For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Monday, 23 June 2014

Sexy felon's mugshot provides perfect excuse to compare systems of copyright exceptions and have a readers poll

The other Jeremy ...
A couple of days ago this Kat's attention was drawn to the now famous mugshot of California-based "blue-eyed gang member" Jeremy Meeks. Stockton Police Department arrested him last week for felony weapon charges, and subsequently published his photo on Facebook. 

The guy [more about him here and here] is not - so to say - unattractive, and indeed his Facebook picture attracted over 20,000 likes and 6,000 comments in less than 24 hours from its publication. Besides rapidly created fake Twitter accounts and a real Facebook fan page, if you google "Jeremy Meeks", you will see that Autocomplete suggests that you may want to add "wife" to your query. Just so you know.

Anyway, amidst all this sudden general public's interest for mugshots, there have been also suggestions that this particular Jeremy would make a perfect blogger model. To prove why this would and should be the case, some users have created fake fashion campaigns using Jeremy's mugshot and a bit of Photoshop. But, by using his photograph, can any copyright-related issues arise?

This Kat thinks that under US law the response should be pretty straightforward, in the sense of 'No' being likely answer, as any potentially infringing activities might be considered fair use within §107 of the Copyright Act, particularly because of their transformative nature [as recent examples, see Cariou v Prince, here, and Seltzer v Green Day, here].  


... posing b/w for Calvin Klein
(with tattoos removed) ...
But what would the answer be if all this happened elsewhere, say the UK? Would the forthcoming parody exception [here] allow activities like those of Jeremy's fans?

Let's start from the beginning.

Copyright in the mugshot? Possibly

Is Jeremy's mugshot sufficiently original for the sake of copyright protection? While the answer would have been 'yes' under the traditional UK standard of sufficient skill, labour or effort, the question appears more difficult to address in relation to relevant decisions of the Court of Justice of the European Union (CJEU), notably that in Case C-145/10 Painer [here], in which the Court said that an intellectual creation must reflect the author's personality. 

"That is the case" said the Court, "if the author was able to express his creative abilities in the production of the work by making free and creative choices ... As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’."

Now, it may be difficult to think that the officer who took Jeremy's mugshot was much concerned with things like his pose or the atmosphere created ... However, let's assume that the photograph in question is sufficiently original, and therefore subject to copyright protection.


Who would own the copyright? What terms of use would there be? 
... and for Dolce & Gabbana (with tattoos this time)

The rightholder would likely be the police and not the individual officer who took the photo [who - among other things, courtesy of Sections 79 and 82 of the Copyright, Designs and Patents Act 1988 - would likely be unable to enjoy his/her moral rights]

Still speaking hypothetically, if the image was published on the website of Scotland Yard, then "[u]nless [would be] specifically stated that particular material is available for general use then it should not be copied or re-used without the explicit permission of the Metropolitan Police Service or of other copyright holders where material is used under licence. The only exceptions are those allowed under copyright law, where material can be used without permission or payment for: Research or private study; Legitimate criticism and review; Education (so long as it does not involve multiple copies); In legal proceedings".


While the terms of use of Scotland Yard's website may change with new and forthcoming exceptions  that prohibit contractual override (egdisabilitybroader quotation, parody), the question becomes whether the making of something like Jeremy's hypothetical fashion shoots would be tantamount to fair dealing with the original work.


In particular, given the humorous intent of 
his mugshot's re-elaborations, could parody be invoked as a (successful) defence?
Grumpy cat in mugshot mode ...

Could parody exception apply?

This blog has already dealt with proposed UK exception for parody, caricature and pastiche on a number of occasions [here], including with regard to pending CJEU reference in Case C-201/13 Deckmyn [here, herehere]

When UK Government announced that it would adopt a UK exception for parody, caricature and pastiche pursuant to Article 5(3)(k) of the InfoSoc Directive, it also said that it would frame it within fair dealing to avoid the creation of an "unlimited[even if no exception would be "unlimited", because of compliance with the three-step test ex Article 5(5) of the InfoSoc Directive] exception, so to minimise the potential harm to rightholders.
... Pharrell Williams mode ...

In practice, as explained in the UK Intellectual Property Office's Guidance for those using copyright works to create new content, "a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork. It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work."

In Jeremy's case, one might wonder, first of all, whether his proposed fashion shoots - while clearly having a humourous intent - could be considered as a parody of the original mugshot and, if so, whether full reproduction of the original artwork would qualify as fair dealing. 

Probably the answer would be in the negative in both cases, and Jeremy's supporters might be found to have infringed police's copyright. This Kat suspects that such conclusion would sound pretty surprising to those numerous folks that are active online and engage in these sorts of activities on a regular basis.

No transformation and no UGC exception in the EU: should things change?


The conclusion above would be also because UK and EU copyright system of exceptions (and limitations) does not take account of what has become a key factor of US fair use assessment, ie whether a particular use of a work is transformative. 

