Introduction
In the wake of the Ninth Circuit’s recent decision in Lenz v. Universal Music Corp.[1] there has been a flurry of discussion by both critics and supporters alike. There are those who are concerned about, among other things, the holding’s logistical implications for copyright owners. The owners must now conduct ever more thorough evaluations of particular online uses of their copyrighted works before taking advantage of the “takedown” provisions of the 1998 Digital Millennium Copyright Act (DMCA).[2] Other commentators have applauded the decision as a victory for online speakers and a step towards reining in a system that grants too much power to copyright holders.[3] Largely absent, however, has been any serious discussion of the implications of the ruling as a potentially significant step in protecting the First Amendment rights of online speakers within the DMCA.
Notions of the Transformative in Law and the Visual Arts
By Aimée Scala
In January 2011, artist Shepard Fairey and the Associated Press reached a settlement out of court regarding Fairey’s ubiquitous Hope poster (now in the collection of the National Portrait Gallery in Washington, D.C.), created and used during Barack Obama’s presidential campaign. Fairey’s image was based on a photograph of Obama, then an Illinois senator, taken by photographer Manny Garcia for the Associated Press. The A.P. accused him of copyright infringement because of the substantial similarity between the two images. In response, Fairey brought suit seeking a declaration that his use of the photograph was not infringement, but instead a fair use of the copyrighted image, a statutory exception to the exclusive grants given to authors and creators under federal copyright law. Because the parties settled their dispute, the merits of Fairey’s fair use claim were not addressed. Some commentators, however, have argued that the case would have turned primarily on whether Fairey’s use of the photograph was “transformative.” Though this case made headlines, another fair use case, one whose holding has far-reaching implications for artists and others that rely on the doctrine, fell largely under the radar of popular media.