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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section State Bar of Michigan Michigan IT Lawyer A Publication of the State Bar of Michigan Information Technology Law Section http://www.michbar.org/it Table of Contents September 2012 . Vol. 29, Issue 6 Bits and Bytes from the Chair Contents . Bits and Bytes from the Chair ................1 By Charlie Bieneman, Rader, Fishman & Grauer PLLC . Appropriate Testing and Resolution: How to Determine Whether Appropriation Art is Transformative Greetings, everyone, “Fair Use” or Merely an Unauthorized Derivative?..............................................2 I will make my last “Bits and Bytes” a short one. I have had a . Publicly Available Websites for IT great year as Section Chair, and I am looking forward to work- Lawyers ................................................24 ing with all of you in the Section for the years to come. Thanks to everyone who has contributed and participated in the past year. We . Mission Statement Information Technology Law Section, State Bar of have a great group. Michigan ...............................................24 I hope to see everyone at our Annual Meeting and Fifth Annual . The State of Information Technology Law IT Law Seminar next week, Thursday, September 27, 2012, at the – 2011 ..................................................... 25 St. John’s Inn in Plymouth. We have a great lineup of speakers and topics, plus excellent networking opportunities at our seminar lun- . 2013 Edward F. Langs Writing Award ..37 cheon and post-seminar cocktail hour. If you haven’t yet registered, you can do so by going to the ICLE website, www.icle.org. To sign up for the center, select the “Store” tab, choose “Seminars” from the “Search” drop-down box, and then enter “information technolo- Michigan IT Lawyer is published every other gy” for your search. Or just go to this link: http://www.icle.org/mod- month. Previously published issues of the Michigan IT Lawyer, and its predecessor the ules/store/seminars/schedule.aspx?PRODUCT_CODE=2012CI1158 Michigan Computer Lawyer, are available at http://www.michbar.org/it/newsletters.cfm. If you have an article you would like considered Once again, thanks to everyone for a great year! for publication, send a copy to: Michael Gallo 2700 Renshaw Drive Charlie Bieneman Troy, Michigan 48085 e-mail: [email protected] 2011-2012 Section Chair Michigan IT Lawyer The Michigan IT Lawyer is pleased to present “Appropriate Testing and Resolution: How to Determine Whether Appropriation 2011-2012 Information Technology Section Council Art is Transformative ‘Fair Use’ or Merely an Unauthorized Chairperson . Charles A. Bieneman Derivative?” by Eric D. Gorman. The article was previously Chairperson-elect . Karl A. Hochkammer published in January 2012, in the St. Mary’s Law Journal, Volume Secretary . Ronald S. Nixon Treasurer . Michael Gallo 43, Issue 2, http://www.stmaryslawjournal.org/recent_issues.aspx, COUNCIL MEMBERS and is reprinted here by permission of the author. Charles A. Bieneman Susanna C. Brennan The statements made and opinions expressed in this William Cosnowski, Jr. essay are strictly those of the author, and not the State Bar Nilay Sharad Davé Jeanne M. Dunk of Michigan or the Information Technology Law Section. Michael Gallo Comments regarding this article can be forwarded to the Brian A. Hall Daniel J. Henry Michigan IT Lawyer, care of [email protected]. Enjoy! Karl A. Hochkammer William J. Lamping, Jr. Tatiana Melnik Jeanne M. Moloney Appropriate Testing and Resolution: Ronald S. Nixon Carla M. Perrota How to Determine Whether Vincent I. Polley Claudia Rast Appropriation Art is Transformative Isaac T. Slutsky David R. Syrowik “Fair Use” or Merely an Immediate Past Chair Mark G. Malven Unauthorized Derivative? Ex-Officio Claudia V. Babiarz By Eric D. Gorman Jeremy D. Bisdorf Thomas Costello, Jr. Kathy H. Damian I. Introduction Christopher J. Falkowski Robert A. Feldman “Art . is the desire of a man to express himself, to record Sandra Jo Franklin the reactions of his personality to the world he lives in.”1 But Mitchell A. Goodkin William H. Horton what if this original expression was taken away from the artist Lawrence R. Jordan for all the wrong reasons? What if the work was wrongfully sold Charles P. Kaltenbach for money or portrayed as an appropriation artist’s own work? Michael S. Khoury Eric D. Gorman J. Michael Kinney Art cannot be taken away from its creator unless there is fair use Edward F. Langs* of that product. At the same time, appropriation art creates new Thomas L. Lockhart works of art by utilizing common images found in society, there- Janet L. Neary 2 Kimberly A. Paulson by aiming to change the way we think about these images. Does appropriation art Paul J. Raine* deprive the original artists and