Copyright

Mark Twain was famous for many things, including being a copyright absolutist. He thought copyrights should be perpetual. Appearing before Congress, he stated, "I know we must have a limit, but forty-two years is too much of a limit. I am quite unable to guess why there should be a limit at all to the possession of the product of a man's labor."[ref]Mark Twain on Copyright[/ref] Of particular rancor to him was that the main beneficiary of a work entering the public domain was the book publishers. They simply continued to publish the work, without having to pay him a royalty. The public domain "gives the publisher double profit." Twain complained. "He goes on publishing the book and as many of his confederates as choose to go into the conspiracy do so, and they rear families in affluence. And they continue the enjoyment of those ill-gotten gains generation after generation forever, for they never die."[ref]Id.[/ref] Twain was very prescient. Huckleberry Finn has been in the public domain for nearly 100 years. But a publisher will be happy to sell you a copy for $8.78.[ref]The Adventures of Huckleberry Finn[/ref] To be fair, there are certain hard costs in publishing a physical copy. But $8.78? Even a Kindle copy, which costs next to nothing to deliver, will still set you back 99 cents.[ref]The Adventures of Huckleberry Finn[/ref] The main problem with all of this is that the copy that you purchase will carry a copyright notice on it. I discovered this as I picked up my son's copy of Huckleberry Finn, which he had to read for school last year. A copyright? On what? The illustration on the front cover? The notice doesn't tell you, and there is no requirement that the notice state what the copyright claim entails. For its part, the Mark Twain Project states that "texts edited by the Mark Twain Project and published by [University of California] Press (such as, for example, the Project's 2003 edition of Adventures of Huckleberry Finn) are also protected, and may not be reproduced without permission."[ref]Copyright and Permissions[/ref] Just how does redacting a public domain work create a new copyright in the entire work? And unless I have memorized every page of Huckleberry Finn, just how am I supposed to know where the changes are? This is not how the public domain is supposed to function. The Mark Twain Project was also responsible for this public domain sleight of hand. Recall that back in 2010, Mark Twain's Autobiography was published, with a full claim of copyright for which the University of California Press wants $33.00.[ref]Autobiography of Mark Twain: The Complete and Authoritative Edition, Vol. 1[/ref] But the author himself had stipulated that this work was not to be published until 100 years after his death.[ref]This one is really odd[/ref] This meant that the work was already in the public domain under the life plus 70 term dictated by the copyright act.[ref]17 USC 303[/ref] Many copyright scholars, like Kevin Smith (and myself), wondered how this copyright claim was possible.[ref]This one is really odd[/ref] Here's how they did it. Section 303 of the copyright act contained a little known "clean up" provision to assist in the transition from a strict term of years to a "life plus" term. Under the 1909 act, a work that remained unpublished and unregistered at the Federal level would be protected by state law, and in effect have a perpetual copyright term. Section 301 provided for post-1978 Federal pre-emption, effectively eliminating almost all state law protections for copyrights. Then, in section 303, the act provided that all unpublished works would receive life plus 70 terms, and if the life plus 70 term had already expired, provided a minimum length of protection until December 31, 2002. Here's where the catch comes in. In order to encourage the publication of unpublished works, if a work was published before December 31, 2002, it would receive "bonus" protection until December 31, 2047, or 70 years from the effective date of the 1976 Copyright Act. So in 2002, the Mark Twain Project "published" all of Twain's unpublished works, including his autobiography.[ref]Mark Twain's Final Copyright Crusade[/ref] Didn't hear about it? Neither did I. This was the quietest publication in literary history. Especially considering this should have been a major literary event. To the contrary, the Twain Project published the material in a manner that ensured that the works would not be widely disseminated, if at all. The Twain Project published this material on three rolls of microfilm,[ref]Id.[/ref] and the asking price was an astonishing $50,000.00.[ref]Id.[/ref] So, having met the bare definition of "publication" under the copyright act in that "[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution…constitutes publication,"[ref]17 USC 101 "publication"[/ref] the Mark Twain Project lays its claim to a copyright term until December 31, 2047.[ref]Mark Twain's Final Copyright Crusade[/ref] That a major United States university, the University of California, would be a willing participant in this shameless and greedy circumvention of the public domain is truly dumbfounding. I guess that their dedication to the enhancement of public knowledge got thrown under the bus for the sake of a large payout. Additionally troubling is that nothing is ever mentioned that they, along with the Twain Project, violated the very main tenet of the gift: namely, that publication not occur until 100 years after his death. Joining the Twain Project in the shameless and greedy "claiming copyright in the public domain" arena is the Estate of Sir Arthur Conan Doyle. The famous creator of Sherlock Holmes has been dead for 84 years,[ref]Arthur Conan Doyle[/ref] and the majority of Holmes mysteries are clearly in the public domain,[ref]Klingler v.Conan Doyle Estate Ltd.,755 F.3d 496 Seventh Circuit Court of Appeals (2014). At this point, only the Westlaw electronic version is available, so there is no pagination to cite to.[/ref] yet his estate insists that the character of Sherlock Holmes remains protected by copyright, and demands licensing fees from anyone wishing to use the Sherlock Holmes name.[ref]Id.[/ref] Leslie Klinger had written a prior anthology of works based on the public domain Sherlock Holmes stories only to see his publisher knuckle under to a demand from the Conan Doyle estate of a $5,000.00 licensing fee.[ref]Id.[/ref] When he decided to create a sequel to the anthology, the Conan Doyle estate once again came charging in, throwing both elbows. "It told [the proposed publisher]: ‘If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.' There was also a latent threat to sue Pegasus for copyright infringement if it published Klinger's book without a license, and to sue Internet service providers who distributed it."[ref]Id.[/ref] Klingler filed a declaratory judgment action to declare that the Sherlock Holmes character was in the public domain. The Conan Doyle Estate tried to throw a monkey wrench into this proceeding by failing to respond to the lawsuit and defaulting. They then claimed at summary judgment that the motion could not be granted, as the case was not a live controversy because the book had not come out, they had taken no action, and had failed to respond to the lawsuit.