4/6/16

OSB IP Secon CLE April 6, 2016 Fair Use: Old Factors, New Facts and New Challenges

Presented by: Kohel Haver www.swiderhaver.com [email protected] (503) 226-8122

Sean Clancy www.seanclancylaw.com [email protected] (971) 251-0152

1. Exisng Work Subject to Copyright

“original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”

17 U.S.C. § 102

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2. Alleged violaon of Copyright Owner’s Exclusive Rights (e.g. Copying or Appropriaon) 17 U.S.C. §106

(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivave works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramac, and choreographic works, pantomimes, and moon pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramac, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a moon picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

3. Limitaons on exclusive rights: Fair Use

17 U.S.C. §107 [...] the fair use of a copyrighted work [...] for purposes such as cricism, comment, news reporng, teaching (including mulple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any parcular case is a fair use the factors to be considered shall include—

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3. Limitaons on exclusive rights: Fair Use (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educaonal purposes; (2) the nature of the copyrighted work; (3) the amount and substanality of the poron used in relaon to the copyrighted work as a whole; and (4) the effect of the use upon the potenal market for or value of the copyrighted work.

17 U.S.C. §107

Rogers v. Koons (2nd Circuit Court of Appeals 1992) NOT FAIR USE

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Blanch v Koons 467 F.3d 244(2d Cir. 2006)

Leibovitz v. Paramount Pictures Corp. (2nd Circuit Court of Appeals 1992)

FAIR

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SOFA Entm’t, Inc. v. Dodger Prods., Inc. (9th Circuit Court of Appeals 2013)

“This case is a good example of why the ‘fair use’ doctrine exists.”

SOFA Entm’t, Inc. v. Dodger Prods., Inc. (9th Circuit Court of Appeals 2013)

• (1) purpose and character of the use – “Biographical anchor” in story – Commercial nature is not decisive • (2) nature of the copyrighted work; – Full show or performances = protected • short clip of Ed’s intro is not the “core of copyright” (3rd factor?) • (3) amount and substanality of the poron used – “the extent of permissible copying varies with the purpose and character” – 7 seconds is “hardly qualitavely significant” • (4) effect of the use upon the market – Not a replacement

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SOFA Entm’t, Inc. v. Dodger Prods., Inc. (9th Circuit Court of Appeals 2013)

FAIR

“This case is a good example of why the ‘fair use’ doctrine exists.”

Elvis Presley Enters., Inc. v. Passport Video (9th Circuit Court of Appeals 2003)

(pictured box set is for visual aid only, not the work at issue in this case)

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Elvis Presley Enters., Inc. v. Passport Video (9th Circuit Court of Appeals 2003)

• (1) purpose and character of the use – Close issue – Transformave in some instances but excess footage – “Biographical” and Commercial nature • (2) nature of the copyrighted work; – Some newsworthy events but also creave footage/music • (3) amount and substanality of the poron used – Repeated – “heart” of the work • (4) effect of the use upon the market – Replacement

Elvis Presley Enters., Inc. v. Passport Video (9th Circuit Court of Appeals 2003) NOT FAIR USE

(pictured box set is for visual aid only, not the work at issue in this case)

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Lennon v. Premise Media Corp. (Southern District of New York 2008)

“Nothing to kill or die for / And no religion too”

Lennon v. Premise Media Corp. (Southern District of New York 2008)

• (1) purpose and character of the use – *Transformave* – Cricism and commentary on specific “no religion” lyrics – Commercial nature is not decisive • (2) nature of the copyrighted work; – Creave work “core of copyright” • (3) amount and substanality of the poron used – “nothing to live or die for / and no religion too” • Only the poron for crique • BUT very recognizable, recurring poron • (4) effect of the use upon the market – Yes, there’s a licensing market for non-transformave purposes – But use here doesn’t replace that because transformave

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Lennon v. Premise Media Corp. (Southern District of New York 2008)

FAIR

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Patrick Cariou v. Richard Prince (2nd Circuit Court of Appeals 2013)

REMANDED THEN SETTLED ????

Cariou v. Prince (2013) 2nd Circuit Court of Appeals

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Miscellaneous Info and Dispelling Myths

• “Commercial use” v. Nonprofit educaonal purposes – 1st factor only • “No infringement intended” is meaningless • Different media • Different courts • No easy answers (no 5% rule, no 5 second rule)

“being denied permission to use a work does not weigh against a finding of fair use.”