creators of their copyrighted material? This Article Jeffrey G. Raphelson will examine the fair use of appropriation art and discuss whether an appropriation Frederick E. Schuchman III Steven L. Schwartz artist has infringed upon an artist’s original work when it comes to creating “new” Carol R. Shepard appropriation art. After all, “art is either plagiarism or revolution,”3 and appropria- David Sinclair* tion art might or might not be “making something out of nothing and selling it.”4 Anthony A. Targan Stephen L. Tupper Courts need to determine whether the fair-use defense is suitable for this specific type of art through the application of existing boundaries and tests. Commissioner Liaison Richard J. Siriani This Article addresses the copyright concerns in appropriation art today and Newsletter Editor concludes that copyright law should be amended to address the complex issues Michael Gallo found in this area of the law. Part II provides a background on appropriation art *denotes deceased member and the different facets of copyright law, including the doctrine of fair use. Part 2 . Vol. 29, Issue 6 . September 2012 Michigan IT Lawyer III analyzes whether appropriation art can even be considered strate that “(1) the defendant has actually copied the plain- “fair use” under the current exceptions of copyright infringe- tiff’s work; and (2) the copying is illegal because a substan- ment. Part IV discusses various legal tests to determine tial similarity exists between the defendant’s work and the whether appropriation art that utilizes copyrighted material protectable elements of plaintiff’s.”15 can exercise the doctrine of fair use against alleged copyright A claim for copyright infringement cannot survive unless infringement. It also proposes a change to copyright legisla- a copying has occurred.16 A work is considered copied when tion in order to offer more guidance for appropriation art legal an accused had access to protected material, and the work issues with regard to the doctrine of fair use and potential in question is substantially similar to the ideas protected copyright infringement. This Article concludes by looking under copyright law.17 No artist may combat accusations of back at copyright infringement versus the doctrine of fair use plagiarism by demonstrating how much of the work he has with regard to appropriation art and how the adoption of the not pirated.18 Where a substantial similarity exists between proposed legislation will be more in line with the goals and different works, small changes made by the copying party are fairness sought for copyright law. unavailing.19 A violation of any of the copyright owner’s exclusive rights II. Background constitutes infringement.20 These exclusive rights include the A. Appropriation Art right to reproduce the work, the right to prepare derivative To examine the doctrine of fair use with regard to appro- works, the right to distribute copies of the work to the public, priation art, one must understand what each of the relevant and the right to display the work publicly.21 A derivative work terms means. The term “appropriation art” essentially is one that is “based upon one or more preexisting works, involves the taking of an image garnered from a “real object such as a translation, musical arrangement, dramatization, or even an existing work of art” and using the borrowed ele- fictionalization, motion picture version, sound recording, art ments to form a new piece of art.5 “Appropriation art borrows reproduction, abridgment, condensation, or any other form in images from popular culture, advertising, the mass media, which a work may be recast, transformed, or adapted.”22 other artists[,] and elsewhere” and forges them into a new The United States Code provides that the use or repro- work.6 Appropriation art has commonly been described “as duction of a copyrighted work is “not an infringement of getting the hand out of art and putting the brain in.”7 Some copyright” if it is used “by reproduction in copies or phonore- appropriation art does not incorporate items subject to cords or by any other means specified by [§ 106], for pur- copyright protection; however, the appropriation artist risks poses such as criticism, comment, news reporting, teaching infringing upon an owner’s right if that work is copyrighted.8 (including multiple copies for classroom use), scholarship, or Appropriation art embraces the maxim touted by modernist research.”23 artists who question the nature or meaning of art by blurring The immediate question then becomes whether appropri- the lines of originality, creation, and authenticity.9 ation art is copyright infringement. This is where the fair-use defense can help counter allegations of copyright infringe- B. Original Work, Copying, and ment based on the
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