I have the Complete Far Side, a two-volume set. Suppose I wanted to create an index to the cartoons. It would be searchable by words in the captions, elements in the image, and theme keywords. The searches would return a list of cartoon descriptions, captions, date of publication, and volume/page number.
I would not include the cartoons themselves. Would including entire captions violate copyright? If so, what is the most I can so and still steer clear of copyright violations?
I feel like Google would be in an insurmountable amount of trouble if doing this was illegal, but only an IP lawyer can say for sure.
IMHO, you’d be treading on some heavy plagiarism charges since most of the captions are one liners. I can’t think of a modern day equivalent, but using Henny Youngman’s “Take my wife. Please.” is the core of his entire act and career and anyone using for anything but parody or satire would have to clearly cite him as the source. I’m picturing your having to add a bibliographical citation (i.e. source, first date of publication, author, etc) for every caption. Just plain ugly for an index.
Captions are going to be a big problem.
Note that if the cartoons have titles (other than the captions) then you are good using those. They can’t be copyrighted. (Trademarked, sure. Like “… for Dummies”.)
OTOH, short phrases can’t be copyright protected either. Problem: What’s a short phrase? Ask a lawyer. Ergo pay a lawyer. Still can wind up in court. Ergo paying the lawyer a lot more.
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Whats in your pocketses.
Fair use is not hard and fast rules, but rather guidelines used to evaluate individual cases. Quoting the entire caption may still be fair use, but that is something that will have to be decided in court.
Your best option by far is to contact the publisher and Larson’s agent about getting a contract to be allowed to do what you want. Anything else is almost certainly going to illicit DMCA takedown notices, cease and desists, and eventually a lawsuit.
An index that only directs people to the appropriate book and page number seems perfectly fine to me, so hope I’m sitting on the jury.
This is not about plagiarism, though. Plagiarism and copyright violation are two very different things. You can plagiarize without violating copyright, and you can violate copyright without plagiarizing. Or you can do both together. But plagiarism is basically irrelvant to the legal question here.
As echoreply suggests, it is somewhat difficult to come up with a single definitive answer, precisely because copyright lawsuits each have to be decided on their individual merits, and questions of fair use are decided by balancing four factors and weighing them together in order to reach a determination.
Also, echoing echoreply’s reply (:)), the biggest hurdle here is going to be the question of whether it constitutes fair use to quote the entire caption. Part of the court’s evaluation in such a case might be to try and assess the extent to which the caption can be separated out from the artwork. It seems plausible that a court might conclude that just quoting the caption without reproducing the artwork is fair use. After all, the caption is not the whole work; it is only part of the work, and one of the factors in determining fair use is the amount and substantiality of the portion taken. Also, reproducing the caption without the artwork is not likely to measurably affect the market for the original work, and that is another factor for the court to consider.
Another problem is that, if the court did take this approach, it would probably have to consider each and every cartoon separately, because some of Larson’s cartoons rely more heavily than others on the caption, and some have no caption at all.
If we take echoreply’s last sentence, that’s also going to be a factor, because one of the things that needs to be considered in a fair use case is the purpose and character of your use. That is, why are you copying (some of) the original material. If you can make a good case that your aim here is simply to make it easier for people to find the originals, that will weigh in your favor, but again, it is just one factor and needs to be balanced against the other factors.
One thing worth getting out of the way is that captions are probably the only real problem here. A written description of the artwork will almost certainly NOT violate copyright. This photograph from today’s New York Times is protected by copyright, and if I were to take the image and use it on my website or in a book, the copyright holder could sue me for damages. But there is nothing in copyright law that prevents me from describing the image, discussing who is in it, where they are, what they are wearing, and any other details that appear in the picture. Even if my description is so lengthy and precise that an artist could reproduce the image almost exactly, I still haven’t violated copyright with my description. And the same will be true of Larson’s artwork.
If i were willing to risk a venture like the OP’s, here’s how I might go about it. If you’re a Far Side fan, see if you can identify the cartoon in your mind just from my keywords and description, without looking at the image. I’m going to use this Far Side cartoon as my example.
