COPYRIGHT LAW 2006

Columbus School of Law

The Catholic University of America

Prof. Fischer

April 25, 2006

Fair Use

• What is fair use?

• Why does copyright law have a doctrine of fair use?

Codification of Fair Use

• Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision?

Codification of Fair Use

• Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision? At 17 U.S.C. section 107

• According to this section, how should a court determine whether a use made of a copyrighted work is a fair use that would exempt the use from liability for infringement?

Fair Use Factors

• (1) purpose and character of the use (commercial or non-commercial eg. educational?)

• (2) nature of copyrighted work (fact or fiction?)• (3) amount and substantiality of amount used• (4) effect on the market for the copyrighted work• Does it make any difference if a work is

unpublished?

Fair Use Factors

• (1) purpose and character of the use (commercial or non-commercial eg. educational?)

• (2) nature of copyrighted work (fact or fiction?)• (3) amount and substantiality of amount used• (4) effect on the market for the copyrighted work• Does it make any difference if a work is

unpublished? NO

Fair Use is VERY fact-specific

• Section 107 restates judicial doctrine of fair use• Fair use is essentially an “equitable rule of reason”

so there is no “generally acceptable definition”• Each case must be decided on its own facts• There are no bright-line rules, as Justice Souter

has stated.• Of course, this makes it hard for lawyers to advise

clients on when a particular use of a copyrighted work will be a fair use.

Fair Use and Parody: The Acuff-Rose case

• How does Justice Souter apply the 4 fair use factors to analyze whether the rap song’s use of the Roy Orbison song is a fair use?

• Does it make any difference that the rap song is commercial?

• Does it matter if the parody is in bad taste, or not funny?• Do you agree with Justice Souter’s analysis? Why or why

not?• Do you agree with the outcome/reasoning in the Barbie

case in your supplement?

The Cat in the Hat case

• Why did the court rule against the parody defense for the book on the O.J. Simpson Trial?

Annie Leibovitz Naked Gun Case

Annie Leibovitz Naked Gun Case

• Why did Leibovitz sue over the “Naked Gun” ads. Did fair use apply? Why or why not? Is this consistent with the Dr. Seuss case?

Gone With the Wind case Suntrust Bank v.Houghton

Mifflin (11th Cir. 2001)

• According to the 11th Circuit, should the The Wind Done Gone be treated as a fair use parody even though it was not comic? Why or why not?

• Do you agree?

Seinfeld case: Castle Rock v. Carol Pub. (2d Cir. 1998)

• Was the preparation and sale of Seinfeld Aptitude Test a fair use, according to the Second Circuit? Why or why not?

Fair Use Generally

• Are all these cases just hopelessly inconsistent?

• How does one advise a client on the issue of fair use?

• How, if at all, should the doctrine be changed?

Fair Use Generally: To Consider

• Are all these fair use cases that we read in the last class just hopelessly inconsistent?

• How does one advise a client on the issue of fair use?

• How, if at all, should the doctrine be changed?

Sega v. Accolade: Intermediate Copying

• Accolade is a game developer that made and markets game software that was compatible with Sega’s Genesis console, without being a licensee of Sega.

• How did Accolade make sure its games were compatible with Sega’s console?

Sega v. Accolade: Intermediate Copying

• 1. Reverse engineered Sega’s video game programs - used decompilation to dissasemble object code to source code and created a manual that included description of interface requirements but not code.

• 2. Relying on information in the manual, Accolade created games for the Genesis.

Is Intermediate Copying Infringement?

• Did the 9th Circuit in Sega find that intermediate copying constituted a copyright infringement where copies were not made available to the public but the fruits of the copying were?

Is Intermediate Copying Infringement?

• Did the 9th Circuit in Sega find that intermediate copying constituted copyright infringement where copies were not made available to the public but the fruits of the copying were? Intermediate copying during the reverse engineering process would infringe even if the end product did not.

Is Reverse Engineering Fair Use

• Did the 9th Circuit in Sega find that reverse engineering was a fair use? How did the 9th Circuit apply the fair use factors?

Is Reverse Engineering Fair Use

• Did the 9th Circuit in Sega find that reverse engineering was a fair use? Yes, “where disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access”. Found 1st, 2d and 4th fair use factors to support Accolade. Particular concern about unfair monopolization fo market.

Sony v. Connectix (9th Cir. 2000)

• Issue\ here: entrepreneur reverse-engineers a console’s operating system to create a rival console that plays Sony games.

• In Accolade, the entrepreneur reverse engineered the operating system to sell compatible computer games. Thus the reverse engineering resulted in a product that did not compete with the reverse engineered work, whereas in Connectix, it did.

