This question has persisted without agreement within Scientology criticdom for years, largely because it’s impossible to answer without defining religion either so amorphously as to strip the word of all meaning, or so exclusively as to omit many widely recognized religions. Still, the question matters if for no other reason than the fact that it keeps getting asked, usually in the context of the more interesting question about why Scientology is considered a tax exempt entity.

Briefly to that end, it’s important to realize that the two entities with seemingly the most interest in determining whether Scientology is a religion–the US courts and the IRS–are constrained by the establishment clause to define religion so expansively as to avoid implicitly endorsing religion X over religion Y.

In a country as religiously pluralistic as the US, the courts must hew to a broad and inclusive definition of religion.

Early court decisions attempting to define religion predictably chose monotheistic terms–”The term ‘religion’ has reference to one’s views of his relations to his Creator[.]” Davis v. Beason, 133 U.S. 333 (1890). “[T]he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” US v. MacIntosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J., dissenting).

Soon after, in 1944, God disappears from the definition:  “[F]reedom of religious belief … embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”  Ballard v. US, 322 U.S. 78 (1944).

In US v. Seeger, 380 U.S. 163 (1965), the Supreme Court interpreted legislation exempting conscientious objectors from war (here, the Vietnam War) as including beliefs which even the plaintiff had not initially described as religious. The statute defined religion as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological or philosophical views or a merely personal moral code.” The court read this to include “all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.”

The Supreme Court has thus kept pace with modern theological trends by stretching the definition of religion to essentially mean any structured belief system which sincerely based on “ultimate concerns.” US v. Seeger, referencing progressive theologian Paul Tillich, Dynamics of Faith (1957) (defining faith as “the state of being ultimately concerned”). See also Welsh v. U.S., 398 U.S. 333 (1970).

Which brings us to Scientology, which is also unconcerned with any Supreme Being but instead, similar to inward-looking Eastern religions, views the soul, or what Scientology founder L Ron Hubbard called the “thetan,” as an immortal being. Per Hubbard, an adherent’s spiritual growth is wholly tied to gaining an increased understanding of one’s thetan, which is accomplished through a series of exercises and courses, often in tandem with another Scientologist called an “auditor” and often with the aid of an electropsychometer (“e-meter”), a sort of lie detector employed by the auditor in these courses.

By the Supreme Court’s increasingly generous definition of religion, broadened to keep pace with a growing pluralistic populace and to comport with the first amendment, it’s difficult to argue that Scientology, as I describe it above, is not a religion.

That said, the relevant question the IRS asks in determining an entity’s tax exempt status isn’t whether the entity is a “religion” but rather whether it’s organized and operated for a “religious purpose.” This distinction is not merely semantic. Though it rarely happens, the IRS can both recognize an entity as a religion and yet still deny it tax exempt status. See Bob Jones University v. US, 416 U.S. 725 (1974) (Court revoked exempt status of religious university which denied admission to applicants engaged in an interracial marriage or dating).

Despite that its tenets easily qualify as “religious” per the US constitution, there are nevertheless countless arguments why Scientology and its myriad corporate fronts should be denied tax exempt status because it is not organized and maintained for a “religious purpose.” 26 U.S.C. § 501(c)(3).

Religious groups risk losing their tax exempt status in a number of ways, such as if its net earnings inure to an individual; if it provides a substantial benefit to a private interest; if it devotes a substantial part of its activities attempting to influence legislation; if it participates or intervenes in any political campaign on behalf or in opposition to a candidate for public office; or if its purposes and activities are illegal or “violate fundamental public policy.” IRS Guidelines, Activities that are Illegal or Contrary to Public Policy.

An easier way to understand this is that the government cannot regulate belief, which is why it must define religion so broadly, but it can regulate activity, i.e., determine the existence of a “religious purpose.”

The most common reason a religion is denied or loses its tax exempt status is where its funding inures to an individual or individuals as opposed to the organization. LAW. This was the basis, in fact, upon which Scientology was first denied exempt status, when it emerged in the course of a trial that L Ron Hubbard was personally enriched by the organization. Founding Church of Scientology v. US, 188 Ct. Cl. 490 (Ct. Cl. 1969) (Court found impermissible a personal compensation scheme whereby the Church of Scientology had personally compensated L Ron Hubbard and his family at least 10% of its gross income).

By 1986, when L Ron Hubbard died, his religion was still not recognized by the IRS as exempt. Seven years later (1993) Hubbard’s successor, David Miscavige, negotiated a deal with the IRS granting it exempt status in exchange for Scientology dropping hundreds of lawsuits it had filed against the organization. Its terms remain officially secret to this day (the most recent unsuccessful attempt to crack it came in Sklars ) but were nevertheless leaked to the Wall Street Journal in 1997.

The IRS originally held the view that Scientology was not organized for a “religious purpose” but then reversed itself without explanation. What changed? By most accounts, the organization has only gotten more sinister under Miscavige, who is widely reported to violently beat subordinates, and live in unmatched luxury while staff members can make as little as $50/week.

But let’s break down why Scientology in its present incarnation isn’t “organized for a religious purpose,” and why, accordingly, it should have it exempt status rescinded: (1) Scientology has an explicitly commercial, non-charitable nature; (2) its revenues inure to a single individual; (3) it forces many of its members to disconnect from their families; (4) it grossly mistreats many of its members; and (5) it harasses and attacks ex-members and critics.

Taking these in turn then…

(1)

Regardless of Scientology’s thetan-concerned religious content, it seems significant that Scientology charges exorbitant amounts to become progressively enlightened. The functional practice more closely resembles psychotherapy, where one pays as one goes, than the community-oriented tithing and donation structure found with most other religions. Scientology attempts to dance around this by labeling all quid pro quo course payments as “donations.” From a business perspective, Scientology is profoundly profitable–staff members are paid a fraction of the federal minimum wage, while parishioners pay hundreds of thousands of dollars for the privilege of being audited.
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Scientology routinely resorts to high-pressure sales tactics to sell courses and solicit donations to various projects, often resulting in the financial ruin of its members. It even exhorts its members to pressure other members if they’re deemed to not be going “up the bridge” quickly enough. Though many religious groups can be financially demanding of their parishioners, among tax exempt religions I have yet to see any group comparable to Scientology. It routinely bankrupts members and declares them suppressive (excommunicates them) if and when they protest.

One high-ranking ex-Scientology official, Debbie Cook, recently estimated that Scientology has $1 billion dollars in reserve. Of that, virtually none goes to any form of social betterment or benefits local communities in any way. Scientology maintains a handful of social betterment groups (Narconon, Criminon, Applied Scholastics, and The Way to Happiness), each which are either run for-profit ventures or exist solely to “safepoint” (create generally good public relations) for L Ron Hubbard and/or Scientology. Narconon (a drug rehabilitation organization utilizing L Ron Hubbard’s scientifically disproven theories regarding toxins) is not only expensive, but is implicated in a trail of ‘patient’ deaths. Narconon Georgia is under state investigation for a massive insurance fraud scheme.

