Year: 2019

Fair Use Week 2019: Day Five With Guest Expert David R. Hansen and Kyle K. Courtney

copyright, fair use , , ,

Fair Use, Innovation, and Controlled Digital Lending

by Kyle K. Courtney and David R. Hansen

One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display.  In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an  “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files.  Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, , where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.

Fair Use Week 2019: Day Four With Guest Expert Krista Cox

best practices, copyright, fair use

Celebrating Fair Use in Films

by Krista Cox

This year, Fair Use/Fair Dealing Week immediately follows the Oscars and I definitely have movies on my mind.  The Green Book (which I haven’t seen yet) was one of the nominees—and ultimately winner—of the coveted Best Picture Award, but was not without its share of critics.  Like other movies dealing with race, critics said that it minimized the true extent of racism and fell into the “White Savior” trope. Just before the Academy Awards, comedian Seth Meyers released a video highlighting these criticisms parodying popular films, including Hidden Figures, The Blind Side, and The Help.  Meyer’s White Savior: The Movie Trailer is a fantastic example of parody which, of course, is protected by fair use.  Since Kenny Crews covered parody so well in his Day 1 post, I’ll turn to a different aspect of fair use and movies.

Although films obviously create their own creative content, protectable by copyright, often these works incorporate existing content.  Depending on the particular use, a filmmaker or production studio may choose to license a particular copyrighted work, but in other instances the film creator has relied on fair use.  Here are some examples where fair use and films have gone hand-in-hand—both in the documentary film context as well as feature films and shows.

Documentary filmmakers have relied heavily on the doctrine of fair use, which makes a lot of sense. If documentary filmmakers constantly had to rely on permission and licenses—which would also mean that a rightholder could refuse to grant permission—the result could be that these documentaries lacked proper historical references and context.  In a 1996 case, the Southern District of New York refused to grant Turner Broadcasting’s motion for injunctive relief, finding that the clips of a boxing match film involving Muhammad Ali and George Foreman in a documentary about Muhammad Ali was likely a fair use.  In Monster Communications, Inc. v. Turner Broadcasting Systems, the court noted that only a small portion of the total film—just 41 seconds—was taken and that the documentary used it for informational purposes.

In another instance of documentary filmmaking, artist Bouchat sued over the use of the Baltimore Ravens’ logo in several videos.  While a prior case held that the Baltimore Ravens had infringed the logo design by Bouchat for several years, the use in the films (and historical exhibits) was considered fair.   The Fourth Circuit held in Bouchat v. Baltimore Ravens that the videos at issue used the copyrighted material in a transformative way, telling the history of the Baltimore Ravens and the logos were “fleeting” in nature.

And in yet another litigated case over a documentary film, National Center for Jewish Film v. Riverside Films, a district court noted that the use of film clips in Sholem Aleichem: Laughing in Darkness (about the life of a 19th century Yiddish author) was transformative because it incorporated various clips with scholarly commentary (NB: whether the films had entered the public domain was also questioned, a factor that the court weighed in favor of fair use).  Again, because these clips were used in a transformative way that did not supplant the market for the original film, the court held the use to be fair.

Not every fair use ends up being litigated, though.  Indeed, most documentary movies probably don’t involve rightsholders claiming copyright infringement in part, thanks to the Documentary Filmmakers’ Statement of Best Practices in Fair Use.  That Code of Best Practices, like other Codes (see: Code of Best Practices in Fair Use for Academic and Research Libraries or the Code of Best Practices in Fair Use for Software Preservation—two best practice statements released by ARL), relies on the consensus view of fair use best practices in the community for which it was written. The 2005 Code for Documentary Filmmakers has had a tremendous impact on the community, making it easier for filmmakers to get insurance, avoiding unnecessary licensing costs and leading to the release of films that may never have been finished otherwise.  One of the successes is This Film Is Not Yet Rated about the MPAA’s rating system.  While the director had initially planned to license the clips used, those licenses would have prevented him from using the material in a way that criticized the entertainment industry.

