization as Fair Use.” _Communications of the ACM_ 57 (3): 20–22.
260. Samyn, Jeanette. 2012. “Anti-Anti-Parasitism.” _The New Inquiry_ , September 18.
261. Sanderhoff, Merethe. 2014. _Sharing Is Caring: Åbenhed Og Deling I Kulturarvssektoren_. Copenhagen: Statens Museum for Kunst.
262. Sassen, Saskia. 2008. _Territory, Authority, Rights: From Medieval to Global Assemblages_. Princeton, NJ: Princeton University Press.
263. Schmidt, Henrike. 2009. “‘Holy Cow’ and ‘Eternal Flame’: Russian Online Libraries.” _Kultura_ 1, 4–8. .
264. Schmitz, Dawn. 2008. _The Seamless Cyberinfrastru


fair use in Weinmayr 2019


photographer, Patrick Cariou began litigation against Prince, his gallerist
Larry Gagosian and his catalogue publisher Rizzoli. Prince had appropriated
Cariou’s photographs in his series Canal Zone which went on show at Gagosian
Gallery.[34](ch11.xhtml#footnote-492) A first ruling by a district judge
stated that Prince’s appropriation was copyright infringement and requested
him to destroy the unsold paintings on show. The ruling also forbade those
that had been sold from being displayed publicly in the
future.[35](ch11.xhtml#footnote-491)

However Prince’s eventual appeal turned the verdict around. A second circuit
court decided that twenty-five of his thirty paintings fell under the fair use
rule. The legal concept of fair use allows for copyright exceptions in order
to balance the interests of exclusive right holders with the interests of
users and the public ‘for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research’.[36](ch11.xhtml#footnote-490) One requirement to justify fair use is
that the new work should be transformative, understood as presenting a new
expression, meaning or message. The appeal’s court considered Prince’s
appropriation as sufficiently transformative because a ‘reasonable
observer’[37](ch11.xhtml#footnote-489)would perceive aesthetic differences
with the original.[38](ch11.xhtml#footnote-488)

Many artists applauded the appeal court’s verdict, as it seemed to set a
precedent for a more liberal approach towards appropriation art. Yet attorney
Sergio Muñoz Sarmiento and art historian Lauren van Haaften-Schick voiced
concerns about the verdict’s interpretation of ‘transformative’ and the
ruling’s underlying assumptions.

The questi


[46](ch11.xhtml#footnote-480) with considerable success in the art
market.[47](ch11.xhtml#footnote-479) Such arguing is dangerous, because it
brings social class, celebrity status and art market success into play as
legal categories to be considered in future copyright cases and dismisses
‘Cariou’s claim as a legitimate author and
artist’.[48](ch11.xhtml#footnote-478) The parties eventually reached an out-
of-court settlement regarding the remaining five paintings, and their
infringement claim was returned to the district court meaning that no ruling
had been issued. This pragmatic settlement can be interpreted as a missed
opportunity for further clarification in the interpretation of fair use. No
details about the settlement have been disclosed.[49](ch11.xhtml#footnote-477)

Richard Prince presented himself in his court deposition as an artist, who
‘do[es]n’t really have a message,’ and was not ‘trying to create anything with
a new meaning or a new message.’[50](ch11.xhtml#footnote-476) Nevertheless the
appeal court’s ruling transforms the ‘elusive artist not only into a subject,
but also into an [artist] author’[51](ch11.xhtml#footnote-475) — a status he
set out to challenge in the first place. Therefore Richard Prince’s ongoing
games[52](ch11.xhtml#footnote-474) might be entertaining or make us laugh, but
they stop short of effectively challenging the con


of
intellectual property as intangible capital has been taken on board by
institutions and public management policymakers, which not only turn creative
practices into private property, but trigger working policies that produce
precarious self-entrepreneurship and sacrifice in pursuit of
gratification.[66](ch11.xhtml#footnote-460)

We find this kind of thinking reflected for instance on the website built by
the University of the Arts London to give advice on intellectual property —
which was until recently headlined ‘Own It’.[67](ch11.xhtml#footnote-459)
Here, institutional policies privilege the privatisation and propertisation of
creative student work over the concept of sharing and fair use.

There is evidence that this line of thought creates a self-inflicted
impediment for cultural workers inside and outside art colleges. The College
Art Association, a US-based organization of about fourteen thousand artists,
arts professionals, students and scholars released a report in 2015 on the
state of fair use in the visual arts.[68](ch11.xhtml#footnote-458) The survey
reveals that ‘visual arts communities of practice share a great deal of
confusion about and misunderstanding of the nature of copyright law and the
availability of fair use. […] Formal education on copyright, not least at art
colleges, appears to increase tendencies to overestimate risk and underuse
fair use.’ As a result, the report states, the work of art students ‘is
constrained and censored, most powerfully by themselves, because of that
confusion and the resulting fear and anxiety.’[69](ch11.xhtml#footnote-457)

This climate even results in outright self-censorship. The interviewees of
this study ‘repeatedly expressed a pre-emptive decision not to pursue an
idea’[70](ch11.xhtml#footnote-456) because gaining permission from right
holders is often difficult, time consuming or expensive. The authors of this
report called this mindset a ‘permissions culture’, giving some examples. ‘I
think of copyright as a cudgel, and I have been repeatedly forestalled and
censored because I have not been able to obtain copyright permission’, stated
one academic, whose research did not get approval from an artist’s estate. He
added: ‘For those of us who work against the grain of [the] market-driven arts
economy, their one recourse for controlling us is copyright.’ Another said:
‘In many cases I have encountered artists’ estates and sometimes artists who
refuse rights to publish (even when clearly fair use) unless they like the
interpretation in the text. This is censorship and very deleterious to
scholarship and a free public discourse on
images.’[71](ch11.xhtml#footnote-455) One scholar declared that copyright
questions overshadowed his entire work process: ‘In my own writing, I’m
worrying all the time.’[72](ch11.xhtml#footnote-454) In such a climate of
anxiety ‘editors choose not to publish books that they believe might have
prohibitive permission costs; museums delay or abandon digital-access
projects’, as Ben Mauk comments in the New Yorker
Magazine.[73](ch11.xhtml#footnote-453)

The language of law does harm because it has the rhetorical power to foreclose
debate. Legal and p


in Publishers Weekly,
news/article/45738-j-d-salinger-estate-swedish-author-settle-copyright-
suit.html>

Allen, Greg, ed. (2012) The Deposition of Richard Prince in the Case of Cariou
v. Prince et al. (Zurich: Bookhorse).