In short, parishioners pay hundreds of thousands of dollars to become Scientologists, money which benefits those parishioners directly; Scientology benefits by not having to pay taxes on those profits; and the general community benefits in no way whatsoever.

(2)

In Foundation Church, supra, the court found that Scientology revenues directly benefited L Ron Hubbard and that the IRS was therefore justified in denying Scientology tax exempt status for failing to organize and maintain a religious purpose. Hubbard’s successor, David Miscavige, has been, if anything, worse in this regard, his personal possessions are a laundry list of obscene wealth: $5,000 tailored suits, $500 Egyptian cotton shirts, the finest Italian leather shoes, personal use of a private jet, a $50,000 Acura RL, a $25,000 Mazda Miata, an $80,000 Range Rover, an $150,000 bulletproof GMC Van, a $25,000 custom-made motorcycle, a $110,000 BMW M6, a $45,000 Acura to use then he’s in Clearwater, Florida, a personal chef, a personal stylist, and so on. Even on Miscavige’s self-granted six-figure salary, the aforementioned perks could not be accounted for without assuming that he’s personally benefiting from Scientology revenues.

The inurement question gets even more lurid when considering how Miscavige’s best friend, Tom Cruise, also has personally benefited from labor performed by Scientology staff members. For example, Cruise’s elaborate wedding to Nicole Kidman was staffed by Scientology members at no cost to Cruise. Miscavige’s wedding gift to the couple was to arrange for a team of twenty Sea Org disciples to dig, hoe, and plant wheat grass and wildflower seed near the Cruises’ bungalow (on Scientology grounds) after Miscavige had learned of the couple’s fantasy of running through a meadow of wildflowers together. Miscavige threw a birthday party for Cruise aboard its cruise ship The Freewinds, estimated to cost $300,000. And Miscavige bestowed countless gifts worth hundreds of thousands of dollars on Cruise, often necessitating cheap, uncompensated Sea Org/staff labor. Cruise, through his lawyers, has issued a blanket denial but such denials are outweighed by numerous corroborated accounts. See generally Andrew Morton, Tom Cruise: An Unauthorized Biography (St. Martin’s Press, 2008).

Inurement is probably the most common basis upon which religious entities lose their tax exempt status. If the IRS cared to look, they’d have little trouble spotting Miscavige and Cruise personally benefiting from Scientology revenues in ways which have no discernible religious connection whatsoever.

(3)

The term “cult,” like “religion,” is, on the one hand, a useful demarcation line for how most people approach the question of whether Scientology is a religion. Religions are good and cults are bad, but why that’s the case is a somewhat subjective matter, similar to how the question of what is and isn’t a religion is difficult because of how everyone perceives religion personally, first, rather than dryly and objectively. My religion is a religion because I’m “good” and cults are “bad,” semantically speaking.

Nevertheless, one commonality of cults and continued evidence of their malignancy is that they tend to break up families, which most agree is an effect detrimental to communities in general. Scientology has alternately denied and defended (and indeed even claimed it as a human right) its well-documented practice of “disconnection,” whereby a member is forced by the organization to disengage from all communication with anyone critical of Scientology (inevitably the most skeptical family member). Scientology even designates a term for these pests: Suppressive Persons (or “SPs”), and a member risks his/her own standing within Scientology if they are “PTS” (Potential Trouble Source) to an SP.

Family represents an important value in America, but so does the principle of autonomy, and there is friction between the two. There is no recognized legal right or obligation for of-age family members to communicate with each other. Nor do we want to set precedents whereby churches’ institutional and its individuals’ autonomy is threatened by government policies. Scientology would argue that to rescind its tax exempt status because its practices break up families would be to religious. There’s some merit to this argument. The more powerful counterargument is simply that taxpayers should not be forced to effectively subsidize the destruction of families.

(4) & (5)

Scientology routinely mistreats its members, and especially its staff members. Ex-Sea Org members have filed lawsuits for labor law violations, forced imprisonment, human trafficking, and forced abortions. These damning accounts are largely corroborated, yet Scientology manages to escape prosecution and liability because the ex-members in question were either deemed to have consented or were deemed “ministers” and thus fell under the “ministerial exception,” which allows religious groups to be exempt from ordinary labor laws. Even if we concede that Sea Org members, after expressing their informed consent, thus waiving most claims they might later bring, it remains true that minors cannot waive such rights. Yet Scientology continues to employ children as Sea Org members (L Ron Hubbard viewed, and thus Scientology views children as undeveloped adults) and continues to abuse them without repercussion.

Scientology also infamously mistreats ex-members who dare criticize it, a group that includes not only former Scientologists but journalists and non-ex-member critics. The Internet is replete with endless stories of Scientology’s aggressive handling of individuals it deems threats, so I won’t bother detailing them here. But to the extent Scientology’s harassment engine is kept afloat and churning by a boundless tax-exempt repository (specifically, the International Association of Scientologists, or “IAS”), yet another basis exists to rescind Scientology’s tax-exempt status for failing to maintain a religious purpose.

In sum, in the United States the question of Scientology’s religiosity is a useless academic exercise because the first amendment has constrained courts (and thus the IRS) to define religion so broadly inclusive as to be meaningless. By the broadest definition, Scientology’s core beliefs easily qualify as religious. However, by the IRS’s more stringent requirement that tax-exempt entities be organized and maintained for a  religious purpose, Scientology fails because its revenues inure to a single individual, leader David Miscavige, its operation is indistinguishable from a for-profit business enterprise, and its practices–disconnection, the abuse of of members, and the ruthless handling of critics–violate public policy.

Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic,  Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.”

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

“The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.“

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.

Taibbi points out that the problem is less the business than the tax code incentivizing the business into a can’t-miss model by granting huge interest deduction breaks. Private Equity collects huge whether the companies it takes over live or die, so why would a firm like Bain even care if the business lived or died so long as Bain collected? A: They didn’t and they don’t. This is what the wide-open free market about which the Right has been evangelizing for years looks like–and look close because not only is nothing trickling down, debt is piling up. Consequently, what social good does Bain et al serve, and why should this sort of experience ever be considered relevant business experience vis a vis running a country?

…

Michelle Goldberg voices something I’ve thought of years–Republicans have forever ridiculed lefty actors for nosing into politics but unabashedly trot out any celebrity willing to shill for them. And while Victoria Jackson and Jon Voigt are bona fide crazy and D & C List (respectively), Clint Eastwood is an American icon. Who pissed all over his legacy last night by losing an argument with a chair. So much for the RNC’s plan to humanize Mitt Romney, who wound up having to follow Clint’s surrealistic turn, which is the only thing anyone’s talking about today.

…

Sally Kohn was merely one of many people who called out Paul Ryan’s speechfor all the lies it contained, but hers was newsworthy because hers appeared on the Fox News site. Kohn is a semi-regular Fox News contributor and unlike strawman/punching bag Alan Colmes, can actually bring it.

