Copyright Law Ronald W. Staudt Class 22 April 13, 2009

§ 107. Limitations on exclusive rights: Fair use zNotwithstanding 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.

§ 107. Limitations on exclusive rights: Fair use (cont.) zIn determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (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.

§ 107. Limitations on exclusive rights: Fair use (cont.) z The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Campbell v. Acuff-Rose Music, Inc.Acuff-Rose zFactsFacts zProcedural posture yDC—commercial no bar/conjure up test/no market impact yC of A—commercial presumption(Sony); heart theft (Harper) zSouter sets the stage yMust consider all 4 factors yIt is always a case by case analysis yFootnote 10- damages instead of injunction

Campbell v. Acuff-Rose Music, Inc. zFour factors yPurpose & Character of the use-- transformative use & effect on and commercialism, includes parody? Parody v. satire. Presumption? Role of commercial use? Fn. 18 re “good faith” yNature of the work parody special yAmount & substantiality of portion used- the heart or all –tied to 1 and 4 yMarket effect--- D & others, includes derivative market, Sony presumption? Lethal parody’s impact? Beneficial impact like song in a movie? zHolding zQuestions---Is parody unique? Where are we now?

Recap: Campbell v. Acuff-Rose Music, Inc. zMust consider all 4 factors zIt is always a case by case analysis zTransformative use favored, though not required zParody is a transformative use zParody must criticize P’s work, not society zCourts will not recognize derivative market for critical works, but supplanting a derivative market for rap non- parody cuts against fair use zCommercial not presumptively unfair zNo presumption of market harm from commercial nature of use unless mere duplication for commercial purposes

More parody examples… zDr Seuss and Dr. Juice zDemi Moore and Leslie NielsonLeslie Nielson zKoons Sculpture zKoons Oil Painting

Koons- String of Puppies Rogers v. Koons, 960 F. 2d 301, 309 (2d. Cir 1992) “Koons argues that his sculpture is a satire or parody of society at large. He insists that "String of Puppies" is a fair social criticism and asserts to support that proposition that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. These themes, Koons states, draw upon the artistic movements of Cubism and Dadaism, with particular influence attributed to Marcel Duchamp, who in 1913 became the first to incorporate manufactured objects (readymades) into a work of art, directly influencing Koons' work and the work of other contemporary American artists.”

Koons’ Niagara zBut Koons asserts -- and Blanch does not deny - - that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at ("I wanted to show some sort of erotic sense[;]... to get... more of a sexuality to the photographs.").

Koons’ Niagara zKoons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

More parody examples… zThe Wind Done Gone zMickey Mouse and Air Pirates zHypos on 739

Food Chain Barbie zPrima facie case zFair Use 4 Factors yPurpose and character of use xParody --survey evidence and Q of law xCommercial? yNature of the © work yAmount and Substantiality of use xTakes all – weighs in favor of fair use yMarket harm xCritique damage/ market failure

J.K. Rowling and the Lexicon Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513 (2008) zRowling’s publications zThe Lexicon zPrima Facie Case yImproper appropriation yDerivative work? zFair Use yDo the 4 factors