1. The Fair Use Factors: Their History and Application Ana Enriquez February 25, 2016 Association of College and Research Libraries This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

2. Fair use until 1978 English tradition of fair abridgment Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901). – “[L]ook to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

3. 17 U.S.C. § 107 original version, effective 1978 Notwithstanding the provisions of section 106, 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. In 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. This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

4. Illustrative uses from preamble criticism comment news reporting teaching (including multiple copies for classroom use) scholarship research This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

5. First factor the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes Less likely to be fairMore likely to be fair Commercial purposeTransformative purpose Educational purpose This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

6. Second factor the nature of the copyrighted work Less likely to be fairMore likely to be fair Work is unpublished Work is creative Work is factual This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

7. Third factor the amount and substantiality of the portion used in relation to the copyrighted work as a whole Less likely to be fairMore likely to be fair Uses heart of the work Uses entire work If amount used is necessary to the transformative purpose of the use, this factor is neutralized. This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

8. Fourth factor the effect of the use upon the potential market for or value of the copyrighted work Less likely to be fairMore likely to be fair Use decreases demand for the original work by acting as a substitute Use is the sort that the rightsholder currently licenses Use is the sort the rightsholder is unwilling to license This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

9. 17 U.S.C. § 107 original version, effective 1978 Notwithstanding the provisions of section 106, 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. In 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. This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

10. Commerciality This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

11. The Sony presumption Created by dicta from the Sony majority opinion. Impacted first and fourth factors. – First factor: “[A]lthough every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter.” – Fourth factor: “If the intended use is for commercial gain, that likelihood [of harm to the market for the work] may be presumed.” Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

12. Campbell v. Acuff-Rose Music Music publisher sued over 2 Live Crew’s song “Pretty Woman,” a parody of the Roy Orbison song “Oh, Pretty Woman.” District Court: – Commercial purpose is no bar to fair use. Sixth Circuit: – “We find that the admittedly commercial nature of the derivative work... requires the conclusion that the first factor weighs against a finding of fair use.” This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

13. Campbell v. Acuff-Rose Music Supreme Court: – “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107...” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

14. Commerciality today Authors Guild v. Google Inc., No. 13 - 4829 - cv (2d Cir. Oct. 16, 2015). “Our court has... repeatedly rejected the contention that commercial motivation should outweigh a convincing transformative purpose and absence of significant substitutive competition with the original.” (citing Cariou (2013) and Castle Rock (1998)) This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

15. Commerciality today Bouchat v. Balt. Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013). “In this case, there is no doubt, as the district court found, that the NFL has produced and distributed these videos for commercial gain. But as the district court also noted, the ‘substantially transformative’ nature of the use renders its commercial nature largely insignificant.” This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

16. Commerciality today Seltzer v. Green Day, Inc., 725 F. 3d 1170 (9th Cir. 2013). “‘[T]he degree to which the new user exploits the copyright for commercial gain — as opposed to incidental use as part of a commercial enterprise — affects the weight we afford commercial nature as a factor.’... Green Day's use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise.” This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

17. Transformativeness This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

18. Productive use From Justice Blackmun’s dissent in Sony: “Each of [the preamble’s illustrative] uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author’s work.” Productive use was contrasted with “ordinary use.” This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

19. Toward a Fair Use Standard “I believe the [first factor] turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.... If... the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

20. Campbell v. Acuff-Rose “The central purpose of [the first factor] is to see, in Justice Story’s words, whether the new work merely ‘supersede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (citations omitted). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

21. Campbell v. Acuff-Rose “Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (citations omitted). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

22. Transformativeness: Parody “[P]arody has an obvious claim to transformative value, as Acuff Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

23. Transformativeness: Image search “Although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly's original images. Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the internet and their related web sites.” Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

24. Transformativeness: Image search “The fact that Google incorporates the entire Perfect 10 image into the search engine results does not diminish the transformative nature of Google's use. As the district court correctly noted, [...] we determined in Kelly that even making an exact copy of a work may be transformative so long as the copy serves a different function than the original work.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

25. Transformativeness in other contexts Mass digitization Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014). Authors Guild v. Google Inc., No. 13-04829 (2d Cir. Oct. 16, 2015). Plagiarism detection A.V. ex rel. Vanderhye v. iParadigms, L.L.C., 562 F.3d 630 (4th Cir. 2009). Publishing Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

26. Impact on third factor the amount and substantiality of the portion used in relation to the copyrighted work as a whole “[T]he parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” – Campbell “Neither our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use. At the same time, however, courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image.” – Bill Graham This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

27. Impact on fourth factor the effect of the use upon the potential market for or value of the copyrighted work “No ‘presumption’ or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes.” – Campbell “[T]he more the copying is done to achieve a purpose that differs from the purpose of the original, the less likely it is that the copy will serve as a satisfactory substitute for the original.” – Authors Guild v. Google “[C]opying [for a transformative purpose] might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute.” – Authors Guild v. Google This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

28. Publication Status This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

29. Publication status “[T]he scope of fair use is narrower with respect to unpublished works. While even substantial quotations might qualify as fair use in a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press..., the author’s right to control the first public appearance of his expression weighs against such use of the work before its release. The right of first publication encompasses not only the choice whether to publish at all, but also the choices of when, where, and in what form first to publish a work.” Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

30. Publication status “We think that the tenor of the Court's entire discussion of unpublished works [in Harper & Row] conveys the idea that such works normally enjoy complete protection against copying any protected expression.” Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987) This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

31. Publication status “The district court, concluding that ‘diminished likelihood’ is not the same as ‘impossibility’ and that ‘normally’ does not mean ‘inevitably,’ concludes that one ‘who purports to make a fair use of unpublished copyrighted matter must make a particularly compelling demonstration of justification, upon full consideration of the relevant fair use factors.’” New Era Publications Int'l v. Henry Holt & Co., 884 F.2d 659 (2d Cir.1989). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

32. Publication status “While we made it clear in Salinger that unpublished works normally enjoy complete protection, the district court would parse this factor also with a distinction.... We see no need for such an approach. Where use is made of materials of an ‘unpublished nature,’ the second fair use factor has yet to be applied in favor of an infringer, and we do not do so here.” New Era Publications Int'l v. Henry Holt & Co., 884 F.2d 659 (2d Cir.1989). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

33. 17 U.S.C. § 107 current version, amended 1990 & 1992 Notwithstanding 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. In 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. 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. This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

34. Publication status after 1992 “Thus, while the fact that [the work] was unpublished militates against a finding of ‘fair use,’ it does not foreclose a finding that [the defendant’s] use was fair.” Sundeman v. The Seajay Soc’y, Inc., 142 F.3d 194 (4th Cir. 1998). This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

35. Hypotheticals This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

36. Hypothetical: Local fauna A library is digitizing rare non-fiction works about local fauna from its collection, then making the full text of the works available to the public via its website. The library has been unable to identify the copyright holders for three of the works, all of which are out of print and are not available for purchase as ebooks or from any print-on-demand service. Assuming the three books are protected by copyright, would the library’s digitization of them qualify as fair use? This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

37. Hypothetical: Obituary photo A researcher prepares the obituary of another scholar in her field, to be published in a scholarly journal. Along with the obituary, she publishes a photograph of the scholar, which she has cropped from a group photograph taken by a professional photographer. Does the researcher’s use of the photograph qualify as fair use? This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

38. Hypothetical: Personal archive A college has digitized a personal archive from its collections. Each item from the archive has been scanned and cataloged. Textual items have been OCRed. The college archivist has also prepared a finding aid for the archive. The finding aid, the metadata, and the text are all searchable on the college website, where copies of all the items in the archive are available to the public. The deed of gift transferred all of the donor’s copyrights to the college, but the archive contains letters and photographs the donor received from others. Is the college’s digitization of those items fair use? This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.

39. Further reading Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 William Fisher, Fair Use (CopyrightX lecture video) Matthew Sag, The Pre-History of Fair Use This presentation was prepared by Ana Enriquez in February 2016. It is licensed under the Creative Commons CC-BY 4.0 International License.