Fair Use is undoubtedly the biggest limitation on what materials are given copyright protection, it’s also one of the most misunderstood things on the internet as well. Fair use is only a defense in the U.S., Canada and the UK who have a concept called “fair dealing” but it is defined differently.
“Fair Use” it not a verb. You can’t “Fair Use” something. Unfortunately, whether something qualifies as Fair Use always takes careful and thoughtful analysis. The case law is a set of guidelines.
Warning (Section 107 of the Copyright Act)
Makes fair use of a copyrighted work to create something new perfectly legal.
In other words, if you work qualifies as fair use you have a right to make that art. When something is fair use, it is legal to use copyrighted material if it is done for a limited and “transformative” purpose such as to create a parody of something, to criticize something, or to comment about a copyrighted work.
The fair use exception recognizes that there are certain times when you would probably never be able to get permission for using that work. Without the fair use exception, anything a person wanted to use a portion of a copyrighted work, they would need to negotiate a license with the copyright owner.
Fair Use is not a defense to copyright infringement - it is a right given to people to allow them to make speech. You have as much right to engage in Fair Use as the original artist did to make their original art. An example of Fair Use would be The Church of Scientology versus Washington Post in which the Post used short excerpts from some books of Scientology where a court ruled that the Post had a First Amendment right to report on Scientology. The short excerpts were protected by fair use because the quotes were brief and the purpose was commentary on those religious texts.
Fair Use Under the Copyright Act
There are three sections of the Copyright Act that apply the fair use of a copyrighted work.
Warning (17 U.S.C. 106)
Which recites the rights of the copyright holder;
Warning (17 U.S.C. 107)
Which lists the four factors that are used to determine whether a person may claim fair use of a copyrighted work;
Warning (17 U.S.C. 109)
Which involves the “first-sale” doctrine.
Note (Required Vocabulary)
“Underlying Work” refers to the original, pre-existing work - the thing that is being borrowed or sampled.
“Derivative Work” refers the work that is based upon one or more underlying works but not one protected by fair use. A work that is protected by fair use also borrows from other pre-existing works and would be a derivative in the absence of the fair use doctrine.
”Rights holder” or “Copyright holder” refers to the person or entity that owns the rights to the underlying work. Often this is the author but sometimes it’s someone the author licensed their work to.
”License” refers to a legal agreement that dictates the usage rights of a copyrighted work.
Summary (Copyright Act 17 U.S.C. 107 Four Factors to Judge Fair Use)
the purpose and character of the use, whether it is transformative, including whether it is being used for commercial purpose or for non-profit educational purposes.
the nature of the copyrighted work.
the amount and substantiality of the portion of the original work which has been used.
the effect of the use on the potential market or the value of the original work.
The fact that a work is unpublished does not automatically mean fair use does not apply if the first three factors suggests that such use is acceptable under the law. These factors are not a checklist; you cannot go down the line and think that your work is protected by fair use. There is no singular formula that applies in all cases.
Under the law, a “factor” is something that is meant to be weighed. The four factors also aren’t equally weighted. Some factors are crucial while others are not nearly as important. The weight given to each factor changes depending on the circumstances. The four factors are not exhaustive, judges have the freedom to develop additional factors depending on the nature of the case before them.
Factor I: The Purpose & Character of the Use
“Purpose and character” factor is by far the most important. It focuses on why you are using the portion of the underlying work, and what you did with it.
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Is the new work for commercial or educational purposes?
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What is the purpose and character of the work, has the work transformed the original work?
To be transformational, the new work must add new insights, aesthetics, expression, and meaning that were not found in the underlying work. The most common transformation work is creating a parody which is a critical critique of a copyrighted work. However if the new work seems too much like the underlying work, with few alterations to justify the verbatim copyright, it won’t be enough to be a parody.