[ref]Id.[/ref] They also argued that since not all the Sherlock Holmes stories were in the public domain, Holmes was not "completed" as a character and therefore still protected by copyright until the expiration of the copyright in the last story. District Court did not buy any of this and issued summary judgment for the Plaintiff. The Conan Doyle Estate appealed. They were thoroughly rejected by the Seventh Circuit Court of Appeals: "With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate's appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright…looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story."[ref]Id. Emphasis in original.[/ref] It got worse for the Conan Doyle Estate. Klinger moved for his attorneys fees. The Seventh Circuit awarded them, and wrote this rather stinging rebuke: "The Doyle estate's business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the "rational" writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger's position to sue rather than pay Doyle's estate a modest license fee is important because it injects risk into the estate's business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate's unlawful business strategy, Klinger deserves a reward but asks only to break even."[ref]2 Klingler v.Conan Doyle Estate Ltd., 014 WL 3805116[/ref] Of course, no discussion of trying to grab works back from the public domain would be complete without a mention of "Happy Birthday," a subject that I have some personal experience with. Warner-Chappell, the publisher of "Happy Birthday" receives an estimated $2 million a year in licensing fees for a song that many people feel is in the public domain.[ref]Birthday Song's Copyright Leads to a Lawsuit for the Ages[/ref] Documentary filmmaker Jennifer Nelson wanted to make a movie about the song. Warner-Chappell wanted a $1,500 licensing fee.[ref]Id.[/ref] She has declined to do so and instead, like Leslie Klingler, filed a declaratory decree in June 2013 seeking a judgment that "Happy Birthday" is in the public domain. You can read the complaint here.[ref]Happybirthday[/ref] Her complaint "closely tracks the findings of Robert Brauneis, a professor at the George Washington University Law School and the author of a 68-page article titled "Copyright and the World's Most Popular Song."[ref]Birthday Song's Copyright Leads to a Lawsuit for the Ages[/ref] His conclusion is that "Happy Birthday" is in the public domain.[ref]Id.[/ref] Certainly, the melody to "Happy Birthday" is in the public domain, being composed in the late 1800's.[ref]Id.[/ref] However, Warner-Chappell can be aggressive on that front as well. I had an artist record a live album on the occasion of his birthday. The band surprised him by playing a special arrangement of "Happy Birthday." Even though none of the words were sung, and the melody is clearly in the public domain, Warner Chappell Music insisted on a full royalty for the use of the song on the CD, known in the music industry as a "mechanical royalty." The record company agreed to pay the full royalty. Why would a record company pay a full mechanical royalty on a public domain song? Because the record company was Warner Bros. Records, sister company to Warner-Chappell Music. Right hand, meet left hand, and now shake. And because the Artist was over the maximum total royalty rate because some of the songs were very lengthy, the royalty payment for "Happy Birthday" came out of the Artist's pocket. My complaints, not surprisingly, not only fell on deaf ears, but were never responded to. I am as pro-copyright as they come. Anyone who has read my blog posts understands this. But enough is enough. Copyrights last for a very long time, and once you have had your run, that should be it. Aggressively trying to exact payments for something that is clearly in the public domain should not be tolerated at any level of this business. In fact, it only increases the ill-will towards the notions of copyrights in general, and makes the job of getting fair treatment and proper enforcement of existing copyrights that much more difficult. This is not idle speculation. The antics of the Mark Twain Project in claiming that editorial revisions grant a new copyright over the entire work have spawned a new cottage industry: taking works in the public domain, altering them slightly, and then claiming a copyright in the entire work.[ref]Free and Easy: How material in the public domain can be turned into your own private revenue stream.[/ref] This story from Money Magazine recounts how this person claims to have made $15,000 in the first month, selling a book he copied almost verbatim from a book in the public domain.[ref]Id.[/ref] To make this sleazy ruse complete, the picture of the "author" is not even a picture of himself.[ref]Id.[/ref] The website "Public Domain Mastermind" breathlessly tells you "[t]hat's right, you can edit, modify, repackage, republish and resell a product and keep 100% of the profits without paying a penny in product purchase fees, royalties or copyright fees!" [ref]"Discover How to Take Advantage of Public Domain Information To Quickly Create Quality Information Products And Skyrocket Both Your Sales and Profits!"[/ref] But wait, there's more! They will also show you "How to easily and inexpensively get the legal protection you need to safeguard your public domain project from being stolen!"[ref]Id.[/ref] Of course, you need to pay them $47 for the course that shows you how.[ref]Id.[/ref] It is tough to make a claim that one can "steal" from the public domain, but this is fairly close to it. The copyright act is quite clear that in creating a derivative work, you only receive a copyright in the material that is new, and that you attain no rights in the pre-existing material. [ref]17 USC 103(b)[/ref] Yet, nowhere in the copyright notice will the overt plagiarism be noted or revealed, nor is there any requirement that you do so. This practice is not universal. To their credit, court opinions printed off the WestLaw service note that their claim of copyright does not extend to U.S. Government works, namely the Federal Court opinions which they are republishing. This should point the way to some kind of remedy. Since there is no requirement that you place copyright notice on your work at all,[ref]17 USC 401[/ref] no damage would be done to the Berne Treaty prohibition against formalities by requiring that a copyright notice be honest as to what is being claimed. If your work is a derivative work, you must disclose this to the copyright office anyway, including the identification of any pre-existing material. Therefore, I would propose that the copyright notice section of the copyright act be amended in the following manner. If the work bearing copyright notice is based on a work in the public domain, then the following legend should appear prominently, say under the title of the book: This work is based on ***, by ***, which is in the public domain. No claim of copyright is being made to any aspect of that work. This work has changed the public domain work by doing the following: ***. So, let's stop the publishing sleight of hand, be it by Twain, Conan Doyle or Warner-Chappel Music. You've enjoyed a very long term of copyright protection. When it expires, it's time to let it go.

