CHAPTER 9 THE FAIR USE DEFENSE P AR T 1: I N T R O D U C T I O N
You may be familiar with the term “fair use.” When your high school biology teacher handed out copies of science articles for you to read in class or when you record a television show on your DVR device in order to watch it later, you may think of those actions as fair use. But are they? How do you know? P a g e | 496
It’s Raining Copyrights in Seattle!
“Copyrights Are All Around Us”
All of this begs the question: Do I need to obtain permission to use, copy, or display P a g e | 497
someone else’s work…even if it is in my living room? TIP: If you did not create or license the creative work you should get permission from the person that did. In some cases the “Fair Use” defense applies, but as you will see, it is not as easy to establish as many people think. Copyright is all around us, in the music we listen to, the movies and television we watch, and the stories we tell. It is understandable that the concept of fair use is probably the most familiar, and, unfortunately, the most misunderstood concept in copyright law.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Derivative Works)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE P AR T 2: W H A T
IS
FAIR USE?
In short “fair use” is a defense to copyright infringement that is written into the copyright law itself, at least in the United States. Great Britain, for example, does not recognize the fair use defense. This is understandable P a g e | 500
because the defense is a codification of the First Amendment to the United States Constitution. The First Amendment says, “Congress shall make no law . . . prohibiting . . . freedom of speech, or of the press. . .” The federal copyright law, is such a law because it prohibits people and businesses from using other people’s copyrighted material without permission – whether you are the press or otherwise. Copyright law limits “free speech” because we, as a society, believe that creators should be rewarded for their work and that the fruits of their labor should be given some protection.
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Weighing “Fair Use”
Fair Use Balances Between The Interests Of Copyright Protection And Fair Use
But this interest in protecting works must balance with society’s need to use artistic works. P a g e | 502
Interestingly, the Constitution has a “copyright clause� specifically giving Congress the authority to pass copyright laws. Hundreds of years ago, the founders of America understood that artists and writers must be protected. Now intellectual property (including movies, books, and music) is the United States’ second largest export! Copyright means that only the creator can exercise certain rights in his artistic work, such as the right to copy his work, to make derivative works, and, perhaps most importantly, to sell these copies and derivatives.
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The United States Constitution
Constitution Has A “Copyright Clause” Specifically Giving Congress The Authority To Pass Copyright Laws.
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For example, a copy of the work would be printing a copy of a book, whereas a derivative work would be making a screenplay from that book. The creator is known as the copyright holder and he has the exclusive right to limit the use of his work as he sees fit. The copyright holder also has the ability to allow someone to manage these rights for him as a licensor of that work. You have the same rights in things such as your vacation photos or short stories you wrote on the train to work today. Copyright, however, does not limit all copying. To balance the public interest, there is a loophole known as fair use where you are able to copy a work without getting permission first. P a g e | 505
As renowned artist Pablo Picasso once said, “Good artists copy, great artists steal.� The legal defense of fair use understands that in order for the arts to flourish some level of copying must be allowed.
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Pablo Picasso
“Good Artists Copy, Great Artists Steal.�
There is a difficult balancing act between the interests of authors and inventors in the P a g e | 507
control of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas and information on the other hand. The ultimate reason the United States grants the monopoly of copyright is to stimulate artistic creativity for the general public good. The monopoly created by copyright rewards the individual author in order to ultimately benefit the public.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Supreme Court Rules Against Costco)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE P A R T 3: I NF O R M A T I ON M U S T F L OW T O T HE S C I E N C E S & A R T S
For example, Tina is a scientist who wants to publish a revolutionary report on global warming. For the more imaginative, Tina has discovered the “zombie strain that threatens humanity.” P a g e | 510
Figurative “Zombie Strain�
Without Fair Use A Zombie Strain Might Threaten Humanity!
Tina is eager to release her important findings to the public and has worked tirelessly for months writing her report, inserting portions of all the studies that contributed to her discovery. P a g e | 511
Unfortunately for Tina, every time she copies someone else’s work without their permission she is committing copyright infringement. TIP: The copyright law does exclude “scholarship” from infringements but there are many cases where concern about what was covered caused material not to be used.
Luckily for us, fair use allows her to copy these reports without being “on the hook” for infringement, as long as she provides a citation to the copyright holder. Without the doctrine of fair use, the cost of repeating all those studies would be P a g e | 512
prohibitively high and the public would be deprived of her contribution to our knowledge of global warming (and zombies).
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Fair Use For Society
Fair Use Is Important For The Progress Of Science And Art.
Fair use is the most important exception to the exclusive rights of the copyright holder. P a g e | 514
Unfortunately, fair use has also been called “the most troublesome in the whole law of copyright.� The purpose of copyright law is to encourage progress in science and artistic expression, but if copyrights were enforced without exception, most creative expression would be liable for copyright infringement. Fair use is so important because it prevents copyright law from stifling the creativity it was designed to encourage by allowing limited use of an original work without permission. Since very few ideas in art and science are completely new and original, fair use allows people to engage in a permissible amount of borrowing that is necessary for progress. P a g e | 515
TIP: The Obama White House recently listed educating the public on fair use as one of its most important policy objectives.