…

I’m not a fan of Ron Paul but there wasn’t enough attention paid to the fact that on day one of the convention the RNC changed its rules and ignored the outcome of a vote that would’ve brought a result it didn’t want, specifically to ice Paul and his supporters out of the convention. And people call Ron Paul paranoid. Tch.

…

My cousin Jon pointed me to this excellent summarizing of the problems with our broken patent law system, which problems led to Apple’s ridiculous $1b jury victory over Samsung. There’s also this article suggesting that the jury goofed heavily, perhaps heavily enough to jeopardize that $1b award. There are good reasons juries generally don’t render verdicts in patent cases, and it’s basically the same reason you wouldn’t trust a jury to, say, perform surgery or reassemble an automobile from memory.

I’ve been following with some interest the upstart social network Pinterest, at first merely to gain some insight into its out-of-the-blue popularity. This wasn’t easy because I sit manifestly outside Pinterest’s demographic as a 43-year old man with an interest in news, politics, sports, and the law. The default Pinterest landing page appeals to none of those things. Rather, it’s an online scrapbook curated by women aged 25-45 who evidently read Crate & Barrel and J. Crew catalogs along with Martha Stewart magazines.

Pinterest provides a simple interface to collect and share home decor, craft projects, fashion ideas, and the like. Users can categorize their “pins” onto boards–e.g., “Great Food,” “Fashion,” and “My Style.” Under the hood, though, Pinterest is content–and gender–neutral and operates rather simply. One “pins” by pasting a URL (which can be a web page or an image file, but there must be an image on the page), typing a description, and selecting, or creating, a category. That’s it.

Finally struck by this epiphany that Pinterest was merely a well-designed organizational tool, I unfollowed nearly all my Facebook friends and family (naturally, mostly women) whose pins dominated my feed and began using Pinterest to bookmark articles about what interested me most about Pinterest–its many-faceted Copyright Problem.

The copyright problem is easy to spot if you’re an intellectual property attorney (on my Facebook page I called Pinterest an “infringement farm” ten minutes after my first visit), but especially glaring if you’re an attorney who is also a photographer. Like myself, Kirsten Kowalski qualifies as both, and on February 24, 2012, expressed her concerns in a lengthy blog post titled Why I Tearfully Deleted My Pinterest Inspiration Boards.

Pinterest Terms of Service and Your Liability

Kowalski plunges into both Pinterest’s legalese and federal law to reconcile the disconnect she saw between Pinterest’s implicit encouragement to propagate third parties’ copyrighted works and its terms of service, where it requires each user to “represent and warrant” that they possess (either as owner or licensee) the republishing rights of the works they Pin; and that their use on Pinterest violates no other third party’s intellectual property rights.

There is nothing especially atypical about Pinterest’s terms of service in this regard: “Online Service Providers” (OSPs, defined by US copyright law), such as Pinterest, only initially assume liability for the content users post to their sites. The Digital Millennium Copyright Act (DMCA) contains a safe harbor mechanism permitting Pinterest to effectively indemnify itself from copyright infringement lawsuits by timely removing alleged infringements upon notification. The process then permits users to “counternotify” after which time the OSP (Pinterest) will restore the image without fear of lawsuit, which risk is now solely borne by the user in their personal capacity.

In other words, the terms of service language about which Kowalski is most concerned isn’t especially different than most other sites’ terms of service, which, in turn, mostly restate the law with respect to assumption of liability for infringing conduct. [Note: As I was writing this post Pinterest removed from its terms of service some of its more egregious provisions, such as the right to sell your work, and a perpetual, irrevocable sublicense to your work. These and other changes made as of March 24, 2012, do little to alter the issue with which this post is chiefly concerned, namely liability for copyright infringements.]

Kowalski’s concerns aren’t unwarranted, though, because the manner in which Pinterest is commonly used by its users makes it inevitable that thousands of copyright infringements will be committed each day. But Kowalski’s fear of an infringement lawsuit has less to do with Pinterest’s terms of service, which merely reflect existing law, than with Pinterest’s business model, which relies on its users republishing unlicensed third party content. Pinterest’s terms of service and its business model are at odds, and may even serve to confuse its users, though it seems unlikely that such conflict would shift liability for infringements from Pinterest’s users back to Pinterest.

If Pinterest’s users do indeed risk an infringement lawsuit with each pin, it is worth examining first the likelihood of that risk, and then such a lawsuit’s chances of success, while also considering the possible defenses available to a Pinterest user sued for a typical infringement.

Pinterest Users — Legal vs. Real Risk

Kowalski doesn’t tackle the risk question, except to briefly allude to the fear that Pinterest is the next Napster. There are good reasons, though, both real-world and legal, why a hypothetical Pinterest user/defendant is distinguishable from the Napster defendants. The subject matter of a Pinterest-related “infringement” is an image, not a music or video file, and there are no photography rights-holding trade organizations on the scale of the RIAA and MPAA, who both can allocate significant resources to policing infringement [though many relatively small photo trade organizations exist; see here].

Because there are significant disincentives for photographers to sue for web infringements–e.g., the expense of bringing an infringement suit; obtaining personal jurisdiction over out-of-state and possibly judgment-proof defendants; nominal infringements can mean nominal damages– the cost of bringing such a suit easily can and most often is offset by the potential return. And without the luxury of RIAA/MPAA-sized resources, these cost-based risks fall on the photographer/plaintiff.

A Pinterest-based infringement is also distinguishable from Napster legally, largely because there is little room to lodge a fair-use defense for audio and video file-sharing infringements, as each audio/video file most often represents the entire infringed-upon work, untransformed in any way, and which is usually available for sale online.

So while an infringement suit against you as a Pinterest user is unlikely, a suit against some Pinterest user seems inevitable, and its outcome may serve to shape the future of Pinterest and other scrapbooking social media sites.

The Fair Use Defense — Introduction

For the unlucky Pinterest user who finds him or herself a defendant, what is their recourse? Presuming such lawsuit is adequately pled with respect to matters like jurisdiction, a defendant would argue that their use was fair, pursuant to Section 107 of the Copyright Act. Fair use can broadly be described as copyright law’s acknowledgment that certain per se infringements should nevertheless be permitted in the interest of fairness, education, and economy (not to mention in the interest the promotion of the progress of science and art, pursuant to Art. 1, Sec. 8 of the U.S. Constitution, which is a too-broad discussion for the moment).

Analytically, whether use of a work is fair is tough to determine and predict. Per Section 107, a nonexclusive four-factor test considers each of the following: the (1) purpose and character of your use; (2) nature of the copyrighted work; (3) amount and substantiality of the portion taken, and (4) effect of the use upon the potential market. I’ll refer back to these factors by their number later in this post.

No one factor is necessarily determinative, and the myriad fair use cases are of limited help, as different courts can fixate on different factual distinctions, together with the potential uniqueness of each scenario underscoring the lawsuit. These difficulties are compounded by the difficulty both attorneys and courts have had applying old copyright law to new technologies, which are often misunderstood by these new technologies.

