January 21, 2012

Judge Posner includes a photograph of Bob Marley in an opinion and sloughs off worries about copyright.

The case was about dreadlocks (and the prison officials who cut them off), and Posner said his use of the photo fit the "fair use" doctrine:
"It's not as if we're selling our opinions in competition with a photographer... Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."
Posner did not give the photographer credit, though it's a commercial photographer who uses Getty Images to collect fees. But Posner just grabbed the photo from the internet. He says "With the Internet, it's extraordinarily easy to find photographs of anything," so there's a good chance he encountered the photograph on a website that didn't name the photographer.

Posner seems to think it's quite fun to toss photographs into judicial opinions. It reminds me of the way some judges like to quote song lyrics or lines from movies. Blogging, I always feel that it's more questionable to use an image that someone else created than it is to cut and paste a block of text, but why should that be? I quote blocks of text all the time, but I remember, when I started blogging, worrying quite a bit about whether it was acceptable to copy that much text, so I'm relieved to hear a judge take a broad view of fair use and set an example.

Here's an opinion where Posner includes a picture of an ostrich with its head in the sand and a picture of (presumably) a lawyer with his head in the sand as he criticizes a lawyer who failed to cite a case that should have been cited. The lawyer filed a grievance against Posner for funning with him like that. The grievance was dismissed, and Posner offers the classic nonapology "I'm sorry he was upset by it."

There's more going on here than copyright. There's also the idea that judges are supposed to be neutral and sober. They wield power against real individuals, and it's a power that's supposed to come solely from law, not from any will of the judge's own. In that light, when the judge displays that he's enjoying the experience or playing to the crowd, entertaining the audience, we may fear that he's doing something wrong. This is why most judicial opinions are so godawful tedious, as the judges all sound alike and phrase everything in the dullest possible way. And there are no pictures!

This reminds me. We lawprofs have to make students read these texts, and we use casebooks that have edited the tediously verbose writings down, but the casebooks are still ponderous — in more ways that one. I'd like to take iBooks Author — an amusing new app — throw all the cases I assign into it. (All the judicial opinions are in the public domain, so there's no copyright issue at all.) Edit the cases down, summarize some things, and embed some pictures in a Posneresque way.

For example, take Griswold v. Connecticut (the old birth control case that flummoxed Mitt Romney in the debate the other day). There's a point in Justice Harlan's concurring opinion where he writes:
The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.
That's just begging for a photograph grabbed from the internet.

Should Althouse use iBooks Author to write a Posneresquely amusing Constitutional Law casebook?
No. It would be undignified and unserious and thus not usable in a real law school class.
Yes. Students (and other readers) will love it.
No. It won't be that good. It might be annoying. And Althouse has better things to spend time on.
Yes. I'd like to see Althouse's creative energy drained away in this idiotic project.

  
pollcode.com free polls 

IN THE COMMENTS: Freeman Hunt said:
Posner is The Crack Emcee of judicial opinions?

41 comments:

pbAndjFellowRepublican said...

This from wiki is interesting:

"Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material as a means to prevent what he views as free riding on newspaper journalism."

edutcher said...

Visual aids always enhance the point.

Cast caution, and your fate, to the wind, as they say.

Steve Austin said...

Ann, back in the day, Larry Church would essentially do his own materials for a number of classes. He'd pick out the cases and then line them up in a xeroxed package he created. Would save us all a lot of money versus the profs who made us buy the $100 books. I think Erlanger did the same as Church.

In the end, the materials from Church and Erlanger were far more relevant, in addition to being more cost effective.

These two were also a couple of my favorite profs (never had an Althouse class).

A great musician can make beautiful music on a baby grand or a $100 toy piano.

MartyH said...

Read the EULA if you want to sell anything made by iBook Author on any platform other than Apple's. According to Ed Bott, Apple bans you from selling anything edited in iBook Author via any means other than through their portal. So you can give your iBook authored work away, but not sell it for the Kindle or Nook or to a publisher if the authoring was done in iBooks Author.

traditionalguy said...

That is an interesting observation that quoting another's written text seems so different from copying another's picture.

IMO, written communications are missing the emotional intimacy carried by a picture that shows much more context, plus a, human's actions that show character.

E,g., writing about Men wearing shorts in public has not the emotional response from a picture of a man dressing up as a boy.

