fair use: cases and problems - harvard university use... · 2010-01-23 · supreme court fair-use...

January 23, 2010

© 2008, William Fisher. This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.

Fair Use:

Cases and Problems

William Fisher

Cases and Problems •  Sony •  Harper & Row •  Campbell •  Wind Done Gone •  Food Chain Barbie •  Seinfeld

•  Air Pirates •  Kelly

January 23, 2010

© 2008, William Fisher. This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.

Supreme Court Fair-Use Cases

•  Sony •  Harper & Row •  Campbell

Figure 2.5: Compensation System for Network Broadcasts of Films

Studio

Figure 2.5: Compensation System for Network Broadcasts of Films

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Viewers

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

product purchases

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

advertising fees

product purchases

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

advertising fees

product purchases

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

Sony

advertising fees

product purchases

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

Sony

advertising fees

product purchases

VCRs

free programming (with embedded ads)

Studio

TV Networks

Figure 2.5: Compensation System for Network Broadcasts of Films

Advertisers

Viewers

Sony

cost of VCRs

advertising fees

product purchases

VCRs

free programming (with embedded ads)

Harper & Row Ford & ghost writer

Harper & Row Ford & ghost writer

Harper & Row

copyright payment

Harper & Row Ford & ghost writer

Harper & Row

Time Magazine

copyright payment

license part payment

Harper & Row Ford & ghost writer

Harper & Row

Time Magazine

The Nation

copyright payment

license part payment

“purloined” copy

Harper & Row Ford & ghost writer

Harper & Row

Time Magazine

The Nation

copyright payment

license part payment

“purloined” copy

Public

Article with 300-400 copied words

$

Harper & Row Ford & ghost writer

Harper & Row

Time Magazine

The Nation

copyright payment

license part payment

“purloined” copy

Public

Article with 300-400 copied words

$

Cancel contract

Harper & Row Ford & ghost writer

Harper & Row

Time Magazine

The Nation

copyright payment

license part payment

“purloined” copy

Public

Article with 300-400 copied words

$

Cancel contract

Infringement suit

Facts of Campbell

•  Identical tunes •  Different Orchestration •  Overlapping Lyrics

Wind Done Gone

Gone With the Wind / Wind Done Gone

Gone With the Wind / Wind Done Gone

•  GWTW: – 1936 – Over 10 million copies – Licensed movie – 2 licensed sequel novels, each for more than

$1 M

Gone With the Wind / Wind Done Gone

•  GWTW: – 1936 – Over 10 million copies – Licensed movie – 2 licensed sequel novels, each for more than

$1 M •  WDG:

– 2001 – #9 on NY Times Bestseller List – Self-description: “unauthorized parody of

GWTW”

Gone With the Wind / Wind Done Gone

•  Characters: – 15 of the characters in GWTW are included

in WDG •  Renamed •  Scarlett becomes “Other” •  Rhett becomes “R”

– Several new characters are added •  Cynara – half-sister of Scarlett, daughter of

Planter and Mammy

Gone With the Wind / Wind Done Gone

•  Plot: – First half of WDG retraces plot of GWTW

•  Abbreviated •  Seen through eyes of Cynara

– Second half of WDG extends the story •  Scarlett dies

Gone With the Wind / Wind Done Gone

•  Language: – Short passages from GWTW reappear,

verbatim or abridged, in WDG – e.g., •  GWTW: “Scarlett O’Hara was not beautiful, but

men seldom realized it when caught by her charm”

•  WDG: “She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved”

Gone With the Wind / Wind Done Gone

•  Language: – Short passages from GWTW reappear,

verbatim or abridged, in WDG – e.g., •  GWTW: “Scarlett O’Hara was not beautiful, but

men seldom realized it when caught by her charm”

•  WDG: “She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved”

For full development of the record, see http://www.thewinddonegone.com/courtpapers.html

Tom Forsythe’s “Food Chain Barbie”

http://www.ncac.org/store/forsythephotos.htm

“Fondue for Three”

“Lan

d of

Milk

and

Bar

bie

II”

“Margarita Barbie”

“Last Call”

“Mellow Yellow”

“Mix

er F

un”

“Sep

arat

ion

Anx

iety

”

“Skillet Barbie”

“Sunbeam Smiles”

“Trip

le B

arbi

e Sm

ooth

ie”

Seinfeld Problems 1. Cousin Jeffrey 2. Uncle Leo 3. Manya 4. Isaac 5. Mr. Seinfeld 6. Mrs. Seinfeld 7. Mr. Benes 8. Mr. Constanza 9. Mrs. Costanza 10. Mrs. Kramer

Seinfeld Problems 1. Cousin Jeffrey 2. Uncle Leo 3. Manya 4. Isaac 5. Mr. Seinfeld 6. Mrs. Seinfeld 7. Mr. Benes 8. Mr. Constanza 9. Mrs. Costanza 10. Mrs. Kramer

A. Former condo assoc. president B. Drinks Colt 45 in the nude C. Arm-grabbing, loquacious garbage-

can picker D. Leaves NY apartment for sunny

Phoenix E. Gruff well-known novelist F. NYC employee who watches Nature

Channel G. Wears sneakers in swimming pool

and needs “good spot” H. Enjoys heats and avoids AC I. Elderly immigrant with pony, “the

pride of Krakow” J. Nagging, shrill Glamour reader with

back trouble