Fair Use First Factor — Nature of Use

That disclaimer aside, some fair use cases are possibly on point. Kowalski raises an obvious one, the well-known Kelly v. Arriba Soft Corp., 336 F.3d 811(9th Cir. 2003) case, in which a photographer sued an image search engine (prior in time but similar to Google’s image search) for republishing thumbnail versions of the photographer’s images, the larger version which the photographer had himself hosted.

The Ninth Circuit analyzed each of the above-mentioned four factors in turn, concluding that Factor 2 weighed in favor of the photographer (reasoning that creative works merit stronger protection than non-creative works, but already-published works merited weaker protection); Factor 3 weighed in favor of neither party, the court reasoning that even though each copyrighted work was copied in its entirety, the search engine only rendered as much as necessary (if this sounds tautological to you, you’re not alone); and Factor 4 weighed in favor of the search engine, because far from harming the market for the images, the search engine aided the market by pushing traffic back to the photographer’s site.

The court discussed Factor 1 in significantly greater depth than Factors 2, 3, and 4, finding in favor of the search engine that the nature of the use was “transformative” inasmuch as the purpose of the use differed entirely from the plaintiff photographer’s use. A search engine republishing thumbnail images involves “more than the retransmission of the images [into] a different medium.” A necessary recontextualization takes place in which the altered image not only serves a new purpose which provides a public benefit (by way of a private benefit to Arriba Soft, of course). The court also remarked on the thumbnail image’s lack of further utility, because enlargement could not occur without sacrificing clarity.

As Kowalski rightly points out, the Arriba Soft case does not literally stand for the proposition that thumbnail images are uniformly fair use exceptions, because no one fair use factor is determinative. But the reality is that image search engines such as Arriba Soft (now Ditto.com) and Google Images would not exist if there were any legal uncertainty as to whether thumbnail images of existing copyrighted works qualified as fair use. They do, period.

A few years after deciding Arriba Soft, the Ninth Circuit found similarly in an almost identical case, Perfect 10 v. Google [captioned as Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007)]. Perfect 10 sued Google for “in-line linking” to its copyrighted images and rendering those images as thumbnails on its search engine. The Court followed the same fair use analysis as in Arriba Soft, and was further unpersuaded that the technical distinctions between Google’s and Arriba Soft’s search engines changed the outcome (unlike Arriba Soft’s, Google’s search engine presents a thumbnail of the actual copyrighted work within its own frame).

Applying Arriba Soft & Perfect 10’s First Factor Analysis to Pinterest

Presuming a hypothetical case against a Pinterest user (I’ll discuss Pinterest’s liability as a secondary infringer separately) is brought in court under the Ninth Circuit, it is likely that Factors 2, 3, and 4 would be analyzed similarly. Arriba Soft and Perfect 10 are only persuasive authority within the Ninth Circuit, though both have been cited widely and favorably by other federal courts.

However, Factor 1, the purpose and character of the use, could be a different story. In Arriba Soft and Perfect 10, the court was only confronted with search engines having rendered copyrighted works as thumbnails. Pinterest generates at least two, and likely more, copies of each image associated with every user pin, and at least one of those images is much larger than a thumbnail.

The first is a thumbnail approximately 192 pixels wide, which is comparable in size to the thumbnails generated by Google and Arriba Soft [now Ditto], and are the most common image viewed by Pinterest users, appearing on the user’s main feed showing the activity of the users they follow.

From this thumbnail-filled landing page, users can click on theirs and their followers’ thumbnails, which takes the user to a page containing a larger image of the same thumbnail, the description for the image and user comments, if any. This image can be at least 550 pixels wide (per my rough, unscientific survey). Clicking on this large image takes the user off site to the source URL the user inputted when creating the pin, which, again, can either be an image file or a web page containing an image.

As the above makes clear, Pinterest automatically generates both a thumbnail and a large copy of each source image, which it automatically republishes and presents. The size of this larger copy may even identical to the source image size, if the source image size is within Pinterest’s approximately 550 pixel wide layout constraint.

To see how little a source image can be transformed from source to Pinterest, start with the following Pin of a young boy seated on the lap of an older man waring a cowboy hat.

http://pinterest.com/pin/219902394275253825/

Clicking on the Pin takes the user to a web page which contains the same image displayed at the Pin:

http://www.shorpy.com/node/12584

The image file seen at the shorpy.com page is 439 px wide & 290 px tall, as seen here:

http://www.shorpy.com/files/images/SHORPY_8a23944a.preview.jpg

The copy of the above image generated by Pinterest is 439 px wide & 290 px tall, identical to the source image in every sense, as seen here:

http://media-cdn4.pinterest.com/upload/167336942374576111_aKYtpBwb_f.jpg

That thumbnail images can easily be distinguished from exact copies is not necessarily an outcome-determinative distinction, though. As indicated above, the four fair use factors are applied in a highly unscientific “totality of circumstances” manner, making it difficult for parties to rely on factual similarities and distinctions between decided cases and your own. But to the extent that Arriba Soft and Perfect 10 have come to stand for the proposition that “thumbmail images are fair use,” it is difficult to argue their applicability to Pinterest, whose users create both thumbnail and exact copies of hundreds of thousands of images, the overwhelming majority of which are posted without their rights ever having been negotiated.

A fair argument, however, can nevertheless be made that the purpose and character of the use (Factor One) is substantially transformed even if the use includes the republishing of an exact copy. As can be seen in the above screenshot, the copied image, when placed within Pinterest’s environment, is completely recontextualized. The user’s name who pinned the image/site is identified above the image, along with the time he/she posted it. Below the image is the user-provided caption, and a form field to enter comments, above any comments that might already have been left. Below the comments are relevant meta-data, such as the identity of the user who originally pinned the image/site, the name of board (user-determined category) onto which it was pinned, the technological mechanism by which it was pinned (e.g., a bookmarklet, web), etc.

Accordingly, it may be argued that like Arriba Soft and Google, the purpose and character of each image’s use is functionally distinct from the rights holder’s purpose and character of use. A Pinterest user effectively curates collections of imagery organized and defined by his/her own parameters, so not only is the appropriated image surrounded by a new description and new meta-data, but it is further recontextualized by how the user categorizes it–what other images it’s surrounded by. Further, the more commentary that is added (including by the user’s followers), the more the image is additionally recontextualized, and the more fair the use, or so goes the contention.

This is, in essence, the argument recently put forward by intellectual property attorney Itai Maytal, who was quoted by Business Insider asserting that Pinterest’s requirement that users add a caption to each Pin lends itself to a favorable fair use defense because the caption is “commentary, and commentary and parody are some of the types of uses that the law encourages[.]” Maytal concedes that the fair use inquiry would not end there, but even so disclaimed, the argument is problematic.

It has never been held, to the extent I can find, that an exact, unaltered, uncropped copy of an image can be sufficiently transformed, for the purpose of a fair use defense, merely by recaptioning, or adding a caption to it. It’s hard to imagine, for example, the New York Post republishing an image it copied from the New York Times website and then suggesting it had every right to do so because it ran a caption whereas the Times did not (or ran a different caption). An apt parallel media comparison might be a broadcaster attempting to argue that its disc jockeys’ talking before and after songs sufficiently transforms the songs so as to moot the need to pay royalties. If only effecting transformative use upon copyrighted works was as easy as sprinkling a few words around its edges, it would be too easy to circumvent and abuse of such a lazy standard.

