Free Speech

Publishing Another Newspaper's Spiked Story: Copyright Infringement or Fair Use?

Likely fair use, at least under the Second Circuit's precedents.

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Some of the commenters on the Bret Stephens' Spiked Story on the Donald McNeil Firing, Published by the New York Post thread asked: Is the Post's publishing the story copyright infringement? Here's my thinking on the matter.

[1.] I expect that the copyright in the article is likely owned by the Times, whether because (a) Stephens is an employee and the article is a work for hire, (b) Stephens is a contractor and there is a written agreement that the article will be treated as a work for hire (permissible for collective works such as newspapers), or (c) Stephens is a contractor and there is a written agreement assigning the copyright in all his articles (spiked or not) to the Times. The Post's publishing the article will thus be presumptively an infringement of the Times's copyright.

[2.] But that presumption can be rebutted if the Post shows "fair use." The boundaries of fair use are notoriously vague, but as commenter Bored Lawyer reminded me, there's a closely analogous 2014 Second Circuit case called Swatch Group Management Servs. Ltd. v. Bloomberg L.P., which would cut strongly in the Post's favor. (The Second Circuit's jurisdiction includes federal courts in New York, where a New York Times v. New York Post case would likely be filed.)

In Swatch, Bloomberg published an unauthorized recording of "a conference call convened by [Swatch] to discuss the company's recently released earnings report with invited investment analysts"; Swatch sued, but Bloomberg won on fair use grounds. Here's how the New York Post would presumably argue the case, using Swatch (from which I quote extensively below):

A. The first fair use factor, "the purpose and character of the use," expressly favors uses for "news reporting." Just as Bloomberg was reporting on an important news event (the Swatch earnings report discussion), so the Post was reporting on an important news event—not just the firing of McNeil, but the Times' spiking of a story written by a prominent Times commentator critical of the Times itself. Just as (to quote Swatch),"[i]nvestors and analysts have an interest in obtaining important financial information about companies whose securities are traded in American and other markets," so Americans have an interest in obtaining important information about how one of America's leading newspapers deals with such controversies.

B. That the use is commercial doesn't keep it from being fair use. As the court noted in Swatch, "[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit." Therefore, the commercial nature of the use doesn't matter much for fair use analysis so long as "the link between [the defendant]'s commercial gain and its copying is … attenuated" (e.g., when "it would strain credulity to suggest that providing access to [the copied material] call more than trivially affected the value of [defendant's] service").

C. The Post's actions can be fair use even though they involved literal copying, and thus weren't "transformative" the way parody would be, or the way including quotes in a book review would be; again, quoting Swatch,

In the context of news reporting …, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration…. Furthermore, a secondary work "can be transformative in function or purpose without altering or actually adding to the original work." Here, notwithstanding that the data disseminated by [the Post] was identical to [the work owned by the Times], the two works had different messages and purposes…. [The Post's] message — "This is what [the Times spiked]" — is a very different message from the original article's — "This is what you should believe."

Moreover, [the Times] intended to exclude members of the [public from reading Stephens' story]. [The Post's] objective in [printing the column], by contrast, was to make this information public, defeating [the Times'] effort to restrict access. [The Post's] purpose, in other words, was to publish this [article] to an audience from which [the Times's] purpose was to withhold it. These differences give [the Post's] use at least an arguably transformative character.

D. The third fair use factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," also doesn't preclude fair use:

This factor asks whether "the quantity and value of the materials used are reasonable in relation to the purpose of the copying." … For the reasons already explained in our discussion of the first fair use factor, we agree with the district court that [the Post's] use of the entire [article] was reasonable in light of its purpose of disseminating important [information about the Times' actions to the public].

E. As to the fourth use factor, "the effect of the use upon the potential market for or value of the copyrighted work," it would cut in favor of fair use, "especially in view of the obvious … fact that [the Times] had no interest in the exploitation of the copyright-protected aspects of the [article]."

F. Now there are couple of differences between the hypothetical Times v. Post case and Swatch: (1) Swatch had decided to give its presentation to over a hundred analysts, while the Times presumably didn't authorize distributing the article to anyone outside the Times; and (2) the Swatch presentation was "manifestly factual," while the article was more expressive. Both of these factors go to the second fair use factor, "the nature of the copyrighted work." But on balance, I don't think these differences are enough to tip the fair use balance the other way.

[3.] But we'll likely never know how courts would apply the fair use defense here, because the matter will almost certainly not get to court. It would be quite bad for the Times' reputation, I think, to sue over another newspaper's essentially publishing a leak from the Times' newsroom: Publishing leaks of others' documents is a common part of the Times' own business, in the name of "the public's right to know"; it would look hypocritical to complain about someone doing the same to the Times.

