Here Comes Another Bubble

This is great:

Unfortunately, TechCrunch says that the video is being pulled from video sites because a photographer who owns a copyright to a photo featured in the video isn’t happy about it being used without permission. Michael Arrington is incensed about this, and argues that the photo is fair use.

Now, Tom is right that Arrington is wrong when he says that using the photo is fair use because it’s being used in a parody. Parody is a fair use defense for using the work being parodied. You can’t just incorporate any old work into a parody and claim fair use.

However, I think the fair use argument here is stronger than Tom suggests. If we take a look at our four factors, factor 4 clearly weighs in favor of fair use (including a low-resolution copy of the photo in a viral video isn’t going to undercut the market for selling the photo), factor 3 is perhaps slightly against fair use (the whole photo is used, but it’s a low-res version, and factor 2 seems pretty neutral.

That leaves the first factor, the extent to which the use is “transformative.” I honestly have no idea how courts would come down on this factor, but certainly it’s not crazy to argue that briefly displaying a photo in a video is fair use. I mean, there are lots of law professors willing to go to the matt for the idea that incorporating short video clips into a longer video is fair use. If that’s fair use, I don’t see how displaying a photo for 3 seconds is any different.

The bottom line, I think, is that we have no idea. The cost of litigating the question would be vastly more than the cost of creating either video or the photo, not to mention more than any possible profit either might make off of them. And as these issues get quietly settled instead of litigating, de jure copyright law drifts ever further away from de facto copyright law.

And Arrington is obviously right that as a policy matter, it’s stupid that copyright law interferes with this kind of creativity. It would be an unacceptable headache to clear the rights to every single image that one wanted to include in a video like that. On the other hand, it’s hard to see how requiring that the rights be cleared does anyone any good. Someone making an amateur video like that isn’t going to pay anybody royalties. He would just use a different image if someone said no. So the public gets a lower-quality viral video, and the photographer still gets nothing.

And I think Arrington is also right that people are going to just keep doing what’s reasonable regardless of what the law says, and at some point the law is going to have to catch up with practice. This certainly isn’t the sort of thing you could get changed in Congress by asking nicely. But on the other hand, professional photographers are going to have no more luck suppressing this sort of thing than the music industry has had combatting file sharing. And at some point it will become obvious that the law doesn’t reflect reality.

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