1. Class 15 Copyright, Autumn, 2016 Fair Use
11/15/2018
Class 15 Copyright, Autumn, Fair Use
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. 107. Limitations on exclusive rights: Fair use
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107. Limitations on exclusive rights: Fair use
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.
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3. 11/15/2018
107 (Cont.)
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;
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4. 107 (Cont.) (2) the nature of the copyrighted work;
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107 (Cont.)
(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.
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5. Situating Fair Use Fair Use v. Fair Access
To return to day 1, copyright isn’t in the main an access regime
You might be able to make a use that would be fair—noninfringing—but still have no right to access the underlying work
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6. Situating Fair Use Fair Use Right?
Section 107 provides that uses that qualify are not infringing meaning that no copyright violation arises
That doesn’t say that the use can’t violate other law
Fair use is an affirmative defense (Campbell)
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7. Situating Fair Use Fair Use Right?
Much talk of fair use “right” (and see 17 USC 108(f)(4)) but affirmative defense framing better tracks overall statutory conception set out in 107
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8. Doing the Legal Analysis
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Doing the Legal Analysis
Key Questions
Which copyrighted works are implicated in each video?
Is the work being used to conjure it so as to criticize it?
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9. Playing the Two Songs in Campbell
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Playing the Two Songs in Campbell
YouTube
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10. Campbell on Parody Says the Court
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Campbell on Parody
Says the Court
“The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as ‘a song sung alongside another.’ 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975).”
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11. Campbell on Parody Says the Court
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Campbell on Parody
Says the Court
“Modern dictionaries accordingly describe a parody as a ‘literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,’”
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12. Campbell on Parody Says the Court
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Campbell on Parody
Says the Court
“or as a ‘composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.’ ”
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13. Sup Ct’s Analysis in Campbell
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Sup Ct’s Analysis in Campbell
Distinguishing Parody and Satire
“Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”
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14. Sup Ct’s Analysis in Campbell
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Sup Ct’s Analysis in Campbell
Definition of Satire
OED
a work “in which prevalent follies or vices are assailed with ridicule”
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15. The Need for Control? Applying Copyright’s Incentive Theory
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The Need for Control?
Applying Copyright’s Incentive Theory
Do we think that we need to give the author control over potential parodies to get the author to create the work in the first place?
How many authors won’t create if they can’t control subsequent parodies?
Does this mean that the fair use analysis is too ex post and insufficiently ex ante?
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16. Trying to be Welfarists
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Trying to be Welfarists
The Voluntary Licensing Baseline
Campbell approached Acuff-Rose for a voluntary license of the work
Campbell wasn’t willing to pay a price that AR was willing to accept
Does this mean that Campbell values the use less than AR did?
Does the use reduce welfare?
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17. Analysis Doing Numbers
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Analysis
Doing Numbers
Assume AR values no parody at $50; Campbell will make $40 from doing parody
Campbell can’t buy parody right from AR
Consumer Surplus?
If consumer surplus > $10, parody increases welfare CS + $40 - $50
Campbell and AR ignore that in their deal
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18. Trying to be Coasians Two Alternative Worlds Hypo in Alternative 1
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Trying to be Coasians
Two Alternative Worlds
1: Author controls parody right
2: Author doesn’t control parody right
Hypo in Alternative 1
Campbell approaches AR, offers too little, no parody produced
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19. Trying to be Coasians Hypo in Alternative 2
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Trying to be Coasians
Hypo in Alternative 2
Campbell is going to make parody; AR approaches Campbell and offers to pay him not to do so
Problem is universe of potential Campbells exist and AR would have to pay each not to make parody
Assignment of property right matters
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20. Applying the Four Factors in Sec. 107
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Applying the Four Factors in Sec. 107
The Four Factors
(1) Purpose and Character of the Use
(2) The Nature of the Copyrighted Work
(3) The Amount Used
(4) The Effect on the Market/Value of the Work
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21. Applying the Four Factors in Sec. 107
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Applying the Four Factors in Sec. 107
(1) Purpose and Character of the Use
Commercial use doesn’t necessarily result in unfair use
(2) The Nature of the Copyrighted Work
Music is core copyright expression
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22. Applying the Four Factors in Sec. 107
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Applying the Four Factors in Sec. 107
(3) Amount Used
Lyrics OK, remand on question of “whether repetition of the bass riff is excessive copying”
(4) Market for Work
Includes market for derivative work; remand for info on market for rap versions of Pretty Woman
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23. Dr. Seuss v. Penguin, 109 F.3d 1394 (9th Cir. 1997)
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Dr. Seuss v. Penguin, 109 F.3d 1394 (9th Cir. 1997)