Copyright law grants the copyright owner exclusive rights to use and authorize the use of his work in five qualified ways, including reproduction of the copyrighted work in copies.
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White House Report
“Fair Use Is A Core Principle Of American Copyright Law.”
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“The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists, songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair use is a core principle of American copyright law.� 2013 JOINT STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT
Copyright owners are, in effect, granted a monopoly over the use of their work. In some situations, however, strict enforcement of copyright would inhibit the progress in science and artistic expression that copyright is intended to promote. There is a difficult balancing act between the interests of authors and inventors in the P a g e | 518
control of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas and information on the other hand. The ultimate reason the United States chooses to grant the monopoly of copyright is to stimulate artistic creativity for the general public good. The monopoly created by copyright rewards the individual author in order to ultimately benefit the public. So, what kind of use qualifies as a fair use? Fair use is unfortunately a very uncertain defense to rely on because of its flexibility, but the doctrine must be flexible in order to adapt to new technology. Did you know, it was the printing press that originally gave rise to the need for copyright protection. Current advances in technology and P a g e | 519
the internet make copying easier than ever; they also make copyright protection and defining the doctrine of fair use extremely important.
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Fair Use & Technology
Fair Is Use Is Flexible To Adapt To Changes In Technology
A fair use is a type of reproduction that is allowed without permission. Fair use permits copying portions of copyrighted material for certain purposes including research, criticism, teaching, and comment.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (“Post-Greed”/ “IP Era”) Seattle PI (Apple doesn’t fall far from the Croc)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE P AR T 4: L I T I G A T I N G F A I R U S E UNCERTAIN
IS
Before we get too far into fair use, it’s important to point out that going to court over a fair use question can be both very expensive and very time-consuming. Since you do not know for sure if a use is fair until a judge says so, the risks of losing at court are significant. There is a P a g e | 523
financial risk, as well as the possibility that your creative work could be effectively destroyed by an injunction if your use is determined to not be fair. Although fair use is a defense to copyright infringement, it will not protect you from a copyright infringement lawsuit. Even if you think your use was a fair use, you can be sued for copyright infringement if you use a copyrighted work without permission. Although your use may be fair, you will have to spend money on legal fees just to find out if the court agrees that your use is fair. The following case helps illustrate the uncertainty of litigating fair use. After Google scanned and archived university library books without publisher permission, the book P a g e | 524
publishers sued for copyright infringement. Google thought that indexing and displaying portions of copyrighted works was a fair use, but still decided to settle with the book publishers. The fact that Google, one of the largest technology companies in the world, is unwilling to test the fair use defense is illustrative of its uncertainty.
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Google & Fair Use
Even Google Doesn’t Want To Go To Court Over Fair Use
Another one of the world’s tech giants, Amazon, agreed to deactivate its “tech-tospeech” function on Kindle for all books unless a copyright holder grants permission for a particular work. P a g e | 526
Google and Amazon can be reluctant to defend fair use in court, which shows that it does not matter how many resources you have at your disposal, it is always difficult to predict how courts will rule on fair use cases.
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Amazon & Fair Use
Since Amazon Doesn’t Rely On Fair Use For Speaking Books It Shows How The Doctrine Can Be Uncertain.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE P AR T 5: T HE F O U R F A C T O R S To comport with the free speech requirements of our Constitution, Congress wrote the “fair use” defense into the Copyright Act itself.
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Thus, even if you committed copyright infringement (See Chapter 1: “Did I Copy?�) you can still be okay, if this or another of the copyright defenses applies to you. The four factors to establish the fair use defense are:
Fair Use This Way
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The Fair Use Factors 1. The purpose and character of the use, including whether such use is of 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 4. The effect of the use upon the potential market for, or value of, the copyrighted work
In determining whether the use could be fair use, there are some guidelines courts consider in determining infringement. While the plethora of fair use cases provide examples of what is and is not considered fair use, all too often your fair use issue will be unclear. P a g e | 532
Plus, a review of the fair use factors comes after you are sued for copyright infringement. Although your use may be fair, you would have already spent money on legal fees just to hear the court’s opinion on these murky waters.
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Can I copy?
Copyright Protects Against Pirates
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With all that in mind, it would be helpful to have some guidance on what the court may consider. Fair use is defined in Section 107 of the U.S. Copyright Act, including the four fair use factors. Section 107 begins by giving several examples of when copying is not copyright infringement, such as criticism, comment, news reporting, teaching, scholarship, or research. But even these examples may be infringement after a balancing of the four factors! What to do in this upside down world? For example, in documentary filmmaking, one would argue that a documentary’s use of copyrighted material is to provide comment or criticism of the copyrighted material. So that would be fair use, right? P a g e | 535
It’s not that simple. Extensive footage from Fox News was used in the documentary Outfoxed: Rupert Murdoch’s War On Journalism to provide criticism and commentary regarding the network. Although it never filed suit, Fox News called use of these excerpts “illegal copyright infringement.” The makers of Outfoxed called it fair use. TIP: We will likely never know the answer to this question because Fox News did not file suit against the makers of Outfoxed. In making its determination, the court must look to the four “fair use factors:” Once the court has looked at the four factors, the court P a g e | 536
weighs them and determines if the evidence favors or disfavors fair use.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE P AR T 6: F A C TO R 1: W H A T A R E Y OU G OI N G T O M A KE ? The test under this first factor is to see whether the subsequent work transforms the original, or whether it simply serves as a replacement for the original. This is because the P a g e | 539
goal of copyright is to further art and science, and that goal is best served by the creation of transformative works. The first factor is the only one that considers the proposed use of the original. The other three factors all consider the original copyrighted work. Analysis of the first factor hinges on two considerations: the commercial nature of the work and also how transformative the second work is. These two considerations are inversely proportional: if the second use is not for profit it won’t need to be as transformative as a for-profit use to qualify for the defense of fair use. Let’s start with an example, take the following two photos.
