Class 14 Copyright, Winter, 2010 Fair Use: Political Speech Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago

Class 14Copyright, Winter, 2010

Fair Use: Political Speech

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 20, 2023 Copyright © 2005-10 Randal C. Picker 2

Fair Use Amendment

FN 38: In 1992, section 107 was also amended to add the last sentence. Pub L. No. 102-492, 106 Stat. 3145


Sec. 107

New Final Sentence The fact that a work is unpublished shall not

itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Senate Version of Fair Use Amendment

S. 1035 The fact that a work is unpublished is an

important element which tends to weigh against a finding of fair use, but shall not diminish the importance traditionally accorded to any other consideration under this section, and shall not bar a finding of fair use, if such finding is made upon full consideration of all the above factors.


House Report

102-386 First, the word "itself" is designed to ensure

that the courts do not erect a per se rule barring any fair use of unpublished works. Each claim of fair use of an unpublished work should involve a careful consideration of all four statutory factors as well as any other factors the court deems relevant. …


House Report

At the same time, it is not the Committee’s intention to alter the weight currently given by the courts to the unpublished nature of a work under the second fair use factor. The general principles regarding fair use of unpublished works set forth by the Supreme Court in Harper & Row v. Nation Enterprises still apply.


Senate Statements

Senator Leahy (137 Cong Rec S 13923) The aim of this legislation, in brief, is to return

the fair use doctrine to the status quo of Harper & Row. In that case, the Supreme Court struck the proper balance between encouraging the broad dissemination of ideas and safeguarding the rights to first publication and privacy. Thus, we intend to roll back the virtual per se rule of Salinger and New Era, but we do not mean to depart from Harper & Row.


The Nation Article

TN: Ford also writes that, but for a misunderstanding, he might have selected Ronald Reagan as his 1976 running mate, that Washington lawyer Edward Bennett Williams, a Democrat, was his choice for head of the Central Intelligence Agency, that Nixon was the one who first proposed Rockefeller for Vice President, and that he regretted his “cowardice” in allowing Rockefeller to remove himself from Vice Presidential contention.

Ford: I was angry at myself for showing cowardice in not saying to the ultra-conservatives, “It’s going to be Ford and Rockefeller, whatever the consequences.”


The Nation Article

TN: Ford’s account of the Nixon pardon contains significant new detail on the negotiations and considerations that surrounded it. According to Ford’s version, the subject was first broached to him by General Haig on August 1, 1974, a week before Nixon resigned. General Haig revealed that the newly transcribed White House tapes were the equivalent of the “smoking gun” and that Ford should prepare himself to become President.

Ford: [I]t contained the so-called smoking gun.


The Nation Article

TN: Ford was deeply hurt by Haig’s revelation: “Over the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view.” Ford had believed him, but he let Haig explain the President’s alternatives.

Ford: [O]ver the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view. p. 7.


The Nation Article

TN: On Kissinger. Immediately after being informed by Nixon of his intention to resign, Ford returned to the Executive Office Building and phoned Henry Kissinger to let him know how he felt. “Henry,” he said, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you .”

Ford: “Henry,” I said when he came on the line, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you.” p. 46.


The Nation Article

TN: “Sir,” Kissinger replied, “it is my job to get along with you and not yours to get along with me.” “We’ll get along,” Ford said. “I know we’ll get along.” Referring to Kissinger’s joint jobs as Secretary of State and National Security Adviser to the President, Ford said, “I don’t want to make any change. I think it’s worked out well, so let’s keep it that way.”

Ford: “We’ll get along,” I said. “I know we can get along.” We talked about the two hats he wore, as Secretary of State and National Security Adviser to the President. “I don’t want to make any change,” I said. “I think it’s worked out well, so let’s keep it that way.” p. 46.


Talking at the White House

Hypo Ford and Kissinger have a conversation

What copyrights?


Answer

None Not fixed

Is this a work at all? How does one “author”?

