The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Briefs have now been filed in the very interesting Katz v. Chevaldina case, now on appeal in the 11th Circuit. Eugene blogged about this here on the VC almost a year ago, when the case was before the district court, and it remains a pretty interesting case about the limits of copyright law and copyright protection. [Full disclosure: I worked with defendant Chevaldina's attorney in the appeal—Michael Rosman at the Center for Individual Rights—so I won't pretend to be neutral and/or disinterested]
The facts are pretty simple. Katz is a wealthy Miami real estate developer (and part owner of the NBA's Miami Heat franchise). While visiting Israel, a photograph of Katz—described as "unflattering" by the lower court and "ugly and embarrassing" by Katz himself [you can see the photo itself in Eugene's original posting]—was published in the Israeli paper H'aaretz, accompanying a story about his purported interest in purchasing a stake in an Israeli basketball team. Chevaldina, who has a number of ongoing disputes with Katz and who operates several blogs which are highly critical of him and of his business practices, republished the photograph numerous times, "in its original state, sometimes accompanied by sharply worded captions, or cropped and pasted into derisive cartoons." Katz obtained an assignment of the copyright in the photograph from the Israeli photographer, and then sued Chevaldina for infringing his copyright.
The district court found that Chevaldina was not infringing Katz' copyright because she was making "fair use" of the photographs, and Katz appealed to the 11th Circuit. [The briefs can be found here: for Katz, for Chevaldina, and an amicus brief by the Electronic Frontier Foundation supporting Chevaldina]
There's some really interesting copyright law, and some really interesting copyright policy, in all this. The Copyright Act requires a court to consider "the effect" of Chevaldina's use on "the potential market for or value of the copyrighted work," in deciding whether or not her use is "fair." The district court found—correctly, in my view (but see disclosure above!)—that there was no "harm" to the market for the work because there was, for all intents and purposes, no market for the work at all, now that Katz had purchased the copyright (and clearly was not interested in having it distrubted further by anybody):
Plaintiff has not tried to sell or license the Photo to anyone. Rather, Plaintiff testified that he obtained the Assignment of Copyright because "I wanted to stop this atrocity." …
Plaintiff has made no showing that there is a potential market for the Photo. The possibility that Plaintiff may one day change his mind, and opt to publish the Photo he has worked so hard to suppress, is remote. There is no evidence that Defendant's use of the Photo had an impact upon any actual or potential market and, thus, I find that the fourth factor weighs in favor of fair use.
The Electronic Frontier Foundation has now weighed in, as amicus, in an excellent brief, urging the court to reject Katz' attempt to use copyright to "censor" speech he finds offensive, and arguing that First Amendment principles and values support Chevaldina's fair use defense. Their brief points to an increasing trend" in recent years: plaintiffs "abusing intellectual property law to do things it was never intended for, such as censoring criticism or suppressing information." They have a bunch of recent examples of "copyright being used as a tool for censorship" in political and artistic contexts. (see pp. 9-10 of their brief).
The use of copyright as a speech-suppression mechanism is an unfortunate part of our legacy of copyright-as-property; the notion that, just as with other forms of ordinary personal property, owners can deny others access to it for any reason, or for no reason at all. In the copyright context, this can indeed look a lot like censorship, and one of the important purposes of "fair use" is to override the copyright owner's control when "criticism" or "comment" is involved.
This all calls to mind the most astonishing copyright-as-censorship story of all, one that surely falls into the "you couldn't make this up" category. In 1938, Alan Cranston—then a young foreign correspondent for the International News Service, later to have a distinguished career in the US Senate—published an English translation of Hitler's Mein Kampf as a way to, as he put it, "wake up the Americans to the Nazi threat." His story is worth re-telling from time to time:
While I was doing my foreign correspondence work, I read Adolph Hitler's Mein Kampf, the book he wrote while he was in prison before he became the dictator, outlining his plans for Germany and the terrible things he intended to do in the world. There was no English language version of it. [O]ne day in Macy's bookstore in New York I saw a display of Mein Kampf, an English language version, which I'd never seen before, which hadn't existed. I went over to look at it out of curiosity and as I picked it up, I knew it wasn't the real book. It was much thinner than the long book that I had read, which is about 350,000 words. So I bought it to see how come. And delving into it I found that it was a condensed version, and some of the things that would most upset Americans just weren't there as they were in the version I had read, the original, in German.
So I talked to an editor friend of mine in New York, a Hearst editor named Amster Spiro, and suggested that I write and we publish an anti-Nazi version of Mein Kampf that would be the real book and would awaken Americans to the peril Hitler posed for us and the rest of the world. So we did that. I spent eight days [compiling] my version of Mein Kampf from the English language version that I now had, the original German language version, and another copy that had just appeared.
[Hitler's] book was then selling for around three dollars a copy. Hitler was getting forty cents royalty for each copy that somebody bought … We proceeded to print in tabloid the version that I wrote, with a very lurid red cover showing Hitler carving up the world, and we sold it for ten cents on newsstands. It created quite a stir. Some Nazis went around knocking down newsstands that displayed it in St. Louis and the German part of New York and elsewhere in the country. We sold half a million copies in ten days and were immediately sued by Hitler's agents on the grounds we had violated his copyright …
Hitler, unfortunately, found victory in the US courtroom. He (or, rather, his German publisher, Franz Eher Verlag of Munich, and the US firm to which it had assigned the US copyright, Houghton Mifflin) were able to persuade the federal court to enjoin any further publication of Cranston's version in the US (and to order the impoundment and destruction of existing copies). [Houghton Miflin v. Stackpole, 104 F.2d 306 (2d Cir., June 9 1939)].
It was not copyright law's finest hour—its Korematsu, one is tempted to say. Hitler gets to continue to receive royalties, and to control publication of his book, 10 weeks before he marches into Poland and war breaks out in Europe. The defendant doesn't seem to have raised "fair use" as a defense in the case, relying instead entirely on a theory that because Adolf Hitler was a "stateless person", any assignment of his copyright rights was invalid. [As Cranston put it later: "We had the theory that [though] he had copyrighted Mein Kampf in Austria, he had destroyed Austria with his army, so we said he destroyed his copyright at the same time."]
It's hard to know whether there's something noble about a US federal court going through the arcana of international copyright jurisprudence in order to give Hitler—even Hitler!—his day in court, or appalling that it would allow copyright law to be mis-used in a matter of such crucial public importance.
But at least, as Cranston says, "we did wake up a lot of Americans to the Nazi threat."
[Update: Terry Carroll points out that I conflated two separate cases in the above article. Cranston did indeed lose his case in the district court—but he did not appeal the decision. A second unauthorized version of "Mein Kampf," translated by William Soskind, was the subject of the 2d Circuit decision the district court had refused to grant the injunction Hitler's lawyers requested, but the 2d Circuit reversed in the Stackpole case cited in the article. Apologies for any confusion.]