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Factor 1
Annie Leibovitz’s Photograph Of Demi Moore
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Purpose, Character and Transformation of the Work
Leslie Nielsen’s Movie Advertisement
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Annie Leibovitz’s photo-graph of Demi Moore came before Mr. Nielsen’s photograph. Was the Leslie Nielsen photograph a copy of Annie Leibovitz’s photograph? A copy is considered to be “substantially similar” to an original work, so yes, it is a copy. TIP: Remember that if a copy is not substantially similar to the original then it is de minimis and there is no legally significant copying. Was there copyright infringement? Annie Leibovitz thought so. Paramount Pictures, on the other hand, thought their use was a fair use. Paramount considered their use “fair use” because it was a parody and was a “transformative” work that brought a new and different purpose to Leibovitz’s original photograph. P a g e | 543
TIP: This was fair use but the idea of parody played a part too. The first factor of fair use ties into these examples of what is not copyright infringement by being the only factor that considers the proposed use of the new work whereas the remaining three factors consider the original copyrighted work. The first fair use factor considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.� Analysis of the first factor hinges on two considerations: the commercial nature of the work and also how transformative the second work is. These two considerations are inversely proportional: if the second use is not for profit it P a g e | 544
won’t need to be as transformative as a for-profit use to qualify for the defense of fair use.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 7: SATIRE AND PARODY “PRETTY WOMEN” While satire and parody are not listed among the categories of preferred uses in section 107, they are often viewed as criticism or comment, which are listed as preferred uses in P a g e | 547
the statute. Parody may or may not be fair use, each individual case must be judged according to the four factors from the statute. A. PRETTY WOMAN EXAMPLE In 1989, 2 Live Crew parodied Roy Orbison’s classic song “Oh, Pretty Woman” with their song “Pretty Woman.” 2 Live Crew initially asked the rights holder of the original song for a license to use the song but they were denied. 2 Live Crew decided to proceed without the license. They produced and released their parody in which the distinctive original bass line from “Oh, Pretty Woman” was used and the lyrics (featured below) were changed. Read the lyrics later in this chapter and decide if you think P a g e | 548
the 2 Live Crew song was transformative enough for it to qualify as fair use. The U.S. District court in this case agreed with 2 Live Crew that their song was a fair use, the Sixth Circuit Court of Appeals agreed with the rights holder that it was not fair use.
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United By Fair Use
Roy Orbison
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2 Live Crew
"Oh, Pretty Woman" by Roy Orbison and William Dees Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet, Pretty Woman, I don't believe you, you're not the truth, No one could look as good as you Pretty Woman, won't you pardon me, Pretty Woman, I couldn't help but see, Pretty Woman, that you look lovely as can be Are you lonely just like me?
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"Pretty Woman" by 2 Live Crew Pretty woman walkin' down the street Pretty woman girl you look so sweet Pretty woman you bring me down to that knee Pretty woman you make me wanna beg please Oh, pretty woman Big hairy woman you need to shave that stuff Big hairy woman you know I bet it's tough Big hairy woman all that hair it ain't legit ['Cause you look like 'Cousin It']
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2 Live Crew took their fair use defense all the way to the U.S. Supreme Court, where the Court decided their song was fair use. Like the movie poster we discussed above, because 2 Live Crew’s song was commercial in nature it had to be more transformative than a use that was not commercial in nature. The Court held that the more transformative the new work is, the less significant the other statutory factors will be, including the work’s commercial nature. TIP: If the new work is made for non-profit educational purposes it has to meet a much lower threshold of transformation to be considered a fair use.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 8: SATIRE AND PARODY “FILK & PARODY” Filk is a popular form of parody where the performers make folk music that usually has a science fiction or fantasy theme. Not all filk songs are in the folk style, however, as some use other styles like blues and rock. Filk is generally performed by networks of people who originally P a g e | 555
gathered to sing at science fiction and/or fantasy conventions. Weird Al Yankovic is probably the most famous parody artist of the last few decades. Famous Purveyor of Parody
Are His Songs A Fair Use?
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We have a real life example of a filk parody by a popular filk band, The Knights of Solaris. Compare the lyrics to a Knights of Solaris song below to the lyrics of the song it’s based on, “Nights in White Satin” by The Moody Blues. If The Moody Blues decided to bring an action for copyright infringement against The Knights of Solaris, how do you think it would come out? Do you think The Knights of Solaris will be able to rely on fair use?