And what would the Times get out of this? It wasn't going to exploit Stephens' article in any event, so there wouldn't be any actual damages. (Damages stemming from loss of reputation to the Times, if any, as a result of the Post's publication, wouldn't count for copyright purposes, I think.) Some copyright cases are viable because the plaintiff can get attorney fees and statutory damages (in theory, up to $150,000). But under the Copyright Act, "no award of statutory damages or of attorney's fees, … shall be made for … any infringement of copyright in an unpublished work commenced before the effective date of its registration"—and I doubt the Times registered the article that it wasn't planning to publish.

Other copyright cases may make sense for the plaintiff because they may deter other infringement in the future. But that won't work here, again especially because the Post wouldn't have to pay the Times' attorney fees or damages (though it would have to pay its own attorney fees).

So the fair use discussion above is largely academic. But at least it shows that the Post has a good-faith argument that it's complying with the law. And indeed I think that it's actually a strong argument.

NEXT: Today in Supreme Court History: February 14, 1845

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  1. Not an IP lawyer. Would the Times have damages if they can show that another paper publishing this harmed their reputation in a way that lost them income? E.g., 1,000 people cancelled their subscriptions to the Times because they are fed up with the Times censoring certain viewpoints, which they only learned of because the Post published the piece?

    1. No. That is not a cognizable Copyright harm.

      1. Not to mention that proving causation for such damages would be extraordinarily difficult. The Times loses readership for all kinds of reasons, and probably has been doing so for some time.

        1. BL,
          Thank you for bringing the Swatch case to EV’s notice in this interesting IP conflict.

      2. “No. That is not a cognizable Copyright harm.”

        No, it’s not a copyright statutory claim. But interference with business relationship is a recognized tort.

  2. Moreover, [the Times] intended to exclude members of the [public from reading Stephens’ story]. [The Post’s] objective in [printing the column], by contrast, was to make this information public, defeating [the Times’] effort to restrict access. [The Post’s] purpose, in other words, was to publish this [article] to an audience from which [the Times’s] purpose was to withhold it. These differences give [the Post’s] use at least an arguably transformative character.

    Transformative? How was the work transformed? EV veers await from transforming the work to argue instead about a transformed, “purpose,” about the work. Is the owner of a copyright limited to one purpose only?

    I make and sell limited-edition photographic prints, mostly seascapes. I have an archive of images, some of which are for sale now, for one purpose, which is to keep me going while I do the work. Other images I hold in reserve for other purposes, which are various. Can someone who finds a way to access the digital originals of my reserved images start selling them to achieve a purpose of criticizing me for withholding some of my images, while making money selling them? Is that a transformative use of the images? If so, where is the line between transformative purpose and theft?

    1. Here the Post used it as a criticism of the Times, and that is a classic fair use.

      In fact, the fair use statute talks about purposes:

      Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.
      The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

      1. Bored, my sense is fair use for critical purposes—at least the, “classical,” fair use you mention—is criticism of the work itself. You get to use an artwork to talk about the artwork. Maybe there is some overlap with criticizing the work’s creator as a creator of that type of work—but in this case, the creator is not the NYT, even if it owns the copyright.

        What I also do not think I see in classical fair use, is any ability to appropriate copyrighted works in furtherance of criticisms for purposes not inherently related to the works themselves—for instance a criticism of the NYT for policies the critic dislikes.
        Perhaps if the work itself had been created by the NYT, in furtherance of the policy criticized, it would make sense to call that fair use.

        I don’t think that is what is happening in this instance. You have not shed much light on my question, “Where is the line between transformative use and theft?”

        Also, what about my more general objection, that EV’s take seems to allow the work’s creator only one purpose, and presume all other purposes belong to the public? Can that be right?

        1. “Where is the line between transformative use and theft?”

          In fair use case law, a distinction is drawn between a use that seeks to replace the copyright owner’s own use, and collateral uses. The Supreme Court expressed the idea thus:

          We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially aswell as artistically,” B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between “[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.” Fisher v. Dees, 794 F. 2d, at 438.

          This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectable derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. “People ask . . . for criticism, but they only want praise.” S. Maugham, Of Human Bondage 241 (Penguin ed. 1992).

          Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).

          “Theft” means usurping someone’s market. Not hurting it through satire, parody or criticism.

          1. Bored, not very helpful, given my acknowledgment that criticism of the work itself is classic fair use. You seemed to me to be suggesting, however, that criticism as a class, criticism of anything at all, justified uncompensated use of copyrighted works. Did I misunderstand?

            It would be arbitrary and foolish for anyone, including the Supreme Court, to suggest that others’ uses of copyright owners’ works for criticism, precludes that kind of use for criticism by the creators themselves, and thus justifies uncompensated use of copyrighted works.

            There remains also the question of the right of a copyright owner to negative the use of his own work to support what he disapproves of (unrelated to the work), or to disparage what he approves of (also if unrelated.) For example, uncompensated and unapproved use of copyrighted recorded music to entertain crowds at political rallies. Do you insist that is fair use?