Under current jurisprudence, the central question of fair use is the “transformative” question. That means, that you’re not using the underlying art for its inherent entertainment value, but instead you are commenting or criticizing that art. In some ways, this analysis overlaps with the fourth factor on the effect of your use on the market for the original work. If your use supplants the market or poaches the audience from the original work, that’s a sign that your work is not transformative.
Solution (CAMPBELL v. ACUFF-ROSE MUSIC 510 U.S. 59 (1994))
A music publisher which owned the copyrights to Roy Orbison’s song “Oh Pretty Woman” sued the rap group 2 Live Crew for using samples of the Orbison song on their album. The crew in reality wasn’t just using small samples but the entire song, the entire melodies, and just changing out the lyrics but in the case 2 Live Crew raised the parody exception.
Pretty Women from 2 Live Crew starts with pretty similar lyrics to Orbison’s song, lyrics that seemed to praise women and then the group turns to humor, addressing a quote ‘big hair woman’, then the group moves on to bald headed woman and lastly address two timing woman.
“2 Live Crew” tried to license the opening bars of the song, but Acuff-Rose music did not want Orbison’s song to be used by a rap group. The Supreme Court later found that the 2 Live Crew’s “Pretty Woman” is a parody of the original song because it imitates the characteristic style of an author or a work for comic effect or ridicule. The Court recognized that parody can play the same cultural role as criticism by exploring the meaning of an earlier work, and in the process, creating something entirely new.
Defeat (ROGERS v. KOONS 960 F.2d 301 (2d Cir. 1992))
Art Rogers, a professional photographer, took a black-and-white photo of a man and a woman with their arms full of puppies. The photograph was simply entitled, Puppies, and was used on greeting cards and other generic merchandise. Jeff Koons, an internationally known artist, found the picture on a postcard and wanted to make a sculpture based on the photograph for an art show on the theme of banality of everyday items.
After Koons removed the copyright label from the postcard, he gave it to his assistants with instructions on how to model the sculpture based on the photograph itself. He also requested that as much detail be copied as possible though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman.
The sculpture, entitled, String of Puppies, became a success. Koons sold three of them for a total of $367,000. Upon discovering that his picture had been copied, Rogers sued Koons and the Sonnabend Gallery for copyright infringement by creating a derivative of a copyrighted work. Koons admitted to having copied the image intentionally, but attempted to claim fair use by parody. The court found both “substantial similarity” and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying, a measure for evaluation. Koons was not commenting on Rogers’ work specifically, and so his copying of that work did not fall under the fair use exception.
Solution (BLANCH v. KOONS, 467 F.3d 244 (2d Cir. 2006))
In this case, the Guggenheim Museum commissioned Koons to make a commentary about advertising. Koons made a collage using several photographs, including one taken by Andrea Blanch, a fashion photographer which shows a woman’s legs propped up on a man’s lap in the cabinet of an airplane. Koon manipulated the photo by cropping it and placing it in a painted collage showing many other pairs of women’s legs. Blanch sued for copyright infringement because he had simply cut them out of a magazine and added them to a collage.
This time around, an appeals court found in favor of Koons. The collage was made for a specific purpose - to critique modern media and advertising. Blanch’s photograph was published in a fashion magazine, which is why Koons selected it for his critique. The collage used the underlying work to create something entirely new, that had a new message and a different character.
Photos, Sculpture & Videos
Defeat (GAYLORD v. UNITED STATES 595 F.3d 1364 (Fed. Cir. 2010))
Frank Gaylord hand sculptured 19 sculptures for the Korean War Memorial in Washington DC. Sometime later, the US post-office decided to use the photographs of the sculpture on a stamp commemorating the Korean War but they didn’t ask Gaylord for his permission. When the post-office ran the stamps with a photo of his sculpture, he sued for copyright infringement alleging that the stamps were an illegal derivative works. (Reverse of the ROGERS v. KOONS case, here we have someone making a photo of a copyrighted sculpture than the other way around).
The Court ruled for Gaylord. The stamp used a photograph and altered the Memorial by putting snow around the sculptures and changing the colors, but the work was not transformative because it was made for the same purpose as the original sculpture: to honor the people who served in the Korean War. Just because you took the picture, doesn’t meant you have the right to the contents.
