I’m just now getting to Adjmi v. DLT, the “Three’s Company” parody play case, but I’m liking it:
“The law is agnostic b/w creators & infringers, favoring only creativity & the harvest of knowledge.”
p.55-56 of the PDF.share: by
My kid’s elementary school has an amazing arts program, and they routinely display kids’ artwork all over the school. I was admiring a new African-American history themed exhibition, and appreciating how fair use makes this possible — likely, without any consideration of copyright or fair use by the instructors or administrators, and certainly without any by the children (with the possible exception of my child).
The recent exhibit featured re-creations of “the art of Jacob Lawrence, who tells stories about the history of African-Americans in his paintings.” This is part of the integrated arts curriculum in Amherst public schools, where the arts instruction is integrated into reading, social studies, science, etc. So the arts component of this involved the kids “look[ing] at pictures from [Lawrence’s] ‘Great Migration series’, which tells the story of the movement of many African-Americans from the south to the north at the beginning of the 20th century.”
After studying paintings, “[e]ach class worked on creating a replica of one painting from the series. Each student got a little piece of a painting and had the challenge of enlarging the shapes and recreating the colors. Then we put each of the pieces together like a puzzle.”
There were quite a few of these scattered through the building; I posted a couple of pictures below.
These paintings are among the best-known works of Jacob Lawrence, 1917-2000, drawn from the Migration Series, completed in 1940. The works are managed by the Jacob and Gwen Knight Foundation, which handles permission requests, and through the Artists Rights Society.
But our arts teacher didn’t need to know about all this, and didn’t need to contact them, because the work is so obviously fair use. These children’s recreations are done in a nonprofit educational setting, and although they are recreating the works, they are doing so in a highly transformative way — closely examining individual components and recreating the components, then re-assembling to create a new work that looks something like a photomosaic. The original works were highly creative, but the level of transformativeness here means that second factor is less significant. The amount taken by each student was small, although the project as conceived of by the teacher is to take the whole of each work. But the whole of the layout and color scheme — and nothing of the actual brush strokes, the actual colors. And lastly, one can’t imagine that this use substitutes for any real or likely marketed use of the original — licensing to elementary schools to study art.
Projects like this one happen in art classes, music classes, writing classes, all the time, from preschool rooms to postgraduate and professional work. (Preschool and elementary programs around here are fond of the colorful work of local celebrity children’s artist Eric Carle. In fact, the Eric Carle Museum of Picture Book Art has itself run arts activities of this sort, using Carle’s work as a touchstone.)
These kinds of projects happen all the time because copying is an integral part of how we learn, maybe THE most important part of how we learn. And they happen smoothly and beautifully, without asking for permission from copyright holders, and without some micropayment scheme monitoring and monetizing our every use of works. They happen so beautifully, easily, and intuitively, without transaction costs or surveillance or angst or paperwork — because of fair use.
And not because everyone had to know about fair use, and think about quantities and the four factors and so on. But because fair use is, at its core, a doctrine based on gut instincts, on what’s fair. So it can operate in the background, because that basic sense of fairness and unfairness is everyone’s guide: Is my use being unfair to the creator? The answer is so obvious most of the time that people don’t have to think further. Because the doctrine embodying a core limitation on copyright is based simply on what’s “fair”.
I like that. People shouldn’t have to become copyright and fair use experts to just run their lives. Even though copyright is ubiquitous (all of your cell phone photos, all of your emails, all of your doodles — all are copyrighted until 70 years after your death!), people are mostly able to operate without becoming experts, because of fair use*.
There are times and places, however, when I want the background benefits of fair use to be employed knowingly. The public interest copyright crowd was buzzing amusedly the last few days over a House Judiciary Committee’s animated GIF press release, ranting about immigration (trigger warning: Republicans ranting about immigration policy may send sensitive or sensible souls into apoplexy). Press pick-ups on this story included things like this article for ZDNet by David Gewirtz, which headlined the “copyright-violating animated GIFs.” (The ZDNet story, like this one, is actually celebrating fair use, while calling attention to the irony of its use by SOPA-proponents and the House Judiciary Committee.)
I’m happy they get to rely on fair use without knowing it, because we all can and should. But I hope someone, somewhere, was able to use this as a teaching moment to help them really GET why fair use is so important. Think of the children.
