With much anticipation, the Second Circuit issued its opinion last week in the Google Books case (Authors Guild et al. v, Google, Inc.), brought by authors Jim Bouton (of Ball Four fame) and others against Google for the latter’s program of scanning millions of library books, whether or not those books are in the public domain. My overwhelming reaction to the opinion, however, in the realm of visual art, is what a lost opportunity the Prince v. Cariou decision was two years ago, and some optimism that the most recent decision will start to provide useful guidance for practitioners that has been harder to give with confidence since Prince. After two years of the preeminence of the first fair use factor threatening to dwarf everything with a “transformativeness” test that essentially any use could meet, Google Books (even while finding a fair use) restores some balance to that analysis.

Google Books is an effort to scan any and all books to which Google can get access via libraries that sign on for the program. Google provides each participating library with a single scanned copy of the entire book. In effect, someone using Google books can do full text searches of all books that have been scanned. So, if you wanted to know where “Hildebrand Gurlitt” had been mentioned, Google Books will search literally every book in its database for references. The results available to the users are called “snippets,” consisting of only a few lines of text. (I must admit I do not have as much confidence in the breadth of this. I did a Google Books search on myself and was able to find and reach the entire chapter, for example, that I wrote in The Legal Guide for Museum Professionals, “Nazi-Looted Art: Risks and Best Practices for Museums,” though a prominent link to buy the e-book is visible).

This provides an obviously increased utility to the user. It is one thing to know that “Michelangelo” is mentioned in a book, it is a far better tool to know if that reference is to the Renaissance genius, or to a Teenage Mutant Ninja Turtle.

Google admittedly did not have permission to scan many books that were undeniably still under copyright. Yet when accused of infringement, Google claimed fair use.

Renowned Judge Pierre Leval authored the Second Circuit opinion.  Judge Leval, of course, is probably the most influential jurist in America on this topic. It was his article “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1111 (1990), that was so influential in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (addressing 2 Live Crew cover of Roy Orbison’s “Pretty Woman”), the Supreme Court case that opened the door to considering the first fair use factor as one of transformation. His opinion here is well worth the read and to summarize it quickly does not do it justice. In sum, the high points are a renewed focus on the why as much as the how of transformation, a thorough review of all factors, and a reminder of the historical importance of the fourth factor, the impact on the potential market for the original work. As Judge Leval wrote”

The word “transformative” cannot be taken too literally as a sufficient key to understand the elements of fair use. It is rather a suggestive symbol for a complex thought, and does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use.

Ultimately, the panel concluded that the Google Books program is not a substitute for the copyrighted works, it is an access point for the protected content. The snippet approach does not allow the user to skip the book, rather, it gives the reader a reason to read the book. Lastly, it leaves the door open for infringement claims based on hacking or the libraries’ copies (if either Google or the libraries were negligent in protecting the digital copies), but in the absence of evidence of any such events now, the theory remains speculative.

I must admit that when the District Court opinion was issued two years ago (after a settlement was rejected, ironically, as not beneficial enough to the authors who have now lost), I was concerned about the scope on visual arts. If Google can scan every book ever written, why not every painting too? The beneficial quality to scholars and students would be undeniable; all those trips I had to take to the Art History department as an undergraduate could have been done from a computer (if I’d had one). As Judge Leval writes (emphasis in original):

Even if the purpose of the copying is for a valuably transformative purpose, such copying might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute.

I think the distinction lies in the difference between books and paintings. A small portion of a painting is not word searchable like a book. I think Google would have a much different burden to carry if I tried to treat copyrighted works the same way it has the agreed-upon public domain works in Google Art.

There is little question that the landscape has shifted to a far more hospitable one for secondary uses of visual art. As noted above, the Google Books decision, of course, found fair use. But what I find most welcome about the decision is a reminder of the need to balance the analysis, and a reminder that intent does matter. It’s fair to ask whether this panel might have ruled differently in Prince given Richard Prince’s avowed disinterest in identifying any reason for altering Patrick Cariou’s photographs. Any while it may not be that hard for a secondary user to claim some meaningful intent, the same has always been true for literary works that are not necessarily safe from infringement claims.

The last point is that the restoration of the importance of the market impact factor could lead to clarity, even if it feels uncomfortable. The Suicide Girls’ website is more famous because Richard Prince used their Instagram photos, there is no question about that. If there is a market for the former, it has arguably been created by the latter. It may seem indefensible to note the differences in market strata of different artists, but those differences are not immutable; Richard Prince didn’t always sell ripped off photographs for six figures. Like it or not, that is probably easier to assess objectively than artistic intent.

Prince left practicing lawyers—both those who though Canal Zone was fair use and those who thought it was infringement—with a difficult task. In effect, a lawyer was left to speculate about how transformative a judge might fight a borrowed image. That is the very opposite of what a normative rule like copyright is supposed to provide, both in terms of protection and comfort. As guiding precedent, Google Books is a step in the right direction.