- reproduction right. usually have to rely on circumstantial evidence of access (that D likely/had a way to get the work) and similarity. a very very strong degree may lessen need for proof of access -- for example, we may infer access based on publishing or something. but just the fact that something was copied by the D doesn't mean that the D is infringing. because CR is not concerned with that: the real issue is improper appropriation -- we want to know if the layman would perceive the D as having taken something that belonged to the P.
defenses to copyright.
the nichols case makes us have to think of what kind of similarities we're trying to discover and what we're protecting. the higher the level of abstraction, the more similarities we will find but the less they will have to do with CR because ideas, abstract themes, and characters are the stock and trade of creativity that we want available to all. from a legal aspect, this means we as lawyers have to think of where similarities fall on the level of abstraction spectrum to determine where the infringment on reproduction has been satisfied.
anderson v. stallone -- by creating a derivative work of a CR work, you're infringing the owners' rights as well as your own! you can certainly arrange materials that you don't own such that your new contribution will be protected (such as in feist v. rural) but if you lack permission to the creative recreation of original, creative product, you don't get that same protection.
rights of CR owners
distribution rights: 17 USC s.109(a)
exclusive right to "perform or display a work publicly' means... to do so at a place open to the public or at any place where a substantial number of person outside of a normal circle of family and social acquaintances is gathered..."
for example: if you play a CD in your apartment, are you liable for CR infringement? what if you sell tickets?
TV show -- performance
painting -- display
choreography -- performance
remedies - what does CR owner get from infringer?
well, first s/he must register the CR. not necessary to successfully register, you can even get refused in your registration and still bring suit.... not a burdensome requirement. your success is divided in two categories - injunctive relief and damages.
-- injunctive remedy (after eBay, courts find that there's more analysis needed for CR and patent cases than just boom, injunction)
-- impounding and disposition - 17 USC s.503: for example, if someone made a bunch of copies of your book and they're sitting in a warehouse, the judge can order the infringing copies be destroyed/ given over to you/ etc
-- damages and profits - 17 USC s.504: there's (1) actual damages and (2) statutory damages
statutory damages are the leverage in the peer-to-peer online infringement
-- costs and attorney fees: 17 USC s.505
-- criminal penaltieis: 17 USC s.506
1. fair use doctrine: there are some uses of copyrighted material that we want to protect
*** gotta see slide with fair use analysis****
17 USC 107 - limitations on exclusive rights: fair use
Fair Use
- 17 USC 107
- 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
- Not an exhaustive list
Exceptions – the rights are not unlimited – cable retransmission rights for broadcast, school plays, religious performance. Limited by first sale doctrine – once you buy authorized copy that terminates the distribution rights of the owner. You have the right to redistribute it if you want. Limitation that you heard the most about is the concept of fair use – not an exception. It is a defense – it is not an instance of saying there was no copying. It is a defense of the assertion of actionable copying.
There are some policy reasons we allow a defense for copyright infringement. Courts were creating exceptions because they were so patchwork and inconsistent so Congress codified it in 1976. This is not an exhaustive list – it leaves a lot of discretion for the Court to determine what is fair use. It has become too broad and too uncertain. We have for a long time viewed that there is great advantage of having an inexact rule because there are cases involving new facts patterns and using content.
Why do we have a concept of fair use in the first place? Why do we have a fair use concept in copyright and not one in patent? Copyright is automatic, no notice, and no registration so we want to have a safety valve. There is a notion that promoting a progress means defending the public’s right to use and access the work. Fair use helps to protect the right of public access. We administer the patent system to a much higher degree – it is easier to check than it is in a copyright instance. There is no examination in copyright, which means fair use is a safety valve for lack of administration. We want to make it easier for people to create creative works and we don’t want the government to disturb that. It creates a system of non-perfect enforcement – helps us to create a system that allows the public to use, access, and create but balance out the author’s right in the creation.