Solution (SELTZER v. GREEN DAY 725 F.3d 1170 (9th Cir 2013))
The band Green Day was sued by Derek Seltzer after the band used a version of Seltzer’s street art as the backdrop for their concert tour. The art known as scream icon was a drawing of a screaming person, a contorted face that was painted in various locations around Los Angeles and other cities.
Photographer and video designer Roger Stab, photographed the scream icon on a brick wall in Los Angeles and modified it slightly so that it could be a large backdrop during the band Green Days concerts. The Ninth Circuit held that Green Days use of screen icon was fair use since it was transformative.
The case piggybacks on Blacks v. Koons because the court found that the band used the underlying work as raw material to make a video backdrop that was a collage. Koons also used women’s legs to create a collage that was distinct from the original, in both cases the new work was part of an extended piece with a distinct meaning. Green Days video backdrop ran for four minutes and the court found that Seltzers wide dissemination of the underlying work, which appeared as street art in several locations weighed against a finding of infringement.
Solution (MATTEL BARBIE v. THOMAS FORSYTHE 353 F.3d 792 (9th Cir. 2003))
Thomas Forsythe decided to use photographs of Barbie dolls to make a point about the beauty myth - that the ideal woman is white, blonde and thin - that is represented by the doll. Forsythe pose the doll in many different creative poses, many of which were sexualized. He depicted Barbie being attacked by several kitchen appliances or covered in food. The photos did not attract much attention and only sold for just $3,600, but Mattel still filed suit.
The Ninth Circuit Court of Appeals affirmed a lower court ruling that the photographs were transformative. There were a parody of Barbie’s status as an icon of American womanhood. They showed Barbie in a new light, one that Barbie never intended hence why Mattel lost the case.
Solution (CARIOU v. PRINCE 714 F.3d 694 (2d Cir. 2013))
Richard Prince was an artist who made art that relies on other people’s photographs. Patrick Cariou is a photographer who took a series of Rastafarians living in Jamaica. Cariou stated that he wanted to have a classical look and avoid any pop culture references. Cariou eventually published his photographs in a book.
Afterwards, Richard Prince buys the book and proceeds to cut up all of the images, blow them up so they are large scale and add embellishments like guitars or hats. In some instances, Prince puts the heads of the subjects from Cariou’s photographs onto bodies taken from other photographs. Cariou then sued for copyright infringement asserting that Prince had essentially made derivative works of his original photos, the underlying work in this case. Prince’s defense was that he had created a transformational work.
The Second Circuit agreed with Prince, ruling that some of “Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs…”. The Court then pointed out some of the differences where Cariou is serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs. Prince’s crude and jarring works on the other hand, are hectic are provocative. Cariou’s black and white photographs where printed on a 9.5 x 12 book, Prince has created collages on canvas that incorporate color, feature distorted humans, and other forms and settings and measure between 10 and nearly a 100 times the size of the photographs.
Some of Prince’s artwork was fair use as a matter of law, but some was sent back to the trial court for further determination.
Solution (BILL GRAHAM ARCHIVES v. DORLING KINDERSLEY, Ltd 448 F.3d 605 (2013))
Courts have held that if a person downsizes or de-emphasizes a whole photo, it might be fair use rather than copyright infringement. Bill Graham Archives, LLC owned the copyright in images on Grateful Dad event posters and tickets. Dorling Kindersley Ltd. published seven of the images in reduced size in a book on the history of the Grateful Dead. Bill Graham Archives sued for copyright infringement.
Essentially, someone had created a reference book about Grateful Dead, chronicling the history of the band and in one of the pages they put a sampling of the event posters that the band used to advertise their live performances. Each of the seven images was used in its entirety, but the Court found that reproducing them as a whole is sometimes necessary. The Court considered that the visual impact of the photographs is limited by their reduced size. This transformed the purpose of the photographs, causing the reader to view them as historical artifacts from the Grateful Dead’s famous concert experiences, rather than just viewing them for the posters inherent beauty.