102(a): Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression



Hypo Ford and Kissinger have a conversation The next day Ford writes down the

conversation Kissinger does the same

What copyrights? Would it matter if they each recorded their version of the conversation immediately afterwards?


Answer

Still none? Subsequent fixation vs. contemporaneous

fixation Original Work of Authorship? By Whom?


Answer

Says the 2nd Circuit in Harper & Row, 723 F.2d at 205-06: Moreover, the use of conversations

attributed to other persons cannot be a borrowing of copyrighted material, because of the Act’s requirement, 17 U.S.C. § 102(a), that an author’s work be his own and not originate in others. …


Answer

Appellants ask us to find that the words Ford spoke when he was in office may not be copyrighted by him as they, too, are “work[s] of the United States Government.” 17 U.S.C. § 105. We cannot go so far. The conversations originated with Ford, and, unlike the testimony before the Hungate Committee, were neither fixed as “writings” nor publicly delivered as part of any person’s “official duties.” 17 U.S.C. § 101.


Answer

Indeed, it pushes language beyond its common sense bounds to characterize Ford’s conversational words as “a work prepared” by him. Id. Although another may pluck the facts from unrecorded words uttered by a public official while carrying out his public tasks, the phrasing of the sentence itself may be copyrighted by that official if and when it is later written down.



Hypo Ford and Kissinger have a conversation Twenty years later, Ford writes down the

conversation What copyrights?


Answer

???



Hypo Ford and Kissinger have a conversation Ford secretly records the conversation

What copyrights?


Answer

Changes fixation analysis, but not work of authorship analysis



Hypo Ford and Kissinger have a conversation That night, Ford writes in his diary “Boy,

was Henry dumb today.” What copyrights?



Hypo Ford and Kissinger have a conversation Twenty years later, Ford writes in his book

“Boy, was Henry dumb that day.” What copyrights?



Hypo Ford and Kissinger have a conversation That night, Ford writes in his diary “Boy,

was Henry dumb today.” Reporter sees diary and publishes a news

story stating that “Ford didn’t think Kissinger was making much sense that day.”

What copyrights? Copyright violation?


Answer

Distinguishing Ideas/Facts and Expression, Again Says the 2nd Circuit in Harper & Row:

But we note in passing, though it is true these responses did originate with Ford and might be accurately described as his unique perspective, it seems to defy common sense to declare that the “states of mind” which play a role in the crucial political decisions of public officials are any less “fact” than any act which such an official may choose or not choose to undertake.


In the Supreme Court

Concession on Copyrightability of Some of the Expression

So What of Fair Use?


Understanding Publication

101: Publication is the distribution of copies or phonorecords of a

work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.


Understanding Publication

Key Questions Should the status of a work as published or

unpublished matter for fair use analysis? Is this just about the fourth factor, that is,

what the use means for the market for the work?

Or do we have a separate notion of authorial control, separate from market value?


Says The Majority

As to the Unpublished Status We conclude that the unpublished nature of

a work is “[a] key, though not necessarily determinative, factor” tending to negate a defense of fair use. Senate Report, at 64. … Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.


The Amount Used

(3) The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole 300-400 words from a 450-page book Too much?


The Market for the Work

Slicing the Rights The market for the book The market for the first serial rights Time pays $12,500, not $25,000


Pre-Feist: Does That Matter?

The Majority “Where an author and publisher have

invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication.”



The Dissent “Protection against only substantial appropriation

of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like ‘A Time to Heal’ reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one.



“The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian’s labor may be used without compensation. This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imagination. Congress made the affirmative choice that the copyright laws should apply in this way … .”


The First Amendment

What independent role should the First Amendment play with regard to the distribution of the story in the Nation? The Nation claims Ford’s expressions were

themselves newsworthy Is that wrong? If Ford gave an

extemporaneous speech regarding Kissinger, would that be newsworthy?

Documents

Class 14 Copyright, Winter, 2010 Fair Use: Political Speech Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago