An artist painstakingly recreates the 鈥淢ona Lisa鈥� using the same variety of paints, brushes and canvas as did Michelangelo. Across town, a factory stamps out hundreds of replicas of the iconic painting each day, using state-of-the-art printing.
In a copyright infringement case, is there any legal difference between the lovingly recreated painting and one of the mass-produced prints made by the factory?
There should be, says , a copyright law expert and assistant professor of law at .
Use of existing (and copyrighted) content in new contexts happens every day in music, art and videos. The law decides what鈥檚 allowed and what鈥檚 not, and whether the original artist deserves payment for the use of their work.
鈥淐opyright doctrine ought to factor in the defendant鈥檚 process into the infringement analysis,鈥� Fishman says.
When the act of copying approaches the same level of difficulty and expense as the act of original creation, an overzealous interpretation of copyright law 鈥渨ill unnecessarily sweep in copying that threatens no market harm to the owner,鈥� Fishman says. 鈥淥n top of that, the copyist often learns valuable skills by retracing their predecessors鈥� steps, and consumers often value copies differently if they know they were handmade with difficulty.
鈥淎udiences celebrate the act of replication from professional appropriation art to amateur videos on YouTube,鈥� he says.
The current Copyright Act already gives courts a tool to differentiate between different methods of copying, he says.
鈥淭he fair use provision of the Copyright Act tells courts to consider 鈥溾�檛he nature of the (defendant鈥檚) use,鈥� which is open-ended,鈥� Fishman says. 鈥淐ourts have done different things with that provision over time, but they haven鈥檛 focused on how the copying is accomplished. But they should.鈥�
Today, anyone with a computer or 3-D printer can duplicate copyrighted photographs, artwork, films, sculptures or book illustrations, Fishman says. But the discussion needs to expand beyond concerns about the easiest copying methods and consider people who opt to 鈥渄o it the hard way,鈥� he聽says.
The manner of copying changes the equation for three different constituencies.
鈥淲e care about the owners, because we鈥檙e trying to Incentivize them to create art in the first place,鈥� he says. 鈥淲e care about those downstream working with these materials, because all this creativity is cumulative, and we don鈥檛 want to tilt the balance too far in favor of existing owners today, so that we鈥檙e not going to get any good stuff tomorrow.
鈥淎nd we care about the viewers and the readers because we don鈥檛 want to have everybody create a lot of great art and then put it in a warehouse somewhere,鈥� Fishman says. 鈥淲e want material to be disseminated for the benefit of everybody.
“So I think that all these constituencies are better off if we treat laborious copying differently than we treat quick-and-easy copying,鈥� he says.
Fishman earned his law degree from Harvard Law School. He practiced as an associate at Jenner & Block in the firm’s content, media and entertainment group, where he specialized in litigation involving the music industry, before entering the legal academy.
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Citation: Fishman, Joseph, The Copy Process (March 15, 2016). 91 New York University Law Review 855. Available at SSRN: .