Defeat (WARNER BROS. ENTERTAINMENT INC v. RDR BOOKS 575 F.Supp.2d 513 (SDNY 2008))
In 2008, RDR Books published an encyclopedic guide to the world of Harry Potter. The book was called The Lexicon, an unauthorized guide to the Harry Potter fiction and related materials. It was described as an “A-to-Z guide to the creatures, characters, objects, events, and places that exist in the world of Harry Potter.”
The author of the book, Steven Vander Ark even created his own website called the Harry Potter Lexicon website, where he compiled lists of people, places, and things from Harry Potter working from his notes, the books and posts by users of the website. The site also contained lots of other things related to the Harry Potter universe. J.K Rowling authored the Harry Potter books and Warner Brothers produced the films based upon her work. RDR and Van Ark did not ask for a license from either parties. Vander Ark used Rowling’s seven Harry Potter novels and two companion books that expanded the mythology of the world that she created to form his encyclopedia.
Eventually, Warner Brothers and Rowling sued for copyright infringement. The Court had to decide if it was fair use for RDR Books to use part of the book series to create a guide to the original books. The Court considered the fair use factors and found it was not fair use. The Court emphasized the first factor, the nature and purpose of the use finding that it weighed against a finding of fair use because “Although The Lexicon had a transformative purpose, it’s actual use of the copyrighted works is not consistently transformative. The book used Rowling’s terminology, mythology, and regurgitated it, sometimes using more of the copyrighted works than was reasonably necessary in relation to its purpose as a reference guide.
According to the court’s analysis, “most of the Lexicon’s 2,437 entries contain direct quotations or paraphrases, plot details, or summaries of scenes from’ one or more of the Harry Potter novels.” Vander Ark, fair use claim was hurt by the fact the book, quote “Makes clear that the only source of its content was the work of J.K. Rowling. Moreover at the trial, an expert witness who analyzed the Lexicon found that there was a lot of verbatim copying of language from Harry Potter works. The book repeatedly used the specific very colorful idiosyncratic nouns and phrases of Ms. Rowling to describe spells, plot twist, creatures, places and sometimes Vander Ark used quotations when pulling from Rowling’s texts, but at other times he did not.
Although the Court agreed that “reference guides to works of literature should generally be encouraged by copyright law,” ultimately, it ruled that “They should not be permitted to ‘plunder’ the works of the original authors… ‘without paying the customary price’… lest original authors lose incentive to create new works that will also benefit the public interest.” this opinion was not all bad news for proponents of fair use. The decision recognized that generally authors do not have the right to stop the publication of reference guides and companion books about literary works.
Reaction Videos
Solution (Matt Hosseinzadeh v. Ethan Klein and Hila Klein (S.D.N.Y. 2017))
A case between Hosseinzadeh v. Klein the Court had to decide whether a YouTube reaction video constituted copyright infringement. The plaintiff was someone who created a five-minute ‘comedy’ sketch called Bold Guy versus Parkour Girl, where his character pursues a woman on the street. He posted the video to YouTube and then then the two defendants, Ethan & Hila Klein of h3h3Productions made a 14-minute reaction video the ‘comedy’ video.
The defendants are husband wife, and their team known as h3h3, known for making funny commentary videos. In this particular reaction video, the Kleins showed around three minutes of the original five-minute video. The filmmaker sent them a takedown notification and YouTube removed it. Defendants challenge the takedown on the basis that it was fair use. The original filmmaker then sued, seeking damages for infringement and alleging that the defendants had made misstatements and misrepresentations in their counter-notification. The h3h3 team also posted another video discussing the lawsuit itself.