Now please post "Studying Althouse" for us again. It is the Rembrandt of internet stolen pictures.

edutcher said...

I don't think Iconic Althouse is stolen, tg. I believe it is legally printed under Creative Commons.

PS Voted for #2.

Moose said...

I think its sad that you're letting Apple suck on you like a tick.

Joan said...

Why not? But don't be surprised if the task turns out to be very time consuming.

A few years ago, I put together a rosary book for my 3rd grade religious education students. I'm sure it's much, much shorter than what you're talking about assembling, but it still took me about 3x longer than I thought it would.

That said, I'm sure your students will appreciate your efforts very much. Mine do!

Tank said...

As someone who commuted an hour and a half each way on the train and bus to law school, God Danm I would have loved this.

Big improvement.

On the other hand, in so many ways, the practice of law itself sucks compared to 30 or 40 years ago.

Lem said...

And there are no pictures!

I go right for the pics while leafling books at B&N.

I keep my leafling window small.. pics convey/pack a lot of information.

I was going to say the inner child in me loves'm, but that would draw Cracks ire ;)

Writ Small said...

The freedom to appropriate the creativity of others is not without costs. Low barriers to entry to create and publish photographs, books, videos, and music has led to a lot of freely viewed, entertaining things.

The flip side is it's harder to profit from artistic expression where copying is the easiest. The sad economic truth is that means less output of the truly great art. The music industry has been in long term decline because of rampant piracy. The newspaper and magazine industries are similarly in a slow motion collapse.

Industries with a higher barrier to entry and who retain some control over how that product is delivered (for example server-based massively multiplayer games, live concerts, movie theaters that provide an experience hard to replicate at home) will continue to be able to profit and provide high quality artistic output.

The allure of immediate free stuff means this trend is nearly impossible to reverse. The LOLcats were never in any real danger. The really great stuff, however, is.

Bender said...

This is why most judicial opinions are so godawful tedious, as the judges all sound alike and phrase everything in the dullest possible way.

As someone whose job is to analyze over 150 judicial opinions a week, I can tell you that the reason they are tedious and all sound alike is because 80-90 percent of the cases (federal district court anyway) are boilerplate, cut-and-paste jobs (and often containing several paragraphs of citations that have absolutely no relevance to the issues in the case at hand.)

Bender said...

By the way, there is no copyright in the judicial opinions themselves.

But unless it is taken directly from the PACER government website, there is a protectable copyright (e.g. Lexis, Westlaw, etc.) in the electronic format that is used in computer apps.

Synova said...

I don't see how the picture of Marley can be "fair use". The only way I can figure it would be fair use is if it was illustrating something about the *photographer*. Otherwise it is an image that belongs to someone. The test for "fair use" isn't "used in a non-standard way" or "doesn't take away from the owner's usual market and income", the test isn't "does this hurt the owner."

Fair use is using a portion in commentary or critique. Also satire. And then it's iffy if the entire work is quoted or shown.

So I think that Posner is smoking something.

Hagar said...

Has he found occasion to use The Picture yet?

davis,br said...

Should Althouse use iBooks Author to write a Posneresquely amusing Constitutional Law casebook?

Do it. I'm not a law student, and I'd get a copy, even if only to lightly peruse. (Well, don't insanely price the thing and I would.)

...what I've read about iAuthor the last couple of days has me seriously considering an iPad and a Mac. (If I was more flush right now, I'd be in a store later today.)


...and yes, I do think this is one of those Very Big Deals that seem to come along in the digital world ev'ry so often.

Freeman Hunt said...

Posner is The Crack Emcee of judicial opinions?

Lem said...

Bob Marley is an iconic figure..

Isn't Marley a weed Mandela?

KLDAVIS said...

Posner appears to be making a classic blunder when assessing the viability of a fair use defense. He cites the non-commercial nature of the work he created as evidence. However, assessment of that factor in a determination of whether a use was fair has been diminished greatly in recent years.

The more commonly performed assessment of economic impact is whether the use diminishes the copyright holder's ability to exploit their work commercially. By making the photo available for free to anyone who might download his opinion, Posner has done the copyright holder significant economic harm. I find it hard see his use as "fair" under the current terms of the exception.