* Fair use, and the de minimis doctrine, and other core copyright and general law doctrines that embody common sense.
Thanks to posts by Sharon Farb @ UCLA and Sherwin Siy @ Public Knowledge for alerting me to the House Judiciary immigration post originally.share: by
Some resources for campus folks on the ongoing roll-out of US government agency open access policies:
Nicole Allen (@txtbks) and I will be speaking at a panel
at LibrePlanet in Cambridge, MA, this weekend:
New research techniques like data mining have highlighted the shortcomings in “free” (as in beer) licensing of academic research, and the benefits of “libre” licensing that permits true scholarly engagement with data and scholarship. These challenges apply equally in the education sphere, where teachers often need to manipulate resources and not simply distribute them. We will survey what is sometimes called the “open movement” in academia, which incorporates open access, open education, and open data. How are researchers and educators grappling with these challenges, and what can they learn from the free software movement?
The federal “open access” policy rollouts continue. The Department of Defense put their proposal out a couple of days ago; they will develop their own system (a la PubMed):
DoD’s repository, the Defense Technical Information Center or DTIC will create and maintain a system for the long-term preservation and access to the DoD funded peer-reviewed journal literature as well as a “catalog or locator” that identifies the location of DoD funded publicly accessible data sets. DOD’s plan calls for a 12 month embargo for journal literature during which DTIC will link out to the articles on a publisher’s website.
I’ve been asked if institutions still need OA policies, now that funders are increasingly requiring open access. The short answer is YES, and the short reasons are these:
This is a brief review of the issue. Our staff in the UMass Scholarly Communication Office are always happy to chat with faculty and staff about policy questions.share: by
I ran across this Patry quote today that I enjoyed:
“[T]he drafting [of Section 110(2), the TEACH Act] is so ugly that it certainly supports the carbon-dating theory of amendments to the Copyright Act: the vintage of an amendment can be determined by its prolixity and resemblance to a poorly drafted contract, the more prolix and poorly drafted the more recent the amendment.”
— Patry on Copyright, s. 14:35 (p.14-72)share: by
For Fair Use Week, I offered a small “fair use” quiz to colleagues. I listed a dozen or so different scenarios, taken from famous or recently-well-publicized fair use cases, and made a simple paraphrase of the case, with a “fair use” or “license it” choice. At the end of the survey (which was anonymous), I posted the note: “Surprise! All of these uses were found to be fair use by US courts,” and gave a brief citation to each case. (Plus, the usual lawyerly cautionary note that these were not enough facts to really assess the fairness of the use, but that at the least, I wanted folks to know that these facts could give rise to a finding of fair use.)
The poll was never intended to collect data in any reliable way — I drafted it in about half an hour, phrased things in ways that were sometimes intended to be counter-intuitive or provocative, and of course left out much nuance. I intended it as a consciousness-raising exercise, and hope it was useful in that regard: Recognizing how broad fair use can actually be.
It turns out to have also been useful to me, in giving me a bit of a copyright agenda. So, I thought I’d start by talking about each of these cases in context. I’ll do one blog post for each “hypothetical”.
Paraphrasing a famous quote from a novelist, in a commercially released film. Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”. The District Court disagreed, holding Sony’s use to be a fair use in July 2013. Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc., et al (N.D. Miss. July 18, 2013). (Eriq Gardner for the Hollywood Reporter covered the case, and gives a fair write-up.)
The quote in the movie (“Midnight in Paris”) goes like this:
“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”
And the original quote, in Faulkner’s Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:
“The past is never dead. It’s not even past.”
Reasonable People Can Disagree About Fair Use
This brings up my first point, which is that reasonable people can disagree about fair use. While I think this was a pretty obvious fair use case, I don’t think the William Faulkner people were completely crazy, or arguing in bad faith, to make their argument. I imagine that the thinking, on the part of both the Faulkner estate and 24% of my colleagues, was that, “Sony Pictures is making a highly commercial use, and the Faulkner Estate would have been happy to license this use. So that’s the two most important fair use factors, and the second factor — the nature of the copyrighted work — also favors Faulkner.”