Now both parties filed motions for summary judgment (trial on paper), in contrast to the Harry Potter case, the court had no problem finding that their reaction video was fair use. The Court considered the four fair use factors and found that the first one was strongly in the defendants favor, since the video was essentially criticism and comment. The Court also said the use was transformative because it “responds to and transforms [Plaintiffs’s] video from a skit into fodder for caustic, moment-by-moment commentary and mockery.”
Solution (EQUALS THREE v. JUKIN MEDIA Inc. 139 F. Supp. 3d 1094 (C.D. Cal. 2015))
Equals Three is a company that used viral videos to make funny clips and show then on YouTube. Jukin Media is a digital media company that amasses a library of user-generated internet video clips to license on the clip creator’s behalf. Jukin’s team analyzes the video for a potential to go viral and then attempt to find the creator of the video and sign them to licensing agreements. Equals Three runs a show where a host introduces funny clips that they found on the internet. Equals Three use 19 of Jukin’s clips without paying for them, Jukin sued Equals Three for copyright infringement.
The Court found that Equals Three’s use of the clips constituted fair use. The Equals Three team adds “text, graphics and animation, sound effects, voice-overs, and video clips … to enhance and develop the story.” The Court held that Equals Three directly critiqued and commented on the humorous videos. The host’s narration “makes comments about Jukin’s videos that highlight their ridiculousness by creating fictionalized narratives of how the events transpired, using similes, or by directly mocking the depicted events and people.”
News Reporting
Solution ( SWATCH GRP. MGMT. SERVS. LTD. v. BLOOMBERG 742 F.3d 17 (2d Cir. 2014))
In this case Swatch challenged Bloomberg News organization’s posting of an earnings report and transcript. A Bloomberg reporter took the transcript of a phone call between company executives and market analysts and then published it on the Bloomberg website.
A court found that this was fair use because the first fair use factor allows for the use of copyrighted material for news gathering. Discussion of Swatch’s corporate earnings is newsworthy, so posting the recording and transcript was necessary to deliver that information to its readers. The court further held that using the recording in its entirety was reasonably necessary in light of defendant’s purpose of disseminating financial information, and that this type of use would not significantly impair the value of earnings calls nor appreciably alter incentives for creation of such original expression, especially given the fact that plaintiff conceded that they had no interest in the exploitation of the copyright-protected aspects of the work.
Solution (Monster Communications v. Turner Broadcasting, 935 F. Supp. 490 (S.D.N.Y. 1996))
Documentary filmmakers who were making a biography of Muhammad Ali used 41 seconds of Ali’s Rumble in the Jungle boxing match in their biography. This footage was used by Monster Communications in it’s critically acclaimed documentary ‘When We Were Kings’. Monster sought to stop the filmmakers from using the part of the famous boxing match in its movie biography.
The Court ruled that the 41 seconds were protected by fair use. Even though the biographical movie about Ali is commercial in nature, it “undeniably constitutes a combination of comment, criticism, scholarship and research, all of which enjoy favored status under section 107. Additionally, the court found that defendant’s use of the footage was unlikely to harm the market for plaintiff’s work because the use was “too few, too short, and too small in relation to the whole. If the broadcast of [Story] impacts [Kings’] reception, it almost surely will be as a result of their common subject, not the minute or so of common footage.” Finally, the historic nature of the allegedly infringed films clips also supported a finding of fair use.
Factor II: The Nature of the Copyrighted Work
A Court will consider whether the original work is factual or fictional in nature and it will look at whether the purpose of the work is to inform or to entertain. This is mostly the least important factor since it rarely makes a difference in the final determination. Not all factors are created equal.
Now generally, Courts are more likely to find fair use if the new work copied from original material that was factual in nature. Creative works like movies, poems, or novels are given greater protection than something like a news broadcast (for which it is believed that limited copyright of this kind of material encourages the spread of ideas freely. It is also said to promote new understanding, debate and scientific study, which are beneficial to the public).
Another aspect of Factor II is whether the material that is copied is published or unpublished. Unpublished works are usually given more protections as the author has not yet had the right to control when and how their work is first introduced to the public and how that work is monetized. This is called the right of first publication: Publication of a work that has not yet been published by the author is very unlikely to be considered fair use.