Do I wish the exception were broader? Yes. Do I think Posner would agree? Yes. I also thinks he probably knows that his use wasn't fair and that he's trying to start this discussion. He's one of the smartest people I've ever met.

Bender said...

Posner has done the copyright holder significant economic harm

This is really absurd.

The photographer will not be impacted even two cents by this usage.

First, perhaps all of two handfuls of people will ever look at Posner's opinion. Second, of those that do, maybe there are one or two that even care about the picture. Third, that one or two who care who never would have paid for the picture even if they knew where they could buy it.

If anything, by exposing even two handfuls of people to this photographer's work, people who otherwise never would have seen it, by this free publicity, Posner has actually increased the potential market for him.

Ann Althouse said...

"Ann, back in the day, Larry Church would essentially do his own materials for a number of classes. He'd pick out the cases and then line them up in a xeroxed package he created. Would save us all a lot of money versus the profs who made us buy the $100 books. I think Erlanger did the same as Church."

I did that too. I stopped. Can't remember all the reasons why I stopped. It's a lot of work and it never ends because there are new cases. It's not work that you get "credit" for as scholarship. It's for the students and for yourself as a teacher, so a lot depends on whether the students love it. Maybe if more student evaluations had said I love the materials and thanks for doing all that work I'd have kept going. I probably got one too many evaluations complaining that the materials were hard to follow or contained typos.

KLDAVIS said...

How can making the photo available for anyone to download for free increase the artist's ability to make a profit? That's ridiculous.

It assumes the non-existence of things like Google Image Search. Where previously a search may have directed a potential buyer to the image for sale on Getty, now it will undoubtedly also lead them to the free version, which will directly impact the artist's bottom line.

Ann Althouse said...

I connected up the cases in an innovative way that was built on central concepts that I brought up in class. I thought that was very exciting, so every time a student complained that the structure didn't match the commercial study aids, I was disincentivized.

Ann Althouse said...

"It is the Rembrandt of internet stolen pictures."

Of course, I did not take that picture. I'm the image the photographer stole. I steal images myself as a photographer. Who owns what? Images are nothing without eyes to see them, and we are endowed by Our Creator with eyes.

Ann Althouse said...

"Read the EULA if you want to sell anything made by iBook Author on any platform other than Apple's."

Oh, no! Are centipedes involved?

KLDAVIS said...

"Oh, no! Are centipedes involved?"

Well, they do expect you to gobble up their crap while grinning and asking for more.

Ann Althouse said...

"That said, I'm sure your students will appreciate your efforts very much. Mine do!"

Yeah, but you're much nicer than I am. My book will be difficult and will also contain humor and idiosyncrasies of mine. The students have to work hard and their careers are hanging on it, so they aren't really receptive to anything that makes their life harder. Naturally, they'd appreciate a free (or super-cheap) book, but that won't keep them from finding the book frustrating and blaming me both for writing it and for leaving them without the help of the conventional commercial outline.

This is the real reason the 4th option on poll is probably right. It's not a good use of creative energy. The creativity will have to constantly be held back so as not to annoy or frustrate students (who have a hard enough time trying to understand the judges). It's not a good outlet for my personal expression.

Chip S. said...

It would almost certainly reduce the boredom factor for your students, but would that be a good thing? Isn't a key role of law school to weed out people who'd find actual legal work boring?

Ann Althouse said...

"Do I wish the exception were broader? Yes. Do I think Posner would agree? Yes. I also thinks he probably knows that his use wasn't fair and that he's trying to start this discussion. He's one of the smartest people I've ever met."

Yeah... and doesn't he have immunity from lawsuits as he does his judicial work? Makes it easy for him to serve in this role as the discussion develops.

By the way, the photographer of Bob Marley is getting a lot of the value of his photo from Bob Marley. He appropriated that.

KLDAVIS said...

"By the way, the photographer of Bob Marley is getting a lot of the value of his photo from Bob Marley. He appropriated that."

Copyright law exists to encourage him to artfully capture that image. He deserves to profit from it. Wouldn't world, not just the artist, be worse off if he didn't take the picture?

The underlying issue strikes me as rather similar to trying to attack Romney for paying taxes according to the law.

Feel free to change the rules, if you disagree with the law and can get enough people to agree with you, but people who play by the rules shouldn't be tried, convicted and sentenced in the court of public opinion by some amorphous "fairness doctrine".

Ann Althouse said...

