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Questions and Answers — Copyright Column
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Questions & Answers — Copyright Column
Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) <wmcross@ncsu.edu> ORCID: 0000-0003-1287-1156
QUESTION: A media librarian asks, “What is the status of the recent Nirvana copyright lawsuit?”
ANSWER: It turns out that there are not one but two ongoing copyright lawsuits involving the 90s grunge band Nirvana. In April of this year, it was reported that Nirvana was being sued for infringing on an illustration first published in a 1949 English language translation of Dante’s “Inferno.” In Bundy v. Nirvana LLC, the British descendant of the original artist claims that the popular image of the circles of Hell that has been featured on Nirvana’s merchandise for several decades was created and copyright belonged to her grandfather C.W. Scott-Giles. ScottGiles drew the illustration in 1949 to accompany an English translation of Dante’s “Inferno” by Dorothy L. Sayers.
The case raises a host of deeply technical issues related to whether the work is protected by copyright in the United States. The illustration was first published in a book that did not include copyright notice as required under United States copyright law of the era. As a result, Nirvana argues that the work entered the public domain when published without notice under the 1909 Copyright Act.
Bundy, however, is relying on a controversial Ninth Circuit case, Twin Books v. Walt Disney Co., which involved the novel “Bambi, a Life in the Woods,” first published in Germany in 1923 without copyright notice. She argues that the work is in fact unpublished under U.S. law and thus qualifies as an “unpublished foreign work” that does qualify for protection. In addition, she argues that even if the illustration had previously fallen into the U.S. public domain, its copyright has since been automatically restored pursuant to the Copyright Restoration Act.
She also notes that Nirvana “routinely made false claims of ownership” by removing the title and Scott-Giles’ credit line from merchandise bearing the illustration and replacing them with a notice claiming that Nirvana itself controls copyright. As a result, Bundy raises a separate claim against Nirvana under Section 1202 of the Copyright Act, which prohibits the knowing falsification, removal or alteration of “content management information” (CMI) with the intent to conceal infringement.
If your eyes are already starting to glaze over, it may be helpful to refer to one of the most often-used cheat sheets in copyright, Cornell’s “Copyright Term and the Public Domain in the United States” chart: https://copyright.cornell.edu/publicdomain. For more in-depth discussion of these very technical issues, I also recommend reading the thoughtful and engaging tour through the “7th Circle of Copyright Hell” from the always-enjoyable Copyright Lately Blog: https://copyrightlately.com/foreign-worksus-rights-the-7th-circle-of-copyright-hell/.
In addition to Nirvana’s potential copyfraud when they placed copyright notice on works they did not own, a further irony exists. While Nirvana has been using this illustration for decades, Bundy claims that she was unaware of the use until Nirvana itself brought a lawsuit against another party for violating copyright. For several years, Nirvana has been involved in ongoing litigation with fashion designer Marc Jacobs over the iconic “Smiley Face” logo and “Happy Face” t-shirt. While the band has claimed — and filed copyright registration based on the assertion — that singer Kurt Cobain created the image, in November of 2020 Robert Fisher, a former employee of their label Geffen, filed suit claiming that he was the actual creator.
While this dispute is unlikely to impact the ongoing litigation with Marc Jacobs — the existence of a retroactive assignment likely makes moot whether Fisher was acting on behalf of Geffen or Cobain acting on behalf of the band — it does raise interesting questions of law and of history. What is clear is that the lawsuit seems to have brought Nirvana’s copyright claims into the news and ultimately in front of Bundy, leaving them stranded in an infernal quagmire of litigation for their sins of copyfraud and aggressive, unwarranted legal threats.
QUESTION: An art history professor writes, “What is happening with the recent case regarding Andy Warhol’s ‘Prince Series’?”