A highly interesting copyright controversy is brewing, with a monkey in the middle of all of it. Well, to be precise, a crested black macaque.[ref]Celebes crested macaque[/ref] At issue is a photograph taken by the crested black macaque that has gone viral.[ref]If A Monkey Takes A Photo, Who Owns The Copyright?[/ref] The facts of the story are as follows, and the precise nature of the facts is highly relevant here: "The dispute stems from 2011, when [UK photographer David] Slater's wildlife photography field trip to Indonesia produced a striking image of a smiling crested black macaque; another image shows it holding the camera. The story went viral, with Slater explaining that a group of macaques had taken over his equipment for a bit during the three days he spent in their company…Slater added that the primates took hundreds of photos, most of them out of focus. By far the most famous of them was the grinning female macaque's "selfie" that was then licensed for use by many media outlets."[ref]Id.[/ref] And here it is: [ref]If A Monkey Takes A Photo, Who Owns The Copyright?[/ref] But here's where the story gets interesting. Wikimedia has posted the photograph online as being free of copyright. The photographer has naturally objected. "When Slater discovered that the monkey photo had been added to Wikipedia as a photo in the public domain -- meaning it's free for anyone to use in any way they see fit -- he requested they remove it. Wikipedia refused, claiming that since the photo was actually taken by the monkey, Slater did not own the rights to it. A spokesperson for Wikimedia, the arm of the Wikimedia Foundation that hosts public domain photos, told The Huffington Post "It's clear the monkey was the photographer. Because the monkey took the picture, it means that there was no one on whom to bestow copyright, so the image falls into the public domain."[ref]Legal Battle Over "Monkey Selfie': Wikipedia Drives Photog Bananas[/ref] Slater, for his part, disagrees and is contemplating legal action.[ref]3 Count: Monkey Selfie[/ref] What most commentators and media are overlooking is the important question of whose law is going to apply? This could have a significant effect on where the suit is brought, and who wins. The United Kingdom belongs to the Berne Copyright Treaty, as does Indonesia.[ref]List of parties to international copyright treaties[/ref] The Berne Treaty provides that a work created by a citizen of a Berne signatory is treated on an equal basis of authors who are citizens of the country in which enforcement is sought,[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) - Article 5[/ref] if it is brought in a country other than "the country of origin."[ref]Id.[/ref] The "country of origin," for purposes of Berne, is the country in which the work is first published.[ref]Id.[/ref] Since Slater is a citizen of the UK, we will assume for the purposes of this discussion that the "country of origin" is the UK. The Wikimedia Foundation, however, is located in San Francisco, California.[ref]Wikimedia Foundation - Contact Us[/ref] The United States is also a signatory to the Berne Treaty.[ref]List of parties to international copyright treaties[/ref] The Wikimedia Foundation has a "chapter" located in the UK, but takes the position that "local chapters… are independent associations with no legal control of or responsibility for the websites of the Wikimedia Foundation and vice versa."[ref]Id.[/ref] Yet with anything connected to the internet, the distribution of Slater's photo, if infringing, could be anywhere in the world. Which means suit might be brought just about anywhere in the world. I am not at all conversant with the UK rules regarding jurisdiction over foreign entities. Though, if still current, this source says that Slater can sue Wikimedia in the UK and the UK courts will have personal jurisdiction if one of two theories is present: in a tort action, the damage was suffered or resulted from a tort committed in England (copyright infringement is a tort[ref]Secondary Liability for Copyright Infringement in the US[/ref]), or the action is seeking an injunction that the Defendant do or refrain from doing anything in England.[ref]Comparative Study of "Residual Jurisdiction" in Civil and Commercial Disputes in the EU National Report for: England[/ref] On the state of UK copyright law, the UK website ITV.com had this to say: "ITV lawyer and author of The Law of Photography & Digital Images, Christina Michalos, said: ‘Unfortunately for the monkey she doesn't own the copyright in her photographs. Only a person or in some circumstances, a company can be a copyright owner. However, under UK law where an artistic work is generated by a computer, the person who makes the arrangements for creation is the copyright owner. Computer generated is narrowly defined in our law as meaning "without human involvement. It is arguable that the photographer is the owner on this basis or in equity - in other words on the grounds of fairness - because he owned the equipment and presumably had set up the camera for optimal focus and light in the jungle.'"[ref]Monkey 'selfie' picture sparks copyright row[/ref] But, if the UK courts decline to exercise jurisdiction, Slater may have to sue in the United States. While the outcome in the US in not clear, I would say his chances are not good. Remember that according to the United States Supreme Court, the copyright act requires "only that the work was independently created by the author, and that it possesses at least some minimal degree of creativity."[ref]Feist Publications Inc. v Rural Telephone Service Co. 499 U.S.340 at 345, Supreme Court of the United States (1991) emphasis added.[/ref] Just how minimal this degree of creativity can be and still qualify for copyright protection is the point on which this case will turn. The mechanical act of pressing the shutter button is not artistic creativity. As this case makes clear, even a monkey can do that. It is what happens before the shutter is pressed that is creative: the choice of subject matter, the lighting, the exposure settings, the framing of the subject; these are the artistic choices that grant a photographer the copyright in the photographs. So, the Wikimedia spokesperson is incorrect. That the monkey took the picture is irrelevant as to who owns the copyright. The question is, what creative choices did Slater make and did they contribute anything to the final photograph? That chance as an element does not bar the creation of a copyrighted work. Famous artist, Jackson Pollock, created paintings by dripping paint, squirting paint with a basting syringe and sometimes throwing paint at the canvas.[ref]Jackson Pollock[/ref] So the fact that the photograph here occurred somewhat by accident does not prevent it from being copyrightable. Slater's claim would be the strongest if he had "primed" the camera, that is, set the exposure, aperture and speed in order to capture the best photograph given the conditions, and then handed it to the monkey to fool around with to see if it would produce interesting results. That would be a creative choice that would be enough to satisfy the "minimal degree of creativity" standard. But he didn't, and the story that the monkey grabbed the camera is already on record. So, Slater needs to build a case around the creative choices he made to make the resulting picture possible. Did he adjust the settings on the camera to optimize the results given the jungle location? If he did, his contribution might qualify as "minimally creative." Did the fact that he travelled to Indonesia and selected this troop of macaques as photographic subjects constitute enough of a creative choice? He photographed them for three days.[ref]If A Monkey Takes A Photo, Who Owns The Copyright?[/ref] But the case may come down to these questions. Did he try to take the camera away from the monkey and fail? Did he not try to take the camera away from the monkey because he was afraid of being injured in the process? (As you can see from the photo on this webpage, they are quite large animals.[ref]Monkey 'selfie' picture sparks copyright row[/ref]) Or did he make a conscious decision to let the monkey keep the camera and see if anything interesting resulted? That last factor may qualify as a conscious creative decision that nudges his contribution into the "minimally creative" realm. This indeed may have been what occurred. According to Slater, the monkey took hundreds of photographs, most of which were unusable.[ref]If A Monkey Takes A Photo, Who Owns The Copyright?[/ref] In sum, Wikimedia will have to show that the entire creative input into the photograph was done by the monkey, and Slater had nothing to do with it. If Slater had any creative input, even a little, then he has a valid copyright. Of course, if he had just given the monkey a banana, he would have owned it as a work for hire.

