Fair Use Defense

Lessons of the Last Liberty

Fair Use Defense

By Robert Ferrand, Producer

11/1/2019

"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement.[1]

Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a fourfactor test.

1.

2.

3.

4.

The purpose and character of the use, whether such use is commercial or educational. the nature of the copyrighted work. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. the effect of the use upon the potential market for or value of the copyrighted work.

Lessons of the Last Liberty Fair Use Claim

1. Purpose and character of the use

The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration in recent fair use cases is the extent to which the use is transformative.

Lessons of the Last Liberty is: Transformative: By the title “Lessons of the” reveals it is an educational film that furthers knowledge. The purpose of the documentary film, Lessons of the Last Liberty, is to not only reveal the history of the United States Merchant Marine, but to also, relate that history to current events.

This educational film is transformative because it uses a visual “time travel technique” to be able to relate the U.S. history from 1776 to President Vladimir Putin’s most recent public statements, in 2019, all in 30 minutes. This juxtaposition of events, out of context, is transformative, because it creates entirely new meaning to the original material.

History is traditionally been written and told, sequentially, one year after the next. In an era of short attention spans, that strategy takes too much time, to span decades or even centuries, and can easily lose the audience’s attention.

However, by employing a visual “time travel technique” that juxtaposes historic events that are decades apart “out of sequence”, back and forth, to build the story line, current events can be placed in an historic context and made relevant to a modern audience. This film editing technique permits current events to be placed in an historical context over centuries.

This visual “time travel technique” is significant. The use of “Flashback” in film production is age-old. However, the use of “Flashback” and “Flashforward”, over and over again, to build the storyline, that places current events in an historical context, is unique in this film. That is a “transformative” story telling technique.

Another factor, by placing seemingly unrelated information in a new context is “transformative” in its own right and furthers knowledge of how the Unites States Merchant Marine relates to American History, as well as World History.

By building the story in the back and forth visual “time travel technique” is further transformative because the choice of sequences, themselves, used to build the story is: itself a commentary, in addition, to the editorial statements that are made in the script, which are also commentary on the events.

This film is further transformative because relating efforts by the United States Merchant Marine, centuries ago, to not only the modern United States Merchant Marine, however, by additionally to maritime efforts made by Russia and China, have never before been done before, because these foreign merchant navy fleets are decades ago, not centuries. This is new research furthers knowledge and therefore can be categorized as, further, transformative, because the modern events had not yet occurred at the time some of the original film clips employed were produced.

The principle of “Transformativeness” applies fully even in “Commercial” Settings.

2. Nature of the copyrighted work Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or nonfictional.

Lesson of the Last Liberty is: a non-fiction historical review and commentary. As such, its intent is: by it’s nature, educational to further understanding in maritime affairs. As a non-fiction historical commentary, based on additional published historical documentary film and feature films, thereby creates a new transformative educational documentary film.

3. Amount and substantiality

The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair. In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis.

Lesson of the Last Liberty is: a “de minimis” use of copywritten material. The majority of the individual shots are counted in seconds. All of the sequences are a faction of the original work.

As well as, these sequences are also a fraction of the total “Lessons of the Last Liberty” film, itself.

4. Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of their work.

Lesson of the Last Liberty is: not effecting the original copyright owner's ability to exploit their original work. None of the “sequences” are a direct commentary on the original work and therefore cannot affect the original works value.

Additionally, throughout the film, such a small amount of any one individual original work is employed, that it should have no effect on the original works market or potential market.

A new creative work complies with "Fair Use" under Section 107 of the Copyright Act of 1976”, when these 4 factors: 1. The purpose and character of the use 2. the nature of the copyrighted work.

3. the amount and substantiality of the portion used.

4. the effect of the use upon the potential market are present and all factors are addressed:

It is a creator’s legal right, under the copyright law, to be able to incorporate, both old and new material, into a new “transformative” work. ("The doctrine of fair use limits the scope of the copyright monopoly in furtherance of its utilitarian objective. . . . Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design."); Fogerty v. Fantasy, Inc., 510 U.S. 517, 526-27 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)):

Lessons of the Last Liberty is a poster child for the “Fair Use” Doctrine.

References:

1.

RE: Whether Government Reproduction of Copyrighted Materials Invariably is a "Fair Use" under Section 107 of the Copyright Act of 1976

https://www.loc.gov/flicc/gc/fairuse.html 2.Code of Best Practices in Fair Use for Online Video.

https://cmsimpact.org/code/code-best-practices-fair-use-online-video/

RE: Whether Government Reproduction of Copyrighted Materials Invariably is a "Fair Use" under Section 107 of the Copyright Act of 1976 (Edited) MEMORANDUM FOR ANDREW J. PINCUS - GENERAL COUNSEL, DEPARTMENT OF COMMERCE FROM: Randolph D. Moss Acting Assistant Attorney General

https://www.loc.gov/flicc/gc/fairuse.html I. The Fair Use Doctrine Article I, section 8 of the Constitution empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, ยง 8, cl. 8.