            For another example. Suppose I am a photographer with a talent for creating images which illustrate in a generalized way some sorts of socially widespread and commonplace criticisms—such as a propensity of the rich for extravagance. If I make such images on speculation, with the hope someone will license them as stock photography, do I do so in vain, because use of images for criticism belongs for free to the public? Likewise, if I do that, and someone chooses to counter-program my image, and use it to satirize social criticism of the rich, do those users get to claim I could never have imagined such a use, and take the image without payment of a license fee? Why can’t my photographic purpose be as general as making money from the controversy, no matter which side needs an illustration?

            1. “There remains also the question of the right of a copyright owner to negative the use of his own work to support what he disapproves of (unrelated to the work), or to disparage what he approves of (also if unrelated.) For example, uncompensated and unapproved use of copyrighted recorded music to entertain crowds at political rallies. Do you insist that is fair use?”

              By hypothesis, the users is also the owner of copyright and therefore have the use of the work or derivatives thereof.

              What did you mean by “unapproved use” if the use was by the owner of copyright?

              Your question of use for criticism, is also confusing. Use of your copyrighted work to criticize any one or anything is NOT the use of the work in a criticism of your work. That later use is probably would be considered a fair use. Use to criticize an unrelated party likely is not. As an editor I would not allow such use in the journals of which I am editor without written permission. I and my publisher would consider that as plagiarism or “theft” (to use you word) even if the user cited you as the originator.

              BL can answer more authoritatively in general than I.

              1. I see I was unclear about unapproved use.

                Hypothetically, it is my work, an image, perhaps, which has achieved iconic status world-wide. Someone else wants to use it for a political purpose I oppose. They take my work whole, without alteration, and use it because its excellence attracts attention, to promote policy advocacy which I oppose.

                For instance, the work is a seascape, they want to promote world-wide bioengineering of ocean wildlife, and I oppose that. They put my work on the cover of their book. Arguably, to the extent I may have also become well-known as an advocate for leaving the oceans alone, they contend that by publishing the picture known to be mine, for a purpose against my advocacy, they have achieved a transformative purpose. I contend it would be unfair and outrageous to deny me any legal ability to prevent that.

    2. From https://www.copyright.gov/fair-use/more-info.html: “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”

      1. MichaelP, add something new to what? The work, or the purpose?

        Satirical alterations to a well-known work of art might be clearly transformative. That strikes me as classic transformative use. Taking the same art without alteration, and using it on the cover of a tract promoting ideas uniquely your own would raise questions: What made that particular artwork suitable for that purpose? Why didn’t you put your own artwork on your cover, or commission something? If inability to make that happen played a part, why don’t you owe the artist a license fee for what he saved you? And if he does not like what you are promoting, why isn’t he free to refuse you the license?

        In short, why aren’t you free to just steal whatever conveniences you?

        1. Stephan,
          You are free to try. BL has explained in detail the considerations that would be applied if you sued. You might also note that had you not registered your photo with the Library of Congress then you would have to would have to demonstrate malice by the usurper to be eligible for punitive damages.
          Spend the $75 and register your unpublished photos.

          1. Don Nico, of course copyright registration of unpublished photos gives me no protection against judicially created exceptions to copyright. I am asking, among other things, what limit there may be to judicial power to create such exceptions, regardless of what the constitution, statutes, and long-standing reliance on trade customs might have to say. I have more than once wondered if this area is not another instance where the law and its interpreters have been boggled by the Internet.

            I am curious about the concept of “malice,” with regard to copyright. That one I had not heard about. Can you say more?

            1. “I have more than once wondered if this area is not another instance where the law and its interpreters have been boggled by the Internet.”

              I instantly thought of Peggy who was the boggle champ in the TV show “King of the Hill”.

              Nevertheless I get your point about the internet being a huge disrupter. It use to be that photographs (and books and shorter essays among other things) had to be physically reproduced but now digital copies can be shared over the internet in amounts that boggle the senses.

              The point is that the transition from an analogue to digital world has left many laws in the dust. I am old enough to remember Daniel Ellsberg and the Pentagon Papers case and how the SC ruled. Later the internet and the ability to spread top secret information made things like prior restraint seem antiquated.

              Bottom line is like it or not the Stephen’s story was getting out one way or another. We have seen plenty of “leaked” stories the old MSM wanted to burry surface on the internet and then being carried by the old MSM. Trying to fit modern situations into antiquated laws is a fools errand. I am also old enough to remember the early hackers/what ever name you choose almost endlessly saying “information wants to be free”.

              1. ragebot,
                A different but related issue is when the use of one’s own work is considered self-plagiarism under the EU’s Plan S of Open Access that is driven by internet publications.
                My publisher (and I as an editor) would continue to consider use of large portions of previously published material as self-plagiarism even in review articles and even when full credit to the original publication is given and even when the author owns the copyright.
                A general exception concern use in presentation at conferences.