ANSWER: In March, the Second Circuit Court of Appeals found that Andy Warhol’s use of celebrity photographer Lynn Goldsmith’s images of the rock star Prince was not permitted under fair use. Warhol’s “Prince Series” is an iconic example of pop art. In 2019 a New York federal court had ruled that it was protected by fair use, based in part on earlier cases such as Cariou v. Prince, which controversially found that appropriation artist Richard Prince had not violated Patrick Cariou’s copyright by altering photos from Cariou’s 2000 book, “Yes, Rasta,” for the 2008 series “Canal Zone.”
Rejecting this analysis, the Second Circuit wrote that, despite those cases, “it does not follow, however, that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” To be a transformative use, the court concluded, the new work must offer “something more than the imposition of another artist’s style on the primary work.” The Court also alluded to one of the more challenging aspects of fair use in this context: evaluating the artistic intention and quality of works that build on existing artistic materials. No court, Judge Gerard E. Lynch wrote, should “assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.”
Significantly, while the Second Circuit criticized the lower court for presuming to be an art critic, many scholars have suggested that Judge Lynch himself was doing exactly the same thing. In a recent op-ed at the website ArtNet, two copyright professors, Christopher Sprigman & Kal Raustiala, argue that “the Second Circuit’s ruling may be less about Warhol and more about [the idea] that judges have not yet learned the language that artists like Warhol are speaking.” They point directly to the recent Supreme Court decision in Google v Oracle (covered in depth in a previous Copyright Q&A column) holding that Google’s use of the code owned by Oracle was transformative.
At its heart, Sprigman and Raustiala contend, the core question being debated across these cases and addressed in the Supreme Court’s Oracle option, is whether transformative uses must add or alter elements of the existing work directly, as was done in previous cases where appropriations artists created collages or multiple existing works. While the Warhol piece simply “alters or recasts a single work with a new aesthetic,” they argue that the Supreme Court made it clear in Oracle that the issue is more complicated than the Second Circuit decision suggests and that the case should be reheard. The full op-ed is available here: https://news.artnet.com/opinion/andy-warholprince-series-op-ed-1962050. It will be interesting to see how courts apply the Oracle decision in non-technical contexts such as this one and whether the decision gives new life to fair use claims for Warhol’s piece.
QUESTION: The director of an academic press asks, “What does the Biden administration’s COVID waiver pledge mean for copyright?”
ANSWER: The Biden administration’s outspoken support for an IP waiver in the spring of 2021 was a bold and unexpected move to fight the ongoing global COVID-19 pandemic. Almost as soon as it was announced, however, pharmaceutical companies began to raise objections. In addition to economic concerns, many commenters suggested that simply opening up patents would be ineffective or even counterproductive. One common rhetorical device was to compare the waiver to sharing the recipe for a gourmet meal without sharing the underlying culinary expertise, as well as the facilities and raw materials needed to actually create the dish.
Open advocates offered related warnings, but argued that a simple patent waiver was not ineffective, but simply insufficient. Instead, they argued that the waiver could be a powerful weapon against COVID-19 if read broadly to include copyright and other IP rights needed to fully support the “prevention, containment and treatment of COVID-19.” As an example, they point to a series of legal threats for potentially infringing on intellectual property and copyright protections brought against engineers who produced 3D-printed spare parts for ventilators. Many of the largest rightsholder groups such as the MPA and RIAA also weighed in, sending numerous lobbyists to push back against the waiver and arguing against any interpretation that expanded access in almost any way. This was not surprising, given their long history of maximalist advocacy and enforcement at the expense of civil and human rights. Rightsholder organizations followed a similar script in the run-up to the Marrakesh Treaty (https://www.wipo.int/treaties/en/ip/marrakesh/), arguing to remove protections for deaf people and successfully removing accessibility protections for use of films.
At this stage, the waiver is simply a statement of principles under debate. If accepted, drafting of the text will begin to define the specific parameters of the waiver. Even at this stage, however, it seems clear that, in order to be effective the waiver must include some guidance on copyright as it relates to open science and advanced research practices like text and data mining. Familiar battle lines are being drawn and this will be an issue to watch closely as the global research community continues to seek the tools needed to respond to a global pandemic and prepare for ongoing challenges to public health.