There are scenarios in which captioning/recaptioning an otherwise uncropped, non-thumbnail image might tend to qualify as fair use, such as in the context of an academic paper, where the image itself were the subject of scholarly analysis, or was the subject of a parody. By contrast, Pinterest users are typically not republishing images to parodic or scholarly ends, but rather to assert those images place within the user’s particular taste spectrum. Users are essentially rogue curators, republishing unlicensed images as a personal, exhibitionistic exercise, proclaiming to their followers, “These images are me.” The amount of creativity that goes into a scholarly or parodic work of the sort held out as typical fair use examples, and a Pinterest caption is stark indeed.

Fair Use Factor Four  - Marketplace Harm: Law & Economics

Though, as I observe above, Pinterest’s users appear vulnerable with respect to the first Fair Use factor, the fourth (again, non determinable) Factor, which disfavors uses harmful to the copyrighted work’s potential market, holds some promise. Pinterest’s users typically do not seek to profit from republishing unlicensed works, and, more important, rights holders typically do not suffer from Pinterest’s users’ republication of their works. Indeed, because Pinterest requires each Pin to link back to its source material, Pinterest is, if anything, improving the potential market of unlicensed works by exposing its users to them.

Law professor Dave Fagundes, writing at PrawfsBlawg, makes the argument that a plaintiff suing a Pinterest user would face an uphill climb trying to prove that the republication of their image harmed its marketability. This is because in order to argue that the potential market is being harmed, a rights holder must show both that a real market exists and that the works’ republication on Pinterest consequently deprives that market.

As an ex-commercial photographer I’m at least nominally qualified to speculate on the types of markets that unfettered infringements by Pinterest users conceivably might harm. With regard to photographic prints, it might be argued that online copies can never serve as an adequate market substitute for physical copies unless such copies are of a high enough resolution to enable the printing of art-quality versions. But Pinterest’s largest version easily fits within the four borders of any typical computer screen and pose no threat to become repurposed as works of art, print or magazine advertisements, or to useful beyond the digital web-only environment.

Photographers who derive revenue from stock photography agencies could potentially be adversely affected by users’ republishing their unwatermarked images on Pinterest. Stock images are generally sold as hi-resolution files, far greater in size than Pinterest’s largest rendered size, but not all purchasers of stock imagery need the highest-resolution file–for web use, the Pinterest-published version of an unlicensed stock image may serve as a market substitute. It’s not even clear to me whether the republishing of stock imagery is pandemic, but many of the images posted on Pinterest are at least of similar quality to stock.

Flickr, one of the largest photography sites on the web, has already taken umbrage at Pinterest users’ unlicensed raiding of its members images, applying an “opt-out” code to those images account holders had set tighter sharing restrictions upon, and provided its account holders with a mechanism to prevent the use of their images on Pinterest. But Flickr, which is owned by Yahoo!, does not offer for sale any images of its account holders, who are largely hobbyists. Most Flickr account holders would thus have a difficult time showing market harm, unless they also proffered evidence that the images were generating revenue outside of Flickr. To the extent web traffic plays any part in the economic calculus, it is more likely that Pinterest would be found to have driven up traffic for Flickr’s account holders, and created for them more economic opportunities, as opposed to inflicting market harm.

Pinterest users also tend to post editorial photographs of the sort that regularly appear in fashion, craft, and home decor magazines. In many of these instances the question of ownership isn’t always clear–even if the photographer retained the rights, the magazine may enjoy a period of exclusivity including the right to sue. A lawsuit by rights-holding publications also seems unlikely, given how Pinterest drives traffic to the magazine and catalog sites, though such entities are better financially leveraged to engage in costly litigation than are photographers.

To the extent the photographer holds the rights or the rights revert back to him/her, the calculus switches–the photographer is less likely to benefit from the link back to the magazine or catalog, and consequently has a greater incentive to enforce the copyright, though individual photographers have fewer resources with which to litigate. Perhaps a trade association will emerge to fill this void; many exist but none on the scale of the RIAA or MPAA and none thus far who are visibly working to unite photography rights holders against Pinterest.

Despite Fagundes’s point that it essentially is the plaintiff’s burden to show market harm, defendants have thus far been able to show that their market improvement of an unlicensed work is favorably determinative.

This “market improvement” argument was primed to be fully tested after Google announced its extensive Library project in late 2004, in which Google would copy, republish, and either present or partially present more than one million books without first negotiating the rights of each one. Google would also provide a link to enable each books’ purchase and would remove the book from its library upon the complaint of any rights holder.

Not only are the public benefits to Google’s project clearly manifest, but the copyright holders also stood to benefit. [For a much deeper look into the copyright implications of the project, notably how it relates to the market harm, read Elisabeth Hanratty’s excellent student note here.] Google never explained, however, how the project could be squared with existing copyright law–Google was making full reproductions and displaying part, if not all, of the work without first even attempting to contact the rights holders. Even though it was a Win / Win / Win (Google / rights holders / public), it was also infringement.

Consequently, The Author’s Guild, a writers’ advocacy group, and then McGraw Hill, noted publisher, both sued Google, for infringement, seeking damages and injunctive relief. [Most relevant documents regarding the lawsuits can be found here]. Rather than test the uncertain waters of fair use, Google settled for approximately $125 million. [The complex, 323-page settlement [pdf here] established a fund from which authors whose works appear on Google would be compensated.]

Google’s decision to forego litigation is instructive here, because its Library model is analogous to Pinterest’s. Like Google, Pinterest is republishing works for which rights have not been negotiated, largely to the rights holders’ boon, and offering those rights holders who do not wish their works to be included, the ability to “opt out.”  Unlike Google, however, Pinterest has not negotiated a nine-figure settlement with the rights holders. Pinterest faces continued uncertainty so long as its model persists and copyright law remains unchanged.

Closing

Despite my pessimism of Pinterest’s model with regard to how courts will view users’ infringements, I’m sympathetic to those users. Copyright law’s difficulty in adjusting to the sea changes brought on by the Internet is notorious, and each new tool that comes along seems to ratchet up the challenge. On Facebook, Internet users have been trained to become collectors and curators of various pieces of the internet–stories, videos, images–to reassemble those pieces on their “walls.” Pinterest leverages Facebook users’ intuitive training to a slightly different end; whereas Facebook users engage in discussions about this link and that video, which all serve to enhance a fair use argument, Pinterest users silently collect and curate, Pinning images of someone else’s butterfly, in the process stretching how we need to think about fair use.

