Fair Use in the USA

William J. Moner // RTF 365

October 20, 2011

Course Notes

Craig Aaron

http://www.freepress.org

Papers

upload it to two places on blackboard: the Discussion

Board as well as the Assignment area.

Quick Recap

U.S. Constitution, Article I, Section 8, clause 8

Congress shall have the power:"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. major laws:

1790, 1831, 1870, 1909, and 1976, plus the Digital Millennium Copyright Act (DMCA) of 1998

Twelve extensions of the term of copyright, including retroactive extensions in the past few decades.

What is Copyright Infringement?

A violation of three elements:

Originality

Access

Substantial Similarity

What is Originality?

Ex nihilo?

Or simply “original enough”

What is Access?

If you don’t know it exists, you can’t copy it

What is Substantial Similarity?

Distinction between exact replicas/copies and

similarity

The scientific proof? “Reasonable Person” test

What can be used without fear of copyright

violation?

Facts

Ideas

Public Domain Materials

Idea/Expression Merger

scenes-a faire doctrine

What about Copyrighted Works?

Oh, Pretty Woman…

Oh, Hairy Woman…

Fair Use

The most commonly invoked defense against

copyright infringement claims

To use this defense, defendants must admit to

copying the plaintiff’s work

Four Inquiries

Copyright Code, Section 107 of Title 17 of US

Code (17 USC 107)

Purpose and Character of the use

Nature of the Work

Amount Taken

The Effect of the Taking on the Copyright’s Value

Additional Inquiries (not in Code):

Noted by observation of recent case law:

The Intent and Motives of the Defendants

The relationship of the “use” to the exercise of free

speech

Miller & Davis (1990, pp. 349-350)

Decisions Must Satisfy a Combination of

these Inquiries

In other words, these inquiries are

interdependent

Inquiry 1:

The Purpose and Character of the Use

Non-profit educational uses (within limits)

“criticism, comment, news reporting, teaching

(including multiple copies for classroom use),

scholarship, or research”

Purpose and Character…

“Pretty Woman” by 2 Live Crew is protected as

parody

“The Cat Not in the Hat: A Parody by Dr. Juice”

by Alan Katz is not protected as parody

Purpose and Character…

Naked Gun / More Demi Moore

Purpose and Character…

Sony VCRs

Purpose and Character …

Non-profit educational use guidelines:

Brevity

Spontaneity

Cumulative effect

From Agreement on Guidelines for Classroom Copying in

Not-for-Profit Educational Institutions (Classroom

Guidelines)

Distinction between not-for-profit and

commercial

Inquiry 2:

The Nature of the Work

Works not yet published

e.g. Ford’s biography, Hubbard’s biography

Counts against assertion of fair use, but not solely a

determining factor (as is the case with most

individual inquiries)

Facts and Statistics vs. Creative or Imaginative

Work: which is more easily defensible?

Inquiry 3:

The Amount or Proportion Taken

“the amount and substantiality of the portion used

in relation to the copyrighted work as a whole”

(from 17 USC 107)

Dependent upon nature of the work and the

nature of the use

Parodies can take more; commercial derivatives

can’t borrow as freely

Inquiry 4:

The Effect on Value / Economic Harm

Justice O’Connor: this inquiry “is undoubtedly

the single most important element of fair use.”

Let’s talk about the Sony case … does the VCR

and taping of programs or videos effect the value

of a given commercial product’s copyright?

The Effect of “Taking”…

Literary works such as The Seinfeld Aptitude

Test or Welcome to Twin Peaks: A Complete

Guide to Who’s Who and What’s What

Why hasn’t anyone sued Girl Talk? Or Kutiman?

Girl Talk & Kutiman (time permitting)

Great site for sampling research:

http://www.whosampled.com/

Why hasn’t Girl Talk been sued?

Kutiman: http://thru-you.com/#/intro/

I Got AMashup…

Legendary K.O.

via

Kanye West

via

Ray Charles

via?

From Boyle (2008) The Public

Domain

References: 2 Live Crew. “Pretty Woman.” Accessed via Spotify.

Aoki, K., Boyle, J., Jenkins, J. “Bound By Law: Tales from the Public Domain.” Duke Center for the Study of the Public Domain. Retrieved from http://www.law.duke.edu/cspd/comics/digital.php

Benedict.com. “Annie Liebovitz and the Naked Gun.” http://www.benedict.com/Visual/Nakedgun/Nakedgun.aspx

Boyle, J. (2008) The Public Domain. Chapter 6. http://www.thepublicdomain.org/download/

Charles, R. “I Got a Woman” http://www.youtube.com/watch?v=Mrd14PxaUco

Legendary K.O. “Bush don’t like black people.”http://www.youtube.com/watch?v=LOu_zIiihPI

Min’s Blog. “Satire or Parody?” http://blogs.law.harvard.edu/yuminemma/2009/12/16/satire-or-parody-dr-seuss-enterprises-v-penguin-books-usa/

Orbison, R. “Oh Pretty Woman.” Accessed via Spotify.

Siegel, P. (2008). Communication Law in America: Second Edition. Chapter 6.

Traditional. “Jesus is All the World to Me.” http://www.youtube.com/watch?v=0dY4h1P0OPs

West, K. “Gold Digger ft. Jamie Foxx.” http://www.youtube.com/watch?v=6vwNcNOTVzY