Seattle IP Inn of Court – GROUP 2 OCTOBER 14, 2014

1  §102 · Subject matter of copyright:

(a) Copyright protection subsists, in accordance with this title, in 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.

2  (1) literary works;  (2) musical works, including any accompanying words;  (3) dramatic works, including any accompanying music;  (4) pantomimes and choreographic works;  (5) pictorial, graphic, and sculptural works;  (6) motion pictures and other audiovisual works;  (7) sound recordings; and  (8) architectural works.

3  §106 generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: 1) reproduce the work in copies or phonorecords 2) prepare derivative works based upon the work 3) distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending 4) perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works 5) display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work 6) perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

4  §107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as ◦ Criticism ◦ Comment ◦ News reporting ◦ Teaching ◦ Scholarship ◦ Research

5 1) The purpose and character of the use, including whether such use is of 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 4) The effect of the use upon the potential market for, or value of, the copyrighted work

6  The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.  There is no specific number of words, lines, or notes that may safely be taken without permission.  Acknowledging the source of the copyrighted material does not substitute for obtaining permission.  “being denied permission to use a work does not weigh against a finding of fair use.”  Campbell v. Acuff-Rose Music, Inc. 510 U.S. at 586

7  quotations  of excerpts in a review or criticism for purposes of illustration or comment  of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations

8  use in a parody of some of the content of the work being parodied;

9  summary of an address or article, with brief quotations, in a news report;  incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”  TheRevision 1961 ofReport the U.S. of theCopyright Register Law of Copyrights on the General .

10  Reproductions  by a teacher or student of a small part of a work to illustrate a lesson  Of a work in legislative or judicial proceedings or reports

11 Cariou

12 Prince

13 Cariou

14 Prince

15 Sorry For Partying

16 The Crazy Nastyass Honey Badger

17 Honey Badger Don’t Care

18 OH, PRETTY WOMAN Roy Orbison and William Dees 1964 Assigned Acuff‐Rose

19 PRETTY WOMAN Luther Campbell and 2 Live Crew 1989 Luke Skyywalker Records

20 “Oh, Pretty Woman” Roy Orbison and William Dees 1964 https://www.youtube.com/watch?v=HwkNI9tjqPI 21 “Pretty“PRETTY WOMAN”Woman” Luther Campbell and 2 Live Crew 1989 https://www.youtube.com/watch?v=65GQ70Rf_8Y 22 BACKGROUND

• 1964 –Roy Orbison and William Dees write “Oh Pretty Woman” Assign the song to Acuff – Rose Music, Inc. • 1964 –Acuff–Rose apply for Copyright Rights. • July 5, 1989 –2 Live Crew notifies Opryland U.S.A., Inc. and Acuff –Rose ‐ 2 Live Crew is releasing a parody of “Oh Pretty Woman”. • Orbison and Dees will receive full credit as owner and authors. • 2 Live Crew will pay Acuff – Rose for use of the song, i.e., $13,867. • July 17, 1989 –Acuff–Rose denies the license request, and denies permission of use of parody of “Oh, Pretty Woman”. • July 15, 1989 –2 Live Crew releases “Pretty Woman” on album, tapes, and compact discs, entitled “As Clean As They Wanna Be”. • Quarter of a million copies sell.

23 “Oh, Pretty Woman” v. “Pretty Woman” COURT APPEARANCES  ACUFF‐ ROSE MUSIC V. LUTHER CAMPBELL a/k/a Luke Skyywalker, CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS a/k/a Brother Marquis, DAVIS HOBBS a/k/a Mr. Mixx, p/k/a The 2 Live Crew and Luke Skyywalker Records, 754 F. Supp. 1150 (1991). . U.S. District Court, M.D. Tennessee, Chief Judge Wiseman

 ACUFF – ROSE V. LUTHER CAMPBELL, et.al., 972 F.2d 1429 (6th Cir.1992). . Court of Appeals for the 6th Circuit, Senior District Court Judge Joiner.

 CAMPBELL, et. al.,V. ACUFF – ROSE MUSIC, INC., 510 U.S. 569 (1994) • United States Supreme Court –Justice Souter

24 FAIR USE?

• Acuff – Rose Music Inc. v. Luther Campbell, et.al., 754 F. Supp. 1150 (1991). Acuff – Rose claims copyright infringement of its song “Oh, Pretty Woman” • 2 –Live Crew “unfairly are trying to cash in on the popularity of “Oh, Pretty Woman” • “lyrics are not consistent with good taste or would disparage the future value of the copyright.” • Music is substantially similar to that of the original “Oh, Pretty Woman” • Lyrics of the first verse are substantially similar in melody to “Oh, Pretty Woman”

25 PARODY

 § 107 . Limitations on exclusive rights: Fair use • Fair use of a copyrighted work, including such use by: • Reproduction in copies or phonorecords or by any other means specified by that of §106, or § 106 A

 For purposes such as: – Criticism – Comment – News reporting – Teaching (including multiple copies for classroom use), – scholarship or – research • Is not an infringement of Copyright. PARODY

 Congress has listed parody as one of those activities that might qualify for the fair use exception. • See H.R.Rep. No. 1476, 94th Cong., 2d Sess., 65 (1976), reprinted in 1976 U.S.Code Cong. & Admin. News 5659, 5680.

Criticism for purposes of illustration or comment

Use in parody of some of the content of the work parodied PARODY

“Parody, like other comment and criticism, may claim fair use…the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.