24. Says the Court Not Fair Use
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Says the Court
Not Fair Use
“These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have “no critical bearing on the substance or style of” The Cat in the Hat. Katz and Wrinn merely use the Cat’s stove-pipe hat, the narrator
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25. Says the Court Not Fair Use
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Says the Court
Not Fair Use
(‘Dr.Juice’), and the title (The Cat NOT in the Hat!) ‘to get attention’ or maybe even ‘to avoid the drudgery in working up something fresh.’ Acuff-Rose, 510 U.S. at 580.”
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26. 11/15/2018
Says the Court
“While Simpson is depicted 13 times in the Cat’s distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial.”
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27. 11/15/2018
Says the Court
“Because there is no effort to create a transformative work with ‘new expression, meaning, or message,’ the infringing work’s commercial use further cuts against the fair use defense.”
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28. Leibovitz v. Paramount, 137 F.3d 109 (2nd Cir. 1998)
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Leibovitz v. Paramount, 137 F.3d 109 (2nd Cir. 1998)

29. 11/15/2018
Says the Court
Fair Use
“Whether it ‘comments’ on the original is a somewhat closer question. Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original.”
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30. 11/15/2018
Says the Court
“The contrast achieves the effect of ridicule that the Court recognized in Campbell would serve as a sufficient ‘comment’ to tip the first factor in a parodist’s favor. … In saying this, however, we have some concern about the ease with which every purported parodist could win on the first factor simply by pointing out some feature that contrasts with the original.”
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31. 11/15/2018
Says the Court
“Being different from an original does not inevitably ‘comment’ on the original. Nevertheless, the ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self-importance conveyed by the subject of the Leibovitz photograph.”
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32. 11/15/2018
Says the Court
“A photographer posing a well known actress in a manner that calls to mind a well known painting must expect, or at least tolerate, a parodist’s deflating ridicule.”
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33. Parody Videos? 1984 Hillary George Bush/U2
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Parody Videos?
1984 Hillary
Original 1984 Apple commercial
Obama campaign ad
George Bush/U2
U2 live
The George Bush version
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34. November 15, 2018
The Illustrated Trip

35. The Illustrated Trip: Copyright Page
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36. The Illustrated Trip: Picture Credits
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37. The Illustrated Trip: Picture Credits
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38. Seven Pages
See the book
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39. Bill Graham Archives (CA2 2006)
Archives Position
“Appellant asserts that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image.”
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40. Bill Graham Archives (CA2 2006)
The Use Here
“In the instant case, DK’s purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGA’s images fulfilled the dual purposes of artistic expression and promotion.”
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41. Bill Graham Archives (CA2 2006)
The Use Here
“The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band’s forthcoming concerts.”
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42. Bill Graham Archives (CA2 2006)
The Use Here
“In contrast, DK used each of BGA’s images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip’s timeline.”
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43. Bill Graham Archives (CA2 2006)
Fourth Factor and Derivative Works Market: Traditional v. Transformative
“Moreover, Appellant asserts that it established a market for licensing its images, and in this case expressed a willingness to license images to DK. Neither of these arguments shows impairment to a traditional, as opposed to a transformative market.”
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