Pursuant to that power, Congress enacted the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. ยง 101 et seq. (1994)) ("the Copyright Act" or "the 1976 Act"). Section 106 of the Copyright Act provides, inter alia, that the owner of a copyright under Title 17 of the United States Code "has the exclusive rights . . . to reproduce the copyrighted work in copies," and to "authorize" such reproduction. 17 U.S.C. ยง 106(1) (1994).

Those "exclusive rights," however, are "[s]ubject to" limitations codified in "sections 107 through 120" of the 1976 Act. Id. ยง 106. For present purposes, the most important of those limitations is found in section 107 of the Copyright Act, 17 U.S.C. ยง 107 (1994). That section, which is entitled "Limitations on exclusive rights: Fair use," provides, in pertinent part: Notwithstanding the provisions of section[] 106 . . . , the fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

These four statutory factors should not be treated in isolation, one from another. Campbell, 510 U.S. at 578. Nor are those factors exhaustive. See Harper & Row, 471 U.S. at 560; H.R. Rep. No. 102-836, at 9-10 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2561-62.(20) Most importantly, it is critical that the statutory factors, as well as all other pertinent factors and considerations, "be explored, and the results weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578 (emphasis added); see also id. at 581 (the fair use inquiry requires that any particular use of copyrighted material "be judged, case by case, in light of the ends of the copyright law").(21) Accordingly, before turning to particular factors and considerations that agencies should consider in the context of government photocopying, it is important once again to identify the "purposes of copyright."

Copyright law "ultimately serves the purpose of enriching the general public through access to creative works." Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994); see also Harper & Row, 471 U.S. at 545 ("copyright is intended to increase and not to impede the harvest of knowledge").

Thus, in determining whether a particular photocopying practice is a fair use, the ultimate question to be answered is whether permitting the government to continue to engage in the practice without paying a licensing fee would "serve[] the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity." Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990), cited with approval in Campbell, 510 U.S. at 578.(22) Section 107's "fair use" limitation on copyright, and the particular factors enumerated in that section, reflect and incorporate a longstanding common law doctrine. See Harper & Row, Publishers, Inc. v. The Nation Enterprises, 471 U.S. 539, 549 (1985). From the "infancy of copyright protection," courts have found it necessary to provide some opportunity for fair use of copyrighted materials in order "to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts.'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).

Before enactment of the 1976 Act, however, the fair use doctrine was "exclusively [a] judgemade doctrine." Id. at 576. When it codified the fair use doctrine in section 107 of the 1976 Act, "Congress meant 'to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way' and intended that courts continue the common-law tradition of fair use adjudication." Id. at 577 (quoting H.R. Rep. No. 94-1476, at 66 (1976) ("House Report"), reprinted in 1976 U.S.C.C.A.N. 5659, 5679; S. Rep. No. 94-473, at 62 (1975) ("Senate Report")); accord Harper & Row, 471 U.S. at 554.(4) As noted above, the fair use doctrine, like the copyright protections that it qualifies, is necessary in order "to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts.'" Campbell, 510 U.S. at 575; see also, e.g., Harper & Row, 471 U.S. at 545 ("copyright is intended to increase and not to impede the harvest of knowledge"). As the Supreme Court recently emphasized, "[t]he fair use doctrine thus 'permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" Campbell, 510 U.S. at 577 (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted)).(5) 5. See also Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) ("The doctrine of fair use limits the scope of the copyright monopoly in furtherance of its utilitarian objective. . . . Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design."); Fogerty v. Fantasy, Inc., 510 U.S. 517, 526-27 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)): "The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

CODE OF BEST PRACTICES IN FAIR USE FOR ONLINE VIDEO

https://cmsimpact.org/code/code-best-practices-fair-use-online-video/ Background: In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy.

Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features.

It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before.

Copyright law does not exactly specify how to apply fair use, and that is to creators’ advantage.

Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.

Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: • Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

COMMON FAIR USE MYTHS: IF I’M NOT MAKING MONEY OFIT, IT IS FAIR USE: Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If people want to share their work only with a defined closed-circle group, they are in a favorable legal position. But beyond that, in the digital online environment, wholesale copying can be unfair even if no money changes hands. So if work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in “commercial” settings.

IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE. Although nonprofit, personal, or academic uses often have good claims to be considered “fair,” they are not the only ones. A new work can be commercial—even highly commercial—in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.

FAIR USE CAN’T BE ENTERTAINING. A use is no less likely to qualify as a fair one because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.

IF I TRY TO LICENSE MATERIAL, I’VE GIVEN UP MY CHANCE TO USE FAIR USE. Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later, a maker still may decide to employ fair use. The fact that a license was requested—or even denied—doesn’t undercut an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.

While case law is of essential importance in establishing legal norms, it is the trend in case law that determines such norms. The trend in case law about fair use has strongly been in the direction of supporting transformativeness as a core measure of fair use. This puts the judgment about fair use back squarely in the hands of the new creators and platform providers, who must look carefully at how videos repurpose copyrighted works