AND Publishing (4 May 2011) ‘AND Publishing announces The Piracy Lectures’,
Art Agenda, piracy-lectures/>

Andersson, Jonas (2009) ‘For the Good of the Net: The Pirate Bay as a
Strategic Sovereign’, Culture Machine 10, 64–108.

Aufderheide, Patricia, Peter Jaszi, Bryan Bello and Tijana Milosevic (2014)
Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and
Museum Visual Arts Communities: An Issues Report (New York: College Art
Association).

Barron, Anne (1998) ‘No Other Law? Author–ity, Property and Aboriginal Art’,
in Lionel Bently and Spyros Maniatis (eds.), Intellectual Property and Ethics
(London: Sweet and Maxwell), pp. 37–88.

Barthes, Roland (1967) ‘The Death of the Author’, Aspen, [n.p.],


Benjamin, Walter (1970) ‘The Author as Producer’ in New Left Review 1.62,
83–96.

Bently, Lionel (1994) ‘Copyright and the Death of the Author in Literature and
Law’, Modern Law Review 57, 973–86.

— Andrea Francke, Sergio Muñ


d been taken from
Cariou’s book Yes Rasta (Brooklyn: powerHouse Books, 2000) and used by Prince
in his painting series Canal Zone, which was shown at Gagosian Gallery, New
York, in 2008.

[35](ch11.xhtml#footnote-491-backlink) It might be no coincidence (or then
again, it might) that the district court judge in this case, Deborah Batts, is
the same judge who ruled in the 2009 case in which Salinger successfully
brought suit for copyright infringement against Swedish author Fredrik Colting
for 60 Years Later Coming Through the Rye, a sequel to Salinger’s book. See
note 31.

[36](ch11.xhtml#footnote-490-backlink) ’In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall
include — (1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and (4) the
effect of the use upon the potential market for or value of the copyrighted
work.’ US Copyright Act of 1976, amended 2016,


[37](ch11.xhtml#footnote-489-backlink) ‘What is critical is how the work in
question appears to the reasonable observer, not simply what an artist might
say about a particular piece or body of wo


l#footnote-486-backlink) The court opinion includes a dissent by
Circuit Judge Clifford Wallace sitting by designation from the US Court of
Appeals for the Ninth Circuit, ‘I, for one, do not believe that I am in a
position to make these fact- and opinion-intensive decisions on the twenty-
five works that passed the majority’s judicial observation. […] nor am I
trained to make art opinions ab initio.’ Ibid., p. 5\.

‘Furthermore, Judge Wallace questions the majority’s insistence on analyzing
only the visual similarities and differences between Cariou’s and Prince’s art
works, “Unlike the majority, I would allow the district court to consider
Prince’s statements reviewing fair use … I see no reason to discount Prince’s
statements as the majority does.” In fact, Judge Wallace remarks that he views
Prince’s statements as “relevant to the transformativeness analysis.” Judge
Wallace does not believe that a simple visual side-by-side analysis is enough
because this would call for judges to “employ [their] own artistic
Judgment[s].”’ Sergio Muñoz Sarmiento and Lauren van Haaften-Schick, citing
court documents. ‘Cariou v. Prince: Toward a Theory of Aesthetic-Judicial
Judgements’, Texas A&M Law Review, vol. 1, 2013–2014, p. 948.

[41](ch11.xhtml#footnote-485-backlink) Court opinion, p. 18.

[42](ch11.xhtml#footnote-484-backlink) Ibid., p. 17.

[43]


nd Rossiter, My Creativity, and
Isabell Lorey, State of Insecurity: Government of the Precarious (London:
Verso, 2015).

[67](ch11.xhtml#footnote-459-backlink) University of the Arts London,
‘Intellectual Property Know-How for the Creative Sector’. This site was
initially accessed on 30 March 2015. In 2018 it was taken down and integrated
into the UAL Intellectual Property Advice pages. Their downloadable PDFs still
show the ‘Own-it’ logo, /freelance-and-business-advice/intellectual-property-advice>

[68](ch11.xhtml#footnote-458-backlink) Patricia Aufderheide, Peter Jaszi,
Bryan Bello, and Tijana Milosevic, Copyright, Permissions, and Fair Use Among
Visual Artists and the Academic and Museum Visual Arts Communities: An Issues
Report (New York: College Art Association, 2014).

[69](ch11.xhtml#footnote-457-backlink) Ibid., p. 5.

[70](ch11.xhtml#footnote-456-backlink) Sixty-six percent of all those who
reported that they had abandoned or avoided a project because of an actual or
perceived inability to obtain permissions said they would be ‘very likely’ to
use copyrighted works of others more than they have in the past were
permissions not needed. Ibid., p. 50.

[71](ch11.xhtml#footnote-455-backlink) The Copyright, Permissions, and Fair
Use Report gives some intriguing further observations: ‘Permissions roadblocks
result in d

 

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