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“Nights in White Satin� by The Moody Blues
Nights in white satin, never reaching the end Letters I've written, never meaning to send Beauty I've always missed, with these eyes before Just what the truth is, I can't say any more
'Cause I love you, yes I love you, oh how I love you
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Knights of Solaris Theme
Knights of Solaris, for Lord and Land Courage in word and deed, never lie if you can Heroes of chivalry, all the ladies adore Justice and victory, dispensed by the sword
Don’t you love them, don’t you love them, oh how I love them
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Since the 2 Live Crew song seemed to have much more in common with “Oh, Pretty Woman” than the Knights of Solaris theme does with “Nights in White Satin,” it is probably safe to say the Knights of Solaris theme would be considered transformative enough to have the first fair use factor weigh in its favor.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 9: PURPOSE AND TRANSFORMATION As we saw with the previous parody examples the purposes of the creative works are crucially important to a finding of fair use. Jeff P a g e | 563
Koons is an artist who is known for incorporating into his artwork objects and images taken from popular media and consumer advertising. As you might imagine, his brand of “appropriation art� has gotten Mr. Koons into several copyright infringement lawsuits. The painting that is the subject of this case is featured to the right, along with the original photograph on the next page.
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“Niagara” by Jeff Koons
Is This Use “Fair?”
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Original Photo by Andrea Blanch
Has This Photo Been Infringed?
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The court found that Koons’ painting was transformative enough because he was not simply repackaging Blanch’s photo, but was using it to achieve new aesthetics along with new insights and understandings. Although Koons changed the colors, background, medium, and size of the picture, the the court definitely focused on purpose as the most important consideration in considering whether Koons’ painting was transformative enough. A. ARE THUMBNAILS TRANSFORMATIVE? In another case where the issue was whether the use was transformative, Google and Amazon were sued by Perfect 10, Inc. for copyright infringement for displaying thumbnails of Perfect 10’s photographs of nude models. Thumbnails are reduced-size versions of P a g e | 567
pictures. The Ninth Circuit focused on purpose of the use, saying the purpose of the original photos is to serve an entertainment, aesthetic, or informative function, while a search engine transforms the image into a pointer directing a user to a source of information. Interestingly, the court noted that a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work. The court said that since a search engine puts the images in a different context they are transformed into a new creation. This case is an important example because the court ruled that P a g e | 568
thumbnails that use the whole original image can be considered transformative. It is worth noting that this holding was limited to the context of search engines and does not mean people can put any image on their site just because the image is linking to the webpage of the original image. In holding that Google’s use was fair, the court focused on the important public utility that search engines serve, which is why this holding does not apply outside of search engines using images as thumbnails to direct users to the original content.
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TIP: Downloading the thumbnail image to your computer from Google would still be copyright infringement!
B. WHAT DOESN’T QUALIFY AS TRANSFORMATIVE? We previously discussed a case example involving a cover of The New Yorker magazine and a poster for the movie Moscow On The Hudson when we were discussing what qualifies as substantially similar to determine copyright infringement.
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Original New Yorker Cover
Was This Cover Infringed?
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Moscow On The Hudson
Is This Cover Infringing?
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That case is also relevant to our discussion of fair use because Columbia Pictures tried to say the defense of fair use applied to their movie poster. This case is different from Leibovitz because Columbia Picture’s movie poster was not a parody of the earlier New Yorker cover, nor did it seek to provide any commentary. As a result, the court found the movie poster committed copyright infringement because merely borrowing numerous elements from the New Yorker cover to create an appealing advertisement to promote an unrelated commercial product did not qualify as a fair use.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 10: FACTOR 2 WHAT KIND OF WORK DID YOU USE? While the first factor considered the proposed use of the original work in the secondary work, the next three factors only analyze the original work to help determine if a use should qualify as fair use. P a g e | 575
Under the second statutory factor, courts are required to examine the value of the copyrighted materials used and whether or not the materials are at the core of intended copyright protection. There is a stronger need to protect works that are creative, imaginative, and original than there is to protect works that are mostly informational or functional. This means that authors have more leeway to use material from factual works, than from works such as novels, poems, songs, and plays. That is not to say that factual works are not protected, they certainly are! But it is the expression contained within those factual works that matters more than the actual facts. The second statutory factor also leads courts to consider whether a copyrighted work P a g e | 576
has been published, disseminated, or otherwise made available to the public prior to its unlicensed use. Courts give more protection to works that haven’t been published or distributed to preserve the author’s right to choose in what context their work is featured. TIP: Publishing an author’s work before she has authorized it infringes on the author’s right to decide when and if her work will be made public. A. GERALD FORD V. THE NATION In 1974, President Gerald Ford pardoned former-President Richard Nixon for his involvement in the Watergate scandal. At the time, America was divided over whether Nixon should be pardoned or not. P a g e | 577
After leaving the White House, formerPresident Gerald Ford signed a contract with Harper & Row Publishers to publish his soon to be written memoirs, “A Time to Heal.” Anticipation was high across the country because in his memoirs would be the first time Mr. Ford explained his reasoning for pardoning Mr. Nixon Prior to publication of Ford’s book of memoirs and for a fee, Time Magazine contracted with Harper & Row to exclusively publish a 7,500 word section of Ford’s book relating to the Nixon pardon. Time planned to publish the excerpt one week before Ford’s book was published.