While the documentary filmmaker community relies heavily on fair use there are a number of examples where fair use was invoked in feature films, as well.  For example, the Oscar-winning movie Midnight in Paris, about a screenwriter, played by Owen Wilson, who travels back in time to the 1920s and hangs out with luminaries like Scott Fitzgerald, Ernest Hemingway, Gertrude Stein, Cole Porter, Salvador Dali and others was the subject of a lawsuit.

In one scene, the main character paraphrases a line from novelist William Faulkner’s novel, Requiem for a Nun (the line in question is, “The past is never dead.  It’s not even past”) and provided attribution back to Faulkner.  Nonetheless, the Faulkner estate sued, claiming that the use of the line infringed copyright.  The Northern District Court of Mississippi referenced de minimis usage (discussed a bit more below), but also conducted a full fair use analysis finding that the quote was of “miniscule” importance to Faulkner’s novel as a whole and the use in Midnight in Paris, which amounted to a mere 8 seconds of the feature-film, did not harm Faulkner’s market for his novel.  To the contrary, the court questioned: “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.”

Similarly, in the 2013 film Lovelace, based on the biography of Linda Lovelace, an actress who starred in a famous pornographic film but later became a spokesperson against pornography, the producers re-created three scenes from Deep Throat.  The Southern District of New York in Arrow Productions v. The Weinstein Company ruled the use transformative because it provided “new, critical perspective” on Lovelace and would not supplant the market for the pornographic film.

Courts have considered and upheld fair uses in the film context, but some have found in favor of the defendant without even needing to go through the four fair use factors.  Instead, for various uses of copyrighted works in TV shows and feature films, some courts have found in favor of the use on the basis of fair use’s cousin, de minimis use.  In these de minimis use cases, courts have determined that the amount used was so small and trivial, the court need not engage in a full fair use analysis.  These cases have included, for example, the 2000 rom-com What Women Want, featuring Mel Gibson (involving the depiction of a pinball machine in the background); the 1995 crime thriller SE7EN, featuring Brad Pitt and Morgan Freeman (use of copyrighted photos appeared fleetingly and out of focus); and HBO’s TV series Vinyl which was created by Mick Jagger and Martin Scorsese about a record executive in the 1970s (fleeting use of a dumpster tagged with graffiti in the background of a single scene).

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2019: Day Three With Guest Expert Dr. Nora Slonimsky

copyright, fair use , , ,

The Public Figure Exception(s): Finding Fair Use in the Vastness of Early American IP

Originally published on Uncommon Sense, a publication of the Omohundro Institute. This post accompanies “Copyright and Fair Use in Early America,” episode 227 of Ben Franklin’s World. You can find supplementary materials for the episode on the OI Reader app, available through iTunes or Google Play.

by Nora Slonimsky

Whether you are Gigi Hadid or Jedidiah Morse, your copyright is often more than just a proprietary claim. Public figures have long been bound together in the public eye with perception and re-use of their works, whether people share photographs of you walking down the street or a map produced more than two hundred years before GPS. In an era of Twitter, paparazzi, and a rapidly turning over news cycle, deciding what information the public needs to make informed decisions is an increasingly fraught challenge—but not a new one. As early national writers sought to shape American media in the wake of independence, they confronted what it meant to be a public figure and what value that role had in the creation of new forms of expression.

A legal doctrine highlighted this week through collaboration among libraries, institutions of higher education, and professional research organizations, fair use emerged as a formalized legal framework in the nineteenth century with infamous competing biographies of George Washington and the 1841 case of Folsom v. Marsh, as Kyle K. Courtney and Liz Covart discuss in the #FairUseWeek episode of Ben Franklin’s World. The concept is intended to protect the right to circulate information that would otherwise be covered by copyright.

Fair use doctrine intersects with similar principles around the globe, but several of its particular qualities were formulated in the United States and have roots that date to the beginning of the nation’s history. One root involves a proposed aspect of fair use called the “public figure exception.” As described in the 1985 case of Harper & Row v. The Nation, the public figure exception limits an author’s or proprietor’s right to be paid for their expression when the work contains “matters of high public concern.”[i] A work “containing matters of high public concern” can often be intertwined with the public role of the author. As a consequence, the public figure exception introduces the reputation or image of the author as a consideration in the balance between the individual claims of artists and innovators over their creative labor and the broad social need for the learning and engagement that comes from expression.