My above analysis is far from exhaustive as to the copyright issues raised by Pinterest. I didn’t even discuss, for example, the huge issue of Pinterest’s potential liability as a secondary infringer–are they infringement inducers like Grokster? I’ll try to tackle that problem next. But I also didn’t factor in one very interesting realpolitik factor noted by reporter Anthony Wing Kosner in his Forbes Magazine article. Kosner points out that not only is Pinterest demographically skewed to women, it skews to slightly well-to-do, educated women living in the Midwest. [Kosner cites a demographic study by Ignite] In other words, the prototypical Pinterest user is the opposite of the less sympathetic most-commonly imagined Napster user. Both parties are infringers, but it’s harder to sell the idea of Pinterest users as thieves. Time will most likely tell because Pinterest’s popularity is increasing while copyright law stubbornly remains the same.

A month earlier I had reluctantly willed myself from bed at a similarly ungodly hour and trudged down to Zuccotti Park (a little over a mile south from my apartment in the West Village) to witness—to legally observe—the planned eviction of the Occupy Wall Street protesters, announced for 6:00 am, October 14. I arrived a half hour early. The massive police presence I expected was nowhere in sight. If something was going to happen at 6:00 am, it would have to step on the gas because the fifty or so police sprinkled randomly throughout the park were ill-equipped to dislodge hundreds of civilly disobedient protesters. And those police didn’t seem to be on edge.

But also lined up Cedar Street, the park’s southern boundary, were at least eight media trucks. Inside the park media weren’t hard to miss either; it was still dim enough at that hour that interviewees faced both cameras and harsh lighting. An AP reporter struggled to establish a connection between her phone and laptop, which was sitting on a garbage can, while ten feet away a handful of protesters patiently waited in line to stand on a masking-taped X, and speechify into a livestreaming laptop suspended at eye-level.

I found out that the eviction had been canceled by overhearing the AP reporter on her phone. Judging from the approving roar at the east end of the park seconds later, the General Assembly must have relayed the good news via human mic only seconds later.

I contemplated going home, being likewise reprieved, but recognized some people and went over to discuss the about-face. We all speculated what was next; there were rumors that the eviction would happen later that day. We next speculated as to why it was called off—I suggested that they failed to calculate the presence of the media, who would collectively broadcast all day Friday hundreds of civil disobedience arrests, some which surely would be messy. I suggested they’d evict sometime in the wee hours over the weekend, without advance warning, when the media would be nowhere in sight.

ONE MONTH LATER, not that weekend, my premonition became reality. I reread the text message and then consulted Twitter, debating whether to go downtown. Could I even get there? As Twitter relayed the situation on the ground, the genius of police commissioner Ray Kelly became (again) apparent. Downtown was inaccessible by subway, the inbound Brooklyn Bridge was closed (I think it regularly is these days though), and most importantly, a moat of inaccessibility was created effectively isolating Zuccotti Park—rendering it near impossible to get there. There was also a rumor that the NYPD prohibited news helicopters from covering the eviction from above. I traveled light; shorts, sneakers, hooded sweatshirt, and camera. I’d regret not grabbing my sunglasses later—who leaves the apartment with sunglasses at 2 am?

I walked down Greenwich instead of the West Side Highway, trying get there—wherever there was going to be—as soon as I could. At Murray Street I saw a convoy of eight garbage trucks cross West Broadway, undoubtedly on their way to Zuccotti Park. Church and Cortlandt was the end of the line, evidently—three cops stood behind metal barricades. I asked whether I could go down, showing my legal observer credentials. No. So you’re not permitting press or legal observers down there? No. What’s your name? Sergeant Kelly. Which wasn’t true, I’d seen his badge already. The three cops chuckled to themselves as I walked away, over Cortlandt to the corner of Broadway, where I would spend the next few hours.

Others had gathered at Cortlandt and Broadway because it was as near as you could get to Zuccotti Park, from the north at least. Most were protesters who’d been forced from the park, the ones who hadn’t affixed themselves to trees with kryptonite locks around their necks. Others were gawkers and sympathizers who’d been somehow woken, kind of like me, only without the fluorescent green hat the NLG provides to us. And of course, on other side of the barricades stood at least one riot-gear-clad cop for every remaining protester; in numerous scenarios I’ve witnessed a similar 1 to 1 protester/police ratio, which of course is more source of than salve to the problem.

I contemplated circumnavigating the barricaded moat to approach from the south, perhaps, or east, but nixed the idea, figuring that a perimeter is a perimeter and if Ray Kelly was going so far to keep news copters from hovering over, I wasn’t going to get any closer than where I already stood. No one was going to bear witness to this eviction except the police executing it. Besides, if police/protester interaction was going to happen, it was going to happen here, and I was the only legal observer present, so far as I could tell, at that point. I did run into a few over the next few hours, though.

There were some minor flare-ups there on the corner, some resulting in arrests. Some people were pissed and vocal, but there wasn’t much cohesion. Mic checks prompted everyone to go here or there, but not much came of it. The most interesting moment occurred around 5:30 am, as the skies slowly lightened and commuters began to trickle in: a man wearing an expensive gray suit purposefully strode past me on Broadway, and as he approached the corner to go right, instead of walking around a few seated near the corner, viciously kicked a young woman in her side, then walked fast down Cortlandt. A number of people angrily confronted this asshole engaging in his own private counter-protest, before police settled things down and, to their credit, arrested him.

There was also a tense standoff with twenty-plus riot police who’d blocked the entire width of sidewalk on Broadway between Cortlandt and Fulton, effectively trapping myself and others between its line and barricades behind us. It was an odd and intimidating and thankfully only lasted perhaps ten minutes before they filed into the street permitting us the freedom to walk back to the corner of Cortlandt.

Gradually the police outnumbered the dissipating crowd, so I walked north (not far) to Foley Square, which Twitter suggested had become the de facto rendezvous point. It was almost fully light by the time I arrived and there was a sizeable number there. There were also a number of other NLG observers, some whom I knew, so I brought myself, and them, up to speed, comparing notes of all that had happened. It was here I found out that the NLG was trying to obtain an injunction to enable the protesters’ return to Zuccotti Park.

Another strong rumor was that at 7:00 am there was a planned rendezvous at Sixth Avenue and Canal Street, at an odd, triangular stretch of empty lot space owned by Trinity Church, whose venerable, beautiful church bookends Wall Street’s west end. The church also owns a ton of Manhattan property, much of it downtown. I suspect that the protesters thought that this lot—which I only found out that day was called Duarte Square—was similar to Zuccottti Park for its private/public character. Apparently no one bothered to ask Trinity what it thought about this idea because hours after the protesters marched there (I marched with, arriving at), I heard it reported that Trinity wanted them all gone.

Before Trinity could throw the anti-moneychangers out from their empty lot of a temple, though, another interesting thing happened: the injunction was granted, we found out. Copies of it were distributed to NLG observers, and news of it was human mic’d to the now sizable crowd—besides those who marched from Foley Square, others had marched from other locations. The triumphant but wary protesters made a decision to split up; some would stay there and a smaller contingent would march back to Zuccotti Park. It was decided that I and a few other NLG observers would march back to Zuccotti, about a mile away, with this group.