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A Time To Heal By Gerald Ford
Does A Book Have A “Heart”?
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Two to three weeks before Time planned to publish their exclusive excerpt, however, The Nation, a political commentary magazine, obtained an unauthorized copy of the Ford manuscript. The Nation used the manuscript to publish a news story consisting of quotes, paraphrases, and facts drawn exclusively from the manuscript. The editor of The Nation did not provide any commentary or criticism on Ford’s memoir. Instead, The Nation article consisted of approximately 300 words from the manuscript specifically related to Ford’s rationale for pardoning Nixon. After The Nation’s article went to press, Time cancelled its piece and refused to pay Harper & Row the balance of the contract. P a g e | 580
Gerald Ford On Time
Why Did He Pardon Nixon?
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The Nation
Was Their Excerpt Infringement?
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In short, Time was no longer the exclusive pre-publisher of the memoir and there would be no value in their article. As a result, Harper & Row sued The Nation for copyright infringement because they published the manuscript without permission. The District Court believed The Nation’s use of Ford’s memoirs was copyright infringement. The Second Circuit court of appeals, however, decided the excerpt was fair use and The Nation did not infringe. The U.S. Supreme Court began its analysis of the nature of the copyrighted work by noting that while Ford’s memoirs are a factual work, it still contains expressive elements that warrant protection. The Court then observed that the author’s right to control the first public P a g e | 583
appearance of his expression weighs against use of the work before it is released. Finally, the Court noted that The Nation’s use so clearly infringed Harper & Row’s interest in confidentiality and creative control that it couldn’t be characterized as “fair.” TIP: The main point of this case is to show that courts are very reluctant to find fair use where the original has not been published.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 11: ALPHA FLIGHT AND PRESIDENT FORD As a hypothetical, imagine if someone created a t-shirt company where they featured famous cells from comic books as graphics on the t-shirts. In 1992 Marvel Comics superhero Northstar came out as gay in “Alpha Flight” No. 106 (pictured below). If the t-shirt maker tried to use the defense of fair use, how do you think it would come out? P a g e | 586
Northstar In Alpha Flight
The Historic Issue
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The Historic Cell
Northstar Comes “Out” To The World
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Similar to the case involving Gerald Ford’s memoirs, it is likely a court would determine that using only the cell where Northstar came out is using the “heart� of that comic because that is what it is most known for. TIP: Despite the fact that the individual cell makes up a very small percentage of the comic book overall, it is qualitatively one of the most historic comic book cells of all time.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 13: PUBLICATION Although the Supreme Court has stated that the unpublished nature of a work weighs heavily against a finding of fair use in the case regarding Gerald Ford’s memoirs, that does not mean using an unpublished copyrighted work is never a fair use.
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In a later case, a biographer used unpublished letters and journals by the famous author Richard Wright without permission to help her write a biography of Mr. Wright. Richard Wright is best known as the author of the books Native Son and Black Boy. The U.S. District Court held that the biographer’s use of the journal entries and letters was a fair use.
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Author Richard Wright
Use Of Wright’s Unpublished Letters Was A Fair Use
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The Second Circuit Court of Appeals held that, although the unpublished status of the material made factor #2 lean against fair use, the other three statutory fair use factors were all in the biographer’s favor so the use of the unpublished letters and journals was found to be a fair use. TIP: Remember as we go through each statutory fair use factor that they need to be judged as a whole in every case.
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ON-LINE REFERENCES
Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 12: FACTOR 3 : HOW MUCH OF THE ORIGINAL DID YOU USE? Under the third statutory factor, courts examine how much of the original copyrighted work was used by the author of the second work. Generally, the more of a work you use, the less likely a court is to call your use fair. P a g e | 596
There are no set limits, however, for determining whether or not a use is fair. In some cases copying the entire original work has been a fair use, while other times using a small percentage of the original will not qualify as a fair use. It all depends on the circumstances. Courts look at both the quality, and also the quantity of the original that was used in determining whether or not a use was fair under the third statutory factor. The more important the portion used was to the original, the less likely a court will call the use fair. Recalling the example concerning Gerald Ford’s memoirs above, the portion published by The Nation was only 300 words from Ford’s 200,000 word manuscript. The court decided the use was not fair because the material quoted dealt with the Nixon pardon, which was the “heart of the book… the most interesting and moving parts of the entire manuscript.” P a g e | 597
As the following cases illustrate, the question of what constitutes the “heart of the work� is not an easy question and its answer depends on what was copied, how much was copied, the form in which it was copied, and how important the copied portion is to the original work as a whole. A. THE ESPIONAGE LETTERS In June 1953, Julius and Ethel Rosenberg were executed after their conviction for conspiracy to commit espionage during a time of war by transmitting information about the atomic bomb to the Soviet Union. The Rosenbergs were the only two American civilians executed for espionage during the Cold War.
