Copyright Law: Fair Use Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta

Copyright Law Article I, Section 8 of the Constitution 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

Copyright Act of 1976 Applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works

Copyright Interest Owner has right to reproduce, sell, rent, lease, lend, perform, display, prepare derivative work Subject to some limitations or exceptions “Fair use”

Fair Use Section 107 of the Copyright Act “[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—”

Four Factors 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 copyright work

Sony v. Universal City Studios (1984) Movie studios sued maker of Betamax for contributory infringement Mr. Rogers testified for the defense Supreme Court held that “time-shifting” was a fair use Legitimized videotape industry

Kinko’s (1991) & MDS (1996) Photocopy centers created “coursepacks” for colleges Held not to be a “fair use” based primarily on fourth factor

Campbell v. Acuff-Rose Music (1994) 2 Live Crew recorded a satirical version of Roy Orbison’s “Oh, Pretty Woman”Oh, Pretty Woman Supreme Court held that it was a fair use The Court focused on the song’s “transformative” character the parody was not a substitute for the original

SunTrust v. Houghton Mifflin (2001) “The Wind Done Gone” as a parody of “Gone With the Wind” 11 th Circuit held it was entitled to a fair use defense, and vacated the lower court’s injunction

Kelly v. Arriba Soft Corp. (2002) Visual search engine displayed thumbnail images of copyrighted photographs 9 th Circuit held that use of thumbnails was a fair use “transformative” use of photo as index too crude to substitute for full-size photo