Text keywords:
blond
conducting
Goodall
hair
Jane
research
tramp
Image keywords:
ape
branch
chimpanzee
gorilla
jungle
leaf or leaves
monkey
tree
vine
Image description:
Two primates, one female and one male, are sitting on a branch in a tree. There are vines hanging in the vicinity, and large leaves, indicating that the scene is most likely the jungle. The female ape, wearing 1950s-style horn-rim glasses, is grooming the male from behind, and is holding a thin item, apparently a hair, between her thumb and forefinger, inspecting it.
I don’t think I’ve violated copyright with those sets of keywords and that description. By removing ancillary words like pronouns, articles, conjunctions, etc., and by placing the text keywords in alphabetical order, rather than the order in which they appear in the caption, I have eliminated the unique arrangement that gives Larson’s caption its originality. He has no copyright claim over my alphabetical list.
It seems to me that such an index would work best in electronic format, allowing it to be searched by keyword, and also allowing the creation of an index without using the full captions from the cartoons. Obviously, if you could use the full and complete captions, the index would be more thorough and useful, but I think my method would work just fine in the vast majority of cases, and has the benefit of being far more careful about copyright.
I should add, by the way, that I have the two-volume Complete Far Side collection, and I can’t even imagine how long it would take to index the whole thing as I’ve suggested above. It takes me hours just to look through it.
Thanks very much for the replies, especially **mhendo’s **very comprehensive one. I have dashed off an email to Larson’s reps to see what comes back.
Indeed. This is a too-much-time-on-his-hands project and may never actually see the light of day. However, I might consider it if I could monetize it.
But there have been many times when I have vaguely remembered a Far Side cartoon, couldn’t find it online (there are many of his cartoons available on the Internet, and probably not legally, though his lawyers could make a career of chasing them all down), and would have no hope of finding them in a collection of his work that is arranged chronologically with no index. So I figured maybe there are more people like me.
And that, I think, is where the rubber hits the road. If it’s just a hobby project that you put up on the internet, I don’t think that the Larson lawyers are going to care, and in fact they might welcome it as a way to draw more fans to their comics.
But if you try to monetize something that is based entirely on Lawson’s work they are going to want a cut, and IMHO would probably deserve it. Even if the law is on your side you are going to end up spending more on lawyers than you would make off the site.
IANAL and this is not a legal opinion, but I’d think a reasonable test of whether or not you are violating copyright is if the search results from your index are funny or not. Is a user going to get any amusement out of Gary Larson’s work from using your tool, without referring to the actual cartoon? Or does it only make sense if you also own the collections in question or you are doing scientific research on the frequency of appearances of different animals in Larson’s ouvre.
I disagree that they would “deserve it.”
Firstly, it wouldn’t be based entirely on Larson’s work; such an index would be based on hundreds of hours of work by the person creating the index. It would involve the sort of thing I did in my example above, analyzing each cartoon for appropriate keywords and creating a written description of the image. Even if it only takes five minutes per cartoon, that’s weeks of work to index Larson’s total oeuvre.
More generally, while the nature and purpose of the work is part of the four-part Fair Use test, and non-profit or educational use often gets treated more gently in Fair Use cases, there is no blanket provision against making money. Something can be for-profit and still be Fair Use.
This, unfortunately, is true for many intellectual property disputes. Because the content owners are often publishing houses or movie and television studios with deep pockets, they can often intimidate people into not using their content even when such use would, in all likelihood, be ruled Fair Use if it were taken to court.
There was a documentary produced in the late 1990s about a theater company in San Francisco. Much of the documentary was about the world of the stagehands and other folks behind the scenes. In one part of the documentary, there was a television backstage, being watched by some of the crew, showing an episode of The Simpsons. It was in the corner of the image in the film, and the Simpsons clip visible on screen was only four seconds long.