            2. By malice, I meant the deliberate intent to infringe.
              You can’t sue for copyright infringement or get an order from a judge to make somebody stop using your work unless your work is registered either within the three months after your work is first published, or before the infringement first occurs.

              Whether registered or not, as an editor I would not allow use in the journals of which I am editor without written permission of the originator. I and my publisher would consider that as plagiarism or “theft” (to use you word) even if the user cited you as the originator. Likely most book publishers take the same position (mine, Taylor and Francis, does.

            3. judicially created exceptions to copyright. I am asking, among other things, what limit there may be to judicial power to create such exceptions, regardless of what the constitution, statutes, and long-standing reliance on trade customs might have to say.

              Fair use was originally judicially crafted, but it is statutory. It’s not “regardless” of what the statutes say, but precisely what the statutes say. As for “trade customs,” they have no legal effect of any sort.

              I have more than once wondered if this area is not another instance where the law and its interpreters have been boggled by the Internet.

              No. It’s just another instance when you thought you understood the law because of the weird arrogance you have that publishing a newspaper made you a legal expert, but never actually did.

        2. “Satirical alterations to a well-known work of art might be clearly transformative. That strikes me as classic transformative use.”

          Parody is fair use. Satire, generally, is not. The difference is that parody is a criticism of the copyrighted work itself, while satire is a criticism of something else. A parody has to bring to mind the original work, or it fails as parody, and thus as criticism. Satire has alternative avenues available.

    3. Transformative? How was the work transformed? EV veers await from transforming the work to argue instead about a transformed, “purpose,” about the work.

      Did you read the case? It explains quite clearly, multiple times, that transformative purpose is sufficient for that factor. E.g.:

      Furthermore, a secondary work “can be transformative in function or purpose without altering or actually adding to the original work.”

      Courts often find such uses transformative by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.

      1. Yeah, Nieporent, I read that. It was reading that which put me in mind of questions, which I have been asking in these comments, without getting answers from you or others. Why don’t you try whether you can answer those questions in light of that language you quoted, without enmeshing yourself in contradictions.

        Start please with the tacit notion that as a copyright holder I am entitled to a protected purpose for my work, but apparently only one purpose—while would-be use-transformers get access to an infinite range of other purposes for which they can use my work without paying. Don’t lecture me on why they get those ancillary uses. Tell me why they do, and I don’t. And on what legal basis does a judge decide what my purpose is in the first place? The judge has to know that right, in order to be able to say that something else is comparatively transformative?

        From there, we can move on to a fundamental premise of stock photography, which remains a thing. That premise is that good images may be applied in multiple ways, and making versatile images of that sort for the purpose of making money from multiple licensees is a legitimate purpose. Anything wrong with that?

        If not, how do you square that with the language you quoted and say is clear—but which is by no means clear to me, maybe because I am familiar the activity that language purports to govern, or misgovern, as it seems to me. I think it is clear to you only because you don’t know enough about the practice of that activity to grasp the contradictions.

        I am getting less and less impressed by lawyers who tell me that legal expertise is all that’s needed to understand the law. I suggest that might work sometimes, but other times you can’t understand the law until you also understand the effects it will produce in application. From time to time you strike me as a pretty confident offender in that latter regard.

        From there we can move on to unwarranted assumptions, misplaced confidence, and plain lawyer’s arrogance. You express contempt for the little bit of IP law that some newspaper editor might have picked up. Well, that’s you, and fair enough.

        Can you think of any non-legal professions which a legal IP expert might turn to for council concerning as-applied meanings of an IP legal interpretation, or don’t those count at all? If, for instance, James H. Billington, not a lawyer, but the former Librarian of Congress told you that some judge’s IP interpretation created apparently unintended legal effects which would seriously disrupt major archives, or handicap scholarship in notable ways, would you sneer at that too? Or would you give some thought to deferring to Billington’s opinion? Before you answer, maybe you ought to take a look at Billington’s background, and take another look at the formal responsibilities of the Librarian of Congress.

        Sneering makes you look stupid. Maybe you ought to stop it.

        1. Stephen,
          1) As the owner of the work you may use it in any way you see fit, even destroying it.
          2) Any other person you uses your work may cite “fair use” as an affirmative defense in the case that you sue for infringement. EV and many other lawyers have given guidelines for assessing whether the fair use defense as elucidated in 17 U.S.C. § 107 is likely to be successful. SCOTUS has clarified the matter most recently in Campbell v. Acuff-Rose Music, Inc. Nonetheless, courts adjudicate infringemnet suits on a case-by-case business. If you have any doubts get permission for use in writing.
          3) Whatever Mr. Billington’s background and experience, he is almost certainly describing general practice and its history. Unless he were licensed and acting as your lawyer, he is not offering you legal advice. He may be a great historian for the LoC. If you have worries about using material or whether you should sue for use of your work, and don’t want to ask permission for use, the prudent course is to consult an attorney. If it is your work and it has not been registered, then the damages you can collect are limited.
          4) If you are in fact a news editor, you ought to consult the general counsel of your publisher and follow his/her advice. (if you are nervous about it, get the advice in writing.
          5) The practice that I follow as an editor is that specified by the general consul of my publisher.