Defeat (HARPER ROW v. NATION ENTERPRISES 471 U.S. 539 (1985))
Harper & Row Publishers bought the rights to publish former President Gerald Ford’s memoirs called “A Time To Heal”. This was a highly sought after book because President Ford’s pardon of Richard Nixon was extremely controversial. Ford’s book would be his 1st public discussion about the reasons for the pardon. Time Magazines contracted the right to preview the work immediately before publication. However, before Time Magazine would publish its excerpt, the magazine of The Nation got a copy of Ford’s book and published an article quoting 300 words directly from an unpublished manuscript.
The quoted aspects were about the Nixon part, probably the part that everyone wanted to read in the book. Time Magazine then chose not to print their own article as planned and cancelled its contract with Harper. Harper then sued the magazine The Nation for copyright infringement. The Nation argued that its use of just 300 words was fair use because the words were factual and newsworthy and the purpose of the original book was informational. It was the facts about what Ford thought about his own processes. The Supreme Court, however, did not accept this argument. The Supreme Court held that The Nation’s publication of excerpts did not qualify as fair use.
The second factor, the nature of the work, and the fourth factor, the market for the original work, were decisive. Ford’s account of the pardon may have been factual, but it was also creative because it described his mental state when he decided to pardon Nixon.
In another case involving the publication of private letters of JD Salinger, the famous author, the Second Circuit wrote in a different case that “The fact that a work is unpublished is a critical element of its nature.”. When a researcher wrote a biography of Salinger and paraphrase these unpublished letters, Salinger sue. Although Salinger’s unpublished letters were located in library archives, they were nevertheless considered unpublished. The author has a right to control 1st publication of his own material, which would weight against using excerpts or paraphrases of the work prior to publication. The fact that the biography was scholarly in nature did not outweigh Salinger’s right to control the publication.
To be noted is that both of these cases were decided before Campbell v. Acuff-Rose, it’s possible that in the wake of the Supreme Court’s decision in Campbell, these cases might come out differently. But it’s also important to note that when you use unpublished works that weighs against fair use and sometimes even using factual material might not give you an excuse to republished it somewhere else.
Factor III: The Amount and Substantiality of the Portion Used
The third factor in the fair use analysis looks at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. There is no bright line rule about how much of the original work can be copied, whether its a single frame in a video or several seconds, The Courts analyze the quantity and quality of the original material that was taken. Regardless, Courts warn that you should only use as much of the underlying work as is necessary for your transformative purposes. If you use more than that, that can weight heavily against fair use, the smaller the amount of the work used compared to the overall size of the underlying work, the better your fair use argument.
If the new work takes the “heart” of the copyrighted work, fair use will not apply, even if the quantity of copied material is small. If you’re doing a fair use analysis, you should examine the quality and the quantity both. There’s no formula or % that is always allowable or always not allowable.
If the work is a parody, then the person can usually borrow more material, sometimes even stuff that seems to go to the very heart of the original material. Images have been copied in their entirety, yet found to be fair use, in cases involving search engines which made thumbnail copies of images that were published on websites. The best advice is to use the smallest amount necessary.
Factor IV: The Effect on the Market for the Original Work
If the use negatively impacts the market for or value of the original copyrighted work, it is less likely to be fair use. This factor asks the court to weigh the potential impact on the market if the new work, the fair use work is published.
Using the example of the Harper v. Nation case, the court held that the Nation was in direct competition with Harper, the copyright holder, because they were both in the business of publishing factual information or fictional information. By publishing the most anticipated parts of the book before it was published, The Nation deprived Harper of the market advantage. The effect of such use decreased the market value for the book. Once The Nation published the excerpt, the heart of the book it deprived both time and Harper of the market advantage they were entitled to since they owned the original unpublished manuscript. The value of Ford’s book was seriously diminished since people were most interested in the Nixon pardon.