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The Implosion Conspiracy
Using Letters That Make Up Less Than 1% Of A Book Can Be Substantial
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In 1973, Louis Nizer authored a book about the Rosenberg trial titled The Implosion Consipiracy. After publication, the Rosenberg’s two children sued Nizer for copyright infringement for having incorporated into his book substantial portions of letters written by the Rosenburgs without permission from their heirs. The U.S. District Court dismissed the case, meaning the court did not believe there was infringement because Nizer’s use was fair. B. HOW MUCH OF A CHARLIE CHAPLIN MOVIE CAN I BORROW? CBS wanted to make a documentary about Charlie Chaplin and sought permission to use excerpts from Chaplin’s films in their production. Roy Export owned most of the P a g e | 600
copyrights and repeatedly denied CBS’s requests to use the films. Despite not having permission, CBS went ahead and broadcast the documentary containing Roy Export’s copyrighted material.
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Charlie Chaplin In City Lights
How Much Of A Charlie Chaplin Movie Is A Substantial Use?
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CBS argued that its use of the copyrighted Chaplin films was not substantial because only a short excerpt from each film was used. Many of the clips used were less than a minute long from 90 minute movies. CBS admitted, however, that the scenes they chose to use were what they considered to be among Chaplin’s best and the scenes were central to the respective films. The U.S. District Court concluded that while CBS used a small quantity, it was a qualitatively great use because the scenes were central to the films. Similar to the case that dealt with Gerald Ford’s memoirs, the court in this case decided the third statutory factor went against CBS because the clips they used constituted the “heart” of the copyrighted Chaplin films. P a g e | 603
C. WHAT IS THE “HEART” OF MONSTER MOVIE MAGAZINES? James Warren published magazines catering to the monster movie audience. On the cover of each magazine, he featured movie monster artwork from many artists, including Basil Gogos. In 2006, J. David Spurlock compiled a book that intended to be a biography and career retrospective of Basil Gogos, which featured twenty-four copies of Gogos’s monster artwork that was previously used by Warren as magazine covers. Warren was essentially claiming that Spurlock was using the “heart” of his monster magazines by using their covers.
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Warren’s original magazines ranged from 68-100 pages, and the art that Spurlock used amounted to 1-1.5% of each magazine. The use was not quantitatively significant. Warren argued that the magazine covers were qualitatively significant and constituted the “heart� of the magazine.
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The Art of Basil Gogos
The “Heart” Of A Magazine Is The Content, Not The Cover
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The U.S. District Court disagreed with Warren, and said the “heart” of the magazines was the content of the magazines, which consisted of information on the monster movie genre, not the illustrated covers. As a result, the third fair use factor weighed in favor of Spurlock and his use was called a fair use. TIP: A court will almost never conclude that your use is fair if you take the “heart” of the original work
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
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CHAPTER 9 THE FAIR USE DEFENSE PART 13: ARE UNAUTHORIZED GUIDE BOOKS A FAIR USE? The copyright holders to Seinfeld, the Harry Potter series, and Twin Peaks have all brought copyright infringement claims against people who made unauthorized guides based on their original copyrighted material. P a g e | 609
Each guide contained numerous direct quotations and paraphrases of the original work they were based on. In each case the court found that the third fair use factor weighed against the defendants because the quoted and paraphrased material was not only quantitatively great, but also represented qualitatively important parts of the copyrighted material. As we saw with the last few examples, there is a good chance courts will not find fair use even when the person only borrows a small quantity of the original if they took the “heart� of the original. With the guidebook examples we see that when a large amount and important parts of the P a g e | 610
original are used there is an even less likely chance a court will call the use fair. The amount of copyrighted material used by an alleged infringer is important because it goes to the heart of copyright protection, which is to encourage people to make new contributions to art and science. TIP: If fair use allowed people to take substantial portions of copyrighted material, there would be little incentive to create new works
In the Seinfeld case, the publisher of the Seinfeld Aptitude Test (SAT) argued that it only copied un-copyrightable facts about Seinfeld. P a g e | 611
Future Supreme Court Justice Sonia Sotomayor disagreed, noting that the SAT does not pose “factual� questions about Seinfeld such as who directs the show or how many seasons it has run.
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Seinfeld
The Original Source
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The Seinfeld Aptitude Test
The Infringing Material
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The SAT was devoted to questions concerning creative components of Seinfeld that were the original expression of the creators of the show. The court held the SAT did not represent a fair use of Seinfeld. The court held that the first fair use factor favored the SAT because it was transformative, but the other three fair use factors were in favor of the Seinfeld rights holders. The court said the most important consideration in this case was that the SAT occupied a market for derivatives that the Seinfeld rights holders controlled.
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In the Harry Potter case, publisher Warner Bros. and author J.K. Rowling sued another publisher for trying to print The Harry Potter Lexicon, a guide to the Harry Potter fictional universe. The U.S. District Court found that the Lexicon was transformative because it serves a reference purpose, in contrast to the entertainment purpose of the original work. The first factor did not weigh completely in favor of the Lexicon’s publisher, however, because the Lexicon’s actual use of the copyrighted material was not consistently transformative since many of its portions took more of the copyrighted material than was reasonably necessary. P a g e | 616
Harry Potter
The Original Source
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The Harry Potter Lexicon
The Infringing Material
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The creative nature of the copyrighted works (The Harry Potter books) and the harm to the market for companion books written by Rowling weighed in favor of the rights holders. The court held that reference guides to works of literature should be generally encouraged, but they should not be allowed to plunder the work of authors without paying or authors could lose incentive to create new works. TIP: Remember that a party does not need to “shut-out� their opponent on all four fair use factors to win.