But Judge Mills of the Northern District Court of Mississippi held otherwise, and not because he was a fan of Woody Allen, either. (Judges and lawyers like to drop snide comments into footnotes, which I find highly amusing. Here, Judge Mills dropped a footnote on the title, “Requiem for a Nun,” in which he responded to Sony’s characterization of the Faulkner work:
The court disagrees with Sony’s characterization of Requiem as being “relatively obscure.” Nothing in the Yoknapatawpha canon is obscure. Having viewed the two works at issue in this case, the court is convinced that one is timeless, the other temporal.
I would not go so far as to say that William Faulkner is deified in the South, but it was perhaps not Sony’s best decision to minimize one of Mississippi’s favorite sons, to a court in Mississippi.)
The Court gave short shrift to the de minimis doctrine, which I think was a lost opportunity to make a nice decision out of the most obvious call, but instead considered the de minimis issue within the context of fair use. Ultimately the Court held that “Sony’s use in this matter was de minimis“. (slip op. p.15)
Factor One – Purpose and Character of the Use, and Factor Three, too
In considering the first factor, the Court quotes the Supreme Court’s Campbell case, discussing the Constitutional purposes of the factor, which contextualize the entire analysis:
“The central purpose of this investigation is to see… whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. …
The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Campbell, 510 US 569, 578 (1994). Campbell is the important case in which the Supreme Court effectively ratified the use of “transformativeness” in an analysis. Virtually all fair use cases of this nature will cite to Campbell at some point, and any case involving with two different creative works will have to grapple with it. The Court contrasts the “speaker, time, place, and purpose of the quote” in the two works, finding them “diametrically dissimilar” and “highly distinguishable.” (slip op., pp.8-9). Because the quotes are used in such different ways, the new use “undoubtedly” transformed the work.
The Court also thought the shift in medium from novel to a comedy film added to the transformativeness; I’m unconvinced by this particular analysis, but it’s important to note.
Having contrasted the way the quotes were used, the Court holds, “These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use.” (slip op. p.9) The case was won right there, with the Court finding the transformativeness and small amount taken to be so significant. But the Court goes on to note, “It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.” (slip op. p.9)
The Court is sliding into the analysis of the third factor — the amount and substantiality taken — but these two factors are inextricably related to each other. It’s not just whether each factor goes one way or the other — the analysis is about how the factors relate to each other. Is the amount taken too much, in light of the purpose and character of the use? Or is it a reasonable amount?
Factor Two – Nature of the Original Work
The Court found the nature of the work to be “neutral”. That seems on its face to be bizarre — surely the Faulkner work is entitled to the strongest protections accorded to a highly creative work? Yes, but in a transformative use, this factor is much less important. Analytically, it’s a bit muddled to say that the factor is neutral rather than simply noting that it’s not very important; but the outcome is the same. This factor doesn’t really hurt Sony, and doesn’t help Faulkner — why? Again because of the first factor: The purpose and character of the use were highly transformative.
Factor Three – Amount Taken
The analysis here was quite interesting. The focus is usually on the “amount” taken, and sometimes courts consider the “substantiality”, as in the “heart of the work” doctrine. Even if a small “amount” was taken, was it the “heart of the work”, as it was in Time v. Nation, the Gerald Ford memoir case?
Here, the Court captioned this section “Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.” Having already addressed the “amount” in its factor three discussion (a 9-word quote), the Court focuses this discussion almost entirely on the “substantiality” part of the analysis. Engaging in a bit of literary analysis, the Court considers whether Faulkner’s quote, which captures a theme on display throughout the novel, is “qualitative[ly] importan[t]” to the originating work as a whole. Noting the numerous times the theme was reiterated, the Court found here that the quote was merely a “fragment of the idea’s expression,” (slip op. p.11) after reminding us that the idea itself was not protectable under copyright.
Factor Four – Effect on Market
We know early on in the discussion of this factor that “the court considers this factor to be essentially a non-issue in light of the stark balance of the first factors weighing in favor of Sony as well as further considerations that follow.” (slip op. p.12)
But the Court goes on to note, with incredulity, that the market for Faulkner’s work could not reasonably be harmed by this use, and may have been assisted by the “homage” (slip op. p.13):
The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.
But those who thought Faulkner’s estate entitled to licensing revenues were certainly not seriously considering that Faulkner’s market for the novel was harmed by this use. Rather, they were considering the lost licensing revenue.