Sony v. Connectix (9th Cir. 2000)

• Issue here: entrepreneur reverse-engineers a console’s operating system to create a rival console - does that matter when considering first and fourth fair use factors?

Sony v. Connectix (9th Cir. 2000)

• Issue here: entrepreneur reverse-engineers a console’s operating system to create a rival console - does that matter when considering first and fourth fair use factors?

• No - both factors support fair use. Connectix’s Virtual Game Station is transformative and does not just supplant the Sony PlayStation; Connectix is a legitimate competitor.

Sony v. Bleem (9th Cir. 2000)

• What did Bleem do that Sony termed an infringement?

• Did the 9th Circuit find that Bleem’s use of Sony’s copyrighted work was a fair use?

• Why or why not?

Kelly v. Arriba

• Was Defendant's display on a visual search engine of lower resolution "thumbnails" of copyrighted images appearing elsewhere on the Internet, without the copyright owners' permission, a fair use?

• What about the display of the full image?

• Does Google’s visual search engine infringe copyrights?

Kelly v. Arriba

• Defendant's display on a visual search engine of lower resolution "thumbnails" of copyrighted images appearing elsewhere on the Internet, without the copyright owners' permission, is a protected fair use of those images under the Copyright Act.

• The court further holds that defendant's display of the full copyrighted image as part of its search engine results, either via inline linking or framing, infringes the copyright owner's right to publicly display the work.

• Does Google’s visual search engine infringe copyrights?

REMEDIES

• What remedies are available for civil copyright infringement?

REMEDIES

• Section 504• A. DAMAGES (either actual damages

and profit OR statutory damages) s. 504• B. INJUNCTIVE RELIEF (s. 502)• C. SEIZURE/IMPOUNDMENT (section

503)• D. COSTS/ATTORNEYS FEES (s. 505)• (PROPERTY TYPE OF REMEDIES)

INJUNCTIONS

• More routine than in many other civil cases• Preliminary injunctive relief is generally

awarded if P establishes p.f. case on validity and infringement (irreparable injury is presumed)

• Permanent injunction generally awarded if copyright validity and infringement are found

OTHER NONMONETARY RELIEF

• Impounding and destruction of infringing articles (section 503)

ACTUAL DAMAGES/PROFITS

• What are actual damages?

• (See Frank Music Case)

ACTUAL DAMAGES/PROFITS

• Actual damages are extent to which market value of copyrighted work has been injured or destroyed by an infringement including fair market value of licensing fee (Davis)

• If too speculative, will not be awarded• Punitive damages are not generally

awarded in copyright actions

INFRINGER’S PROFITS

• What profits is a prevailing plaintiff permitted to recover in a copyright infringement action?

What must P prove? - see Davis case

INFRINGER’S PROFITS

• Prevailing P can recover infringer’s profits if attributable to infringement

• Plaintiff is only required to prove D’s sales that are reasonably related to the infringement

• Burden then shifts to D to prove elements of costs to be deducted from sales in arriving at profit.

• Doubt about computing costs/profits should be resolved in P’s favor.

FRANK MUSIC

• Had defendant met its burden in proving element of costs to be deducted from sales in arriving at profit?

• Why or why not? • Can a copyright proprietor recover “indirect

profits”?• How should profits be apportioned?• To what extent are joint defendants liable for an

award of profits?

STATUTORY DAMAGES

• What are statutory damages?• Can you recover statutory damages as well as

actual damages and profits?• Are there any prerequisites for statutory

damages? See s. 412• When must P elect statutory damages?• What amount of statutory damages may a court

award? What if infringement willful?

DIGITAL THEFT DETERRENCE AND COPYRIGHT DAMAGES

IMPROVEMENT ACT

• 1999 legislation raising statutory damages by 50% (See supplement)

STATUTORY DAMAGES

• See s. 504©• Statutory damages can be between $750 and

$30,000 per work “as the court considers just”• For willful infringement, statutory damages can

be increased to no more than $150,000.• If infringement innocent, statutory damages can

be reduced to $200

COMPILATIONS/DERIVATIVE WORKS

• For purposes of statutory damages, all parts of compilation/derivative work are to be regarded as constituting a single work

ENGEL V. WILD OATS

• What was the issue for the Southern District of New York?

• How did it resolve this issue?

LESSIG

• The Future of Ideas

COSTS AND ATTORNEY’S FEES

• See Fogerty v. Fantasy (1994)

• What was the subject of the split in the circuit?

• How did the Supreme Court rule on this split?

• Is Judge Posner’s statement in Gonzalez (see supplement) sound?