Transcript Fair Use - Berkeley Law

Fair Use
Intro to IP – Prof Merges
3.1.2010
Sec. 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.
The 4 Factors
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is
for nonprofit educational purposes;
(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.
Sony Part II
[W]e need only consider whether on the basis
of the facts as found by the district court a
significant number of [uses of the Betamax]
would be noninfringing.
-- IPNTA 5th p. 606
IPNTA 5th at 608
• [T]he District Court’s findings
plainly establish that timeshifting for private home use
must be characterized as a
noncommercial, nonprofit
activity.
Effect on the Market
• Court notes that Universal does not
represent all copyright holders whose works
are copied by the BetaMax
• Some copyright owners grant permission to
copy, others do not
• Fair Use preempts a market here . . .
Wendy Gordon: Fair Use as
Market Failure
1992 Amendment
“The fact that a work is
unpublished shall not itself bar a
finding of fair use if such finding
is made upon consideration of all
the above factors.” – Sec. 107
AGU v. Texaco
• Copying of academic journal articles
• Exhaustive analysis of 4 factors
Judge Newman opinion
• “[I]t is sensible that a particular unauthorized
use should be considered ‘more fair’ when
there is no ready market or means to pay for
the use, while such an unauthorized use
should be considered ‘less fair’ when there is
a ready market or means to pay for the use.”
• -- IPNTA 5th p. 619
IPNTA 5th ed. at 620
• Would a well-functioning licensing market—
such as that envisioned by the CCC and
encouraged by Judge Newman—serve to
promote both primary and cumulative
creativity? Or would it simply add another
transaction cost to scientific research?
IPNTA 5th ed. – p. 621
• Does the existence of licensing transactions
vindicate Professor Merges’ conjecture about
strong property rules producing effective
licensing institutions? To the extent that
licensing markets function well—i.e.,
producing efficient, low-cost access to
scholarly works—is fair use needed?
2 Live Crue
Campbell v. Acuff-Rose Music, Inc.
• Facts
• Procedural posture
– DC—commercial no bar/conjure up test/no market impact
– C of A—commercial presumption(Sony); heart theft (Harper)
• Souter sets the stage
– Must consider all 4 factors
– It is always a case by case analysis
– Footnote 10- damages instead of injunction
Campbell v. Acuff-Rose Music, Inc.
• Four factors
– Purpose & Character of the use-- transformative use & effect on
2 3 4 and commercialism, includes parody? Parody v. satire.
Presumption? Role of commercial use? Fn. 18 re “good faith”
– Nature of the work parody special
– Amount & substantiality of portion used- the heart or all –tied to
1 and 4
– Market effect--- D & others, includes derivative market, Sony
presumption? Lethal parody’s impact?
Beneficial impact like song in a movie?
• Holding
• Questions---Is parody unique? Where are we now?
Recap:
Campbell v. Acuff-Rose Music, Inc.
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Must consider all 4 factors
It is always a case by case analysis
Transformative use favored, though not required
Parody is a transformative use
Parody must criticize P’s work, not society
Courts will not recognize derivative market for critical
works, but supplanting a derivative market for rap nonparody cuts against fair use
• Commercial not presumptively unfair
• No presumption of market harm from commercial nature of
use unless mere duplication for commercial purposes
Bill Graham Archive v. DorlingKindersley Press
• Tickets and posters – images of Dead shows
• Incorporated into Defendant’s book
Lennon v. Premise Media
• 15 second excerpt from “Imagine”
• Incorporated into film about creationism and
“academic freedom”
• "I'm extremely gratified to hear that Yoko Ono's
attempts to silence our little film have not
succeeded and that free speech is still alive and
well in America," noted Stein. "There is a culture
war going on in this country, but the numbers are
with the traditionalists. While a few Americans
may be interested in films like Bill Maher's
Religulous, Expelled is the kind of film that most
mainstream/traditionalists Americans are going
to most resonate with and we are looking forward
to great numbers when the DVD comes out."
Companion Case
• New York State Supreme Court, Aug. 13, 2008
• Preliminary Injunction for Capitol Records
denied