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the fair use doctrine

Overview:

Artists who express their craft in a way that draws upon pre-existing works as raw material will appreciate that copyright protection frequently impedes rather than promotes their artistic progress. Modern artists may be more likely to produce original works by reconstituting copyrighted raw material than to create through "pure" expression of the mind on a blank slate. Creative works invariably rely on pre-existing copyrighted material, and the romantic notion of "pure" original work is a fiction in copyright law.

Copyright law allows a modern artist to produce original works by reconstituting copyrighted raw material: the artist and his or her law firm simply need to secure permission from everyone whose work was stirred into the pot. It's possible, but impractical for most artists. The fair use doctrine is a legislative attempt to balance the social need to freely access copyrighted material against the exclusive rights of copyright owners. This balance is determined by reference to four factors that have been the subject of frequent litigation.

Notes:
    Keep the finding of infringement and the defense of fair use distinct. Fair use is an affirmative defense where copyrighted material has been infringed.

    s107 of the 1976 Copyright Act is an attempted codification of the common law of fair use. It is not meant to broaden or restrict the scope of fair use established at common law. A seminal opinion comes from J. Story in FOLSOM v. MARSH (US 1841) (finding fair use of presidential letters because author's economic returns are unaffected). In 1841, copyright protection was directed to cases of outright piracy as substantial use of prior works was permitted. Another important case in the development of the fair use doctrine is ROSEMONT ENTERS v. RANDOM HOUSE (2d Cir., 1966) where the court held Howard Hughes could not prevent biography by accumulating the copyright to works about him. According to the court, Hughes is a public figure and there is a public interest in the analysis of public figures.

    A multi-factored balancing test for fair use is outlined in s107.
    • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • the nature of the copyrighted work;
    • the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
    • the effect of the use upon the potential market for or value of the copyrighted work.
    A district court judge must articulate his finding on each factor of fair use analysis.

    Notes on application of the First Factor: Purpose and Character of Use.
    In SONY, the Supreme Court held that noncommerical uses are presumptively fair and commercial uses are presumptively unfair, and characterized home video taping for time-shifted viewing as noncommercial use. One consideration might be whether the use of protected material has a direct or indirect commercial value (TEXACO).

    Notes on application of the Second Factor: Nature of Copyrighted Work.
    In SONY, the Supreme Court notes that some works are particularly sensitive to copying, like classroom workbooks that are marked by reader or works in progress.

    Notes on application of the Third Factor: Amount and Substantiality of Use.
    Although entire programs copied by home viewers, the SONY court abandons a bright line rule against complete takings. WILLIAMS & WILKINS v. NIH (US 1975) (evenly divided court upholds finding that article photocopying by academics is fair use).

    Notes on application of the Fourth Factor: Effect on Potential Market Value
    In SONY, the Supreme Court holds that plaintiffs have burden of establishing proof of potential economic harm in case involving presumptively fair noncommercial use.

    Congress amended s107 after the SALINGER case, adding: "The fact that a work if unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
    DZ: No cases found that unpublished status was a bar to a finding of fair use, so it is not clear what effect this amendment has.

    The influence of technological development on copyright litigation evident in the SONY HOME RECORDINGS case.

    Plaintiffs do not allege that Sony directly infringed their copyright, but sues rather on the basis of vicarious liability in facilitating the transmission of illicit copies.
    DZ: Vicarious liability is fairly well-established in copyright law and is important to the liability of internet service providers.

    There are many valid uses of home recording equipment. The Supreme Court noted this about VCRs in the SONY case; they can be used for time-shifted reviewing, or building a private library, or viewing rentals.

    Time-shifted viewing as a case of market failure. National broadcaster cannot satisfy the niche market demands for viewing at unusual hours because there is insufficient demand to broadcast economically. By this theory, the extent of fair use varies with the copyright owner's ability to economically supply potential markets.

    Fair use of unpublished works. The Copyright Act of 1976 eliminates separate common law protection of unpublished works and makes all works subject to copyright protection and limitations of fair use. Many cases concerning unpublished material arises in the context of biographical scholarship.

    The result of decisions like SALINGER has been to make writers and publishers hesistant to produce biographies without extensive release agreements.

