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Copyright and Fair UseLatest Developments
March 31, 2015Webinar
Kristen McCallionPrincipal, New York
Sheryl Koval GarkoPrincipal, Boston
Overview
CLE Contact: [email protected]
Questions
Materials available post-webinar on FishTMCopyrightblog.com
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Agenda
What is “Fair Use”?
Recent Developments in The Fair Use Doctrine
Fair Use and Social Media
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What is “Fair Use”?
The “Fair Use Factors”
The fair use of a copyrighted work. . . 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S.C. § 107.
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Campbell v. Acuff-Rose Music, Inc. (1994)
2 Live Crew “covers” Roy Orbison’s “Oh, Pretty Woman.”Established that a commercial parody can qualify as fair use. That money is made does not make it impossible for a use to be fair; it is merely one of the components of a fair use analysis.
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Recent Developments
Prince v. Cariou (April, 2013)
Is artist Richard Prince's appropriation art treatment of Patrick Cariou'sphotographs copyright infringement or a fair use?
SDNY, March 2011—finds infringement.Second Circuit, April 2013—reverses.
Most of Prince’s appropriation art was a transformative fair use of Cariou'sphotographs.
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Prince v. Cariou (April, 2013) cont.
The Second Circuit offers a very broad analytical approach to the fair use doctrine.To qualify as a fair use, the second, allegedly infringing work must “generally alter the original with new expression, meaning or message.” It does nothave to comment on the original.Second Circuit Court remanded for reconsideration of 5 of Prince's works, the Supreme Court denied cert., and the case settled in 2014.
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The Author’s Guild et al. v. Google Inc. (Nov., 2013)
“[Google Books] could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible.” - Lawrence Lessig
Google’s massive digitization project is a fair use because it “provides significant public benefits.” The court found that the purpose of the use made by Google Books is so novel and transformative, that it is fair despite the fact that Google copies the entirety of the works.
District Court granted a summary judgment finding fair use. The Authors Guild has filed an appeal to the Second Circuit. The appeal was argued on December 3, 2014; a decision is pending.
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Fish blogged about this:http://www.fr.com/fishTMCopyrightblog/federal-district-court-of-new-york-holds-google-books-project-is-fair-use/
Swatch Group v. Bloomberg (Jan., 2014)
News outlet reproduced and distributed – without permission – a recording of a Swatch investor call.
Where the purpose of the reproduction is accurately conveying information to the public, the copying of the entirety is necessary to effectuate this purpose.
Coupled with the fact that there was no market harm to the original work, the Second Circuit affirmed that the District court did not err in granting suasponte summary judgment for Bloomberg.
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The Authors Guild, Inc. v. HathiTrust (June 2014)
“A transformative use is one that serves a new and differentpurpose from the original work and is not a substitute for it.”
In June 2014, the Second Circuit held that the doctrine of “fair use” allows Hathi Trust to create full-text searchable electronic libraries of copyrighted works for the purpose of allowing users to search for certain keywords or terms. Such use is transformative because it serves a new and different function from the original works, and, as such, fulfills the copyright law’s mandate of promoting science and the useful arts.
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Fox News Network LLC v. TVEyes (Sept., 2014)
TVEyes records all of the content on about 1,400 television and radio stations, including Fox News Network, twenty-four hours a day, seven days a week and provides its users with access to information about how often and in what context various news stories are reported.
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Fox News Network LLC v. TVEyes (Sept., 2014)
Following the Second Circuit’s decision in Authors Guild, Inc. v. Hathi Trust, 755 F.3d 87 (2d Cir. 2014), the District Court held that TVEyes’ practice of making available video clips, transcript excerpts, and usage data served a transformative purpose and constituted fair use because it "serves a new and different function from the original work and is not a substitute for it."
“TVEyes’ evidence that its subscribers use the service for research, criticism, and comment, is undisputed and shows fair use as explicitly identified in the preamble of the statute.” 17 U.S.C. § 107.
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BWP Media USA, Inc. v. Gossip Cop Media (Jan., 2015)
Gossip Cop provides celebrity gossip news. BWP Media is an entertainment-related photojournalism company. BWP owns numerous photographs and videos of celebrities, which it licenses to both online and print publications.
Gossip Cop reproduced two images, as they appeared together with headlines and stories in other celebrity news publications, with a “Real or Rumor” meter to comment on the veracity of those stories.
Gossip Cops’ use of “surrounding commentary or criticism” militates for a finding of transformative use.
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BWP Media USA, Inc. v. Gossip Cop Media (Jan., 2015)
The Court explained that there are limits upon creators’ control over their own works, in particular the doctrine of ‘fair use,’ which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. This is an open-ended and context-sensitive inquiry.
The District Court found that it is possible to resolvethe fair use inquiry on a motion to dismiss under certain circumstances, but declined to find that fair use constitutes a complete defense at this stage.
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Kienitz v. Sconnie Nation, LLC (Sept., 2014)
District court granted summary judgment for the defendants applying the fair use statutory defense to infringement, 17 U.S.C. 107.
The Seventh Circuit affirmed concluding that use of a politician’s modified image on a t-shirt not a substitute for the original and all that remained was the uncopyrightable outline of subject’s face.
Defendants chose the design as a form of political commentary, not for profit.
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See more at: http://fairuse.stanford.edu/case/kienitz-v-sconnie-nation-llc/#sthash.oi45knxO.dpuf
N.J. Media Group Inc. v. Pirro et al. (Feb., 2015)
Fox argues that its display of an iconic 9/11 photo on a Facebook page associated with Fox News’ television program Justice with Judge Jeanine is a fair use. New York District court denied Fox News’ motion for summary judgment finding there were questions of fact as to whether Fox News’ use was transformative and whether it was commercial in nature.Fox’s motion for an interlocutory appeal now pending.
18http://insider.foxnews.com/show/justice-with-judge-jeanine
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Fair Use and Social Media
Practice Pointers
The safest course of action is always using your own content or that which you have licensed.
Just because an image has already been “pinned” or “tweeted” does not necessarily mean that repinning and/or retweeting it is non-infringing.
Just because something has gone viral, doesn’t mean you can use it (i.e. Grumpy Cat).
Be careful about what other contractual obligations you may have with the subject of what you’re posting (and there are other trademark/right of publicity concerns).
Linking to content you don’t own is normally OK, but copying or “framing” third party content is infringement, in all likelihood.
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Contact Information
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Sheryl Koval GarkoFish & Richardson
Kristen McCallionFish & Richardson [email protected]
212-641-2261
Please send your NY CLE forms or questions about the webinar to Ellen at [email protected].
A replay of the webinar will be available for viewing at FishTMCopyrightblog.com
Thank you!
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