1. Fair Use

2. 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?

3. 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

4. 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

5. Campbell v. Acuff-Rose (1994)VS

6. 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)

7. Sony v. Universal (1984)
VS.

8. 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)

9. 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

10. 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

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

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

13. 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

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

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

16. 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

17. 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

18. Obama/Fairey/AP/Mannie Garcia

19. 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?

20. “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

21. 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

23. The Bubble Project
Get your bubbles here