    Note how litigation strategy affects party behavior in the FORD MEMOIRS case. Perhaps one reason Harper & Row did not try to mitigate its loss on the contract with Time Magazine to publish Ford Memoir excepts in advance of book publication was to substantiate an economic loss for the record (and s107(4)).

    One reason unpublished material is more sensitive is the economic importance of first publication. Ill-timed marketing could destroy a book. Leaked material could wreck the market for cultivated material. The importance of first distribution is reflected in laws affecting musical recordings: a composer can negotiate first licensed recording, but thereafter it is subject to compulsory rate.

    A biographer might be able to express the underlying facts of the subject's life without taking the subject's protected, unpublished expression if he writes with sufficient distance (e.g. pedestrian biographies).

    In the JACK BENNY case (9th Cir., 1956) the court held that defendant's burlesque recreation of plaintiff's motion picture used too many protected elements to be a fair use parody. The Supreme Court affirmed these decision by a split decision.

    Parodies might be a case where fair use is justified by market failure. An author is unlikely to license a parody of his work and so it is necessary to compel access.

    Note inclusion of "multiple copies for classroom use" in s107. Library and classroom fair use further enumerated in s108. These provisions are further clarified by guidelines for educational photocopying, although persuasive authority of these guidelines is open to question.
    DZ: The legislative history is opaque. The extent of fair use photocopying in classroom and library setting is not clear. Academic interests were not well represented in the formulation of these policies.

    Note the development of licensing scheme for photocopying academic articles that developed since WILLIAMS & WILKINS. The Copyright Clearance Center (CCC). Its development has implications for analysis of potential markets.
    DZ: It's still very difficult to get photocopy permission and quite expensive.

    The scientific journal industry is thriving. Does this mean it is not necessary to protect publisher's incentives?

    Litigation over article photocopying primarily deals with institutional copying because it would be impractical for publishers to litigate against individuals. Perhaps personal photocoying is therefore fair. Note the relationship between technology and copyright protection.



Issues:
    What principle justifies the fair use doctrine? Consider some candidates:
    • Privileged use. Arthur Miller compares to necessity doctrine to defend trespass; method to adjust conflicting right.
    • Implied consent. Avoid transaction costs where author would like to have his work used, as in critical reviews. But this principle does fit in cases where authors chose to litigate.
    • First Amendment accomodation. Used to strike a balance between constitutional protection of original expression and the freedom to express ideas.

    Is a scathing review of an art exhibit fair use in light of the artist's moral rights of integrity and reputation? How much control should an artist have over how his work if presented to the public? Should the content of critical review be subject to negotiation?

    Consider the fair use of "orphan" works. Orphan works are copyrighted works whose authors are difficult or impossible to locate. Should subsequent authors be given greater authority to use and incorporate these works in new, creative efforts?

    Should contributory infringement be applied to the manufacturers of mechanical copying devices? Consider whether their conduct is blameworthy and whether enforcement is possible against more responsible parties. Compare to the distinction between public and private performances; perhaps it's important that decisions be enforcable in the marketplace, like ASCAP monitoring.

    Is the public interest in viewing entertainment programs at convenient times comparable to the public interest in making copies for scholarship or research? What can be said about transforming a work into a more accessible medium?

    Does video-on-demand harm the potential market for television programs? Consider how time-shifted viewing is characterized in the SONY case. The majority holds there's no proof of harm; the dissent contends that time-shifted viewing is a threat to advertising and syndication revenues. Consider that viewers don't pay for program at regular broadcast time. Does time-shifted viewing change the market share of competing companies, or does it affect the overall market? Perhaps program producers make up for lost advertising in the video rental market.
    DZ: There is not a lot of solid empirical evidence on this point.

    What is meant by "potential market or value" in s107(4)? By definition, does an uncompensated use take away a potential payment away from the copyright owner? Perhaps a broadly defined potential market is threatened by nearly all uncompensated usage. How much latitude should a court give the copyright holder to cultivate a developing market? Consider how consumer surplus should be allocated to create proper incentives for original works, also the need for consistent marketplace rules.
    DZ: It's a dizzying circularity.