The reasoning here goes like this. “B is making a use of A’s work. A is willing to charge for that use, so B cannot claim fair use, because B could simply have paid A and gotten permission.” This reasoning bedevils fair use, in part because it seems so easy. Why not get permission, if you can?
Here’s why. Fair use cannot be available only if permission is denied. The asking of permission is its own harm to society in many cases, because it increases transaction costs for uses that simply are — fair. The social harms that could also flow from, for instance, requiring people to ask permission before including quotes in a critical review, would also be substantial.
There are numerous specific cases in which it would also simply be infeasible to ask for permission first. Rightsholders don’t exist or can’t be identified; time is of the essence; rightsholders are too numerous to reasonably reach out to them all; the rightsholder always says no; the rightsholder bears a grudge; it would infringe other important rights, such as privacy rights of students, to ask; and so on.
And finally, allowing “permission could be received and fair use only exists if there is no permission available” would basically allow the fourth factor analysis to swallow all the other factors. For a few years, some courts wrote opinions that way; but since the mid-90s, courts have increasingly turned back to the holistic analysis, interpreting all four factors in light of the first factor.
This court does not go into great detail about these potential social costs, or the problems with the circularity of the lost licensing revenue argument. Instead, the Court says, of the possibility of lost licensing revenue:
The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.
The Court then makes short work of a trademark claim (no possibility of confusion, and if there were, Sony has a First Amendment defense), and a commercial misappropriation claim (the Court refused to address it because all federal law claims had been addressed).
And that’s it — this case wasn’t a hard one for the Court, and paraphrasing a famous quote — with attribution! — was fair use. Even in a commercial work. Even if licensing revenue was potentially lost.
PDF of decision: Faulkner-v-Sony-NDMiss-2013
Next time I’ll take on a different fair use “hypothetical”, “ripped from the headlines,” as my first year Contracts professor Bob Berring used to say.share: by
Originally published at Harvard’s Fair Use Week blog, Feb. 25, 2015.
Fair Use : A Virtual Anthem of Empowerment and Joy for Librarians and Educators
I WANNA SEE YOU BE BRAVE
The American Library Association recently passed an interpretation of its Code of Ethics to clear up confusions about the line that says librarians “respect intellectual property rights.” This phrase was taken by some to mean that librarians must respect the rights of copyright owners, or even police users on behalf of copyright owners.
This was wrong. ALA’s new Copyright Interpretation clarified the line because copyright isn’t just a one-way street — it’s a carefully calibrated balance of rights of owners and users, intended to “promote the Progress of Science and useful Arts.” (US Constitution, Art. 1, s.8, cl.8.)
Unfortunately, we see the same error over and over again in copyright. Librarians try to do the right thing; try to follow what they have been told is “the law” — but it’s a law that ignores the other half of copyright law: users’ rights.
In fact, what some portray as a cautious or conservative approach turns out to be a radical re-invention of copyright as an absolutist regime, unlike virtually any other legal regime. We see the results of this misguided “conservatism” all too often, and it can lead to real error when this approach conflicts with the fundamental mission of an institution. My own university fell into this trap recently, when it interpreted a government statute to block admission of Iranian students to specific graduate programs. That this policy would pose a conflict with the University’s greater mission of promoting academic freedom and inquiry was, unfortunately, not noticed until after the policy was announced and met with widespread criticism, both within the University and without. Administrators belatedly recognized the mistake in the unduly cautious and conservative approach to that statute, and adjusted course.
Assessing any law solely through the lens of risk assessment can create such conflicts. A better understanding of the need to balance mission risk with legal risk could help avoid this problem altogether. As Brandon Butler and other colleagues have noted, we simply cannot avoid all risk, if we hope to function at all. For example, any time you invite someone onto your property, you risk a slip-and-fall lawsuit. But a University must invite people onto its property in order to teach, conduct research, and simply operate. So we must, all the time, consider potential legal risk, but also mission risk — our duty to fulfill our own mission, and the risk of not fulfilling it if we act out of fear. In fact, whenever I teach law, I am careful to distinguish different levels of ethical and prudential assessment: the legal, the professional, the institutional, and the personal.