Long duration of copyright terms – it goes on a long time. Part of what fair use does is it allows the re-uses of the work in certain instances. Would the reasonable copyright owner have consented to this use? The 1st amendment is the quintessential justification behind fair use. It is the 1st amendment safety valve – protect the rights of free expression. Two constitutional clauses – 1st amendment and copyright. One provision says that in order to promote science and useful arts, we will give people monopoly rights and the ability to control reproduction and distribution of those stories. The problem is that it infringes on others to tell their stories. It creates a limitation on the form of expression that the next person down the line is able to use. From a democratic standpoint, we don’t want to limit someone’s right to speak. The defense is not clearly defined, it often has to be argued in court, but we are seeing new challenges every day and these challenges are popping up because of new technology.
471 U.S. 439 (1985)(full-text).
Factual Background
- Can fair use apply as a defense in the case of an unpublished work?
- Can fair use apply as a defense
- Which trumps: The Nation’s 1st Amendment argument of the right to engage in news reporting or Harper’s argument that it has a copyright of the manuscript and it has a right to control the reproduction and distribution of the text of the copyrighted work?
Facts: The Nation magazine published excerpts from Gerald Ford’s autobiography before Time magazine published it. This led Time to cancel its agreement with Harper & Row that it would purchase the exclusive right to publish excerpts of the autobiography. Harper & Row sued The Nation and The Nation argued fair use. It was not about writing an article about the book. It was quotes from the book and includes paraphrasing and facts from the work. It includes a lot of verbatim text from the book – it is portions of the book itself. What copyrights are allegedly being infringed here? The right to make copies and the right to distribute. Time has bought serial rights – right to make the magazine story and this has been scooped out from under them. Time cancels its agreement with Harper and it is out over $12,000 but they are concerned they lost more than that. Harper sues the Nation for copyright infringement. They win and it goes up on appeal and the decision is reversed and it goes up to the Supreme Court who side with Harper & Row.
What is the essence of the Court’s holding? Why does the Court ultimately decide that this use is not a fair use? It takes away their right to control how it’s going to be public, how it’s going to be disseminated for the first time. This behavior robs the author of the control of where and when this work is going to be made public. It benefits the author and public when the author is assured of the leisure time to develop their ideas free from fear of expropriation. Control arguments outweigh a defense of fair use when it takes away basic control rights of the author. In this case, we are dealing with an unpublished work and the issues of control become much more public and the scope of fair use is narrower of unpublished work. People would not write memoirs if they are afraid people are going to steal the memoir before it’s finished.
What does the defense argue? The defense says this is a news story. We have the right to report the facts of Nixon’s pardon and/or the assassination of President Kennedy. We are not dealing with just anybody but the former president of the US
Fair Use Test
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes – what was the work used for? Is the goal to supplant or replace the copyright holder’s right? Courts will talk about work being transformative – if the work simply repeats and simply supplants the original work, there is less likelihood of finding fair use. If it is different in character, there is a higher finding of fair use.
- The nature of the copyrighted work – is it fact or fiction? The more factual it is, the weaker the copyright, the greater the likelihood of finding fair use. The more fictional, the less likelihood of finding fair use
- The amount and substantially of the portion used in relation to the copyrighted work as a whole – how much of the work did you take? Did you copy the whole book – less finding of fair use. Not just a question of pure quantity. Did you take the heart of the work, the best of, the classic scenes? Or did you take something tangential or minor?
- The effect of the use upon the potential market for or value of the copyrighted work – it has to not impair the market for the work or the market for the creation of derivative works, or markets into which the copyright owner is likely to enter.
How do you determine what is the potential market? There is no clear answer to this question. The 4th factor is really a vague rule.
Purpose of the Use
- What was the nature of the use? Here, The Nation says the nature of the use is news reporting. Court says this went beyond simply reporting to exploit the headline value of its infringement.