          1. Don Nico, thank you for your careful replies. As it happens, I am not trying to engage on the question of whether or not I need copyright advice from a lawyer. I know how to get that if I need it. When I was an editor, decades ago, I was at times my own publisher. I picked up necessary experience consulting on legal issues then.

            I am trying to engage on the subject of what is happening to copyright law. Your own views on the law strike me as sort of old-timey and conservative, much like mine. I suspect we both may be out of date.

            My general impression is that with regard to copyright, political pressures generated by the internet may be leaking into the courts. Judges respond by licensing as okay various internet-popular practices which previously would have been infringements. In that, I see logical problems of the sort judges create when they decide stuff about what the law governs without knowing that subject very well. Sometimes they do that based only on knowledge which comes to them from briefs provided by interested parties’ attorneys—who may not be subject matter experts either.

            While all that happens, I remain an expert interested party on the sidelines, unrepresented, and not even aware that change is afoot. I find that especially troubling when the legal result arrives, and I find it riddled with contradictions the judge never suspected, but which could make it difficult or impossible for anyone like me to continue in business.

            To make this concrete, let me try again on the example of transformative use. There seems to be a vigorous push (see EV, see Nieporent) to expand that concept, and let it encompass a vague but extensive menu of, “transformations.” In particular we now see added the notion of a transformed, “purpose,” for the work—achieved perhaps while leaving the substance of the work entirely alone.

            To do that, a judge must presume to assign a copyright owner’s “purpose,” to the work, lest a, “transformation,” be decreed without a standard of comparison. Never mind what purpose the copyright owner might actually have had, however broad.

            By what right or power does a judge make such an assignment? Does it matter if the copyright owner’s purpose declared by the judge is contrary to fact? Does it matter that in reasoning that way, the judge fixes for all time an original purpose, making it changeless, while would-be transformers get to make up new purposes as they go along?

            Does it matter if that reasoning leaves copyright owners at a disadvantage in using their own works for purposes that rival users have been freely permitted to pursue? If, on the contrary, the original copyright owner remains free to re-purpose his work to any purpose which anyone else might choose, how can there be any “transformation,” in making the choice, when both parties are free to make the same choice?

            I suggest the notion of a, “transformational,” purpose is shot through with contradictions, unworkable, and inherently unfair to copyright holders. I do not say that older notions of transformational use—those which apply to changes to the work itself, to create a satire, for instance—need to be discarded.

            1. Stephen,
              My views on copyright law are those recommended by our General Counsel. EV commented that the actualities of the fair use doctrine are vague, and judicial practice does evolve. Moreover, as an international publisher, mine has to skate across the relevant rules in Europe, Japan and the US.
              The material I show my students with respect to copyright is from an article by EV and Larry Lessig in 2006. And that was not much different from what was in the CLE course I took last summer.
              Having said all that, I am I stay well back from the legal line when managing our journals. The insistence concerning permissions, only last year, was that of my book publisher, Taylor and Francis.

              In the end if you are relying on “transformational” to neglect getting permission, “you pays your money and takes your chances.”

            2. My general impression is that with regard to copyright, political pressures generated by the internet may be leaking into the courts.

              Nope. Your “get off my lawn” anti-Internet screed is as misplaced here as in discussing defamation.

              To make this concrete, let me try again on the example of transformative use. There seems to be a vigorous push (see EV, see Nieporent) to expand that concept, and let it encompass a vague but extensive menu of, “transformations.”

              Nope. This is not EV or Nieporent. This is the courts, and it is not new, and it is not an expansion.

              To do that, a judge must presume to assign a copyright owner’s “purpose,” to the work, lest a, “transformation,” be decreed without a standard of comparison. Never mind what purpose the copyright owner might actually have had, however broad.

              The copyright owner is free to argue for whatever purpose he wants. We have an adversarial legal system, and it’s up to him to make the argument. A court may accept it, or may — as we see in this Swatch case — not. Swatch tried to claim that hypothetically it could’ve sold its recording of its earnings call, but there was no evidence of such a market or that Swatch was actually trying to access such a market.

              By what right or power does a judge make such an assignment?

              Article III of the constitution. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”

              Does it matter if the copyright owner’s purpose declared by the judge is contrary to fact?

              Mistakes by a trial judge are what appellate courts are for.

              Does it matter that in reasoning that way, the judge fixes for all time an original purpose, making it changeless, while would-be transformers get to make up new purposes as they go along?

              The judge doesn’t “fix for all time” anything, and your argument doesn’t really make sense anyway. You can’t retroactively have a different purpose than you had when you created a work.

              I suggest the notion of a, “transformational,” purpose is shot through with contradictions, unworkable, and inherently unfair to copyright holders.