On July 26, 2014, a DVD quality copy of The Expendables 3 was leaked online,[ref]Lionsgate Sues Over 'Expendables 3' Leak (Exclusive)[/ref] three weeks ahead of its scheduled release.[ref]Lionsgate Granted Restraining Order Over 'Expendables 3' Leak[/ref] The best estimates are that it had been downloaded over 2.1 million times,[ref]Id.[/ref] which threatened to take a hefty bite out of the profits of the film. This left Lionsgate scrambling to get a preliminary injunction against various BitTorrent sites.[ref]Id.[/ref] Once again, the issue of piracy and its concurrent drain on the profits of entertainment companies is back in the spotlight. With the advent of Napster in June of 1999, the fortunes of the music industry have plummeted. In 1995 and 1996, global music sales were close to 40 billion dollars annually.[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms, National Bureau of Economic Research, Working Paper 19150 (© 2013 by Danaher, Smith and Telang) http://www.nber.org/papers/w19150.pdf[/ref] Last year, global music sales limped in at 15 billion,[ref]IFPI Music Report 2014: Global Recorded Music Revenues Fall 4%, Streaming and Subs Hit $1 Billion[/ref] an overall decrease of 62%. The obvious reason would be that this is all due to piracy. Certainly, that's what the Recording Industry Association of America will tell you, and points to this study from the Institute for Policy Innovation.[ref]The True Cost of Sound Recording Piracy to the U.S. Economy[/ref] According to this somewhat dated study (2007), the effect of piracy is as follows:

a. As a consequence of global and U.S.-based piracy of sound recordings, the U.S. economy loses $12.5 billion in total output annually. Output includes revenue and related measures of economic performance. b. As a result of sound recording piracy, the U.S. economy loses 71,060 jobs. Of this amount, 26,860 jobs would have been added in the sound recording industry or in downstream retail industries, while 44,200 jobs would have been added in other U.S. industries. c. Because of sound recording piracy, U.S. workers lose $2.7 billion in earnings annually. Of this total, $1.1 billion would have been earned by workers in the sound recording industry or in downstream retail industries, while $1.6 billion would have been earned by workers in other U.S. industries.

Yet, there is disagreement about what the real effect of piracy is. Though the argument seems counter-intuitive, some take the position that piracy has little or no effect on the entertainment industries and point to several studies, the most famous of which is this study from 2008,[ref]Oberholzer-Gee and Stumpf, The Effect of File Sharing on Record Sales. An Empirical Analysis Journal of Political Economy 115 (2008)[/ref] which states emphatically that "[t]here is no association between the number of P2P files downloaded and CD album sales."[ref]Id.[/ref] A later study by the same authors, after evaluating other contrary studies, did not cause them to back significantly off their prior analysis.[ref]Oberholzer-Gee and Stumpf, File Sharing and Copyright,National Bureau of Economic Research 2010. http://www.nber.org/chapters/c11764.pdf[/ref] "Empirical work suggests that no more than 20% of the recent decline in sales is due to sharing [and] [f]ile sharing increases demands for compliments to protected works, for instance, raising the demand for concerts and concert prices."[ref]Id. at page 19 (which is the first page of the PDF)[/ref] So how do researchers, particularly those with an expert understanding of economics, come up with such wildly different conclusions? Part of the problem is that, currently, piracy is so pervasive that there is no such thing as a "piracy free zone" that researchers can use for a control group.[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms, at 5.[/ref] For example, one study surveyed 1,500 people in the Netherlands and concluded that those who pirated music bought just as much music as people who did not pirate.[ref]Id. at 4.[/ref] However, this methodology contains a fundamental error: how much would the "pirates" have bought if piracy was not an option?[ref]Id. at 5.[/ref] Or take the example of a person who pirates material because they consider the price is too high. In the absence of the piracy option, he or she would not have purchased material anyway. So, one can hardly say that this illegal downloading of a CD is a "lost sale." Collating all of these various points of view is a recent study by Brett Danaher, Michael D. Smith and Rahul Telang, which has just been published (June 2014) by the National Bureau of Economic Research in the journal Innovation Policy and the Economy.[ref]http://papers.nber.org/books/lern13-1 Since the article is new and not yet available to link to, citations are being made to the "Working Paper" version of the article.[/ref] They have collected 18 distinct studies, the majority of which have been published in peer reviewed journals, on the issue of piracy and its concurrent effect on the entertainment industry.[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms, at 18-19.[/ref] Of these 18 studies, only 3 found that there was no statistical impact on the entertainment industries.[ref]Id.[/ref] Of the remaining 15, every one found that piracy has a significant effect on the revenues of the entertainment industry, including one that found that file sharing was the cause for the collapse of record industry sales from 1998 to 2003.[ref]Id. at 19, citing Liebowitz, S. Testing File-Sharing's Impact by Examining Record Sales in Cities, Management Science 54 (2008)[/ref] Of some significance, the authors point to a 2013 study in which the adoption in France of the so-called HADOPI anti-piracy legislation resulted in a 20-25% increase in digital music sales.[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms, at 28, citing Danaher, B., M.D. Smith, R. Telang, S. Chen. Forthcoming. The Effect Of Graduated Response Anti--‐Piracy Laws On Music Sales: Evidence From an Event Study In France. Journal Of Industrial Economics, Forthcoming.[/ref] A similar study tracking the effect of the European Union IPRED directive found "a 27% increase in CD sales and a 48% increase in digital music sales in Sweden."[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms, at 30 citing Andermon, A. C-Y Liang, Piracy, Music and Movies: A Natural Experiment. (Working paper) Uppsala University, Uppsala, Sweden.