I was pretty shot by this point, but also curious to see what would happen upon the protesters’ return to Zuccotti, so I walked in the front of the pack. An older officer with a bullhorn—a short, stout, burr-headed Ralph Steadman caricature—angrily screamed at the marchers to stay on the sidewalk, which has become standard operating procedure for all marches. I tried to engage him but he wasn’t having it. Did the NYPD plan on honoring the injunction when we all got to the Park? He responded with an even angrier look (to the sky, not me, eye contact is studiously avoided by most police) and went back on script: Get on the sidewalk!

A protester asked whether I would address the legal issues with the other protesters upon our arrival—there as to be a hearing at 11:30 and everything could change depending on that hearing’s outcome. I said sure. A few blocks later, walking south on Church, past Century 21, we could see Zuccotti ahead of us. There was plenty of media tagging along at the front but they scrambled ahead to anchor themselves to get a shot of the protesters reentering the park. It was only when we were feet away from the media gaggle that I realized that behind them were barricades. Simonetti, the bullhorn cop, directed us left into a narrow barricaded corridor running up Pine Street, Zuccotti’s northern border. A barricaded dead end. The kids call this “kettling.”

I walked left and looked for police captains, or higher. Spotting a few (they were all inside Zuccotti Park), I made my case: “You do know you’re violating an injunction, right?” Stone-faced silence. I made the argument to some media, pointing out the operative language of the injunction, which couldn’t have been clearer. Behind me the protesters chanted “WE. HAVE. A COURT. ORDER.” I spoke to other police—didn’t they realize denying the protesters reentry amounted to contempt?

Some police responded that there was a hearing at 11:30 and that the injunction was meaningless until that was decided, which of course was exactly wrong—the injunction was explicitly drafted to return the protesters to the pre-eviction status quo, and it was signed by a Justice of the Supreme Court of New York State. There’s a plausible argument that the injunction should have held off allowing protesters to return to the park pending the hearing’s outcome, but it didn’t do that: it allowed them to return—with tents even—and a hearing would then decide whether they would be allowed to continue to stay.

I eventually gave up trying to convince everyone and became more concerned for my safety, as it was becoming clear that the group that had marched down was larger than this barricade corridor reserved for it. I was also tired—it was 10 am and I’d been up and out walking all over downtown for eight hours. But I was also disgusted. The city, or rather Bloomberg, had obviously made the imperious decision that a judicial order didn’t apply to him.

A core running theme of the Occupy protests is that politics is rigged to favor the money. There have been so many instances where this dynamic has played out, where the symbolic overtones are no longer parable but reality. The double-barricaded Wall Street Bull, for example, is guarded by two officers at all times. Police arrest bank customers audacious enough to cancel their accounts. Now it was the police who occupied Zuccotti Park, safely barricaded in after their methodic, disgracefully secret, eviction, despite that I held in my hand a lawful court order requiring precisely the opposite. The protesters played by the rules and still lost even when the scoreboard supposedly registered a win.

I stuck around for another hour, pled my case to more deaf police ears, and finally gave up and went home. I would find out later that afternoon that the city argued to remove the judge who had signed the injunction—she had been an ACLU attorney prior to becoming a judge, as if that should have even mattered. Until U.S. Supreme Court justices begin recusing themselves for real reasons, such as financial self-interest or prior involvement in the instant case, it’s difficult to take seriously more tenuous connections, such as supposed ideological biases, especially when the only ideological bases seen as disqualifying are on the left. Ex-Federalist Society member judges aren’t asked to recuse themselves from tort cases.

Justice Billings was replaced (I’m still unclear whether she recused herself or whether an administrative judge/panel removed her) by Justice Michael Stallman, who heard both sides of the freedom of assembly versus reasonable time/manner/place restrictions and ruled, without offering a reasoned basis, for the city. The city’s blatant contempt of Billings’ order went unmentioned in the written decision and was barely discussed in the press. The only lawlessness that can’t be excused, as any Occupy protester will tell you, is the lawlessness committed by the poor. For everyone else, it’s Calvinball over and over and over again.

[The above photos from the eviction night are included in my larger album of #ows photos here]

Maresca claims to have visited Zuccotti Park at least a half-dozen times, where he would hand out t-shirts he made with magic markers bearing the phrase “We Are the 99%” … with “You Matter” on the back. He first attempted to trademark the term “We Are the 99%” but noticed that someone had beaten him to it [per the PTO, that dubious honor goes to Brooklynite Ian McLaughlin, who seeks to use the mark in connection with the sale of clothing, bags, and bumper stickers]. Maresca then looked up the second most popular #ows protester chant–”Occupy Wall St.”–and plunked down $975, registering the mark in his wife’s name.

It’s not hard to figure out why Maresca was immediately reviled by those sympathetic to the protesters. The act of trademarking a term which grew organically to describe not just the protests at Zuccotti Park, but indeed the country, and indeed the world, is prima facie evidence of crass commercialism. How dare a single person try and co-opt the identity of a leaderless army!

But before we crucify Robert Maresca to that huge red sculpture at the southeast corner of Zuccotti Park, let’s take him at his word and take those words in the most favorable light, because (a) his intentions may have been less crass than at first appears; and (b) he’s clearly confused as to how intellectual property works and that may only be partly his fault.

First, let’s step back and be clear as to what Maresca’s $975 would buy him (assuming the application is granted). A trademark registrant owns what amounts to a limited government-backed monopoly on a word, phrase, image, and even a scent. In order to exercise this monopoly, the registrant must use the mark “in commerce.” But it’s more than a use it or lose it policy–you must also protect the mark by actively preventing others from using it. This way, not only is your investment in the good will symbolized by the mark protected, the public is likewise protected by the elimination of consumer confusion of the source of goods and services.

But, again, taking him at his words, Maresca doesn’t appear to have filed for the mark for crass commercial purposes:

“When I checked, it was available for anyone to trademark. And if I didn’t file, who’s to say who else might have grabbed it? Everybody had a right to it, and it’s important to keep it away from people who would try to use it for negative[.]“

and

He said the trademark “isn’t about me getting rich. If it turns into a big moneymaker, I would like some of it to go back to the group.”

[both quotes from Daily News story]

The existence of the public domain apparently never occurred to Maresca before he spent nearly a thousand dollars to own a term that has come to define and defend the public domain as belonging to people and not corporations. Likewise, Ian McLaughlin’s attempt to own “We Are the 99%” is similarly ironic in a forehead-smacking way–how can Mr. McLaughlin, who comprises perhaps .000000003% of the US population, own 99%?

In an interview with the Village Voice (responding to the negative publicity surrounding his application), Maresca responded to the notion that the term Occupy Wall St. may be in the public domain.

“I just wanted to protect myself,” he says. “I didn’t know that once something has been used enough like that it enters the public domain. I think that’s great. That’s how it should be.”