              I suggest that this is because you don’t understand the topic, and the goal is not “fairness” to copyright holders in the first place.

              1. The goal of what does not include fairness to copyright holders?

                1. Copyright law, which includes the concept of fair use. (And don’t be dishonest; I didn’t say “include.”)

              2. “The judge doesn’t ‘fix for all time’ anything, and your argument doesn’t really make sense anyway. You can’t retroactively have a different purpose than you had when you created a work. ”

                Despite your utter faith in appeals courts, it’s true that the factual determinations at the trial court level are largely unreviewable, and thus “fixed for all time”. You can indeed have had a different purpose all along other than the one the trial court judge assumed.

        2. “Can you think of any non-legal professions which a legal IP expert might turn to for council concerning as-applied meanings of an IP legal interpretation, or don’t those count at all?”

          Snarkily, you might turn to a qualified proofreader / text editor to help you choose the correct word(s) you meant to use, or at least the one you should have meant to use. for example, replacing “council” with “counsel”. If you’re going to claim to have expertise as an editor, you have to avoid making simple editing errors.

          1. James Pollock, thanks for the snark. Alas, on the strength of my employment record, I am as qualified a proofreader/text editor as you could find anywhere. I was for several years in charge of the quality control department at one of New England’s leading advertising typography companies, back when typography was still a thing.

            I plead an incipient migraine, a new computer with unaccustomed auto-correct features, distractions generated by a struggle with a new, too-small keyboard, and fallibility.

            1. ” Alas, on the strength of my employment record, I am as qualified a proofreader/text editor as you could find anywhere.”

              Not based on the part of it that’s on display in your printed words.

              “I plead an incipient migraine, a new computer with unaccustomed auto-correct features, distractions generated by a struggle with a new, too-small keyboard, and fallibility.”

              Don’t make excuses.

        3. Yeah, Nieporent, I read that

          If you read that, then why you are you trying to claim that it is Prof. Volokh, or me, inventing the idea of transformative purpose? Those two quotes I provided are from the court, not from either of us.

          Start please with the tacit notion that as a copyright holder I am entitled to a protected purpose for my work, but apparently only one purpose—while would-be use-transformers get access to an infinite range of other purposes for which they can use my work without paying. Don’t lecture me on why they get those ancillary uses. Tell me why they do, and I don’t.

          I don’t know what you mean “and I don’t.” Of course you have the right to use the copyrighted material in any manner you choose. Fair use by others in no way limits your rights to use the material.

          And on what legal basis does a judge decide what my purpose is in the first place? The judge has to know that right, in order to be able to say that something else is comparatively transformative?

          Do you mean on what legal basis, or on what factual basis? If the former, the answer is § 107 of the Copyright Act; if the latter, the answer is the submissions you make to the court.

          I think your underlying problem is that you fundamentally misunderstand the purpose of copyright. It is not like the French droits moraux. And it is not to allow an author to maximize the money (s)he derives from a work. It is to encourage the creation of work in the first place; profit is merely a mechanism to do that. So if a particular use by others does not affect the market for the underlying work, it is likelier to be fair use.

          From there, we can move on to a fundamental premise of stock photography, which remains a thing. That premise is that good images may be applied in multiple ways, and making versatile images of that sort for the purpose of making money from multiple licensees is a legitimate purpose. Anything wrong with that?

          Stock photography is a legitimate purpose, of course. Is that in any way relevant to this discussion? Someone who used a stock photo in a manner for which it was intended to be licensed would probably not be engaged in fair use. Someone who used it in another manner might be. (Nunez v. Caribbean International News Corp. is relevant here.)

          but which is by no means clear to me, maybe because I am familiar the activity that language purports to govern, or misgovern, as it seems to me. I think it is clear to you only because you don’t know enough about the practice of that activity to grasp the contradictions.

          I do like how you explain your inability to understand something by saying that you’re just too sophisticated to grasp it, unlike the people who have actually read the caselaw.

          1. Of course you have the right to use the copyrighted material in any manner you choose. Fair use by others in no way limits your rights to use the material.

            Think that through. If I continue free to use a copyrighted image however I want, what particular use by anyone else fails to encompass part of that unbounded purpose? If part of my purpose is identical to their purpose, how can their purpose be transformational with regard to mine?

            It strikes me that you, and perhaps the courts, have overlooked an inherent difference between copyrighted texts, and copyrighted images. A particular use of a text fixes its purpose more firmly than does a particular use of an image. That is why copyrighted stock photography is a thing, and copyrighted stock quotation is not a thing.

            By the way, how are you coming on the question of whether the Librarian of Congress ought get any input on questions of copyright?

          2. I think your underlying problem is that you fundamentally misunderstand the purpose of copyright. It is not like the French droits moraux. And it is not to allow an author to maximize the money (s)he derives from a work. It is to encourage the creation of work in the first place; profit is merely a mechanism to do that.

            Yes, Nieporent, the end intended is broader than the means selected. So what, if the means be indispensable to the end?