[/ref] The majority of the peer reviewed papers all found a clear correlation between file sharing and lost revenue in the entertainment industries. So, of the three that took a contrary position, is there a common denominator that lead them to this conclusion? To my eyes, all three erred in comparing material downloaded via file sharing to the displacement of a physical sale only. In an era where all forms of tangible medium are being displaced by download sales, the real comparison would be either illegal downloads replacing legal digital sales or illegal downloads replacing all forms of content acquisition. One study made this correlation clear. "[D]igital sales and digital piracy were strongly related while there was no statistical relationship between digital piracy and physical sales."[ref]Danaher, Smith and Telang, Piracy and Copyright Enforcement Mechanisms at 17, citing Danaher, B. , S. Dhahasobhon, M.D. Smith, R. Telang Converting Pirates Without Cannibalizing Purchasers: The Impact of Digital Distribution on Physical Sales and Internet Piracy Marketing Science 29 (2010)[/ref] The study also looked at what happened when NBC pulled its content from iTunes in September of 2008. The result was an increase of 11.4% for piracy of NBC content compared against levels of piracy for the other networks.[ref]Id.[/ref] So now, what is the fate of The Expendables 3? What will the effect be on the box office receipts? A new study concludes that films that leak to the internet before their official release will lose 19% of their box office due to pre-release piracy.[ref]Ma, L., Montgomery, A., Singh, P. and Smith, M.D. An Empirical Analysis of the Impact of Pre-Release Movie Piracy on Box Office Revenues http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1782924[/ref] I estimate that the effect will be more significant in that the pirated copy is reportedly very high quality,[ref]Lionsgate Sues Over 'Expendables 3' Leak (Exclusive)[/ref] and not a work print in which various elements are missing. One caveat with regards to the study. Three out of the four authors are employed by Carnegie Mellon University, which houses the "Initiative for Digital Entertainment Analytics." This research organization is funded in part by an unrestricted gift paid by the Motion Picture Association of America. This is disclosed by the authors on the title page, and of course it stated that the MPAA has "no editorial control or oversight over the research findings."[ref]Ma, L., Montgomery, A., Singh, P. and Smith, D. An Empirical Analysis of the Impact of Pre-Release Movie Piracy on Box Office Revenues Footnote on Title page[/ref] So, one should review the study with a heightened sensitivity for institutional bias, just as you should when the Electronic Frontier Foundation takes a position relative to the activities of Google, given their cozy relationship, financial and otherwise.[ref]Michael Muchmore, The EFF and Google: To Close for Comfort? PC Magazine August 29, 2012 http://www.pcmag.com/article2/0,2817,2409070,00.asp. In addition former EFF Senior Staff Attorney Fred Von Lohmann is now Senior Staff attorney for Google: http://en.wikipedia.org/wiki/Fred_von_Lohmann[/ref] Then there is the "China Conundrum." Piracy is rampant in China, for both the motion picture sector and for music. "Virtually all music downloads in China [are] unauthorized."[ref]Priest, E., Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China's High-Piracy Environment? 27 Harvard Journal of Law and Technology 2, (Spring 2014) at page 472. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466026[/ref] "Piracy rates for optical disc media (CDs, DVDs and VCDs) [are]…at least eighty-five to ninety percent."[ref]Id.[/ref] Yet China "has skyrocketed to become the second largest film market in the world, with production quantitatively on par with Hollywood."[ref]Id. at 470.[/ref] How did this happen? Once again, this is fodder for those who claim that piracy does not harm intellectual property markets and does not depress the production of new works.[ref]Id. Generally at 469 to 470 and works cited therein.[/ref] Law Professor Eric Priest's excellent (and thoroughly researched) new article in the Harvard Journal of Law and Technology takes these arguments apart piece by piece. If you're so inclined to read it, please set aside some time. It is 72 pages long and contains 471 footnotes. But I digress. Priest rather conclusively demonstrates that the only way that copyright owners are making money in China is through channels in which the copyright owner still has strict control over the delivery of the material. Over 90 percent of the revenues of both the film and music industry are attributable to where the copyright owner has complete control of access to the product.[ref]Id. at 481.[/ref] In the case of motion pictures, this is theatrical exhibition, where you don't get to view the movie unless you buy a ticket.[ref]Id.[/ref] In the music industry, the most money is made by the sale of "ring-back" tones, which are delivered to the phone by streaming and not downloading.[ref]Id.[/ref] The rest of the markets are on "life support" according to China Daily.[ref]Id. at 495, citing Chen Nan at footnote 167.[/ref] "China's total recorded music revenue in 2011 was [less than] that of Thailand – itself a high piracy country with one-twentieth the population of China."[ref]Id. at 473.[/ref] "China currently ranks as the world's twentieth largest music market with a mere one percent of global revenue."[ref]Id. at 496.[/ref] That's a rather sobering statistic for a country that has over 1.36 billion people living in it.[ref]China: Total population from 2009 to 2019 (in millions)[/ref] This is even more sobering considering the world's number two music market is right next door – in Japan, which accounts for twenty percent of global music sales.[ref]IFPI Music Report 2014: Global Recorded Music Revenues Fall 4%, Streaming and Subs Hit $1 Billion[/ref] And then there's this not so amusing story: "China's most prominent music executive, Song Ke, abruptly quit his job as CEO of the Mainland's most successful record company in order to launch a Peking duck restaurant. ‘When I make good roast duck,' Song lamented, ‘people pay and thank me. When I make good music nobody pays me and some even ridicule me'" (internal citations to footnotes omitted).[ref]Priest at 495-496.[/ref] This points to another pernicious effect of piracy, the constant devaluing of artistic works as being something worth paying for. And then there's this. A company called Top100.cn started a legitimate online music subscription service in 2006, charging all of $3 a month for unlimited access.[ref]Id. at 521.[/ref] Finding it could not compete with the pirates offering music for free, it partnered with deep pocketed Google China to launch a 100% free, ad supported music download service.[ref]Id. at 521.[/ref] It went out of business in 2012.[ref]Id. at footnote 309.[/ref] When Google pulls the plug, that's a sign of how bad the business really is. As for the movie industry, Priest points out that "[w]hile the Chinese box office may be booming, it is also a winner-take-all market in which a handful of big budget Hollywood and domestic films dominate box office availability and take the lion's share of revenue each year."