COPYRIGHT : FAIR USE

Professor Fischer

The Catholic University of America

Columbus School of Law

March 31, 2003

Quizzes

• Graded quizzes are now available

• Categories: Very Good, Good, Fair, Poor

• Common problems: failure to cite to rule, failure to provide months/days, confusion over applicability of CTEA, confusion over difference between s. 203 and 304(c)

Review: Confronting the host of copyright issues arising from

digital technologies

• . . . is like wrestling the Hydra.

Kazaa and Others

• What is Kazaa?• How does it threaten

the record/motion picture industry?

Will Digital Technologies Really Harm the Record Industry?

• Stan Liebowitz has argued that the record industry has not proved that Napster harmed their revenues. Do you think that digital technologies are a serious threat to the record industry? Why or why not?

Fair Use

• What is fair use?

• Why does copyright law have a doctrine of fair use?

Codification of Fair Use

• Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision?

Codification of Fair Use

• Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision? At 17 U.S.C. section 107

• According to this section, how should a court determine whether a use made of a copyrighted work is a fair use that would exempt the use from liability for infringement?

Fair Use Factors

• (1) purpose and character of the use (commercial or non-commercial eg. educational?)

• (2) nature of copyrighted work (fact or fiction?)• (3) amount and substantiality of amount used• (4) effect on the market for the copyrighted work• Other factors may also be considered. • Does it make any difference if a work is

unpublished?

Fair Use Factors

• (1) purpose and character of the use (commercial or non-commercial eg. educational?)

• (2) nature of copyrighted work (fact or fiction?)• (3) amount and substantiality of amount used• (4) effect on the market for the copyrighted work• Does it make any difference if a work is

unpublished? NO

Fair Use is VERY fact-specific

• Section 107 restates judicial doctrine of fair use• Fair use is essentially an “equitable rule of reason”

so there is no “generally acceptable definition”• Each case must be decided on its own facts• There are no bright-line rules, as Justice Souter

has stated.• Of course, this makes it hard for lawyers to advise

clients on when a particular use of a copyrighted work will be a fair use.

As the Excellent UT Site “A Crash Course on Copyright”

says:• “[F]ar from clear and crisp, fair use is

better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it's like a no-man's land. Enter at your own risk.”

Fair Use is an Affirmative Defense

• Fair use is considered a defense to a claim of copyright infringement, but the defending party carries the burden of proving that the use of the work was fair

Good Faith Fair Use Defense

• See 17 U.S.C. section 504(c) (2)

• Must have reasonable belief that use of material was a fair use

Different Theories for Fair Use

• 1. Cultural Interchange – fostering progress of culture and dissemination of progress as well as free expression

• 2. Technical Interchange – provide incentives to create by permitting future authors to use materials necessary to create

• Others?

CULTURAL INTERCHANGE CASES

• Cases falling between two extremes on p. 497 (copy recent book and sell it at a discount to thousands of people is one extreme vs. using excerpts from book in a review of it)

Harper & Row v. Nation

• The Nation published an unauthorized excerpt from Ford’s unpublished memoirs.

• Supreme Court had to decide whether fair use applied, and whether First Amendment values should result in a hot news/ public figure exemption to copyright law?

Influential Passage from Harper & Row

• “[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas. . . .In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”

Fair Use and Parody: The Acuff-Rose case• We’ve discussed this case before and listened to the two

songs at issue.• What’s a parody? • How does Justice Souter apply the 4 fair use factors to

analyze whether the rap song’s use of the Roy Orbison song is a fair use? How does it compare to the analysis of Justice O’Connor in Harper & Row?

• Does it make any difference that the rap song is commercial? • Does it matter if the parody is in bad taste, or not funny?• Do you agree with Justice Souter’s analysis? Why or why

not?

Seinfeld case: Castle Rock v. Carol Pub. (2d Cir. 1998)

• Was the preparation and sale of Seinfeld Aptitude Test a fair use, according to the Second Circuit? Why or why not?

• Is this case consistent with the other fair use cases we’ve looked at?

Compare Seinfeld to Nunez and New Era

Sega v. Accolade

• What was the issue for the Ninth Circuit to decide?

• Did they find fair use?

• In Sony v. Connectix, did the Ninth Circuit apply the same approach?

Kelly v. Arriba (CB p. 539)

• How did Arriba allegedly infringe Kelly’s copyrights?

• To what extent did fair use apply?

• Is Google’s image search engine at www.google.com protected by fair use? Why or why not?

Fair Use Generally

• Are all these fair use cases we’ve read just hopelessly inconsistent?

• Are some of the fair use factors more important than others?

• How does one advise a client on the issue of fair use?

• How, if at all, should the doctrine be changed?