            Note also, this is not a case of a legislative choice of means, but of an explicit constitutional commandment—assignment of a particular means—an “exclusive right”—to creators. It is your invariable advocacy that the courts are empowered to chip away at that constitutional commandment, and then chip some more, which accounts for why I attribute a chip, chip, chip motivation to you. You leave me no choice.

            1. No; you’re mistaken. It is not an explicit constitutional “commandment.” It is a power granted to Congress, which means that it is permissible for Congress to protect copyrights. But nothing in the constitution requires Congress to protect copyright at all, and therefore nothing in the constitution requires that the law protect copyright to the maximal extent.

              1. Well, actually, there is ONE thing. The Constitution establishes that IT is the root of law in the United States. So that every statute created by Congress according to the process described in the Constitutional text is law rooted in the Constitution. However, the Constitution ALSO establishes that treaties are law of the land, and, in an example of poor drafting, does not establish that treaties’ force of law comes from Constitutional authority, but rather sets Constitution and treaty as equals. It just so happens that the current copyright law in the US is required by treaty. The Berne Convention, according to the constitutional text, is law of the land because it is a treaty.

          3. “Fair use by others in no way limits your rights to use the material.”

            It limits the profitability from using your own copyrighted material.

            This is why JUST HOW MUCH it affects the profitability of using the material is one of the pieces of a fair use analysis. “Pride & Prejudice & Zombies” probably isn’t cutting to deeply into the market for “Pride & Prejudice”, so if you were doing a fair use analysis of P&P&Z you’d probably take note of this fact. You might come to the same conclusion with regard to “Ice Ice Baby” and “Under Pressure”. (and besides, if there’s a problem, yo he’ll solve it.) When he tried to clear up the claim he copied the music, his claim that the music is clearly and obviously different was not a way to solve it.

  3. Interesting….

    In some cases, copyright is used to preclude public access to controversial documents. Both the Scientologists and the Psychologists do this, and the latter is part of the running dispute between “teaching” and “treatment” in K-12 education.

    The short version is that the psychologists (a) want to take over and (b) use copyright as an absolute shield to prevent anyone but them from knowing what they are teaching which precludes outside criticism of some fairly controversial stuff.

    This underlies the battle over Common Core (aka Common Corpse) and came to a head with the PARCC exam. Unlike the SAT and LSAT where exam questions (and the “correct” answers) are released to the public after the exam is administered, the questions on the PARCC exam are kept secret indefinitely.

    Parents are not permitted to know the questions which their children were asked, and all children are given is a numerical score — with no way of knowing which questions they got wrong or even if they *were* wrong — and it’s alleged that many of the “correct” answers arguably are wrong.

    There’s then the increasing left/right schism which can best be described as teaching abstinence versus gender fluidity, with the infamous “Fistgate” incident being the best example of what happens when parents learn what their children are being taught. See: https://www.massresistance.org/docs/issues/fistgate/index.html

    Opposition to the psychologists is strong in the MAGA movement, so a lot of this quieted down with Betsy DeVos, but now that Team Obama is back, they likely will return.

    And hence this interesting interpretation of “fair use” is very interesting….

  4. Do we know whether this article was ever copyrighted? A creator needs to take affirmative steps to assert copyright protection, such as marking the product as copyrighted. I am not familiar with newsroom practices. Would a newspaper make the effort to copyright an article that was submitted but rejected from publication? I don’t know.

    And Professor: you think the New York Times is worried about hypocrisy? May I remind you that the Times is a profit making corporation that influences voters and intimidates politicians while simultaneously arguing that other profit making corporations should not be allowed to influence voters and intimidate politicians. If the Times can pull off that sort of blatant hypocrisy, they should have a little problem attacking another newspaper for publishing leaked information.

    1. Number 2: Under modern copyright law, all you need to “copyright” a work is to write it down. Your comment was copyrighted, for instance, as soon as you wrote it. (As my post notes, if the Times didn’t register the article before it was infringed, then certain valuable remedies — attorney fees and statutory damages — would not be available to it; but other remedies still would be.)

      1. EV,
        He may be thinking of registration of copyright which does change the nature of damages that can be collected for infringement.

        1. What he’s probably thinking of is the old system of copyrights, in which people who wanted to copyright their works submitted them for copyright protection, and were required to assert copyright lest the work be presumed to be public domain. Things have changed since then.

    2. Do we know whether this article was ever copyrighted?

      Yes. It was written; that ‘copyrighted’ it. Fixed in a tangible medium.

      A creator needs to take affirmative steps to assert copyright protection, such as marking the product as copyrighted.

      Copyright markings have not been required for copyright protection for more than 30 years.

      What you are probably asking is whether it was registered. Registration is not required for copyright protection, but is required in order to assert certain rights.

      1. “Copyright markings have not been required for copyright protection for more than 30 years.”

        Shows you how out of date my knowledge of intellectual property law is. Not my area of practice.

