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The Google Books Ruling Could Cost Artists, Too!

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For artists, the fair use doctrine can be a double-edged sword – on the one hand, fair use can protect creative expression by shielding the use of copyrighted works that are transformed for the artist’s own intent and purpose – look at key examples like Richard Prince, who has built an empire by defending himself against copyright infringement under the fair use doctrine. On the other hand, the fair use doctrine can sometimes harm creative expression because it creates a safe space for what can often be considered a blatant appropriation of someone else’s work. Many artists and authors are concerned that fair use has been misused in the case of Google Books, which recently overcame a 10-year battle with the Author’s Guild over the media giant’s creation of a digital library that essentially put published works online for free..

In 2004, Google started digitizing millions of books – from academically published research theories to photographic coffee-table books and novels. Users could essentially google a line from a work and find the entire book online, and for free – there’s no need to purchase the book in order to view it in its entirety – you would only need to know what you’re looking for. Naturally, authors had something to say about Google’s “brazen copyright infringement,” as they put it – the group sued Google in 2005, claiming copyright infringement and demanding that Google’s Books project not see the light of day.

Interestingly enough, Google’s Books project required the willing participation of hundreds of libraries across the U.S., and rather than shying away from it, they embraced it: that’s because, under copyright laws, libraries aren’t allowed to “copy” or digitize books they don’t own the copyright rights in. In other words, Google circumvented existing copyright laws in order to produce a win-win situation: the library goes digital, and Google draws more users and advertising dollars.

Eventually, Google and the Author’s Guild reached a settlement, in which Google would pay out $125 million. Some would go to the owners of the books that were scanned without permission; the rest would fund the Book Rights Registry, an organization that would track down and distribute fees to authors. But the court declined to approve that settlement, and after lengthy litigation the Second Circuit ruled in favor of Google, claiming that the digitization of public works was transformative enough to warrant protection under the fair use doctrine. The Author’s Guild attempted to take the case to the U.S. Supreme Court, but the Court denied to hear the claim this past week. Thus, the Google books ruling has expanded the fair use doctrine in immeasurable ways, stretching the doctrine and having substantial implications for artists who seek to protect their works from copyright infringement.

An Overview of the Fair Use Doctrine

In most instances, copyright law says that you cannot copy and distribute someone else’s copyrighted works without prior permission from the copyright holder. Permission must be expressly granted, and often involves an exchange of money. The only exception to this rule is the Fair Use doctrine, which allows you to use copyrighted work for certain purposes.

The fair use doctrine is outlined by U.S. copyright laws, and the U.S. Copyright Office has even created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs, which we’ve further explained below:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; will constitute fair use if you’re using the image for purposes of commentary, criticism, reporting, or teaching.
  • the nature of the copyrighted work; will need to show that use of the photo had an educational or critical purpose for illustrating a principle.
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; will generally hinge on the overall amount of appropriated content contained in the work;
  • the effect of the use upon the potential market for or value of the copyrighted work; whether the loss to the copyright holder will outweigh the public benefit

These guidelines have been interpreted both broadly and narrowly by courts. We’ve previously discussed how memes, blog postings, even Beyonce videos can be considered fair use, so long as the content meets one of the above-referenced criteria.

Fair use can be an essential tool in an artist’s arsenal since often times one can argue that it’s “fair use” to use an image for the purposes of transformative art. Take, for example, Richard Prince’s argument that his use of other people’s Instagram photos is fair use because it sufficiently altered the “message” or “meaning” of the original work. But sometimes, fair use can work against artists if it gives others the rights to use your work without being compensated for it.

How The Court Interpreted Fair Use, and Why It’s Troubling for Artists

Google claimed that Books acts like a card catalog that only facilitates the ease with which people can buy books, and that there’s no reason why it should harm the rights of authors. They argued that the public benefit of digitizing millions of books outweighs the losses to authors. But is that really the case? If you were able to find exactly what you were looking for on the internet, without having to pay for it, why would you want to own the entire book?

The court declines to proclaim that it does. In an October ruling, a Second Circuit panel judge argued that the longstanding interpretation of copyright law “has for 300 years been that authors do not have ‘absolute control’ over their works and that there are important exemptions for fair use.” Noting that the snippets made available by Google were not a substitute, but instead an enhancement of ease in obtaining the works, the court reasoned that Google’s use of copyrighted material was considered fair use. Another judge was convinced that Google Books provides great public utility, declaring the program to be fair use because Google’s use was “transformative—words in books are being used in a way they have not been used before.” Even though Google’s ultimate purpose is to profit from the availability of books online via search engine hits and advertising, Google Books is considered fair use.

Why is this ruling problematic? Because by allowing Google to shield the digitization of millions of books online, the court is allowing anyone to do the same. Is it so improbable to consider a time when all kinds of internet users are digitizing copyrighted material and posting it on the internet without the copyright owners consent? If there are no penalties for doing so, what will stop rampant copyright appropriation from happening? What would be the value for an artist in creating a book of his photography, or instructing others on his craft or even a biography of his life, if anyone could simply upload his content onto the internet for the world to see? Isn’t the purpose of copyright law to protect the right of an artist to profit from his or her work?

Based on this ruling, artists can almost be guaranteed that the fair use doctrine will only serve to strip them of profitability for their works. While the fair use doctrine can sometimes work in an artist’s favor, it’s necessary to warn of the dangers of creating a system in which appropriation of content is perfectly legal.

What do you think about the Google Books ruling? Does it help or harm artist profitability? Will the interpretation of the fair use doctrine in the Google Books ruling lead to widespread copyright infringement? Let us know in the comments below.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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