Like other uses, parody has to work it way through the relevant factors.” Campbell v. Acuff – Rose Music, Inc., 510 U.S. 569 (1994) PARODY FAIR USE WITHIN §107

Purpose and Character of the Use • Commercial Nature or • Nonprofit Educational Purposes  Nature of the Copyrighted Work  Portion Used • Amount • Substantiality of the Portion Used • In relation to the copyrighted work as a whole  Effect of the Use • Upon the potential market for or • Value of the copyrighted work.

29 WHAT DID THE COURT SAY ? YouTube Image from Ylvis’ “The Fox.”

30 Purpose and Character of Use

 PARODY  COMMERCIAL USE Not presumptively unfair use.  If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in…§107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (BRENNAN, J., dissenting). PORTION USED

Issue: whether 2 Live Crew used more of the copyrighted work than was necessary to recall or conjure up the original song, “Oh, Pretty Woman”?

The question of substantial similarity cannot be divorced from the purpose – parody. Acuff – Rose Music, Inc., v. Campbell, 754 F. Supp. 1150 (1991) PORTION USED

BALANCE:  In order to be effective as a parody, enough of the original work ‐‐ even if of "the heart" of the original ‐‐ has to be copied to cause the original to be recognized and make the juxtaposition between the two apparent. Need to determine whether too much of the original ‐‐ more than necessary to make the parody effective ‐‐ has been copied to run afoul of substantiality factor. District Court Court of Dissent SCOTUS Appeals “PrettyPurpose Woman”Parody Every v. commercial “Oh, ParodyPretty for profit is WomanAgreed with District Ct. and And use of copyright not presumptively Ct. of Appeals erred Commercial Use presumptive unfair unfair use. in concluding commercial Character of Use are fair use. use. use presumptively unfair.

2 Live Crew Acuff – Rose 2Live Crew 2 Live Crew Nature “Oh, Pretty Creative works ‐ Original “Oh, Pretty Creative expression, Copyrighted Woman” is a are afforded Woman had been agree with Dist. Ct. and creative published greater protection published 25 years Ct. of Appeals Work work. within fair use. earlier.

Acuff – Rose Acuff – Rose 2 Live Crew Acuff – Rose Portion Used Quantity does not Taking the heart of Takes no more from CT. of Appeals erred. run afoul of original purloined a the original than Lyrics –nomore taken substantiality substantial portion necessary for than necessary for factor. essence of original. parodic purpose. parodic purpose. Music – no opinion if bass riff 2 Live Crew Acuff – Rose 2 Live Crew excessive. Remand. 2 Live crew Effect of the Use Acuff – Rose can Intended use is Parody has neither Ct. of Appeals erred. The record whatever commercial ‐ intent nor effect of cognizable harm is version of future harm and to fulfilling demand market substitution. original it desires. original ‐ presumed for the original. Did not decide 4th factor. 2 Live Crew Acuff – Rose 2 Live Crew 2 Live Crew? Order 4Factorsweigh in 4 Factors weigh in 4 Factors weigh in 4 factors weigh in favor of favor of Fair Use favor of Fair Use favor of Fair Use Fair Use 34 2 Live Crew Acuff – Rose 2 Live Crew 2Live Crew PewDiePie – AKA Felix Kjellberg creates “Let’s Play” videos.

He has over 31 million You Tube subscribers. His 2,028 videos have over 6 Billion views. His projected earnings for the next four months is close to $4,000,000. (www.statsheep.com)

35 36  §107 - First factor:  Is the new work “transformative”?

“the goal of copyright … is generally furthered by the creation of transformative works … [T]he more transformative the new work, the less will be the significance of the other factors…”

 Campbell v. Acuff-Rose Music, Inc. 510 U.S at 579

37 - In the video he adds commentary, making fun of both the game play and the images.

- He also plays the game in a way not necessarily intended – shooting defenseless characters and mocking scary images. In other words, his use may be considered a parody.

38 - PewDiePie comments and criticizes the original work in real time during the game play often making fun of the game, similar to 2LiveCrew’s use of the song Pretty Woman.

39  Did PewDiePie make the Let’s Play video simply to make money?  Although this is a consideration in determining Fair Use, it is not dispositive - just as an infringing use will not be found to be Fair Use just because it doesn’t make money.

40  If PewDiePie can establish that the video is a parody the first factor weighs in his favor.

41  This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.  Stewart v. Abend, 495 U.S. at 237-238

42  Video games are within the intended purpose of copyright, namely to promote the Progress of the Useful Arts and Sciences.

 This factor cuts against PewDiePie.

43  “the quality and value of the materials used,” Folsom v. Marsh, supra, at 348 are reasonable in relation to the purpose of the copying. Campbell v. Acuff-Rose, supra, at 587.

44  PewDiePie’s videos show a large portion if not all of a game. The issue is whether he is using more than is necessary to achieve the result.  Assuming success on the parody argument he will likely prevail on factor three as he needs to show the video in order to create a parody of it.

45  The Supreme Court has declared this factor to be, “undoubtedly the single most important element of fair use.”  Harper & Row v. The Nation, 471 U.S. 539, 566

46 - Are his videos likely to result in diminished sales of the video game? - Are his videos in effect advertising for the games?

47 - Do his videos diminish the market for derivative works? - If a video game company produced their own Let’s Play video would PewDiePie’s Let’s Play videos limit their audience?

48  “the market for potential derivative uses includes only those that creators of original works would in general develop or license to others to develop.”  Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 592.

49  “Evidence of substantial harm to it [the derivative market] would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals.”  Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 593.

50  PewDiePie’s Let’s Play videos may be held to be transformative if they are found to be a parody.  PewDiePie’s videos are created for a commercial purpose – not dispositive.  The video uses most if not all of the game, but this is arguably necessary for a parody.  PewDiePie’s videos arguably do not diminish sales of the video game.  PewDiePie’s video’s may harm the market for derivative works.

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