- Was it commercial? Yes, they are selling magazines. The crux of this question is not whether the main motive was to profit but whether the intended purpose was to supplant the copyright holder’s commercially valuable right of first publication. When the commercial use is aimed at depriving the copyright owner of an economic right, it weighs against finding a fair use
- Was there good faith and fair dealing? No, there is a purloined secret manuscript. In the Court’s interpretation, a purloined manuscript weighs against a finding of fair use
Nature of the Work
- What was the work at issue? It is an unpublished, historical narrative. It’s an autobiography and very factual. Fair use as a defense favors fact over fantasy. We tend to view factual narratives as fair use. Fair use is applicable to facts over fiction.
- What was the nature of the material copied? Is it the dates and figures and statistics? No, it is descriptions and portraits of public figures. The court says this power lies in the author’s individualized expression. This weighs against The Nation. If they had taken only the facts, this would have been fair use. But they took the most expressive elements. Would this case have come out differently if they published this article 2 weeks after the Times story? If they were using this for a transformative use, it is not simply news reporting but they are adding some extra commentary from the cleaning lady who was there, etc. It is no longer depriving the author of the valuable pre-publication right that is at issue here. They were done for the reason for engaging in commentary. What if instead of having published this manuscript when it did, Ford had sat on the manuscript for 20 years and he dies and the estate decides to release his story? Would it have changed anything?
Amount and Substantiality of the Portion Use
- In absolute terms? How much of the work as a percentage of the whole was taken? It only took 1% of the language of the book as a whole. This favors The Nation.
- Qualitative Nature? The court found they took the heart of the work – the most powerful expressive passages. This weighs against the Nation
- Role in the Infringing Work – 13% of the new work is built around these passages and is the focal point – this is central – if you got rid of the 13%, this would not be the same works. This weighs against the Nation
Book reviews – you copy the most expressive language. It is ok as long as it doesn’t supplant the author’s right of first publication.
Effect on the Market
- Impairment of marketability? Whether there has been a material impairment of marketability? In this case, the contract with Time has been canceled and it has a material impairment on the right to sell serial rights. The Nation article may promote book sales in the market for the work.
- If it became widespread practice? Should the practice become widespread, would it adversely impact? We look to harm to the market of original and derivative work. There is direct competition by the defense for a share of the market for pre-publication excerpts – Court says we don’t like this as a widespread practice and on balance, taking all these factors together, the Court finds against The Nation and against a finding of fair use.
Purpose
- nature of the use: news reporting
- commercial: yes. Is sole purpose to supplant copyright holders comerically valuable right of first publication.
- good faith n fair dealing? No …
- it exploited headline value
- so purpose: against finding of fairu use
Nature
- work is unpublished historical narrative
- autobiographical facts
- weighs for fair use
- whats copied? Dates figures stats? No descriptions eetc. And these are the authors..favors against use of fair use
- overall against fair use
Amount and substantiality
- how much of work as % of whole taken
- here only 1% taken? In favor of fair use
- qualitative: took heart of it. So against fair se
- role: 13% of new work is built as focal point. Its central to new work…this percent is against faiur use. The 1% is central to their new work.
- So book reviews : are okay.
Effect of market
- had material impairment on K that was cancelled
- if its widespread would it adversely impact? Larger picture on derivative works effect..direct competition by defense for share of market for pre pbulciation excerpts.
The Nation magazine clandestinely obtained the unpublished memoirs of former President Gerald Ford just before Time Magazine had scheduled a story about the book. The Nation quickly published an article focusing on Ford’s revelations about his pardon of Richard Nixon. Time canceled its story and did not pay the memoir publisher, Harper & Row, $12,500 due under the exclusive license. The Nation did not dispute that its verbatim copying of Ford’s “original language totaling between 300-400 words and constituting some 13% of The Nation article” “would constitute infringement unless excused for fair use.”[1]
U.S. Supreme Court Proceedings
The Supreme Court first found that “the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use,”[2] and that “[u]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”[3] The Court also refused to expand either the first amendment protections inherent in the idea-expression dichotomy, or the fair-use doctrine, to include “a public figure exception to copyright.”[4]Finally, the Court turned to the four fair use factors and resolved every factor against The Nation:
- 1. Purpose and character of use — Although The Nation’s use of Ford’s work was news, it also was for profit, was intended to supplant other news stories, and was based on knowing exploitation of a purloined work. a. purpose - news reporting, teaching and comment ... but commercial use doesn't fit the bill b. character - the news isn't that ford pardoned nixon, it's ford's words about why he pardoned nixon... this is something different than straight news reporting that may be something that CR may be created to protect but if purpose is defined too broadly then there would be no such thing as fair use because everything can fall into the general category of purpose.