[ref]Id. at 516.[/ref] In round figures, this means that 16% of all movies accounted for 70% of the revenue.[ref]Id. at footnote 287.[/ref] Only one third of the films made in China saw a domestic release in 2012.[ref]Id. at footnote 291.[/ref] And remember that box office accounts for 90% of all film revenues in China. In other words, the indie filmmaker is getting squeezed out of the market, because there is no other viable source of revenue due to piracy.[ref]Id. at 517.[/ref] Not good for a healthy, viable film industry. This is the point that eludes piracy apologists like the Electronic Frontier Foundation.[ref]Australia: You Wouldn't Steal a DVD, But You Would Block Websites and Suspend Internet Accounts[/ref] The lack of a viable market for small independent films is crushing free speech. "LBGT filmmakers are often forced to self-finance their works because their films are not viewed as ‘box office winners.' When unlicensed copies of their films become freely available online, filmmakers lose their ability to monetize their works and ‘their investment can disappear in an instant.' In this environment, fewer filmmakers will invest in producing a second or even first project and these stories…will cease to be told and this ‘Freedom of Speech' will be compromised."[ref]Priest at 535, quoting in part Wolfe, K. Time to Make the Pirates Walk the Plank, Huffington Post January 17, 2012. http://www.huffingtonpost.com/kathy-wolfe/piracy-profiteers-time-to_b_1210132.html[/ref] So, the major content creators are going to give you a steady diet of the tried and true, the bland and the blander. Since box office revenues are the one revenue stream that can be tightly controlled, expect a bunch of safe bets so that box office will be maximized before the losses of piracy start to pile up. Tired of Hollywood remakes of every movie ever made and every TV show ever made? Tired of sequels? Sorry, you're only going to get more of the same. 21 Jump Street and then 22 Jump Street anyone? Tired of comic book movies? I happen to like them, but since these movies have a built in audience already familiar with the characters and the setting, you're going to get a lot more of them. Could Pulp Fiction get made today? I doubt it. Even back then, it got turned down by a lot of studios. "TriStar's objections were comprehensive, encompassing the script's fundamental structure. "[Co-writer Roger Avary] characterizes the studio's position: ‘This is the worst thing ever written. It makes no sense. Someone's dead and then they're alive. It's too long, violent, and unfilmable…'"[ref]Pulp Fiction[/ref] By the way, in searching for that quote, one of the top five auto-complete suggestions by Google was "Pulp Fiction Full Movie" and led me to a pirate streaming site. What to say about the music business? According to this post at The Trichordist, there are 45% fewer working musicians than in 2002 according to the statistics from the U.S. Bureau of Labor Statistics.[ref]45% Fewer Professional Working Musicians Since 2002[/ref] To be fair, as with all things statistical, one can use them to come up with varying numbers to satisfy your hypothetical.[ref]Have we lost 41 percent of our musicians? Depends on how you (the RIAA) count[/ref] Last year, I settled down at my computer with a $30 iTunes gift card and the year-end issue of Rolling Stone featuring the Top 50 songs of the year. An hour later, I had gone through every song and still had $30 in my iTunes account. So maybe that makes me just another old fogey. On the other hand, where is the next game-changing musician? Who are the Millennials going to say came out with an approach so fresh and so full of talent that it was a musical revolution for their generation? Where is their Eddie Van Halen? Prince? Kurt Cobain? Nowhere that I can see. You're going to get a lot more pablum from the new Justin Beibers and pre-fab acts like Miley Cyrus, all provided by American Idol, The Voice, The X-Factor and on and on and on. The record labels seemingly have purged their ranks of anything that is not a safe bet. Don't get me wrong. Ariana Grande can sing like nobody else this side of Mariah Carey, but she got her start on a Nickelodeon TV show.[ref]Ariana Grande[/ref] By the way, in searching for that citation, one of the top auto-completes suggested by Google was "Ariana Grande MP3" and the first choice was the notorious pirate site MP3skull.com. Out of the top ten results, 8 were links to pirate sites. I would say Ariana has a "Problem." My son is 17, and in his prime music consuming years. Sure he's downloaded (legally) a lot of songs, but when I ask him "What's new and good?," he says "Not much. It all sounds the same. I like the classics." He likes to sing and is active in his school's a cappella choir. By sharing my iTunes library, he has discovered groups with strong vocal harmonies like Queen, Manhattan Transfer, and genres like doo-wop. That has led him to discover new a cappella groups like Pentatonix.[ref]Pentatonix[/ref] But when I asked him, "Who is the game-changing musician of your era?," after a long silence, the only name he could come up with is Eminem, whose career is closing in on twenty years in duration.[ref]Eminem[/ref] What about the computer software industry? Estimates are that "77 percent of the software in China is…pirated."[ref]Priest at 529, citing Business Software Alliance, Shadow Market: 2011BSA Global Software Piracy Study 4 (9th Edition 2012)[/ref] "Microsoft recently reported that in 2011 it generates more revenue in the Netherlands than in China."[ref]Priest at 529, citing Foley, J. Microsoft Stages Nebulous Chinese Comeback http://fortune.com/2013/05/29/microsoft-stages-nebulous-chinese-comeback/[/ref] Think about that for a second. A nation of 17 million[ref]Demographics of the Netherlands[/ref] generates more revenue for Microsoft than a nation of 1.36 billion people. I think with that we can call this whole "piracy doesn't affect business" for what it is: a "myth" that has been "busted." For the final word, I yield the floor back to Professor Priest: "A copyright system that provides sufficient rewards and autonomy ensures that the most talented creative individuals in society enjoy the economic support and freedom to hone their craft and, in return, spend their professional lives maximizing their creative potential and publicly disseminating the fruits of those efforts. This state of affairs is not only good for creators. It benefits any society that values high quality cultural production and an endless wellspring of high quality works on which to build new works and shared cultural meanings."[ref]Priest at 513.[/ref] Preach on, brother Priest, preach on.

