Fair Use

Intro to IP – Prof Merges

3.1.2010

Sec. 107. Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The 4 Factors

(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.

Sony Part II

[W]e need only consider whether on the basis of the facts as found by the district court a significant number of [uses of the Betamax] would be noninfringing.

-- IPNTA 5th p. 606

IPNTA 5th at 608

• [T]he District Court’s findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity.

Effect on the Market

• Court notes that Universal does not represent all copyright holders whose works are copied by the BetaMax

• Some copyright owners grant permission to copy, others do not

• Fair Use preempts a market here . . .

Wendy Gordon: Fair Use as Market Failure

1992 Amendment

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” – Sec. 107

AGU v. Texaco

• Copying of academic journal articles

• Exhaustive analysis of 4 factors

Judge Newman opinion

• “[I]t is sensible that a particular unauthorized use should be considered ‘more fair’ when there is no ready market or means to pay for the use, while such an unauthorized use should be considered ‘less fair’ when there is a ready market or means to pay for the use.”

• -- IPNTA 5th p. 619

IPNTA 5th ed. at 620

• Would a well-functioning licensing market—such as that envisioned by the CCC and encouraged by Judge Newman—serve to promote both primary and cumulative creativity? Or would it simply add another transaction cost to scientific research?

IPNTA 5th ed. – p. 621

• Does the existence of licensing transactions vindicate Professor Merges’ conjecture about strong property rules producing effective licensing institutions? To the extent that licensing markets function well—i.e., producing efficient, low-cost access to scholarly works—is fair use needed?

2 Live Crue

Campbell v. Acuff-Rose Music, Inc.

• Facts • Procedural posture

– DC—commercial no bar/conjure up test/no market impact– C of A—commercial presumption(Sony); heart theft (Harper)

• Souter sets the stage– Must consider all 4 factors– It is always a case by case analysis– Footnote 10- damages instead of injunction

Campbell v. Acuff-Rose Music, Inc.

• Four factors– Purpose & Character of the use-- transformative use & effect on 2 3 4 and commercialism,

includes parody? Parody v. satire. Presumption? Role of commercial use? Fn. 18 re “good faith”

– Nature of the work parody special

– Amount & substantiality of portion used- the heart or all –tied to 1 and 4

– Market effect--- D & others, includes derivative market, Sony presumption? Lethal parody’s impact?Beneficial impact like song in a movie?

• Holding• Questions---Is parody unique? Where are we now?

Recap:Campbell v. Acuff-Rose Music, Inc.

• Must consider all 4 factors• It is always a case by case analysis• Transformative use favored, though not required • Parody is a transformative use • Parody must criticize P’s work, not society• Courts will not recognize derivative market for critical

works, but supplanting a derivative market for rap non-parody cuts against fair use

• Commercial not presumptively unfair• No presumption of market harm from commercial nature of

use unless mere duplication for commercial purposes

Bill Graham Archive v. Dorling-Kindersley Press

• Tickets and posters – images of Dead shows

• Incorporated into Defendant’s book

Lennon v. Premise Media

• 15 second excerpt from “Imagine”

• Incorporated into film about creationism and “academic freedom”

• "I'm extremely gratified to hear that Yoko Ono's attempts to silence our little film have not succeeded and that free speech is still alive and well in America," noted Stein. "There is a culture war going on in this country, but the numbers are with the traditionalists. While a few Americans may be interested in films like Bill Maher's Religulous, Expelled is the kind of film that most mainstream/traditionalists Americans are going to most resonate with and we are looking forward to great numbers when the DVD comes out."

Companion Case

• New York State Supreme Court, Aug. 13, 2008

• Preliminary Injunction for Capitol Records denied