Fair Use Fridays: AAMD Says Lousy Quality = Fair Use

The Association of Art Museum Directors has issued a fair use policy.   According to them ,working with low quality digital thumbnails is fair use.  Full policy here.   More fair use guidelines here.

Section 107 of the Copyright Act embodies the fair use doctrine.  17 USC 107.  More on the fair use doctrine here.

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Fair Use Doctrine in Copyright Law: Producer's Use of Clip in Jersey Boys is Fair Use

In Sofa Entertainment Inc. v. Dodger Productions, Inc., 2010 WL 4228343 (C.D. Cal. July 12, 2010), a seven-second video clip from The Ed Sullivan Show was used in the play Jersey Boys without permission.   Jersey Boys is the story of The Four Seasons, a rock bank led by Frankie Vallie.   The Jersey Boys got a critical boost from playing numerous times on The Ed Sullivan Show.

It was undisputed that the clip depicted an important moment in the career of the Four Seasons.
Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:


§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Factor 1.  Purpose and character of use. In the Jersey Boys case, the parties disputed whether the work was a fictionalized account or a biography of the Four Seasons, since this would have an effect on the first factor.   The court found that Jersey Boys was meant to entertain, whether or not it was biographical.  This factor weighed in Plaintiff's favor.

Factor 2.  Transformative use.   The court found a transformative use because the clip was used merely as an historical reference point in a play.  It did not serve the same entertainment purpose as the original Ed Sullivan Show appearance of the Four Seasons.  This factor weighed in Defendant's favor.

Factor 1.   Commercial use.   Although the court found the use to be commercial, the transformative use and the very short amount borrowed rendered the commercial use slight and not to be accorded great weight.

Factor 3.   Amount and substantiality of portion used.  The court found that Jersey Boys did not borrow the "heart" of the original work: The Four Seasons' performance, but merely borrowed Ed Sullivan's introduction, which was not the heart of the underlying work.   The court found the performances by featured talent to be the "heart" of these shows.

Factor 4.   The court found that there was no evidence of a market for the clip and that use of the clip, which did not contain the original Four Seasons' performance, was not a commercial substitute for the underlying work, which contained the Four Seasons' performance.  Given the lack of market evidence, this factor weighted against the Plaintiff.

Weighing and balancing the factors, the court found that use of the clip was "fair use".   On Sept. 29 2010, an appeal was filed before the Ninth Circuit that is still pending.

More on the fair use doctrine here

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright Law: Fair Use Fridays - Kutiman Mixes YouTube - The Mother of All Funk Chords

Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:

§ 107. Limitations on exclusive rights: Fair use



Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(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.
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.

The four "fair use" factors require a fact intensive analysis.   So what do you think of Kutiman's mashup/remix of videos he found on YouTube (video below)?  Cool?  Yes.  Fair use?  You decide, and check out Kutiman's other "Thru You videos on YouTube here.

Kutiman's thru-you.comhttp://thru-you.com/ says:  "Check out the credits for each video - you might find yourself".

Yes, another way for America to find itself.  Will Kutiman be YouTube's Andy Warhol, doling out 15 seconds of fame to the famous and not-so-famous?

 HT to Mike Masnick of Techdirt.

More Copyright Litigation Blog posts on the fair use doctrine here.

Copyright Litigation Blog reporting on Max Papeschi and the continuing NaziSexyMouse controversy here.  Pamela Geller, author of Atlas Shrugs Blog (and author of The Obama Administration's War on America's post "The left owns western culture. Music, media, arts.  Where does the road of leftism lead?  To hell." Full post here.  That's a relief! Up until now, everyone was thinking that NaziSexyMouse was a vast right wing conspiracy.



Purchase Copyright Litigation Handbook from West here

CDCA: Politico's Use of Henley Songs Copyright Infringement - Not Fair Use

In Henley v. Devore (SACV 09-481) the Central District of California doled out a "sort of rough justice" and found that a politician whose campaign got a little crazy with a karaoke machine and a mashup campaign video engaged in copyright infringement.  On June 10, 2010, summary judgment was granted, decision below.

All She Wants To Do Is Tax

They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax

From the decision (page 24):

“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes.  Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't.  Since no one can define "fair use" - justice is really rough these days.

I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another.  The Supreme Court's jurisprudence on political speech supports this view. 

I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$.  In politics, the Supreme Court has ruled that money = speech.   This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.

But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights




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Fair Use Friday: An Old Favorite - Fair(y) Use Tale

This explanation of copyright and fair use has been viewed almost 10 million times on YouTube, so you've probably seen it.   But it's great and fits in well with my two previous fair use video posts here and  here.

Reminder, fair use is an unsettled field, expensive to litigate, be careful out there from the US Code Chapter 17 (the Copyright Act): 

§ 107. Limitations on exclusive rights: Fair use


How Current is This? 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

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.