To the Supreme Court of the United States, may God bless your nine little pointed heads, but what have you done to us? The last time you took up fair use, you handed us a few lines of text that has turned the already murky waters of fair use into a complete quagmire that no one can escape. In the oft–quoted case of Campbell v. Acuff-Rose Music, Inc., after reminding us that when analyzing the defense of "fair use" "[t]he task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis,"[ref]114 S.Ct. 1164 at 1170 Supreme Court of the United States 1993[/ref] you handed us this doozy:

[Does the new work add] something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative" (citation omitted)? Although such transformative use is not absolutely necessary for a finding of fair use (citation omitted), the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright (citation omitted), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.[ref]Id. at 1171[/ref]

How I wish you all (collectively) had never said that. You could have performed a very simple analysis. The "rap" version performed by the then notorious 2 Live Crew of the classic Roy Orbison song "Oh Pretty Woman" was clearly a parody, and thus protected both under First Amendment grounds and the provision of the fair use section of the copyright act that permits usage for purposes such as criticism and commentary.[ref]17 USC 107[/ref] Unlike the supposed parodies created by "Weird Al" Yankovic, the 2 Live Crew's rap version commented directly on the source material. This is key. In addition, while obviously the fine sensibilities of the Acuff-Rose music publishing company were offended, one would have a tough case arguing that a parody of the song in any way acted as a substitute for the original or hurt its future economic viability, making the fourth and most important factor of fair use weigh heavily in favor of the 2 Live Crew. The problem with this line of reasoning is that it ignores the provisions of the copyright act with regards to the creation of "derivative works."[ref]17 USC 106(2)[/ref] According to the copyright act, a derivative work "is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." The problem the Supreme Court created is that the creation of a derivative work is supposed to be an exclusive right of the copyright owner, and requires permission or a license. Indeed the word "transformed" is right there in the definition of what a derivative work is. Yet now, with this language from the Supreme Court, a work that is "transformed" is fair use and is therefore not an infringement of copyright.[ref]17 USC 107[/ref] Let's take as an example a translation. No two languages translate directly into each other. So the translator must make some artistic choices. Amongst these would be how to capture the flavor of the author's writing style in the new language and how certain uses of slang or idioms might best be conveyed into an aphorism understandable by the new culture that would be reading it. These are original artistic choices that would receive a new copyright in the translation. Yet the making of this translation is supposed to be conditioned on the permission of the original copyright owner. Yet under the reason of the Supreme Court, one could make the argument that the translation was so "transformative" that no permission was required. Two competing cases, both based upon famous literary works, illustrate the depth of the quagmire which has been created. First up is the 1997 case of Dr. Seuss Enterprises v. Penguin Books USA, Inc.[ref]109 F3rd 1394 Ninth Circuit Court of Appeals 1997[/ref] At issue was the book The Cat Not in the Hat, a retelling of the events of the then current murder trial of O.J. Simpson, written in the style of children's author Dr. Seuss. No actual text from any of Dr. Seuss' works were used, only that the words were written in a similar style. For example instead of "One Fish, Two Fish, Red Fish, Blue Fish" the offending work served up "One Knife? Two Knife? Red Knife Dead Wife." The design of the book's cover was imitated, yet the only element that was copied directly was the scrunched up stove-pipe hat worn by the Cat. The cover of the book plainly stated it was "a parody" attributed to a "Dr. Juice," yet another play on words that had the dual effect of sounding like "Seuss" but also playing upon Simpson's nickname as a pro football player, "The Juice." The trial court, affirmed on appeal, held that none of this was a "transformative use." Further, despite the fact that the Defendant's book was clearly labelled in large type "a parody" (thus one would not mistake one book for the other) and the rather obvious fact that the two works could never conceivably compete with each other in the marketplace (you would never give your six year old The Cat Not in the Hat), the 9^th Circuit summarily dismissed this point by stating that the Defendants had failed to provide the necessary evidence on this point, and blithely stated that the District Court finding was not "clearly erroneous."[ref]Id. at 1403[/ref] I also suppose neither Court ever considered the fact that whatever copying was done was pretty much de minimus. My best guess? Both the trial Court and the Appellate Court found the book to be in poor taste and ruled accordingly. Contrast that case with that of SunTrust Bank v. Houghton Mifflin.[ref]268 F.3d 1257 Eleventh Circuit Court of Appeals 2001[/ref] This case involved a book by Alice Randall, titled The Wind Done Gone, which retold the story of Gone With The Wind from the point of view of a former slave named "Cynara." The Wind Done Gone appropriates large portions of the characters and plot of Gone with the Wind, including some scenes and elements that are retold with virtually no alteration or comment that were "not essential to the parodic purpose of the work [and] recur throughout [The Wind Done Gone]."[ref]Id. at 1273[/ref] You would think that this clearly would be infringement. Yet the Court dithers…would there really be any market harm? The Eleventh Circuit blames the Plaintiff for not adducing enough evidence as to market harm,[ref]Id. at 1276[/ref] the exact opposite of the Ninth Circuit's ruling (correctly) that fair use is an affirmative defense. The Court goes on to hold that "the transformative nature of Randall's book…is not a close call…"[ref]Id. at 1277 Concurring opinion of Judge Marcus[/ref] and reverses the District Court. The Cat Not in the Hat borrowed very little from the actual writings of Dr. Seuss, but played mostly upon one's recollections of his writing style. On the other hand, The Wind Done Gone made "substantial use of" Gone with the Wind, including "[appropriating] numerous characters, settings and plot twists."[ref]Id. at 1267[/ref] Yet the first is held to be not "transformative" and infringing, while the latter is held to be highly "transformative" and fair use. One could attempt to reconcile the cases on the following basis: The Cat Not in the Hat, while labeled "a parody," did not really comment on the works of Dr. Seuss. It merely used them as a familiar vehicle for poking fun at the O.J. Simpson trial. The Wind Done Gone obviously has Gone with the Wind clearly in its sights and takes great effort to put a new twist on characters and scenes which are familiar to all, if not iconic. So, can we state that the difference is that The Cat Not in the Hat made no criticism or commentary on the works it borrowed from and that The Wind Done Gone clearly did? If only it was that easy. Decided the year after The Cat Not in the Hat was the case of Leibovitz v. Paramount Pictures.