Some courts have said the underlying rights holder doesn’t get to have a monopoly on the market for criticism or parody.
The Illusive Fifth Fair Use Factor
Often, Courts have created their own factors which often trump the four factors outlined in Section 107.
Warning (Section 107 of the Copyright Act's several categories that CAN be considered Fair Use)
“criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”
But just because your work falls in one of the listed categories above, doesn’t mean that it will be protected per se, though it probably does help.
Solution (LEIBOVITZ v. PARAMOUNT PICTURES CORP. 37 F.3d 109 (2d Cir. 1998))
The movie, The Naked Gun created a movie poster parodying the famous photograph of a naked and pregnant Demi Moore. The original photograph of Demi Moore was taken by Annie Leibowitz and it graced the cover of Vanity Fair Magazine. The Naked Gun production team superimposed the head of actor Leslie Nielsen onto Demi Moore’s naked body.
The original photographer sued, but the Court held that the photo was a parody of the original photo. It was a transformative use because the movie company was imitating the style for laughs. The fact that the poster was used to promote a commercial endeavor which was the movie, didn’t change the Court’s analysis on whether it was Fair Use or not.
Defeat (PARAMOUNT PICTURES CORP. v. AXANAR PRODS INC. (C.D. Cal. Jan. 3, 2017))
The Star Trek universe includes hundreds of derivative products, including in particular books about a character named Garth and his exploits during the Battle of Axanar. Some Star Trek fans decided to create a film adaptation of the Battle of Axanar. They made a 20-minute preview and wrote a script and used them to generate over $1 million of crowd-sourced funds for production. The Star Trek filmmakers sued the fan filmmakers and the court found that there was no fair use, although the fans tried to counter that it was a parody. This was counter to their explicit purpose, which was to make a film that was highly faithful to the original story. Since the movie didn’t criticize or comment on the original material, it was just a derivative work, not a parody.
Defeat (HENLEY v. DEVORE 773 F. Supp 2d 1144 (C.D. Cal. 2010))
Don Henley of the Eagles and other songwriters who held the rights to hit songs, The Boy of Summer and All She Wants To Do Is Dance, sued the US Senate candidate Charles DeVore after he made two videos lampooning the songs. The songs were called The Hope of November and All She Wants To Do Is Tax were not considered parodies. The first song was about Barack Obama and was considered slightly enough to make it a parody but because it was used to raise money for a political purpose hence outweighing the other factors.
Being able to use copyrighted material is essential for purposes of the First Amendment. The privilege allows journalists to quote from and paraphrase documents engage in critiques and commentaries and make use of such copyrighted material without paying a license fee to the original author. There are still disputes about what qualifies as fair use for purposes of the statute. As with other types of fair use, courts use the four-factor analysis.
Warning (Section 107)
“fair use of a copyrighted work … for purposes such as … news reporting … is not an infringement of copyright.”
Solution (SOFA ENTM'T, INC v. DODGER PRODS., INC 709 F.3d 1273 (9th Cir. 2013))
The Jersey Boys played a seventh second clip of Ed Sullivan TV show to illustrate the defining moment in the career of its subjects musical group called The Four Seasons. The court ruled that the seventh second clip was used in a transformative way.
Defeat (MONGE v. MAYA MAGAZINES, INC. 688 F.3d 1164 (9th Cir. 2012))
Two Latin American celebrities secretly got married. Over a year after their marriage, a chauffeur found a thumb drive containing photographs of the ceremony. The chauffeur first tried to extort the couple, but when they wouldn’t pay the ransom, he sold the photos to a gossip magazine. The magazine published them and the couple sued.
The photos weren’t changed at the time of the publication, there wasn’t a transformative use here hence you could tell the story about the couple getting wed without publishing their secret wedding photos.