The owners of The Simpsons (FOX) wanted $10,000 for permission to use that four seconds. If the documentary film-maker refused to pay, and used the scene anyway, they risked being sued for copyright infringement. If such a case had actually gone to trial, I think that just about any court would have ruled that this incidental Simpsons clip, in one corner of the screen in a documentary about something entirely unrelated to the Simpsons, would have been Fair Use. It seems to me that it meets basically all four of the key factors required to be balanced in a Fair Use case.
But the documentary was a small-budget operation, and the producers didn’t have 10 grand to pay, and nor did they have the time and money to fight the issue in court, so they just removed the section of film with the Simpsons clip.
It’s worth noting that, if this had been in the UK, they could have used the clip without worrying in the same way. Unlike the US law, which basically lays out a four-factor test and leaves it to the courts to weigh those factors, Britain’s Copyright, Designs and Patents Act (CDPA) of 1988 contains a whole bunch of explicit copyright exceptions that help to reduce ambiguity and protect people who might accidentally or inadvertently include protected material in their productions.
The Simpsons case I discussed above would have been covered, in the UK, under Section 31 of the CDPA.
If you do go ahead with the project, just be aware that there’s both the two volume hardcover collection and a three volume paperback version. I got the latter this Christmas and it confused me for a moment to hear references to only two volumes.
Is it the same content, just two different formats? If so, is the paperback version also chronological?
I don’t have both to directly compare all the content, but yes, the paperback is also chronological. I imagine everything is the same, just packaged differently because two volumes wouldn’t work as well with only paper covers.
Infringement —
Copying — most of the index isn’t copying. The only copying is in the caption portion. So it’s really the only part that presents a potential problem.
The fair use test —
Purpose and character of allegedly infringing use—
This one is easy. Google Book Search has already won this case for you. The U.S. Court of Appeals for the Second Circuit says that creating an index or a search tool is a transformative use and is thus a fair use. Google Book Search does bring in income to Google, so just because you might make money isn’t necessarily a problem.
Character of the copied work — Larson’s cartoons are highly creative works of expression, not factual material, so they do get the highest level of protection. However, as noted above, you’re not copying much.
Amount of the plaintiff’s work used —Here’s where your lawyer is going to have to get creative. You’re going to have to argue that (a) it’s necessary to copy the entire caption in order to serve the transformative use, but (b) copying the caption constitutes only a portion of each work, not the whole work.
Effect on the marketability of the copied work — your index is not a market substitute for the original works. In fact, the existence of the index might drive more business Larson’s way as people seek to legally access cartoons that they have looked up in your index.
You’ve got a pretty good case, I’d say. If you’re serious about this, I’d say it’s worth getting real legal advice.
Thanks to all for the excellent input. If I move forward on this I will consider engaging a lawyer but only if there is the potential for even a token amount of revenue.
It is certainly an option to omit complete captions, which seems to be the main sticking point. A description of the cartoon would be sufficient.
Today I received a very nice response from the legal firm representing the company that represents Larson. In a nutshell, they declined to grant any such permission, saying
OK, so the idea is DOA. I have no idea where their database is, whether it is for sale, or where to find it.
Here is an obviously unofficial one.
Nothing that they have said, however, really answers your original question of Fair Use. If it is Fair Use to create an index, then that doesn’t change just because they have already done it.
And their comment that they “already own rights in the very type of index/searchable database you are seeking to create” is a bit cheeky. Yes, they definitely own the copyright to their own index, but that doesn’t mean they have the right to prevent the creation of other indexes (indices?).
If creating an index is Fair Use, the fact that they have already created their own index does not, in any way shape or form, prevent you from creating one yourself. The only way that your index would infringe the rights they hold in their index is if you copy the structure and content of their index. Their implication that they have the rights to any index is a bit like arguing that I have written a biography of Abraham Lincoln, so I now own the rights to any and all biographies of Lincoln.
I reflected on it and figure that they can say pretty much whatever they want in their letter and hope to scare me off. IANAL but my take is that for many cases, the ultimate determination happens in court, not on a law firm’s letterhead.