[ref]137 F.3d 109 Second Circuit Court of Appeals 1998[/ref] At issue was the copying of famed photographer Annie Leibovitz's portrait of a nude and very pregnant Demi Moore, which ran on the cover of Vanity Fair magazine. Paramount, in order to create advanced publicity for their upcoming movie Naked Gun 33 1/3: The Final Insult, restaged the photograph so that it was imperceptible from the original and then digitally replaced the face of the model with the smirking visage of lead actor Leslie Neilsen, along with the caption "Due this March." Is the ad really commenting on Leibovitz's famous photograph? It seems hard to say that it does. Placing the head of Leslie Neilsen on a photograph of any pregnant woman would convey the same joke, without imitating Leibovitz's photograph at all. It seems very clear that the intention was to trade on the fame and notoriety of the original photograph (which led to that issue of Vanity Fair being one of its top selling issues of all time[ref]Id. at 111[/ref]). Nevertheless, the Second Circuit twists itself into a pretzel over the space of three paragraphs trying to define precisely what that "comment" actually was, at one point surmising that the "ad may reasonably be perceived as commenting on the seriousness or even the pretentiousness of the original."[ref]Id. at 114 (emphasis added)[/ref] Despite the fact that it could never precisely define what the "comment" was, the Second Circuit pronounced the use to be "transformative" and fair use.[ref]Id.[/ref] Now, the quagmire deepens. In Perfect 10 v. Amazon,[ref]508 F.3d 1146 Ninth Circuit Court of Appeals 2007[/ref] the copyright owner in adult images found its business being usurped by Google's practice of providing exact, though reduced sized, images of Plaintiffs' pictures. When these "thumbnails" were clicked upon, Google led the user to a third party website which displayed the full sized image. These sites were usually displaying the images without permission of the copyright owner, whose website required a subscription and password to enter the site.[ref]Id. at 1155-1157[/ref] Even though the thumbnails represented an exact, though smaller, copy of the Plaintiffs' photographs, the Ninth Circuit found the use to be "highly transformative" and fair use.[ref]Id. at 1165[/ref] Contrast this holding with that of the Northern District of Illinois, that publishing a book on the popular "Beanie Baby" line of toys and including photographs created independently by the publisher nevertheless infringed the copyright in the plush toys and the photographs were not "transformative."[ref]Ty, Inc. v. Publications International, Ltd. 333 F.Supp 2d 705 Northern District of Illinois 2004[/ref] Further, in the spirit of The Cat Not in the Hat, we find The Elf off the Shelf.[ref]CCA AND B, LLC v. F+W Media Inc. 819 F.Supp 2d 1310 Northern District of Georgia 2011[/ref] Yet once again, the Court calls the photographs of the elf doll "parody" and the use "transformative."[ref]Id. at 1322[/ref] What the parody is saying is another matter. While not having read the book, the images viewable online and the references made in the trial Court's opinion suggest that there is no real parody, in that there is no criticism or commentary, simply the age old tactic of making a children's plaything do inappropriate things in order to get a laugh. Wait. It gets worse. For now we delve into the surreal world of "appropriation art," where the very first step is to copy someone else's work of art.[ref]See generally Dennis Hudson Hick Appropriation and Transformation, 23 Fordham Intellectual Property, Media and Entertainment Law Journal 1155 (2013)[/ref] First up is the case of Blanch v. Koons.[ref]467 F.3d 244 Secord Circuit Court of Appeals 2006[/ref] Mr. Koons frequently takes other people's artwork, not to comment on them, but to comment on other topics. He is no stranger to litigation either, having lost several copyright infringement suits.[ref]Id. at 246[/ref] Here, he appropriated a photograph created by the Plaintiff for a feature in Allure magazine, which consisted of a close up of a woman's legs and shoes, resting on the lap of a man in an airplane. Koons cropped it, removed some elements, then placed it in a painting along with other elements (also presumably "appropriated" from other artists). In doing so, he claimed he wished to "comment on the ways in which some of our most basic appetites-for food, play, sex-are mediated by popular images."[ref]Id. at 247[/ref] So why use that image? Why not create your own photograph which illustrates the style you are looking for? It is not as though the image was famous enough that a viewer would recognize the source, and therefore have some element of "criticism and commentary." Further, what Koons did was create a derivative work of the original photograph. What happened to the rights of an author to control derivative uses? The Court never addresses any of these issues; it merely finds Koons' use to be "transformative" and thus fair use.[ref]Id. at 253[/ref] So now, instead of having Courts decide questions of law, we are turning the Courts into art critics to make judgment calls on whether a work has "enough" transformation to qualify as fair use. In Morris v. Young,[ref]925 F.Supp2d 1078 District Court for the Central District of California 2013[/ref] an artist appropriated a photograph of the punk rock band the Sex Pistols and made three reproductions of the photograph. The three reproductions varied from 1) cropping and tinting the photograph red to 2) printing the photograph using black enamel on an acrylic background to 3) reprinting the photograph twice and combining it with the Union Pacific logo, red stars and the words "White Riot."[ref]Id. at 1081[/ref] Defendant stated that he creates art like this for "social commentary."[ref]Id. at 1082[/ref] The Court ruled the first two paintings were not "transformative" and granted judgment for the Plaintiff on those two counts of copyright infringement.[ref]Id. at 1086[/ref] Yet, as an inevitable result of the quagmire created by the whole "transformative" concept, ruled that whether the last painting was transformative could not be resolved, and so remained a question for the jury to decide.[ref]Id. at 1089[/ref] Again, there is no discussion by the Court about the fact that all three are unauthorized derivative works. Now the quagmire gets deeper. In Cariou v.Prince,[ref]714 F.3d 694 Second Circuit Court of Appeals 2013[/ref] the Second Circuit decides that it is no longer necessary for the new work to comment on the borrowed work or popular culture. In other words, it need not be a commentary on anything. "We agree with [Defendant] that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince's artworks do make fair use."[ref]Id. at 698[/ref] For this rather breathtaking departure from previous case law, there is not one single citation to any authority as to why this is so. Out of the 30 photographs appropriated by the Defendant, the Court gazes into its artistic crystal ball and declares 25 to be "transformative" and fair use, while five are not "transformative" and therefore potentially infringing. The dissenting opinion of Justice Wallace sums it up the best. What the Court has basically said is "that all the Court needs to do here to determine transformativeness (sic) is view the original work and the secondary work and, apparently, employ its own artistic judgment."[ref]Id. at 713[/ref] This is simply wrong, and changes the clear intent of section 106(2). To rule that the secondary work does not need to comment on the borrowed work, or comment on anything at all, is to basically say that the exclusive right of the copyright holder to control derivative works no longer exists. Anything, and any work, is now fair game to be appropriated by someone else. The only inquiry is, did the secondary work change the borrowed work "enough" to be "transformative," and is the subjective artistic opinion of the Judge all that matters? How in the world is an attorney supposed to give advice to the client when the only standard is "whatever the Judge thinks?" So, to the Courts, and the Supreme Court in particular, we need to put an end to the quagmire that is "transformative," and the sooner the better. Whether the secondary use is a fair use needs to be rolled back to "does the secondary work comment or criticize the borrowed work?" Certainly the 2 Live Crew were directly commenting on "Oh, Pretty Woman," and limiting fair use to that standard comports with the ethos of supporting free speech. Otherwise, we can just rip Section 106(2) right out of the statute.