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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.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
Showing posts with label video law. Show all posts
Showing posts with label video law. Show all posts
Friday, July 16, 2010
Sunday, June 27, 2010
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
Purchase Copyright Litigation Handbook from West here
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
Purchase Copyright Litigation Handbook from West here
Wednesday, May 12, 2010
Free Copyright Society Event on Licensing in the Digital Age - May 18 2010
The Copyright Society of the U.S.A. is pleased to invite you to a program on
Tuesday, May 18, 2010, entitled:
LICENSING IN THE DIGITAL AGE:
DEALS, RISKS, AND CHALLENGES IN PHYSICAL AND VIRTUAL MEDIA
Licensing is a powerful tool generating billions in revenue. However, the risks and complexities of licensing have multiplied in recent years as new technologies have created new marketing platforms in the physical and virtual worlds. To help you understand, navigate and succeed in this new marketplace, the Copyright
Society of the U.S.A. has assembled a distinguished panel of licensing
practitioners that will provide you the practical guidance you need.
Location and Date of the Program:
May 18, 2010 at Anchin, Block & Anchin LLP
1375 Broadway, New York City, 23rd Floor (located at 37th and Broadway).
Time:
6:00 p.m. -- 6:30 p.m. Registration, networking and light refreshments
6:30 p.m. -- 8:00 p.m. Program
There is no charge to attend this program.
To Register, Please use the attached form.
Registration deadline is Wednesday May 12, 2010.
Panelists:
Mary Beth Roberts will discuss the dramatic changes in music licensing and how music publishers are attempting to capitalize on them. She will talk about how copyright owners, faced with a decline in traditional royalties caused partially by music piracy, have gained new sources of revenue from third parties who increasingly use music to enhance and exploit their brands.
Mary Beth Roberts founded High Standards Unlimited, a consulting business for
international and domestic music licensing. She was formerly VP of Catalogue Development at Sony/ATV and Famous Music Publishing. For over 20 years, she led concept development, copyright placement, marketing, negotiations and licensing of music used in synchronization, consumer products, new media, wireless entertainment and internet marketing.
Joseph Salvo will talk about licensing in the consumer products/entertainment area from a business and legal perspective. He will discuss the negotiating techniques licensors and licensees use to maximize their leverage. Joe will also discuss the legal strategies licensors may wish to use to protect and enhance their company’s intellectual property rights.
Joseph Salvo is Senior Vice President and Global General Counsel at HIT Entertainment, an international entertainment company that owns such preeminent pre-school brands as Barney, Thomas the Tank, Bob the Builder and Angelina Ballerina. He is involved in all forms of production and licensing, including television, film, audio, home video and consumer products.
Jonathan Wells will talk about the licensing of photographs and videos in the rapidly evolving physical, digital and virtual markets. Jonathan will also focus on the special concerns that arise when clients license internationally.
Jonathan Wells is the bureau chief of the New York office of Paris-based SIPA Press and oversees its licensing activities and production activities here. SIPA Press covers world news with a staff of photographers, a network of correspondents and distribution agreements with the Associated Press and other agencies around the globe.
Commentator:
Marc Federbush, CPA, is partner-in-charge of Anchin’s Apparel, Textile, Diamond and Jewelry Services Group. He will comment on the strategies that owners and licensees may use to protect themselves from unwanted disputes and costly litigation.
Andrew Berger will moderate the program. He is a copyright/trademark lawyer at the New York firm of Tannenbaum Helpern Syracuse & Hirschtritt. He is also a frequent speaker on intellectual property topics and writes a blog on IP issues at www.ipinbrief.com.
The Copyright Society of the U.S.A. is a center of the U.S. copyright community for business people, lawyers in private practice and in-house, law professors and law students who share a common interest in copyright and related intellectual property rights. A not-for-profit corporation founded
in 1953, the Society works to advance the study and understanding of
copyright law and related rights, the scope of rights in literature, music,
art, theater, motion picture, television, computer software, architecture,
and other works of authorship, and their distribution via both traditional
and new media.
The Copyright Society of the USA
352 Seventh Avenue Suite 739
New York NY 10001
P: 212 354-6401
F: 212-354-2847
W: www.csusa.org
E: amy@csusa.org
Wednesday, April 21, 2010
SCOTUS - Congress Lacks Power to Criminalize Depictions of Killing Wounding and Torturing Animals
In an attempt to stop "crush videos" (explanation of a sexual fetish involving a dominatrix stomping on animals in high heels or bare feet here and here ), Congress passed a law reading as follows:
18 U.S.C. §48. Depiction of animal cruelty
“(a) CREATION, SALE, OR POSSESSION.—Whoever knowingly creates,sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5years, or both. “(b) EXCEPTION.—Subsection (a) does not apply to any depictionthat has serious religious, political, scientific, educational, journalistic, historical, or artistic value. “(c) DEFINITIONS.—In this section— “(1) the term ‘depiction of animal cruelty’ means any visual orauditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and ( ... ***)
In United States v. Stevens, 559 U.S. ___ (April 20, 2010) found here, Congress affirmed the Third Circuit's striking the statute down as overbroad and unconstitutional. From the decision:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that gov-ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).
The Supreme Court goes on to analyze how the statute may be used to apply to situations involving perfectly legal and ethical behavior having nothing to do with crush videos. The defendant was prosecuted for inter alia distributing videos of legal Japanese dogfights from decades past.
The decision shows a healthy skepticism of the government's claims that prosecutorial discretion will be used in the enforcement of an overbroad statute. It is amazing how many Americans watch hunting videos (for recreation, not instruction), and the decision is interesting for its exploration of the depth and breadth of human cruelty for enjoyment's sake.
I agree with Clancco that the decision is a correct one. The decision will be misread by popular media as endorsing cruelty to animals, it does no such thing and it speaks approvingly of state statutes regulating cruelty to animals.
18 U.S.C. §48. Depiction of animal cruelty
“(a) CREATION, SALE, OR POSSESSION.—Whoever knowingly creates,sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5years, or both. “(b) EXCEPTION.—Subsection (a) does not apply to any depictionthat has serious religious, political, scientific, educational, journalistic, historical, or artistic value. “(c) DEFINITIONS.—In this section— “(1) the term ‘depiction of animal cruelty’ means any visual orauditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and ( ... ***)
In United States v. Stevens, 559 U.S. ___ (April 20, 2010) found here, Congress affirmed the Third Circuit's striking the statute down as overbroad and unconstitutional. From the decision:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that gov-ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).
The Supreme Court goes on to analyze how the statute may be used to apply to situations involving perfectly legal and ethical behavior having nothing to do with crush videos. The defendant was prosecuted for inter alia distributing videos of legal Japanese dogfights from decades past.
The decision shows a healthy skepticism of the government's claims that prosecutorial discretion will be used in the enforcement of an overbroad statute. It is amazing how many Americans watch hunting videos (for recreation, not instruction), and the decision is interesting for its exploration of the depth and breadth of human cruelty for enjoyment's sake.
I agree with Clancco that the decision is a correct one. The decision will be misread by popular media as endorsing cruelty to animals, it does no such thing and it speaks approvingly of state statutes regulating cruelty to animals.
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