Explaining Copyright Law with Plain Language and Visual Comparisons.

Copyright Codex is based on Professor Robert Gorman’s 250 page treatise “Copyright Law, 2nd Ed” (2006). It has been adapted for the web and (partially) updated. Copyright Codex answers questions like “Can I copyright this software?” and “will my new software infringe on someone’s existing copyright?” and “how much copying does fair use allow?”

Wherever possible, we like to add visual comparisons. You can start with the basics, or scroll down for a few examples of copyright law applied to software, art, and literature.

Sorry for Partying: Fair Use

sorry for partying photo comparison

A shirt bearing this “Sorry for Partying” image (right) is fair use of an original photo of Mayor Paul Soglin (left). From the Seventh Circuit decision:  “While a student at the University of Wisconsin in 1969, Paul Soglin attended the first Mifflin Street Block Party, whose theme was ‘taking a sharp stick and poking it in the eye of authority.’ Now in his seventh term as Mayor of Madison, Wisconsin, Soglin does not appreciate being on the pointy end.” But Soglin couldn’t shut down the party with a copyright infringement lawsuit: “The photograph was posterized, the background was removed, and Soglin’s face was turned lime green and surrounded by multi-colored writing…. almost none of the copyrighted work remained.” Kienitz v. Sconnie Nation LLC, (7th Cir. Sept. 14, 2014). Professor Rebecca Tushnet likes the result, but critiques the Court’s analysis.

Appropriation Art: Not Fair Use in Rogers v. Koons

rogers-koons-banality-string-of-puppies-copyright-fair-useThe Jeff Koons sculpture (right) infringed the original Art Rogers photo (left) because the  Koons sculpture had a commercial purpose (selling for $376,000), copied from an artistic (rather than factual) source, and Koons copied nearly every detail of the original. But the real gist of Koons’ fair use argument was that his sculpture was satire, and criticized societies’ fascination with mass-produced commodities. The Judge disagreed, deciding that copying an artists’ work to criticize society at large was not fair use —to be fair use the copy must criticize the original work. Rogers v. Koons (2d Cir. 1992).

Compare this to Cariou v. Prince below.


Appropriation Art: Fair Use in Cariou v. Prince

Cariou v. Prince - Copyright and Fair Use in appropriation art - graduation piece was a close call.

The allowable scope of “transformative” fair use was broadened in 2013 by Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative…” A new work is transformative, and therefore fair use, if it shows a “new expression, meaning, or message.”

Appropriation Art: Fair Use in Blanch v. Koons

Using a magazine photo in a collage was transformative and therefore fair use in copyright case of Blanch v. Koons

Artist Jeff Koons used portions of an Allure Magazine photo in his “Niagara” painting. This was transformative, and therefore fair use, because “The use of a fashion photograph created for publication in a glossy American ‘lifestyles’ magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in an art-gallery space.” Blanch v. Koons (2d Cir. 2006).

 Photoshopping and Fair Use: Leibovitz v. Paramount

Transformative,  Fair Use
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1992).

Annie Leibovitz sued paramount for photoshopping Leslie Nielson’s head into her famous photo. It was for a movie advertisement, which is a commercial use. A defendant’s commercial use tends to weigh against fair use. However, the court decided the Naked Gun poster was “transformative” and therefore fair use.

Copying Video Game Design  Elements is Infringement in Pac-Man v. KC Munckin.

After general maze-chase concepts were filtered out, the Pac-Man characters were copyrightable and infringed by KC Munckin game.

Philips admitted that it copied from Pac-Man, but claimed fair use. It argued that “KC Munchkin” only copied elements that were necessary for a maze-chase game. The court disagreed: the gobbling protagonist and colorful ghosts were original to Pac-Man, and not necessary components to all maze-chase games. KC Munchkin infringed Pac-Man’s copyright.

GUI Design Elements is Not Infringement in Apple v. Microsoft  Microsoft's Windows did not infringe on Apple's Copyright in its GUI because Microsoft copied unprotectable ideas.

In the late ’80s Microsoft copied visual design elements from the Apple’s groundbreaking GUI. The two UI’s are similar, especially in their ability to display overlapping windows (a big deal at the time). But the court found fair use.

Although the two operating system GUI’s share many similar elements, the court didn’t compare every element. Before making a comparison, the court “filtered out” two types of design elements: (1) elements that were in the public domain, and (2) elements that Apple had licensed to Microsoft. After this filtration step, there weren’t many design elements left. The court decided that Microsoft’s copying of a handful of remaining design elements was fair use.


Parody vs Satire: Copying Cat in the Hat is Not Fair Use in Dr. Seuss v. Penguin

Seuss v. Juice: Not Fair Use
Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

Parody weighs in favor of fair use, but satire may not. In a parody, the copyrighted work is the target of ridicule. In a satire, the copyrighted work is merely a vehicle to poke fun at another target. Since Dr. Juice’s book used Dr. Seuss’ copyrighted stovepipe hat, but Juice didn’t ridicule Seuss, the court decided against fair use.

What People are Saying:

“a great starting place for copyright law research.” ~ Duke Law Library

An “Online work in progress intended ‘to make U.S. copyright law useful and accessible for designers, coders and lawyers.'” ~ Stanford Law Library

Copyright Codex does a “good job of presenting these concepts in a style that is easy to understand and also well suited to the web.” ~ Law Sites Blog

Pace Law School lists us in their copyright research guide.

About Copyright Codex

Our story starts with Professor Robert Gorman’s 250 page treatise “Copyright Law, 2nd Ed” (2006).  Eric Adler, a NYC technology lawyer remixed the book into this website in 2012 (thanks FJC!), and has been gradually updating the contents. Tweet if you want to contribute. We need help updating cases, organizing the information, and cleaning up the code.

Our logo, a BetaMax machine, pays homage to the Supreme Court’s landmark Sony v. Universal decision. This 1984 case held that it’s fair use to record a TV show for personal viewing (on a BetaMax).

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Sponsored by Adler Vermillion LLP: A Technology Law Firm in NYC.