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In the Twin Peaks case, a company published a book of trivia about the television show Twin Peaks that included paraphrases from the TV show and descriptions of plot, character, and setting. The District Court found the book infringed on the original and was not a fair use. The Court of Appeals affirmed. The Court of Appeals emphasized that the amount of material taken was substantial and the guidebook adversely affected the potential market for authorized guidebooks about Twin Peaks.
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Twin Peaks
The Original Source
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The Twin Peaks Guide
The Infringing Material
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page)
Seattle PI (Seattle PI Main Page)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 14: FACTOR 4 WILL YOUR USE HARM THE ORIGINAL’S MARKET? The fourth factor considers if the infringer’s use of the original copyrighted work would impair the marketability of the original, and also whether it would act as a market substitute for the original.
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TIP: It is up to the infringer to show there is no harm to the potential market for the individual work, and it is almost always difficult to prove a negative.
Courts not only consider the primary market for the copyrighted work, but also the current and potential market for derivative works. The copyright owner only needs to show that if the use becomes widespread, the potential market for the copyrighted work would be adversely affected. Remember that a finding that a work has a negative impact on the derivatives of an original work weighs against fair use.
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TIP: If you want to copy a copyrighted work you have to consider the market harm that would occur if similar copying by other became widespread. The point of the fourth fair use factor is that people cannot sell secondary works based on copyrighted material that would take potential customers away from the original. If people read the secondary work they will not be inclined to purchase the original since they have essentially already read it. The focus is whether the allegedly infringing use tends to interfere with the sale or marketability of the copyrighted item. The analysis of whether the disputed use offers a market substitute for the original overlaps to some extent with the question of P a g e | 626
whether the use was transformative, since if the disputed work is truly transformative it won’t be a market substitute for the original. TIP: The more the subsequent work differs from the original, the more likely it will be aimed at a different market. A. THE NINTENDO EXAMPLE Lewis Galoob Toys manufactured a device called the Game Genie, which allowed a player to change up to three features of a Nintendo game. For example, the Game Genie could be used to grant extra lives, increase game speed, and to allow a character to go through obstacles. The Game Genie worked by blocking data from the Nintendo game cartridge to the Nintendo and replacing it with new data. P a g e | 627
Nintendo sued Galoob for copyright infringement. Regarding the fourth factor of the fair use analysis, Nintendo argued that the potential market harm test included harm to the market for any derivative works Nintendo may produce similar to the Game Genie. The U.S. District Court decided that the Game Genie did not infringe Nintendo’s copyrights.
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A Nintendo Entertainment System
Are Game Genies Infringing?
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The Game Genie Is Fair Use
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The Ninth Circuit Court of Appeals did not accept Nintendo’s argument, noting that (1) Nintendo did not produce altered versions of existing games similar to what was produced by Game Genie; (2) Nintendo failed to show that such a market might exist; and (3) Nintendo also admitted they had no plans to enter such a market. The court decided the fourth factor was in Galoob’s favor, and they also decided that overall the Game Genie was a fair use.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
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CHAPTER 9 THE FAIR USE DEFENSE PART 15: THE SONY BETAMAX EXAMPLE In 1975, Sony introduced their Betamax videocassette recorder (now known collectively as VCRs) to the United States, and the very next day Americans used their new VCRs to record TV without permission from the copyright holders. P a g e | 633
One of those copyright holders, Universal Studios, sued Sony in 1976 and claimed that Sony was committing copyright infringement by selling Betamax equipment to the general public.
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The Sony Betamax
Is Watching Whatever Whenever A Fair Use?
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Universal claimed that recording copyrighted works infringed Universal’s copyrights and Sony was liable for this alleged infringement because Sony both manufactured the Betamax device and also marketed its ability to record broadcasts. The Court referred to copying TV shows to watch later as “time shifting.” Another copyright holder testified at the trial. Fred Rogers of the children’s program Mr. Rogers’ Neighborhood testified that his audience of over 3,000,000 families benefitted from the ability to record his programs and view them at a more convenient time.
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Mr. Rogers
Even Mr. Rogers Argued In Favor Of Fair Use!
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The trial court found that the noncommercial home recording of broadcasts was a fair use. The Ninth Circuit Court of Appeals, however, held that it was not a fair use because it would “tend to diminish the potential market for [Universal’s] works.” The U.S. Supreme Court focused on how home recording is not done for profit in deciding that it was a fair use. In terms of market harm, a vast majority of home users used their Betamax for noncommercial home use, so there was no evidence that Universal’s market for their copyrighted work was harmed.