So here’s where I’m going to channel Sara Bareilles: I wanna see you be brave.
I’M ALL ABOUT FAIR USE, NO FUD.
In copyright, we might be tempted to take an institutionally conservative approach. “Damages in copyright are potentially so large! Fair use is so confusing! It’s hard for ordinary people to understand! Our licensing librarian thinks fair use is risky! There are so many technicalities!”
Fair use is none of these things. Copyright law doesn’t just protect fair use — it charges librarians and educators with the responsibility to use it. So let’s clear away some FUD:
Similarly, the numerous special protections for libraries and nonprofit educational institutions are a signal to us. We get special rights throughout the Copyright Act — Sections 107, 108, 109, 110 … heck, even our college radio stations get special discounted royalty rates. Our uses are specially listed in Section 107 as examples of fair uses: “teaching (including multiple copies for fair use)”, “scholarship”, “research”, and listed again in the first factor (“nonprofit educational use”). And Section 504(c)(2) is a classic example of Congress immunizing a party from risk in order to encourage them to take full advantage of their statutory rights.
What is this plethora of copyright goodness this telling us? By making good faith reliance on fair use virtually risk-free for educators and librarians, I’m pretty sure we’re being told: You can rely on fair use. Really. It’s okay. It’s there for you.
OH, WON’T YOU TEACH WITH ME
The goal of copyright is “promote the Progress of Science and useful Arts.” Librarians and educators have special roles in the dissemination of information, so there’s good reason for our uses to be specially privileged in the copyright scheme. But librarians and educators don’t just have special rights under copyright and fair use — we have special obligations, too. Congress isn’t just giving away these special rights for free.
So what’s the catch? What’s the quo in this quid pro quo? The answer: We’re supposed to educate our users. In Section 108, the Higher Education Opportunity Act — over and over again we’re told to educate our users. Note that we’re not told to police our users, because we’re not in the best position to assess whether their uses are fair (and, because, intellectual freedom). But to educate them. So that’s our job. Education.
There you have it: It’s safe and easy to rely on fair use. It’s our job to teach about fair use, and it’s actually our statutory duty to rely on fair use. And, it’s our duty in the broadest sense of fulfilling our institutional missions, copyright’s general purpose, and librarianship’s embrace of intellectual freedom.
Really, there’s no reason not to be a fair use activist.
Fair use: It makes us all happy.
“It might seem crazy, what I’m about to say
Fair use is here, it won’t go away.
Here come bad news, talking this and that.
Yeah, give me all you got; don’t hold back.
Yeah, well, I should probably warn you, I’ll be just fine.
Yeah, no offense to you, don’t waste your time.
Because I’m happy …”
Happy Fair Use Week, y’all.
Thanks to Charlotte Roh, Kyle Courtney, and Brandy Karl for editing and comment.
 Quoting from Sara Bareilles, “Brave” (2013).
 I mean “conservative” here in the sense of moderator or cautious, resistant to change; not politically conservative.
 Even property law, which is often depicted as being absolute, has numerous third-party protective doctrines. Kevin Smith wrote a helpful blogpost about this last year, “Why is copyright different?”, March 4, 2013..
 My apologies — I can’t remember who I first heard make this very helpful analogy!
 Transforming “I’m all about that bass, no treble”, from Meghan Trainor, “All About That Bass” (2014).
 “FUD” is “fear, uncertainty, and doubt.”
 Rightsholders have lately taken to concern trolling librarians and educators in copyright hearings on Capitol Hill: “Fair use is so difficult for librarians. We can set up a nice licensing scheme where they pay us and don’t have to worry their little heads about fair use.” (My paraphrase)
 Yes, even primates! See Sean Markey, “Monkeys Show Sense of Fairness, Study Says,” National Geographic News, Sept. 17, 2003. If a million monkeys typed on computers, would they ever come up with something as crazy as 17 USC 112? As for elementary age children — my 6-year-old’s arguments about fairness ring in my ears every day.
The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords[.]
 See Pat Aufderheide and Peter Jaszi, 2011, Reclaiming Fair Use: How to Put Balance Back in Copyright.
 American University, Center for Media & Social Impact, “Best Practices in Fair Use”.