        Thank you, everyone, for pointing out my error.

      2. (switching tack) But did the Times ‘write it down’? As I understand, Stephens wrote it and asked or submitted it for publication, and the Times declined to print it. By refusing to publish and thereby gaining copyright, the Times also declined copyright on the work.

        Further muddying the waters, Stephens can make the claim of independent creation; as in cake bakery. He may be tasked with writing, but his writing is a personal work product —can’t be duplicated by others— and unless accepted by the Times he retains author’s copyright.

        1. Pretty much everything in this comment is wrong.

          1. Thanks I guess. So the Times did publish the piece?

            1. Yeah. That’s why I said “pretty much,” not “every word.”

            2. “Thanks I guess. So the Times did publish the piece?”

              Not yet. But if they do, it won’t be a copyright violation.

        2. (switching tack) But did the Times ‘write it down’? As I understand, Stephens wrote it and asked or submitted it for publication, and the Times declined to print it. By refusing to publish and thereby gaining copyright, the Times also declined copyright on the work.

          No. The article was copyrighted the minute it was written down. Whether the Times owned that copyright or Stephens did depends on what the relationship between the Times and Stephens is — if Stephens is an employee, then the Times owns the copyright as a matter of law — but whether the Times published it or not is irrelevant to the issue of whether it is copyrighted.

          1. As soon as the author clicked “save” on the computer, it was “written down” in long-term storage, whether or not anyone sent it to a printer. Tangible media is not the same thing as “human-readable” media. Microfilm is also a tangible medium.

  5. We learned from one of Trump’s many extramarital affairs the concept of “catch and kill”.
    https://www.theguardian.com/us-news/2018/dec/12/national-enquirer-trump-payments-david-pecker-catch-and-kill

    With the Times, it might be “copyright and kill”.

  6. The Times lost a guy whose substandard conduct caused problems. It also learned a bit about its Mr. Stephens. An improved newsroom, at scant or no cost.

    1. RAK,
      Another post based on your fantasies of ill will.

      1. I lack the clingerverse’s ill will toward its betters at The New York TImes. This diminishes my popularity at ankle-nipping right-wing blogs.

        1. Your ill will overflows into almost every item about which you post. Moreover, it is constantly repetitive and boring. Why not try to add substantive comments for a change?

          1. “Your ill will overflows into almost every item about which you post. Moreover, it is constantly repetitive and boring.”

            Which, notably doesn’t make it incorrect.

            “Why not try to add substantive comments for a change?”

            Like yours?

            1. Smart ass, why didn’t you read the long substantive comments above. Instead you seem to think that snark has intrinsic merit. It does not.

              1. “Smart ass, why didn’t you read the long substantive comments above”

                Why did you assume I didn’t read the long substantive comments above? Is it because YOU rush to post comments before bothering to read?

        2. Didn’t one of their prominent reporters just dox another reporter and lie about it? I thought journalists were supposed to be trustworthy, Arthur.

          1. If the Times would like and say that they tweeted someone’s personal cell phone number inadvertently, why wouldn’t they lie when they say “two sources who refused to be named told us xyz…”

  7. Folks: Just to make clear, the fair use doctrine is generally pretty vague (as I noted at the outset), and some courts could apply it more narrowly than what I describe above (though the lack of any effect on the market for a spiked article would likely be influential in all the courts).

    But in the Second Circuit, the Swatch case is binding precedent, and (whether or not you buy it) it’s pretty closely on point here.

  8. It seems to me that the written story became secondary to the newsworthy story of the spiking…..

    Now, if the media wants to make that problematic, bring it.

  9. I doubt the Times does anything here, if for any other reason then to avoid the Streisand Effect. The left has become so tone deaf to its own standards that it is quickly becoming the laughing stock of everyone except for its extremist acolytes who are so “woke” they can’t see how stupid they have become.

    1. Absolutely correct. The Times will generally ignore this and pretend nothing happened.

      1. Something happened. McNeil is gone. Stephens may be next.

        1. Kind of like the lackeys photographed next to Stalin who were then whited out the next year. Pining for old times, eh Comrade?

          1. More like a stale-thinking malcontent being held to account for a series of episodes of substandard conduct, at least from the looks of several reports.

  10. I don’t visit this site on a regular basis. But I can often guess who authored a piece by reading it, rather than looking at the byline. I have my favorites, but they’re all worth reading.
    I can also recognize at least two posters based on the content of their posts.
    In an entirely unrelated issued, Is there not a “block” or “mute” function?

    1. “In an entirely unrelated issued, Is there not a “block” or “mute” function?”

      It’s built into your brain, and depends entirely on your willpower to work. Just don’t read it if you object to the author, whose name appears helpfully before every comment that gets published.

      1. You are a real bore. Insult after insult interrupted by the occasional snark.

        1. If only you could rise to that level.

  11. I proposed that a few weeks ago, no official response.

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