In May 2005 Chris Gregerson, a photographer in Minneapolis, received a copy of his local yellow pages. Looking through it, he saw a photo of his being used in Vilana Financial’s full-page phone book ad. Mr. Gregerson contacted Vilana to demand a licensing fee, which Vilana refused to pay.

Not dissuaded, Mr. Gregerson wrote about it online. Vilana sued him for defamation, producing a sales agreement signed by one ‘Michael Zubitskiy’ (who Vilana claimed took the photo and sold the rights to them). Mr. Gregerson sued Vilana for copyright infringement, and they counterclaimed for trademark infringement, deceptive trade practices, and tortious interference.

After what must have been a long road indeed, Mr. Gregerson wrote in an article to Slashdot: “There was a trial I’ll long remember on the 5th of November, and the judge recently issued her verdict. She ruled Vilana Financial forged the sales agreement and willfully infringed my photos, and awarded me $19,462. All claims against me were denied. I represented myself during the litigation.”

Mr. Gregerson, my hat’s off to you. Well done.

Not every artist has the stomach, time, or resources for a multi-year litigation against a much larger company. In fact, the legal system contains many economic disincentives against even trying. For example, this suit found Mr. Gregerson with an award of $ 19,462 (his request for fees and costs was denied because he’s not a lawyer.) His suit was filed in March 2006 an was finally decided in February 2008. Most people also don’t realize that a judgment doesn’t mean automatic money in the plaintiff’s pocket, now Mr. Gregerson must execute on his judgement.

I won’t even estimate how much he would have expended in legal fees had he hired an attorney to litigate this case, but let’s just say it would have been FAR more than the award he received. Ultimately, the court hasn’t made Mr. Gregerson whole, but I can’t help but be inspired by his success. Sometimes, the little guy really can win.

Copyright—a set of exclusive rights to use certain content and to prevent unauthorized use by others.

Derivative work—incorporating pre-existing copyrighted work into a new work that is itself copyrightable. Creating derivative works is one of the exclusive rights reserved to the copyright owner, unless it falls under the fair use exception.

Fair use—the exception to the exclusive right where the content is “transformed” and used in a new way. Fair use has been summed up as the right–in some circumstances–to use copyrighted material without asking permission or paying for it.

To evaluate fair use of copyrighted material, the courts consider four factors set out in 17 U.S.C. 107:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of copying, and
4. the market effect.

For most courts, the most significant factor in this analysis is the fourth factor–effect on the market. If the new work reduces demand for the original work, then it’s very difficult for the secondary author to claim fair use. On the other hand, if the use does not compete with the original (a parody, criticism, or news report) it is more likely to be fair use. Courts also have applied the doctrine of fair use to visual collages and musical works, such as 2 Live Crew’s “Oh Pretty Woman.”

So what about a mashup? Such as the wildly popular “The United State of Pop” by DJ Earworm or the hard-to-come-by “Smells Like Booty” (the amazing mashup of “Smells Like Teen Spirit” and “Bootylicious”). This art form has been growing in popularity since 2003 and is seen in everything from the works of DJs, to Academy Award® montages, to small theater and choral productions.

Are mashups derivative works? Absolutely. Is this fair use? Probably so. Its certainly transformative and unlikely to replace demand for the original. We won’t know for sure until Avril LaVigne sues DJ Earworm.