Fair Use

Fair Use Basics A legal concept derived from common law Codified in 1976 Copyright Act Fair use in copyright; weaker in trademark No fair use in patent...yet Defendant must prove use to be fair Fair use exceptions= $4.5B in US economy What is really fair use?

The Fair Use Test 17 U.S.C. 107 Commentary, Criticism, Education/Scholarship: a balancing “test” of 4 non-exclusive factors Purpose and character: enrichment/profit, transformation Nature of original work: Factual/creative, published? Amount copied/Substantiality or importance to original Market effect or harm on original

Parody vs. Satire Use just enough to “conjure up” the original Parody uses copyrighted material as a direct commentary of the work This is has a strong fair use claim Satire is commentary on society in general using copyrighted material This does NOT usually have a fair use claim Bush Parody

Campbell v. Acuff-Rose (1994) VS

Campbell Cont'd Supreme Court Ruling: in favor of 2 Live Crew, parody of “white bred original” Sig: Commercial parody can be fair use Paid license to Acuff (Orbinson's publisher)

Sony v. Universal (1984) VS.

Sony v. Universal cont'd Supreme Court decision “Betamax case” Sig: consumers taping TV shows for later viewing (“time shifting”) not infringement Sig: manufacturers of tapes and recorders not liable Making these practices and technologies not liable for copyright infringement=Home Video Market Space shifting: accessing media from different devices (i.e. Cloud) Format shifting: converting media files into different formats (i.e. ripping CDs into MP3s)

Private Use Non-commercial copying is allowable Cannot display or sell copies, which dilute the original's market Blank cassettes, VHS, writeable DVDs 1984 Betamax

Bill Graham Archives v. Dorling Kindersley (2006) Reproduced Billy Graham concert posters and tickets in 480 page Dead biography Reduced size Paired in timeline, etc. Case brief

Fair Use? Transformative Purpose different than original images and doesn't “exploit” them Posters used for historical not creative value Transformative market FAIR USE

Los Angeles News Service v. KCAL-TV Channel 9 (1997) Case Brief KCAL use 30 seconds of a 4-minute copyrighted video

Fair Use? The use was commercial Took the “heart” of the work Affected the copyright owner’s ability to market the video NOT a fair use

Leibovitz v. Paramount Pictures Corp (1998) Case Brief Ad for Naked Gun 33 1/3

Fair Use? Transformative Imitated the photographer’s style for comic effect or ridicule Artistic differences FAIR USE

Sandoval v. New Line Cinema Corp 1997, Se7en Photographer Jorge Antonio Sandoval Pictures appeared in background of John Doe's apartment 11 camera shots, 35.6 seconds, out of focus Ruling: In favor of New Line; use was minimal and a fair use

Warner Bros. Entertainment, Inc. v. RDR Books 2007/2008 Warner Bros. And Rowling against RDR RDR tried to publish The Harry Potter Lexicon, an online fan-based encyclopedia with its creator, Steve Vander Ark Ruling: in favor of Rowling since too much of her creative work was appropriated Sig: Authors have the right to make reference guides, but don't have the total right to do such Vander Ark published The Lexicon: An Unauthorized Guide to Harry Potter Fiction in 2009

Obama/Fairey/AP/Mannie Garcia

Let’s Apply Fair Use! Purpose/character: Nature of original: For profit or political cause Transformative? Nature of original: Creative or Factual? Amount/Sub: Qualitatively and quantitatively copied original? Market Effect: Will it hurt the 2006 original? Increase?! FAIR USE? Plagiarism?

“I just want Shepard Fairey to say 'alright, you're the guy. Thank you “I just want Shepard Fairey to say 'alright, you're the guy. Thank you.'” ~Mannie Garcia

Andy Baio 2009, Kind of Bloop, an 8-bit tribute to Miles Davis' Kind of Blue Jay Maisel, who made photography for original album cover art sues Settles for $32.5k, Baio and his lawyers believe it's a fair use, but cheaper to settle

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