- 2. Nature of the work — The memoir was essentially facts and “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy,” but Ford’s work was also unpublished and this was “key.” a. the right to make the first copy is the right to make copies/reproduce. is the right to make the 1000th copy different than the right to make the first copy? yes: distribution is an important right as well, and so we care that the way a copy is released can have an effect on the market
- 3. The amount and substantiality of the use — The district court held that The Nation took what was essentially “the heart of Ford’s book.” a.
- 4. Effect on the market — “[T]he single most important element of fair use,”[5] also goes against The Nation, particularly because of damages (actual and potential) to serialization rights.
Sony Corporation of America U.S.
Facts: Sony developed Betamax, a video tape recording format (VTR), that allowed consumers to tape copyrighted televised programs. Universal Studios and Walt Disney sued Sony, alleging that because Sony was manufacturing a device that could potentially be used for copyright infringement, they were liable for any infringement that was committed by its purchasers (contributory infringement). District Court ruled for Sony, on the grounds that non-commercial home use recording was considered fair use. The Court of Appeals 9th Circuit reversed in part, finding Sony liable for contributory infringement.
Issue: Was Sony, in supplying Betamax to consumers, liable to Universal and Disney for contributory infringement by aiding the public to infringe copyrighted material?
Holding: No. The Supreme Court reversed the Court of Appeals decision.
Reasoning: The Court borrows from patent law to create a standard for copyright. It states, “But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between the copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses.”
“[The court found that a substantial portion of the public’s use of the VCRs did not implicate copyright at all, and also that the most common use – time-shifting – was a fair use]… The Betamax is, therefore, capable of substantial non-infringing uses. Sony’s sale of such equipment to the general public does not constitute contributory infringement of respondent’s copyrights.”
campbell v. acuff-rose
2liveCRew's reps contacted roy orbisons' reps and asked, "we'd like to use the song pretty woman. may we?"
summ judg for 2liveCrew.
6th circuit overruled, and said commercial use overrules fair use.
now at SCOTUS - is there a fair use defense?
1. purpose and character of use
2. nature
3. substantiability
4. effect on the market
Campbell v. Acuff-Rose Music Inc.
* More fair use analysis to figure out whether there is an infringement
- Concerns another area of fair use different from what we’ve talked about – the idea of parody
- Another form of speech which we wish to protect for first amendment reasons but also a part of market failure that if we didn’t create a valve then it would be a mess
- What happens here…?
- Roy Orbison writes and records “Oh pretty woman” and assigns the rights to Acuff who registers the CR. They then become the litigant in the case
- 2 live crew writes a wrap song called “pretty woman”
- They contact Acuff and offer to pay a royalty
- Acuff refuses
- 2 Live Crew releases the album anyway and sells lots of albums
- 2 Live Crew doesn’t claim a cover license which would mean that they could have gotten a compulsory license and just paid a fee. They say look we have a right to cover the song but they don’t do it. But, to be a cover, they have to copy the song in essentially the same way and instead they make a derivative work here and so they change the strategy and argue fair use in defense.
- On appeal, 6th circuit says this is blatantly commercial use here and they are doing it to make a buck and that the blatant commercial purpose prevents the parody for being fair use
- What public interest fair use should be allowed? As a matter of public policy, what should be allowed? What sorts of uses should be allowed?
- Supreme Court does:
- Factor 1: What is the purpose/nature of the use here?