 Jonathan Band and Jonathan Gerafi, 2013, “The Fair Use / Fair Dealing Handbook”. The Jonathans surveyed the international landscape for fair use and similarly flexible approaches to copyright exceptions in 2013.
 Jim Neal, “Fair Use Is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library”, ACRL 2011.
17 USC 118, “Use of certain works in connection with noncommercial broadcasting”. See the Copyright Royalty Board for the current 2012-2015 rates for college radio, and for the proceedings for upcoming rates. http://www.loc.gov/crb/
 Transforming lyrics from “Stay With Me”, from Sam Smith (2014).
 Minor transformation of Pharrell Williams, “Happy” (2014).
Laura Quilter is the Copyright and Information Policy Librarian at the University of Massachusetts, Amherst, Libraries. Laura has a M.S. in Library and Information Science (University of Kentucky, 1993) and a J.D. (UC Berkeley School of Law, 2003). She has taught as an adjunct professor at Simmons College, and at the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law. She has consulted with libraries and non-profits on copyright, privacy, and other technology law concerns. She has also worked as a librarian and assistant professor at the University of Illinois at Chicago, and has lectured and taught courses to a wide variety of audiences. Laura’s research interests include copyright, tensions within teaching and scholarly communication, and more broadly, human rights concerns within information law and policy, including privacy, access to knowledge, and intellectual freedom.share: by
It’s Fair Use Week! (see more posts! … #FairUseWeek)
For this week, I’ll be posting some comments highlighting cases and trends in fair use.
For my first post I thought I would look at parodies, and their role in transforming fair use law itself. Today we think of parodies as practically a paradigmatic fair use, but they haven’t always been viewed so positively. The history has been rather mixed — judges’ sensitivities towards the lewdness and disrespect within parodies has sometimes trumped their appreciation for the political or social commentary of the parody. Call me a legal realist, but sometimes that distaste disfigured the court’s approaches to fair use.
Consider these earlier negative approaches to parodies.
In Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided Supreme Court, 356 U.S. 43, the 9th Circuit considered Jack Benny’s parody of a popular play, “Gas Light” — which was so popular that the phrase “gas light” came to represent actions like those of the villainous protagonist, who attempted to drive his wife insane. The court, discussing the “so-called doctrine of fair use”, summarily held that presenting “a serious dramatic work … with actors walking on their hands or with other grotesqueries” was not a fair use. Too much of the original was used, and the Court seemed critical of the “grotesqueries”, giving little weight to any commentary they added.
In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the defendants created a comic book, “Air Pirates Funnies”, which depicted various Disney characters fraternizing in a manner that Disney Corp. felt to be un-Disney-like. (But where do Huey, Dewey, and Louie come from? And what else could explain Goofy but drugs?) Disney sued for copyright and trademark infringement, and the court, in an important “character copyright” case, found that the Disney characters were copyrighted. The court deemed that because the parody focused on the characters’ “personalities, their wholesomeness and their innocence”, the use was not fair use, because it took more of the graphics than was necessary. It’s hard for me to believe this decision would go the same way today.
And 20 years later, in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996), aff’d, 109 F.3d 1394 (9th Cir. 1997), the 9th Circuit again weighed against parody, holding that Dr. Seuss’s copyrighted expression (rhyming schemes, and iconic “hat”, for example) was taken by the authors of “The Cat Not in the Hat”, which told the story of the O. J. Simpson allegations and trial in a Seussian style. The Court determined that the authors were targeting O. J. Simpson, and just using Dr. Seuss — not targeting his art directly — and so infringed Dr. Seuss’s copyright. The reverence for Dr. Seuss is evident here, too, and it’s hard to escape the conclusion that the court’s analysis was tainted by personal disapprobation of the parodist.
But certainly it wasn’t all doom and gloom for parodies. Many courts did deem parodies to be fair uses — for instance, Berlin v. EC Publications, Inc., 329 F.2d 541 (2d Cir. 1941), which found fair use for a collection of Mad Magazine parody lyrics “to be sung to the tone of” various popular songs; and Elmsmere Music, Inc. v. National Broadcasting Company, 623 F.2d 252 (2d Cir. 1980), in which Saturday Night Live portrayed the town fathers of the Biblical town of Sodom singing “I Love Sodom” to the tune of “I Love New York”. The Elmsmere court affirmed, noting that, “in today’s world of unrelieved solemnity, copyright law should be hospitable to the humor of parody.” In yet another music parody case, Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the 9th Circuit deemed that “When Sonny Sniffs Glue”, a parody of “When Sonny Gets Blue” was a fair use; the parody only took enough to conjure up the original.