"Copyright law exists to encourage him to artfully capture that image. He deserves to profit from it. Wouldn't world, not just the artist, be worse off if he didn't take the picture?"

But the world is also better off for Posner's use of it. The question of what is deserved is complicated. Yes, the principle of encouraging production lies behind the copyright statute, but that doesn't mean the statute, as currently written and interpreted, achieves the perfect balance of encouragement.

"The underlying issue strikes me as rather similar to trying to attack Romney for paying taxes according to the law."

I doubt whether the tax laws in question have malleable issues like fair use in them. What if, applying tax laws, courts had to balance various factors that had to do with the incentives to work that were involved?

"Feel free to change the rules, if you disagree with the law and can get enough people to agree with you, but people who play by the rules shouldn't be tried, convicted and sentenced in the court of public opinion by some amorphous "fairness doctrine"."

It's not the "fairness doctrine." It's the "fair use" doctrine, and it's written into the copyright statute. Congress would not have passed the law without that leeway, and at some point, free speech rights would trump the statute.

And speaking of public opinion, Congress just got its ass kicked in the court of public opinion as it attempted to strengthen copyright enforcement. The people are activated now, and I don't think we'll tolerate a stingy interpretation of fair use anymore.

KLDAVIS said...

"The people are activated now, and I don't think we'll tolerate a stingy interpretation of fair use anymore."

Right, where were they when the terms of existing copyrights were retroactively extended, providing no conceivable promotion of science or useful arts (the stated purpose of copyright law), as some sort of perverse homage to the late Sonny Bono (but actually the life's work of Jack Valenti, perhaps a less famous MPAA president than Mr. Dodd but equally despicable, who thought copyright should last forever minus a day)?

Where were they when the DMCA was passed without a fair-use exemption to the anti-circumvention provisions, making any software illegal that could make a 10 second clip from a commercial DVD?

I fear the people are the sleepy drones you envision in your more recent front page musings, not the digital freedom crusader temporarily stirred by this latest cause célèbre.

Does Eldred v. Ashcroft ring any bells for anyone out there? It was probably more important to the future of our economy and ultimately the success of our republic than Citizens United, but the decision goes unmourned by the masses.

Beldar said...

Your risk of losing with a "fair use" defense is substantially higher because you accept advertisements and Amazon commissions. Judge Posner is simply recognizing that his "fair use" rights are vastly broader for a completely non-commercial use.

KLDAVIS said...

My favorite comment ever regarding "fair use" is that it's nothing more than the right to hire a lawyer. The people who need to invoke fair use are the people least likely to be able to afford defending such a claim. This is part of the reason why I think Posner's use of the defense is so superb.

Writ Small said...

The people are activated now, and I don't think we'll tolerate a stingy interpretation of fair use anymore.

They are activated because people perceive a short term gain in the form of free stuff and don't think about the long term disincintive to produce great things.

It's a variation of the tragedy of the commons. Instead of too many cows eating public-owned grass and destroying the land, it's too many people stealing the profit out of art and undermining the framework that produces that art.

But your little munch of grass tastes so sweet and it's free. Bad people want to make you pay for it. Don't let them infringe upon your freedom to eat. People who want to deprive you of free things are stupid. Just check out the Urban Dictionary. This grass tastes good and it will last forever.

EDH said...

Too bad they didn't routinely add photos to judicial opinions in 1964 when Potter Stewart famously opined in reference to "hard-core" pornography...

"I know it when I see it."

Moose said...

It amazes me how people can get all up in arms about SOPA and yet gleefully agree to outright piracy agreements like this.

The Crack Emcee said...

Freeman Hunt,

Posner is The Crack Emcee of judicial opinions?

In all the years I've been doing my blog, I've had (I think) three requests to remove photos, and two of those were because people didn't like what I was saying.

The other was from Ann.

It's a non-issue.

Don said...

A write-in vote:

No. It *would* be that good. It would be *mightily annoying* to many whom I would like to annoy. But Althouse has better things to spend time on (among them, this blog).

Don said...

A picture is worth a thousand words! If you doubt it, check out some of the pictures Ann has posted!

Astro said...

I'm shocked you used the phrase "Posneresquely amusing" and did not have your blogging privileges suspended.

"Posneresquely amusing"? That's quite a train wreck to pack into just two words.