Monday, March 23, 2009

Law Nerd Rejoices at Economist Cover

The other day I opened my mailbox and found myself staring at this:

This cover struck me as substantially similar to a pair of illustrations from my academic past. To confirm, I picked up my doorstop and flipped through the relevant section until I came upon the following two illustrations:

By Saul Steinberg:

By Kevin Nolan and Craig Nelson for Columbia Pictures:
Confirming that I was seeing intended substantial similarity was a sign in The Economist artist's representation of China saying, "With apologies to Steinberg and The New Yorker." The italicization and underlining of Steinberg, as well as the form of the drawing itself is a nod to the important copyright dispute in Steinberg v. Columbia over The New Yorker and Moscow on the Hudson illustrations above.

A quick discussion of the legal stuff involved in Steinberg:
The court ruled that Columbia infringed upon Steinberg's copyright because the movie poster was substantially similar in expression to The New Yorker cover, and it was misappropriated from The New Yorker. Or at least that's what the court said. Practically, the court probably ruled this way because the facts showed that Kevin Nolan essentially told Craig Nelson to copy The New Yorker cover.

So, what's The Economist cover mean?
The fun part about copyright cases is that, despite Holmes' admonishment, US judges enjoy inserting art criticism into their decisions. In the Steinberg case, Judge Louis Stanton interpreted the cover of the magazine for, as one professor has put it, people who wish they lived in New York as meaning such:
The parts of the poster beyond New York are minimalized, to symbolize a New Yorker's myopic view of the centrality of his city to the world. The entire United States west of the Hudson River, for example, is reduced to a brown strip labeled "Jersey," together with a light green trapezoid with a few rudimentary rock outcroppings and the names of only seven cities and two states scattered across it. The few blocks of Manhattan, by contrast, are depicted and colored in detail. The four square blocks of the city, which occupy the whole lower half of the poster, include numerous buildings, pedestrians and cars, as well as parking lots and lamp posts, with water towers atop a few of the buildings.
Replace 'New York' with 'China,' and 'Jersey' with 'America,' and you've got a pretty clear picture of the artist's basic intention in The Economist cover. But, there are a couple extra points upping the snark factor.

The first is a pagoda on what must be Australia off to the right of illustration. 10 bucks says its a 'nod' to Kevin Rudd.

The second is that the combination of intentionally copied cover and an apology for copying on a sign in China raises the cover to satire. Author's intention: China is copying, knows it, and is not going to do more about it than issue a hollow apology, yet it still sees itself as the center of the world[?]. "Copyright protection in China . . . is downright terrible," and China doesn't seem to care, yet.

Does The Economist's Cover Infringe Steinberg's Copyright?
Well... Maybe, but I'd keep myself from that panglossian height. Parody is a fair use defense to infringement, but this is satire, not parody. How do you tell the difference? Satire uses an author's expression to attack a third party, and parody uses an author's expression to attack the original author. Parody is fair use because it is used for offering comment and criticism of the original author's work which is a permitted purpose under copyright law. Satire is not fair use because it is not commenting upon or criticizing the original author's work.

My mnemonic for keeping the two straight? Voltaire is a great satirist, and Candide is a satire using New World travelogues to attack Gottfried Leibniz, and everyone else. Get an edition with sweet footnotes, the book is awesome.


Mao Ruiqi said...

Okay, loved reading your article, well done! Nevertheless, I am a bit confused about your clear differentiation near the end. Am I to understand that if an artistic rending is proven to be a satire rather than a parody, the creator of the work could be vulnerable to suit?

Will Lewis said...

I might have been too clear in the differentiation.

The most famous case on this topic is Campbell v. Acuff-Rose Music.

If the defendant says that their work is a parody or satire, then they are admitting that it is infringing the right of the original author to make derivative works. The question then becomes whether the parody or satire can use the defense of fair use, as codified in 28 USC 107. Section 107 gives us a 4 factor test: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality taken; and 4) potential market effects.

Satire could be deemed fair use, but parody has traditionally been afforded a wide berth in its authors ability to invoke the protection of fair use. There are two reasons for this: 1) the function of parody is criticism and comment on the underlying work which use is included in the preamble to section 107; and 2) policy-wise, it is assumed that the author of the underlying work would be extremely unlikely to license derivative works with the purpose of attacking unrelated parties.

For parody, the 4 factors tend to be analyzed differently than other fair use. As to purpose and character, comment and criticism is in the preamble of section 107, and parody is by definition transformative because it is not a substitute for the underlying work, but a criticism of the underlying work. Factor 2 goes against the defendant because they are typically parodying publicly known, expressive works. For factor 3, the test was whether you took more than was necessary to parody the song. Factor 4 is the trickiest because a successful parody would destroy the market for the underlying work, so the court must distinguish between "biting criticism that suppresses demand, and copyright infringement which usurps it."

To sum up, satire may be able to successfully invoke fair use, but the fair use factors will be scrutinized much more carefully than if the work was a parody.

Juliet said...

For your information...

The Economist paid the Steinberg Foundation for their use.

While the infringement discussion may now be moot, I really enjoyed your discussion.

Will Lewis said...


Thank you, I was not aware of the payment. I guess somebody else thought it might be unprotected satire?