So between the cases that were hospitable toward humor, and the others that took a rather dour and critical approach to parody, the general state of the law on parodies was uncertain to say the least. Numerous questions abounded for the anxious parodist. Could commercial parodies be considered fair use? How much could be taken? How significant was the difference between “parody” (a work targeting another work) and “satire” (a work targeting society more generally)? Did incorporating lewdness into a work make it more, or less, likely to be found fair use?
There were no easy answers, and the regular back-and-forth in the courts on parodies eventually wound up in the Supreme Court, which in 1993 granted certiorari on the Campbell v. Acuff-Rose case, to determine whether a “commercial parody could be a fair use.” In Campbell, the members of 2 Live Crew were accused of copyright infringement for its parody of Roy Orbison’s “Pretty Woman.” 2 Live Crew (Luther Campbell) argued that their work was a parody of the original, and thus protected as a fair use . Acuff-Rose (Roy Orbison’s record label) argued that because 2 Live Crew’s version was commercial, it could not be a fair use; the 9th Circuit agreed with Acuff-Rose, finding copyright infringement.
The US Supreme Court granted cert. in 1993, and held oral arguments in late 1993. (You can listen to the oral arguments at Oyez, a wonderful site dedicated to Supreme Court jurisprudence. The shift in style of oral argument in 20 years is marked.) In March 1994, the Supreme Court issued its opinion, which unanimously reversed the harmful presumption that commercial uses could not be fair.
But it did a lot more than that, and in what seemed at first to be a fairly modest and unassuming way (characteristic of its author, Justice David Souter). In its unanimous opinion, the Court cited to a number of experts on copyright, including Judge Pierre Leval’s 1990 article, “Toward a Fair Use Standard”, 103 Harvard Law Review 1105 (1990). The passage bears repeating:
The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, 9 F.Cas., at 348. The enquiry here may be guided by the examples given in the preamble to 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. [internal citations omitted]
This simple citation to Leval on “transformativeness” has arguably transformed copyright law. Leval’s article was well-reasoned and well-regarded — you should read it, if you haven’t. In puzzling through his own fair use cases, Leval crystallized much earlier fair use jurisprudence on productive uses under the rubric of “transformativeness”, arguing persuasively that transformative uses fulfill the Constitutional purposes of copyright, and should thus be favored. The U.S. Supreme Court, citing to Leval here and in several other places throughout Campbell, effectively ratified the “transformativeness” approach.
The transformativeness approach has created solid ground for numerous productive uses, including search indexes (Kelly v. Arriba; Perfect 10 v. Amazon.com; Perfect 10 v. Google; Authors Guild v. HathiTrust; Authors Guild v. Google); uses of works for historic recontextualizations (Bill Graham Archives v. Dorling Kindersley; SOFA Entertainment v. Dodger Productions); uses of works in databases to detect plagiarism (A.V. v. iParadigm); appropriation art (Prince v. Cariou; Morris v. Young) — and that’s just a few topics off the top of my head.
“Transformativeness” has been criticized recently, by copyright holders and even by the Seventh Circuit (Kienitz v. Sconnie Nation). But in some sense, the criticisms are less about whether the doctrine is correct or not, and more a complaint that the concept has been too successful. In fact, the reason that the “transformativeness” analysis has become so influential is because it so successfully captured the essence of what courts must do in a fair use analysis: Assess and support the underlying purposes of copyright law, to “promote the Progress of Science and useful Arts.”
So, at the beginning of Fair Use Week 2015, a toast to Judge Leval, Luther Campbell and the 2 Live Crew crew, and Justice David Souter, for transforming fair use, and helping to “promote the Progress”.share: by
Just a reminder to all who signed up: We’ll be hosting our first UMass copyright bootcamp on January 13 and 14th, from 10am to 3pm. We were so over-subscribed on the 14th that we added another session on the 13th, and thanks to all who helped us by swapping sessions to accommodate those who did not have date flexibility.
See you next week!