... and voting mood

It is also worth recalling that the InfoSoc Directive does not provide for any specific exception for user-generated content (UGC), and the introduction of any such exception appears unlikely for the time being, especially following the Licences for Europe exercise [see here for an insider's report from the UGC Working Group, and here for another insider's report from the Final Plenary] and the position that the EU Commission appeared to express in its leaked Impact Assessment [heresee in particular pp 34-35 and 99-100], while also discarding the idea that Member States's would have complete freedom to legislate in respect of the right of adaptation and its exceptions and limitations [here]

Should the EU framework for copyright exceptions and limitations change and permit accommodation of harmless user activities like proposed Jeremy's fashion shoots? 

To this end, the IPKat is hosting a poll, asking readers the following question:


DO YOU THINK THAT EU COPYRIGHT SHOULD HAVE A SPECIFIC EXCEPTION FOR USER-GENERATED CONTENT?

Here are the possible answers:
  • No way: it seems to me that there are already far too many exceptions
  • No, lack of specific exception for user-generated content has not been a deterrent
  • Yes, it is inconceivable that EU copyright does not have such an exception
  • I tell you what: let's just go for open-ended fair use
You can find the poll at the top of the left-hand side of the IPKat side bar. You have time until 7 July to let us know what you think!

11 comments:

Anonymous said...

No doubt Calvin Klein and Dolce & Gabbana would also have something to say about such images, from a trade mark/passing off point of view as well as copyright.

Anonymous said...

Among other things ;-) , the word "tarnishment" comes to mind...

Andy J said...

Anon @ 10.30
Neither trade mark nor passing off would be a problem if these pastiches remained on Facebook or Instagram or where ever, because their use would not be in the course of trade. And of course the likes of Calvin Klein and D&G cannot claim copyright in their respective names, so really I don't think they would have any realistic cause of action, even in defamation, given the high bar set by s1(2) of the Defamation Act 2013.

Anonymous said...

I am told this is a parody. Prior to that I saw a good looking chap in an otherwise traditional advert. With those looks the chap could have been hired as the face of Calvin Klein. Had he been hired the resulting image may have been the same - but not a parody. No - I get cost cutting on models rather than parody. Hugh Grant's dishevelled police mug shot may have suited if parody was the intention. T.C.

Alan Gallery said...

I agree Anon 14:45 it is not a parody but in the minds of the mashup masses any sort of montage work is a parody.

By accident or design the original mugshot has expression – the confrontational stare with the striking blue eyes and the tilt of the head lend the image a range of possible meanings for its appropriation. Given that the subject is a very good looking chap with a hint of androgyny and the mugshot lighting is not unlike the harsh direct lighting found in high fashion images of recent years, all that is needed is cutting, pasting and a bit of photoshopping. And there we have the point, while no one is likely to contest the mis/use of this image, 95% of the expression of any subsequent use, be it montage or slapping some wry strapline of text on it, was already there. It seems impossible for the lay mashup artist to imagine, or even want to consider, the cost of production of an image or the value of that image to its producer in terms of future revenue and how that can be destroyed if it becomes used in a meme or becomes exhausted by unauthorised overuse.

What happens when an image is appropriated is that value is destroyed in it intended market only for a infinitely degraded value to be realised by those who benefit from user-generated content and they don’t even pay tax here.

To be clear there is already enough exceptions.

Uncle Wiggily said...

I asked Mrs. Wiggily - i.e. Aunt Wiggily - what she thinks about this from a female point of view. She thinks that Jeremy Phillips is much more attractive than Jeremy Meeks and that Meeks should not inherit the earth or even the attention of female kittens.

Yours,

Uncle Wiggily

Tony Sleep said...

Yes, there are enough exceptions, and the proposal to let anyone do whatever they like with UGC is foolhardy, given the foaming hateful idiocy and axegrinding malice of much of the internet. Who wants to pop their pic on Facebook and find it used in ways they consider repugnant? Copyright is not all about cash, it's about being able to require respect and integrity, or else...

Simon said...

I guess it depends if the Stockton Police Department are considered to be an officer or employee of the United States government and the image was created as part of that person's official duties.

If yes, then I believe the work would not be subject to copyright:-

http://www.usa.gov/copyright.shtml

In which case, its pretty much a free ride for anyone.

An exception in the US isn't needed. Because its already there. Neither is it needed in the EU as all it does is convince creators like myself to withhold all my works from the web.

Eleonora Rosati said...

@ Uncle Wiggily: duly noted :-)

Uncle Wiggily said...

Dear Eleonora:

In fact, Aunt Wiggily and I prefer feline felons in almost every case...

And we thank you fur your small sampling.

In fact, here's a compilation of cute feline felons stealing doggie beds...
http://www.wimp.com/dogbeds/

Best regards,

Uncle Wiggily

john r walker said...

Uncle Wiggly
:-)

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