    What other interests are involved in unpublished works? Consider J.D. Salinger's interest in privacy. Is copyright an appropriate vehicle to protect privacy? Compare J.D. Salinger to Howard Hughes; is the public interest in these figures distinguishable? Is it important to know what the author plans to do with the unpublished material? Would it be important to know is Hughes or Salinger intended to release autobiographies, or volumes of collected letters? Does intention to publish lessen the public interest in creating access to material on significant figures?

    Unpublished works of authorship might be collectible by virtue of their rarity. Does this create an economic interest in preventing their publication? Consider libraries to which J.D. Salinger's letters have been donated. The libraries could not publish the letters because they possess the originals, but they could sell them, or charge admission to see the letters.

    Is J.D. Salinger a public figure? Is there a public interest in critical biographies of his life? Consider whether he has cultivated a public personality for profit. Also consider the relationship of an author to the fictional characters he creates.
    DZ: He could probably not prevail in a tort case for invasion of privacy.

    Is the artist's style expression the fact his biographer is attempting to document? The definition of fact and expression is rather maleable.

    What is a parody? Are parodies derivative works or a sufficiently distinct form of the work? Is parody characterized by the result it has on an audience (e.g. it's parody only if it's funny)? Is parody characterized by the original author's disapproval?

    The Koons sculpture commands a much higher market price than plaintiff's postcard photograph. Is this evidence that the sculpture displaces the market for the postcard, or evidence that Koons has tranformed the work for a new audience?

    Is the concept of parody applicable to postmodern artists like Koon and Lichtenstein? Consider the method and message of appropriation. Should courts recognize works of deconstruction as a necessary creative responsive to mass media hegemony? Does emphasis on parody encourage postmodern cynicism by limiting protect to mockery rather than serious social commentary?

    In what circumstances does postmodern appropriation art hurt the market for the original author's work?

    Some questions posed by institutional photocopying: Can patron be held responsible for photocopying protected material in a library? Are photocopy guidelines a floor or ceiling for academia?

    What's the relationship between the article reprint market and the demands for whole subscriptions? Substitutes or compliments? Compare to taping individual programs; cable television retransmission requires whole channel, not selected shows.

    If technological advances allow monitoring personal photocopies, should publishers be allowed to capture revenue from this market? Would widespread mandatory fees pose a substantial impediment to public access to facts and ideas? Consider the economic position of future authors relative to established authors.


Illustrative Cases:
    Dastar Corp. v. Twentieth Century Fox Film Corp. (U.S. 2003) (Read Opinion - FindLaw)
    Video producer may distribute copies of television show in public domain, notwithstanding claim by rival video producer that obtained license to distribute the same show that unlicensed distributor was "passing off" as originator of show in violation of trademark law. Public has the right to copy without attribution once a copyright has expired.

    Sony Corp. of America v. Universal City Studios, Inc. (U.S. 1984) (Listen to Oral Arguments - Oyez) (Read Opinion - FindLaw)
    Sale of home video recorders does not contribute to unlawful infringement of copyrighted programs. Though home taping is not productive in traditional sense, it serves an entertainment purpose and is protected fair use.

    Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (U.S. 2005) (Listen to Oral Arguments - Oyez) (Read Opinion - Justia)
    Company that develops and distributes software for peer-to-peer distribution of creative works on the internet may by liable for contributing to the infringement of copyright by its users. Although Court found that peer-to-peer distribution software is capable of non-infringing use, the Court found there was evidence that the software developer promoted the illegal use of its software.

    Harper & Row Publishers, Inc. v. Nation Enterprises (U.S. 1985) (Listen to Oral Arguments - Oyez) (Read Opinion - FindLaw)
    Defendant Nation Magazine publishes the heart of Gerald Ford's memoirs before its scheduled publication date. Court holds rejects the fair use defense. Even though only a small percentage of the memiors used, Harper & Row sustantiated economic damage in its loss of excerpt royalty with another magazine.

    Salinger v. Random House, Inc. (2d Cir. 1987)
    Defendant uses unpublished letters of author J. D. Salinger as source material for unauthorized biography. Holding the use unfair, the court notes that the unpublished nature of a work enhances its first publication value and should weigh heavily against a fair use taking claim. The court also noted that paraphrased portions might be equated to illicit copying.

