Collages

David Dailey writes:
>
> 1. [If the collage is] a cutting and pasting of physical and
> legally obtained magazine parts and magazine molecules[, ] it seems
> like this would be covered under the doctrine of "first sale"
> (section 109 of the Act, I think). You own the molecules; you can
> do with them as you wish, so long as you don't copy the original
> expressions scribbled thereupon.

    I think that under National Geographic and Mirage, even a collage without copies would be a presumptively infringing derivative work (though of course there'd still be a fair use defense).

> 2. The collage involves "copies" of magazines, or alternatively, the
> assemblage of magazine snippets is itself digitized or photographed as
> a part of the collagery process.
>
> Here it is more complex because the bits and pieces are each subject
> to the copyright restrictions on the original magazine. Copying those
> fragments is possibly a "fair use" as covered by Section 107 of the
> Act, depending on a variety of factors, and one can hire a lawyer to
> argue either side of this issue, I'm sure. The likelihoods that a) the
> student's work is not a commercial endeavor and b) the magazine
> industry's market for magazine fragments is probably not going to be
> driven to extinction by the student's act would tend to argue on the
> student's behalf, so long as the fragments are, indeed, small.

    I think that's probably right, but one quibble: The test isn't whether the market will be "driven to extinction" -- so long as there's some effect on market, that factor may outweigh the other factors. (Perhaps the "driven to extinction" point was just a facetious way of saying "the market won't be affected at all," but I just wanted to make this clear.)

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>