- 2 questions – was it commercial or not for profit/educational use?
- Here it is commercial but it’s a parody and there is a distinction between satire and parody. To be a parody u have to use some elements of the prior authors work to create a work to at least in part comments on the original authors work. VERSUS
- Satire – used to critique the work itself – here not the case
- Presumption of fair use is reduced but commercial vs non commercial is not itself dispositive. Not focused on non profit vs profit but more so on the nature of the use.
- Sliding scale – balance the facts is it heavily commercial and the nature of the use
- No one given use that is presumptively fair use – we must balance the inquiry and the nature and character of the use weighs in favor of fair use.
- Here it is commercial but it’s a parody and there is a distinction between satire and parody. To be a parody u have to use some elements of the prior authors work to create a work to at least in part comments on the original authors work. VERSUS
- 2 questions – was it commercial or not for profit/educational use?
- Factor 2: Was it transformative?
- Does it always have to be transformative to be fair use? NO. Ex. Educational/scientific research would be ok. But, there is a much stronger finding of fair use when we look for and find a transformation of the original work that is new and different and essentially serves a different purpose.
- Complicated slightly the fact that the determination that what constitutes a transformative parody (commenting on the old work) does begin to get the court into aesthetic judgments
- What is parodic is a tricky area but again, there is a sense of for social reasons, we should protect parody otherwise no CR owner would let.
- So, what is the nature of the material copied? Fact v. Fiction. Fact in favor of fair use. Fiction, not so much.
- Here, the song is expressive and therefore fiction. The nature of the material copied is expressive and the factor in this case is not much help in determining fair use v. infringer
- Where doe we fall on the line between idea and expression? Is it highly expression or pushes more towards the idea (original to the author)
- Public interest rationales for allowing the use of certain types of work
- Public interest rationals like parody that allow for the certain use of types of work
- CR in expressive work (more expressive work, more CR), we would allow for fair use in the realm of fantasy as in realm of fact
- Does it always have to be transformative to be fair use? NO. Ex. Educational/scientific research would be ok. But, there is a much stronger finding of fair use when we look for and find a transformation of the original work that is new and different and essentially serves a different purpose.
- Factor 1: What is the purpose/nature of the use here?
- Roy Orbison writes and records “Oh pretty woman” and assigns the rights to Acuff who registers the CR. They then become the litigant in the case
- Factor 3:
- Take away – extent of permissible copying varies with the nature of the work – parody is more permissible
- Have to figure out how the new work factors into the old work
- Not just that copies of the journal articles were made
- Not that someone took passages from somewhere but that how they are used in the next work – what role they play nad how necessary
- Parodies art lies in the tension between the known original and the parodic town. If they cant recognize the original then its not a parody. More is permissible here than in a reporting context
- Market failure argument – authors are not going to consent to certain copying (authors wont contest to being ridiculed) no market place fix to this…no amt that anyone will let u pay
- So the law steps in and allows for the copying.
- Market failure would be Acuff saying NO! you cant have the song
- Take away – extent of permissible copying varies with the nature of the work – parody is more permissible
- No evidence that the parody killed the market place for the original
- What abt market for derivative works? And widespread practice?
- Derivative market for rap music also has to be looked at…so they send it back down to plug the evidentiary hole
- Have to always ask what is the harm to the market to the original and what is the harm to the market for the new work? What would happen if we let everyone out to make parodies?
- If there is a market, it needs to be protected (licensing and CR-ing)
- Tricky part is that suppression of the market is not the same as usurpation. Ex. If you write a bad review of a book and suppress the market is not the same s taking away their market. If you’ve written a book review, you have not tried to sell the original book. Creating a parody maybe u suppress the market for the original but you didn’t kill it totally.
- We are asking ourselves here whether the infringer in this case essentially stealing a commercial opportunity from an original copying owner and do we see a need to protect for certain social purposes and first amendment purposes and do we see a need to actually protect the market for the original.
- If there is a market, it needs to be protected (licensing and CR-ing)
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