Blog powered by Typepad
Member since 04/2004
AddThis Social Bookmark Button

« Libraries and computer authentication | Main | Harvard Law Bulletin issue on Intellectual Property - including disability access to copyrighted materials »

July 13, 2004


I wonder if you might be interested in checking out a discussion that is going on at mezzoblue
The issue is whether digital manipulation (extreme) of another persons image falls under fair use or is indeed copyright infringement.

The immense response has been made by mostly graphic artists, photographers and web designers who really don't understand the law behind what they are saying. It would be great to hear what you have to say about the question posed by Dave Shea.

Siva, if you don't control the rights, the part of your argument where you said:
"I -- of all people -- would probably not challenge him on it"
is not a factor.

"They should act as if they have the right."

Sigh ...

Dear Peter:

Thanks for your comments.

Authors can't always say up front to what uses their works may be put. First, almost no authors have the cultural capital to demand such specific exceptions from publishers (only one of us is Lawrence Lessig). In my case, creative commons licenses did not exist in 2000 when I signed the contract with Basic.

Several times on the page proofs I amended the copyright statement so it reflected U.S. copyright law instead of the imaginary extreme position that Basic takes as a matter of policy. Every time the production editor ignored my changes.

Publishers, who also depend on fair use, should be smarter and bolder than that. They should have default copyright statements that do a better job of reflecting the loose, imperfect regulatory system that is copyright.

Here is the terrible secret of this example: I don't even have the right to grant permission to this professor. I don't control the rights.

So the college in question ended up using it anyway, sans permission.

If Basic is stupid enough to sue the college, then I would stand with the college against my own publisher. It's not going to happen, though.

And you are right. No fair use calculus is a slam dunk. And my reading could be just as valid as yours. That's one of the reasons that fair use is neither fair nor useful. It's arbitrary EXCEPT IN PRACTICE. This is why professors should not ask permission. They should act as if they have the right. Practice matters.

As Justice Holmes said, "the life of the law is experience."


Yes, such a statement would be great. No doubt even though the copyright was in his name, all significant exclusive rights were transferred to the publisher, leaving Siva a shell of copyright ownership. (That's what happened to me when I wrote a book.) Putting the copyright statement in Siva's name is then an issue of negotiation in the publishing contract.

My contract with my publisher said the notice would be in my name (this was said to be a "courtesy" and was not difficult to negotiate) but an error caused the copyright statement to be made in the publisher's name after all. I really didn't care; in fact it made more sense to have the publisher's name, since that is the place permission seekers need to go anyway.

Once the rights were transferred to the publisher, the publisher (not Siva) would need to share your spirit in writing such a clear and generous copyright statement.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Your Information

(Name is required. Email address will not be displayed with the comment.)