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The Sony Betamax
The Makers Of This Amazing Machine Were Not “On The Hook� For Contributory Infringement
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live television, instead preferring to watch their recorded video. The Court rejected this argument and held that Universal failed to demonstrate their market would be harmed by home time-shifting. A. J.D. SALINGER EXAMPLE Another case where the fourth factor was a key consideration involved an unauthorized biography of J.D. Salinger and its use of some of his private letters. Ian Hamilton was the author of the biography and he sought Salinger’s cooperation but the famously reclusive author refused.
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Hamilton obtained several of Salinger’s unpublished letters from university libraries and used them in his biography.
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J.D. Salinger
Can His Personal Letters Be Used Without Permission?
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Salinger sued Hamilton and Hamilton’s publisher to keep them from publishing the biography. Regarding the fourth fair use factor, the court said publishing the biography would likely impair the market for Salinger’s letters if they were published. TIP: It did not matter that Salinger said he had no intention to publish the letters because the fourth fair use factor concerns the potential market.
Authors are entitled to protect their opportunity to sell unpublished letters, and in this case Salinger’s literary agent estimated the unpublished letters have a current value in excess of $500,000.
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The Infringing Unauthorized Biography
This Use Was Not Fair
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The Second Circuit concluded that the fourth factor weighed in Salinger’s favor because the biography copied “virtually all of the most interesting passages of the letters, including several highly expressive insights about writing and literary criticism.” The claim of fair use to Salinger’s letters failed in part because the biography would have impaired the market for Salinger’s letters.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Mr. Rogers Video Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 16: THE FAIR USE MYTHS OF COPYRIGHT LAW Here are a few of the de-bunked myths about fair use in copyright cases. P a g e | 647
Myth Busters No. 29
If one of the four factors weighs strongly in my favor the fair use defense will work in my case. In every single case the court will consider all four factors in the specific context of the facts of that case to determine if the use was fair. There is no way to definitively know if your use will qualify as a fair use until a court says it is. Just because one of the four factors is strongly in your favor does not mean a court won’t think the other three factors go against you.
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Myth Busters No. 30
Someone made money by ripping off one of my copyrighted images for an advertisement. Since they are profiting they will surely be liable. They may be liable, but refer to the Consumer Reports and Naked Gun examples for situations where advertisements were fair use. If the advertisement serves the public good or is a parody there is a chance it will be fair use.
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Myth Busters No. 31
I only used a clip from a movie that was less than 1% of the original film. My use was definitely a fair use! Not so fast. If a court determines you took the “heart� of the original film, there is still a good chance you will be liable for copyright infringement.
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Myth Busters No. 32
A teacher copied my entire article and distributed it to his class without my permission. Surely copying an entire work can’t be fair use. While it is generally true that the more you use of an original work, the less likely you can use the defense of fair use, the fact that your article was copied for a nonprofit educational purpose will weigh heavily in favor of fair use.
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Myth Busters No. 33
Someone copied part of my unpublished work in their book, surely that can’t be legal! It is very unlikely that courts will call copying portions of an unpublished work fair use, but refer back to the case involving Richard Wright for an example of fair use of an unpublished work.
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Myth Busters No. 34
I transformed the original work that I copied, so surely my use is fair! Remember that one of the exclusive copyrights is the right to prepare derivative works. Derivative
works,
by
definition,
are
transformative. There are varying degrees of how transformative something is, however, and all four factors must be weighed before your use can be considered fair by a court.
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Myth Busters No. 35
My use is just like one of the case examples from this chapter, so I can’t get taken to court for infringement! First, whether or not your use is fair must be determined in court. So, you may still end up in court, even if you may not end up being liable. Second, every fair use case involves a very factintensive determination. So remember that even if you think your case is the same as a prior case, the court may not agree with you.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 9 THE FAIR USE DEFENSE PART 17: JUST THE ESSENTIALS
Here some of the essentials of the “fair use” defense are made into bite size portions.
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Just the Essentials
Factor 1: “Transformation� Factor #1 will weigh against the subsequent work if it merely serves as a substitute for an original, and will weigh in favor of the subsequent work if a court determines the use is transformative. The subsequent work will need to be more transformative if it is made for profit, rather than for a non-profit educational use.
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Just the Essentials
Factor 2: “Creative or Factual� Factor #2 will weigh against the subsequent work if the prior work is creative, such as an original novel, painting, or song. Factor 2 will weigh in favor of the subsequent work if the prior work is factual, such as a scientific study. Factor 2 will weigh very strongly against the subsequent work if the prior work was unpublished.
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Just the Essentials
Factor 3: “Heart Of The Work”
Factor #3 will weigh against the subsequent work if a court determines it serves as a replacement for the original. The less you take the more likely factor 3 is to weigh in your favor. The quality of what you take is very important, if a court believes you took the “heart” of the original work it is highly unlikely factor three will weigh in your favor.
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Just the Essentials
Factor 4: “Potential Market� Factor #4 will weigh against the subsequent use if it could impact the potential market for the original work. It will weigh in favor of the subsequent use if it is transformative enough to target a different market than the original. The subsequent user must not only consider their harm to the market, but the harm to the market if similar copying was done by others.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle PI Main Page)
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http://thetradesecretsofintellectualproperty.com/
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