It’s great that Maresca thinks it’s great that the term entered the public domain, but what he perhaps doesn’t yet realize is that the public domain is incompatible with his profiting from the mark. It’s one or the other–he wouldn’t get to restrict what he considers “negative” uses while granting him permission to distribute free perpetual licenses for uses he agrees with. That’s not how monopolies work. I would expect the PTO to reject the application and render my speculation moot but you never know.

Maresca’s instinct to buy up “Occupy Wall St.” (“defensively” or not) may be less his fault than the fault of our brand-saturated society. After all, how much of what surrounds us isn’t already owned and exploited? How many similar popular phrases or terms can you name that didn’t get there via an identifiable owner? How often are terms organically propelled into the national discourse? Trademark law and the public domain rarely intersect as a matter of law (though perhaps they should more)–and when they do intersect it’s more often with respect to an individual’s fair use rights of particularly famous marks, whose ubiquity leaves it vulnerable to popular culture uses, unlike here where a mark simply sprouted from the earth for all, on behalf of all.

Then again, a search of the US Patent & Trademark Office search system for “Tea Party” returned 176 records.

The defendant, Hosanna-Tabor Evangelical Lutheran Church and School, was the employer of 4th grade teacher and plaintiff Cheyrl Perich from Minnesota, who fell ill with a mystery ailment in June 2004, and had to be hospitalized for several months. Six months later doctors finally diagnosed Perich with narcolepsy and advised her that with proper medication she’d be able to return to work in 2-3 months. The principal and the school board, however, became concerned about Perich’s ability to fully function and requested that she agree to a “peaceful release” whereby the school would cover Perich’s medical insurance premiums through December 2005 (and effectively waive disability). Perich rejected the release proposal and attempted to return to work (she had obtained a work release from her doctor), and was instead fired, purportedly due to her “insubordination” at the board meeting where she rejected the school’s proposal, and due to her threat to sue (which, yes, appears to be something of a tautology).

Perich filed a complaint via the EEOC against Hosanna-Tabor for wrongful termination and under the Americans with Disability Act (“ADA”) and retaliation. She ultimately joined in the complaint herself, becoming a co-plaintiff with the EEOC. After both sides filed for summary judgment, the district court found for Hosanna-Tabor, ruling that the ministerial exception precluded the court from inquiring into her claims and accordingly dismissed the claim for lack of subject matter jurisdiction. After moving to reconsider (which motion was denied), Perich and the EEOC appealed to the 11th Circuit.

In all ministerial exception cases the issue ultimately boils down to a consideration of the relationship between the employer religious entity and the employer—basically: Is the employee a “minister”? If the answer is “yes,” the employer is exempt from virtually all labor law provisions. The rationale for the ministerial exception is that the constitution prohibits court inquiry into the hiring and firing decisions of religion, lest the courts become impermissibly entangled in religious affairs. Similarly, to penalize a religious institution based on hiring and firing decisions grounded in religious criteria violates that religious entity’s free exercise rights.

In deciding whether an employee is a “minister” or “ministerial employee,” the courts have taken a myriad of approaches, most under the guise of what’s been called the “primary duties” test. At the most restrictive end of the test spectrum is the 6th Circuit’s approach in Hosanna-Tabor. Perich did teach some religious classes but she primarily administered a secular curriculum—the Court at one point literally counts the hours in a typical day for Perich, noting that more than six of her seven hour day was spent teaching secular subjects.  Moreover, both the majority and concurrence found persuasive the fact that some Hosanna-Tabor teachers were not even Lutheran yet still gave religious instruction—how can non-adherents possibly be ministers? Additionally, it didn’t hurt that Hosanna-Tabor’s personnel manual includes EEOC policy within, and that the Governing Manual for Lutheran Schools apparently contemplates that teachers are protected by labor laws.

At the opposite end of the primary duties spectrum is a highly deferential test that asks whether some of the employee’s duties are religious in nature and whether the employer based its hiring decision on religious criteria. The 5th and 9th Circuits’ adopt this approach, as typified by the Alcazar v. Corporation of the Catholic Archbishop of Seattle case, upon which basis the Headleys’ cases were dismissed. With Alcazar, the question of duties is mostly subsumed by flipping it around and looking not at what the employee does, but the intent of the employer—why the employee was hired. By eschewing objectivity, Alcazar (decided en banc) hands to religious entities a highly valuable get-out-of-labor-law-free card, by including their hiring decisions—which courts cannot question lest they become entangled in religious affairs—as a part of the test. “Yes, we hired that janitor to deliver the Word of God—why should the state have any say in the matter?” Perhaps this is extreme (a janitor likely performs no religious functions much less some), but it’s a helpful example to point out the tautological nature of the “religious criteria” prong.

The ridiculousness of Alcazar was made apparent in the Headleys suits, which were dismissed when the court analyzed their situations as follows:

 She worked for Defendants, which both are institutions within the Church. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org. See id. 2010 WL 917200, (deciding this factor was met where plaintiff was in a job available only to seminarians of the Catholic Church). Finally, as part of her duties, she performed various religious duties and responsibilities, most notably “auditing” and “cramming.”

In other words, Claire Headley was a minister because Scientology said so. The court declined to entertain what Claire or Marc Headley actually did in terms of work while in the Sea Org, 99% of which could have been performed by non-Scientologists without a hitch, because it had already found that “some” of their duties were Scientological in nature.

If the Supreme Court affirms Hosanna-Tabor (or even if it merely concurs with the result and creates a new test based on the facts (perhaps adopting Judge Helen White’s concurrence, which appears to have kept the “primary” part of the primary duties test, but also looked to whether the employee’s hiring relied upon a religious criteria) it may be necessary for the courts to reexamine the Headleys’ cases based on whatever standard the Supreme Court sets forth, and the result could be quite favorable.

If the Supreme Court were to simply affirm without comment (for the sake of argument–this won’t happen), the question in the Headleys’ cases would become how much time they spent performing secular duties and how much time they spent performing religious duties. And even if the court ultimately agreed with Scientology that every minute of a Sea Org member’s waking day is spent performing religious duties as a member of a religious order, the factual inquiry would nevertheless be fascinating… for critics anyway–Scientology would certainly be terrified to have its treatment of Sea Org members subject to the court’s scrutiny.

Beyond the Scientology implications I’ve mentioned, this case has some pretty heavy real world implications as well, as can be inferred from the huge number of amicus briefs already filed (20 in support of Hosanna-Tabor, 8 in support of the EEOC/Perich). Scotusblog entry for Hosanna-Tabor case here. There are tens of thousands of teachers teaching at parochial and sectarian schools who will be directly affected by the how the Supreme Court winds up ruling.; and my guess is that the vast majority of those teachers are under the perhaps mistaken impression that they’re protected by labor law.

Also worth noting is this 2008 Student Note in appearing in the Harvard Law Review arguing for the more deferential “primary duties” standard–though I disagree with the Note’s thesis, it’s an excellent walk through the most prominent case law (as of 2008 at least, unfortunately prior to Alcazar).

Finally, journalist Jonny Jacobson wrote an excellent post covering similar territory as this one but with a different focus. His post prompted mine, so I just wanted to give it a shout-out.