Campbell v. Acuff-Rose Music, Inc. (US Supreme Court 1994)

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Takeaways

• **Transformaveness** • No more than absolutely necessary for the type of use • Avoid the “heart” of the work if possible • Aribuon is helpful

Campbell v. Acuff-Rose Music, Inc. (US Supreme Court 1994)

Prey woman, walking down the street, Prey woman, girl girl you look so sweet. [Verse 2] Prey woman won't you pardon me [Verse 2: Fresh Kid Ice] Prey woman I couldn't help but see Big hairy woman, you need to shave that stuff, Prey woman that you look lovely as can be Big hairy woman, you know I bet it's tough. Are you lonely just like me Big hairy woman, all that hair ain't legit, [Verse 3] 'Cause you look like Cousin It. Prey woman stop awhile Big hairy woman Prey woman talk awhile Prey woman give your smile to me [Verse 3: Brother Marquis] Prey woman yeah, yeah, yeah Bald headed woman, girl your hair won't grow, Prey woman look my way Bald headed woman, you got a teeny weeny afro. Prey woman say you'll stay with me Bald headed woman, you know your hair could look nice, 'Cause I need you, I'll treat you right Bald headed woman, first you got to roll it with rice. Come with me baby, be mine tonight Bald headed woman, here let me get this uncle bens for ya, Ya know what I'm saying, its' beer than Rice a Roni Oh, Bald headed woman

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Google Books Case: wading into a beer understanding of transformave

Authors Guild, Inc. v. Google Inc. (9th Cir 2015 - “Google Books”)

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Review: In the Campbell opinion Jusce Souter wrote about separang the fair use sheep from the infringing goats in a parody case. “Copyright law is designed to foster creavity”

Free Speech, commentary & transformave • Is how we understand fair use changing? • §107 says … “notwithstanding the provisions of §106 the fair use of a copyrighted work… is not an infringement of copyright…”

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Wait, Defense Burden?

Fair Use: An Affirmave Defense?, Lydia Pallas Loren, 90 Washington Law Review 685 (2015) hps://digital.lib.washington.edu/dspace-law/ bitstream/handle/1773.1/1461/90WLR0685.pdf? sequence=1

The Supreme Court got it wrong, twice. Congress did not intend that Fair Use be an affirmave defense.

The Lenz Dancing Baby Lenz v. Universal (9th Cir. 2015)

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Analysis - is the use fair?

• Considering the §107 “preamble”. • Before reviewing the factors we know well: – Purpose of the Use (consider news reporng) – Nature of the copyrighted work – The amount and substanality of poron used – The effect on the potenal market or value for the copyrighted work

Recall the Prey Woman case

• Court stated “… since fair use is an affirmave defense its proponent would have difficulty… without favorable evidence about relevant markets”. • But did Campbell’s use effect the market for the original work in any way?

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Old analysis:

• Did you copy the work? • Who are you. • How much did you take? • Did it effect the market for the original ?

New Analysis

• Did you copy the work? • How did you use what you took? • Did you take more than you needed? • Was the use commentary on or transformave of the original? • What, if any, effect on the market for the original?

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New Ideas

• Fair use as a right or privilege - not a defense • Does §512(c) require that the party taking down the material has a good faith belief that the material is not authorized under the law? • Is a fair use authorized under the law? • Looking at §107 again considering fair use before looking at the four consideraons?

Documentary film and Youtube

• What is included in commentary? • What is news, what is commentary? • What is the real effect on the market? • What is eligible for fair use protecon?

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Fair Dealing – Canadian Fair Use

Fair Dealing – Canadian Fair Use

90% of the populaon of Canada is within 100 miles of the US border. How will an American fair use analysis fare there?

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Vancouver Aquarium case

The Aquarium accused the defendant of “reprehensible, insulng, high-handed, spiteful, malicious and oppressive conduct” and asked for special and punive damages as well as for an injuncon restraining the publicaon of the film on Youtube, Vimeo, and defendant’s website and other public locaons. In response, defendant cited a “fair use” defense saying he credited the source of the footage and used it for educaonal purposes.

The Canadian Fair Dealing Law

• The Purpose of the Dealing • The Character of the Dealing • The Amount of the Dealing • Alternaves to the Dealing • The Nature of the Work • Effect of the Dealing on the Work

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Recent Technology Changes

• Easy to make exact copies • Cost of distribuon near zero • Transformave is nuanced. • Determining the market effect is very complex.

A final thought

Bound by Law? Comic by Keith Aoki, James Boyle, and Jennifer Jenkins, 2006, p.59. hp://web.law.duke.edu/cspd/comics/

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Quiz: How did this case turn out?

Is this a Fair Use?

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Quesons?

[email protected] (971) 251-0152 [email protected] (503) 226 - 8122

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