    New Era Publishers v. Henry Holt & Co. (2d Cir. 1989)
    Unauthorized biographer of L. Ron Hubbard may use quotations from unpublished sources because they are not used to "enliven" the text. The Second Circuit distinguishes SALINGER because that biographer did not use quotes to buttress controversial assertions about the subject.

    New Era Publishers v. Carol Publishing Group (2d Cir. 1990)
    Approves biographer's quotations from L. Ron Hubbard's published works because it is likely fair use per s107 and because there is less protection available to unpublished works.

    Craft v. Kobler (So. Dist. NY, 1987)
    A biographer may quote some of author's expression to convey a biographical subject's powers of observation of expression. But the court here held that Stravinsky's biographer went too far. "When dealing with copyrighted expression, a biographer . . . may frequently have to content himself with reporting only the fact of what the subject did, even if he thereby pens a 'pedestrian' sentence. The copier is not at liberty to avoid 'pedestrian' reportage by appropriating his subject's literary devices."

    Berlin v. E.C. Publications, Inc. (2d Cir. 1964)
    Whether taking for parody qualifies as fair use turns on whether the defendant went further than necessary to "recall or conjure up" the original work. Implicit is whether the parody satisifies consumer demand for the original. The Court notes that this is a relatively test of reasonableness and should not be mechanically applied.

    Walt Disney Productions v. Air Pirates (9th Cir. 1978)
    The taking allowed for parody may not be more than necessary to "recall or conjure up" the original. The court recognizes that the legitimate art of parody requires appropriating a certain amount of the original work. The distinction made here is between works that parodize the original work (protected because taking necessary to counter) and parodies directed at extrinsic source (not protected because the taking unnecessary for artistic purpose and is free ride on the original author's recognizable creation).

    Fisher v. Dees (9th Cir. 1986)
    Defendant disc jockey creates "When Sonny Sniffs Glue," a parody of plaintiff's "When Sunny Gets Blue." Applying the factors outlined by s107, the Court holds that defendant's parody version is protected fair use.

    Acuff-Rose v. Campbell (6th Cir. 1992)
    Circuit holds that 2 Live Crew's "Oh Pretty Woman" is not a fair use parody of Roy Orbison's "Pretty Woman" because the purpose and character of the 2 Live Crew version is commercial and destructive of plaintiff's potential market for licensing derivative versions of the song. The decision is overturned by Supreme Court.

    Campbell v. Acuff-Rose Music, Inc. (U.S. 1994) (Listen to Oral Arguments) (Read Opinion - FindLaw)
    The Supreme Court reverses and remands Sixth Circuit decision, holding that the commericial character and purpose of a work is not determinative to s107 analysis and that all factors should be considered. The work is a fair use parody. Parodies are particularly deserving of protection because original author is unlikely to authorize parody directed at his work (e.g. market failure).

    Castle Rock Entertainment v. Carol Publishing Group (So. Dist. NY, 1997)
    Plaintiff's production of trivia book based on television program "Seinfeld" is not a protected fair use. The court puts particular emphasis on the effect of the work on potential markets. According to court, the trivia book is a derivative work of the television program and plaintiff should control this market through licensing agreements.

    Rogers v. Koons (2d Cir. 1992)
    Defendant artist produces sculpture based on plaintiff's photograph. Defendant argues his creation is a parody of culture embodied in plaintiff's work and protected fair use. The Second Circuit refuses to recognize appropriation of mass images as parody because Koons directs criticism at society, not the original work.

    Basic Books, Inc. v. Kinko's Graphics Corp. (So. Dist. NY, 1991) (Read Opinion - Stanford)
    Commercial copy service production of course packets for university professors is not protected under fair use doctrine, nor the classroom guidelines for photocopying.

    Princeton University Press v. Michigan Document Services, Inc. (6th Cir. 1996) (Read Opinion - Emory)
    Commercial copy service must get license to include protected articles into coursepacks.

    American Geophysical Union v. Texaco, Inc. (2d Cir. 1995)
    A central issue is whether scientist's photocopying is spontaneous and transitory (like time-shifted viewing) or builds his private library of protected articles. Court holds the copying is more like unprotected library-building than fair use. Affirms District Court decision by Judge Leval.