A Tribute Not Taken

Quick. Do you know who Joan Miro is?

I didn't until Google told me.

On Thursday, Google displayed this special logo on its home page to celebrate the anniversary of Spanish surrealist artist Joan Miro's birth in 1893 (who, by the way, died in 1983). Google has a habit of paying such tributes to artists and other intellectuals, with previous tributes to luminaries such as Einstein, Michelangelo, Frank Lloyd Wright, van Gogh, Warhol, Albert Hitchcock, MC Escher, Ray Charles, Gaston Julia, da Vinci, Monet, and Piet Mondrian. What a happy birthday for Miro. To not only be included in such an exclusive group, if you will, but to also have interest in you and your work kindled by such blatantly free advertising seems to be a blessing for an artist not well known outside of certain art circles.

Halfway through the day, however, Miro's family and the Artist's Rights Society asked Google to remove the logo. According to the Mercury News:

The Artists Rights Society, a group that represents the Miro family and more than 40,000 visual artists and their estates, had asked Google to remove the image early this morning.

"There are underlying copyrights to the works of Miro, and they are putting it up without having the rights," said Theodore Feder, president of Artists Rights Society.
...

"It's a distortion of the original works and in that respect it violates the moral rights of the artist," Feder said.
...

Feder said the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.

"We would have asked the estate or the family, and they would have said yes or no," he said.

Google agreed to remove the image as requested, but stated that it did not believe that the tribute constituted copyright infringement.

ARS is upset because Google did not ask for permission before creating the logo, which incorporated pieces from Miro's work (see here, here, and here). Perhaps Google could have seen this coming since they and the ARS bumped heads before regarding Google's tribute to Salvador Dali in 2002. ARS asked Google to remove that logo, and it complied, and the logo is now unavailable on the Google Doodle Archive Pages. But the key point is that, in cases like this, Google doesn't have to ask for permission.

Google only has to ask for permission if it is violating one of the exclusive rights of a copyright owner (ie. making copies, distributing copies, etc.). If Google makes use of the material in one of the ways that the law considers "fair use," then there is no infringement of a creator's right, thus no need to ask for permission. Copyfight has a good post on this and what looks to be a clear case of fair use:

But fair use, as U.S. courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the U.S., protect the "integrity" of artists' works -- but even that was hardly under threat [in this case].

I really like that bit about "authorized tributes," and this post is exactly right: it is not copyright infringement if the use of the copyrighted material is deemed fair. Interestingly enough, the ARS website has a section for Copyright Information that covers Copyright Basics and Other Rights, neither of which contain a single mention of fair use. It's as if fair use doesn't exist or is something an artist (or his family) shouldn't worry knowing about.

A quick run-through of fair use appears favors Google. This is probably why the ARS wants to pretend "fair use" is not part of the law.

The first prong, the purpose and character of the use, is in Google's favor. First, the logo is very transformative, taking bits of several paintings to create an entirely new Google logo whose function, identifying Google and paying tribute to Miro, is different than the function which Miro's art serves, namely aesthetics. Second, the commercial aspect of Google's use is not "highly exploitive" (ie selling the copyrighted content for profit) and falls under the less burdensome rubric of "incidental commercial use."

The second prong, looking at the nature of the copyrighted work, might only slightly favor Miro. The paintings are highly creative and thus the kind of work copyright is supposed to protect the most. However, Miro's paintings Google relied on were originally published in the early 1940s and they're available online (see above). On this point, Miro barely ekes out a win.

Third, as to the amount and substantiality of the portion used, Google comes out ahead. Google is not copying any of Miro's paintings en masse, but is merely taking small, but noticeable, pieces from several of Miro's works. If any of this even counts as "copying," it is certainly no more than what is necessary for Google's intended use.

Lastly, one has to look to the effect upon the potential market for the copyrighted work, which appears to favor Google here as well, but it can be a little tricky. Google's use of Miro's art is not taking away from or competing with the sale of Miro's works. Google has, if anything, actually improved this market by bringing the attention of the masses to Miro. ARS might argue that Google took away Miro's right to license his work to be incorporated into Google's logo. This would be a market of one, probably outside the intended scope of this fair use prong. It's worth noting that the mere requirement of having to ask Miro, let alone pay his estate, would have the potential effect of destroying this market anyway.

Looking at the four fair use factors, Google wins 3-1 (or maybe 2-1, because the nature of the work prong could easily be a seen as a tie as well) and if a court agreed with my analysis, Google would be said to be using Miro's work "fairly" and thus could not be blamed for failing to ask for permission to use Miro's work in its logo.

ARS also claims that Miro has moral rights in his works and the right to prevent Google from distorting his reputation. First, US law doesn't grant the same kind of moral rights to works that Europe does, but what might be the closest is section 106A's bitty on Rights of Attribution and Integrity. That section gives a copyright owner the right to claim or disown authorship of a work and to prevent the use of his name as author of a work that would distort his reputation. Unfortunately, subsection (b) of that section clearly says that "Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner." Thus if the author has been dead 23 years, he can't quite exercise this right now can he?

Second, even if he were alive he couldn't satisfy the requirements. No one would assume that Miro was endorsing Google (have I mentioned he died in 1983?) and it would be difficult to say that the logo is "prejudicial to Miro's honor or reputation" as it could easily be argued it enhances it by looking at the select company he is joining, as I mentioned earlier. Further, it certainly is not intentionally prejudicial as the folks over at Google are merely paying tribute to someone they are fond of.

I also wonder whether or not Google's logos would count as parody and whether that would be a better position for Google to take. A court might be more sympathetic to a claim of parody, but at the same time to do so might just confuse the court.

Simply put, the Artist's Rights Society is engaging in copyright abuse and I find it to be offensive. It's really too bad that the holders of Miro's copyright can and feel like they are entitled to wield this kind of power over others. It's also too bad that Google decided to cave in and remove it. Google acted in a noble fashion by voluntarily taking down the logo, but it's important to realize that it was not required to do so by law and that it would have been justified to have refused to listen to ARS's request. Every time Google refuses to take a stand on issues like this it is protecting its business interests and leaving the rest of us to dry. Technically, I too am infringing Miro's copyright by posting the logo above, and that his estate or anyone else could so me for this or similar acts will prevent me (assuming I cared about being sued) from doing these kinds of creative things.

Perhaps there are ways that, even if the laws regarding copyright stay the same, the rest of us can strike back and cause copyright owners to think twice before they threaten with a bogus claims. Take for instance Miro's page on Wikipedia. Perhaps, as it becomes easier for people to connect and share ideas, and it will becomes easier for people to publicly humiliate others, those who seek to abuse their copyright powers will be called out on it. While Miro has a life's worth of accomplishments, his Wiki page's largest section relates to the dispute with Google and doesn't make him appear to be all that likeable a figure.

It makes me wonder whether ARS is really looking out for Miro's best interests here or merely looking to protect its percentage of the profit from Miro's work at Miro's expense.