Defeat (N. JERSEY MEDIA GRP., INC. v. PIRRO 74 F. Supp. 3d 605 (S.D.N.Y. 2015))
On the anniversary of 911, Fox News anchor Jeanine Pirro posted the iconic photograph of firefighters hoisting a flag after the 9/11 bombings called Raising The Flag at Ground Zero. The photographer of the firefighters sued. Fox claimed fair use, arguing that posting on social media is by its nature transformative because such postings promote comment and criticism. The district court rejected the argument and held that the posting was not fair use. Although Pirro’s post juxtaposed the photo with other famous photos in American history and added a hashtag never forget, but this was not enough to be considered transformative.
Defeat (Creative Commons License)
Larry Philpot’s photographs of singer Willie Nelson was uploaded to the AlterNet under a CC (Creative Commons) License. The photo went viral after the internet magazine AlterNet added one of Nelson’s quote to the picture, the website also wrote AlterNet on the image. This did not follow the terms of server of the CC License as it requires giving attribution to the author.
Defeat (FERDMAN v. CBS INTERACTIVE INC. No. 17 Civ. 1317 (S.D.N.Y. 2018))
Professional photographer Steve Ferdman took photos of the filming of the movie Spider-Man: Homecoming. The photos included a picture of the actor Tom Holland onset. The website GameSpot published two articles about the film using Ferdman’s photos. This wasn’t found fair-use as the set of 7 photos were not really newsworthy and were clearly used for just commercial purposes.
In the same way commentary and comedy is fair use, courts also recognize that teaching and education is a transformative purpose. In some ways, this may be the original fair use. Sometimes in order to teach something, you must use the underlying work.
Defeat (BASIC BOOKS v. KINKOS 758 F. Supp. 1522 (S.D.N.Y. 1991))
The store Kinkos copied excerpts from textbooks and then compiled them into what they called course packets that they then sold to college students and college professors. The court concluded that this was not fair use. Kinko’s copying was wholly commercial and did not add value to a work the way that a biographer critic’s use of quotations excerpts would have done. Kinko just simply recompiled different parts of copyrighted works and resold them.
Solution (CAMBRIDGE UNIVERSITY PRESS v. PATTON 769 F.3d 1232 (11th Cir. 2014))
They argued that digital excerpts exceed fair-use and should require a license in the same way the Kinko’s case required a license. The 11th Circuit Court of Appeals ruled that the lower court needed to analyze all 75 instance of alleged infringement and apply fair-use to each one on remand, which means it goes from the appellate court and goes down back to the trial court to make a determination. The courts emphasized on the fact that the nature of the work was scholarly rather than creative in its decision-making process and the fact it was done by a university rather than a copier (Kinkos) might have made a big difference as well.
Defeat (PENGUIN RANDOM HOUSE v. COLTING MELISSA (S.D.N.Y. 2017))
The couple planned to create a 50 book series of sanitized versions of literary classics. The couple called their books Kinderguides and they reduced novels down to short versions with illustrations like children’s books. The estates of several major authors sued alleging that these were derivative works however the defendants claimed that their books were simply educational guides like Cliff Notes or Spark Notes, which probably would be considered fair use. The court found that this was not fair use, condensing them and sanitizing them for children. An abridgment of a novel is a derivative work. There was little analysis or commentary about the stories that recast them as something new.
There is a market for children’s versions of adult classics, but that market was for the original author to exploit, not people claiming fair use.
Solution (KATZ v. CHEVALDINA 14-14525 (11th Cir. 2015))
Ronnan Katz owns the Miami Heat basketball team. A photographer named Margioso took an unflattering photo of Katz that showed him sticking his tongue out. A disgruntled former tenant of Katz, was very unhappy with Katz’s business practices so she started a highly entertaining blog to explain her grievances, she actually used the photographer’s photograph of Katz in her blog, Katz got mad and purchased the rights to the photograph and then sued the blog writer and Google for infringement.
The court held that the blogger’s use of the photo was fair because it was educational. Her purpose was for using it to educate the public about Katz being an alleged crook. She often modified the photograph to the point where it was considered transformative. Here the court was critical of Katz buying a photo to bury it and attack a public critic.