Turning to early America can provide a deeper understanding of why. When the phrase “public figure exception” appears today, it is frequently in the context of defamation. In my first book project, I look closely at the relationship between libel and copyright, and how they function in the construction authorial, as well as state, authority. To write and publish a criticism of a public figure was still considered seditious libel in the late eighteenth century. The logic that something could not be libelous if it wasn’t true was not formalized in United States law until 1805, and even then, was determined by state, and not federal, law.[ii] The truth defense evolved over the next century and a half, but in the early national period, the standing of a writer – through their racial, religious, ethnic or gender identity, political affiliation, wealth, education, networks, regional ties – determined the authenticity of their expression alongside any innovative qualities.

It is more Jedidiah Morse than Gigi Hadid then who ties together these complex threads of copyright, fair use, libel, and public opinion. Although media in the late eighteenth century was indeed very social, the media were quite different. Morse might not have been the most adept at the eighteenth-century equivalents of Twitter, like pamphlets and broadsides, but he was extremely skilled at social networking. For the “father of American geography,” Morse shrewdly marketed his nationalistic series of geography books, from 1784’s Geography Made Easy to the 1789 The American Geography to The American Universal Geography, which appeared in several editions in the 1790s and early 1800s. As a strong supporter of the Federalist coalition who consistently cultivated an image of expertise in topography, environmental science, history, and political commentary, Morse was extremely close with other leading figures in the knowledge industry like Noah Webster and employed Alexander Hamilton and James Kent as his copyright lawyers in what would be the first known federal copyright case, Morse v. Reid, in 1798.

Despite, or perhaps because he was such a staunch advocate for copyright, Morse relied heavily on what we would now consider fair use. Writing that he often “aimed at utility rather than originality, and of course, when he has met with publications suited to his purpose, has made free use of them,” Morse added, without irony, that he “frequently used the words as well as the ideas of [other] writers” without telling the reader.[iii] Morse did not see any issue with compiling the work of other writers and using it in his own. Morse conducted his own research and wrote much of The American Geography on his own, but to bolster his credibility, “maintained extensive correspondence with men of Science,” and “in every instance, has endeavored to derive his information from the most authentic sources.”[iv] In other words, he relied on the expertise of others, and in turn, shared their findings while expanding his own. So if one of these experts in turn relied upon Morse’s work for their own, it does not appear that he had much of a problem with it.

Where Morse did have a problem, however, was when someone whom Morse did not deem a valid authority did so. Even worse, when the “pirate” in question was a Baptist minister held in Newgate Prison for sermons in favor of the French Revolution, the Congregationalist, pro-British Morse was aghast. William Winterbotham was in reputation everything Morse feared. He published An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies in London in 1795; it was reprinted in New York in 1796.

Only then did Morse have any legal recourse, as international copyright did not exist. Alerted to Winterbotham’s book by Morse’s London publisher, John Stockdale, Morse immediately recruited Hamilton as his attorney, writing that “After going over the Work with care & a great deal of labour, I have estimated that nearly a third part of the whole of Winterbothams work, has been copied verbatim from my work, or about 600 pages out of about 2000.”[v] By current fair use standards, this was a high percentage, but what seemed to truly incense Morse was not the quantity, but rather how Winterbotham had “artfully, in many instances … transposed paragraphs & sentences, apparently with a view to deceive the reader.”[vi] It was evident, according to Morse and his legal team, that Winterbotham had copied more of Morse’s work than was appropriate to demonstrate expertise or “authentic sources.” As you can see in the images to the left, while maps were not a source of dispute for Morse, there was clear reliance on The American Geography (top) in the New York edition of An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies made by John Reid (bottom).

Winterbotham did not criticize Morse. In fact, when Winterbotham mentioned him at all, it was to praise his status as a geographer and writer. Still, because of Winterbotham’s politics and precarious position, Morse remained worried about his authority as a public figure. This was both a commercial and credit-based fear. If readers began to associate Morse and The American Geography series with the work of Winterbotham, it could encroach on Morse’s market share, but also influence American readers about Morse’s message and his political standing within the Federalist network. Winterbotham’s piracy, whether rational or irrational, reasonable or unreasonable, functioned to Morse like a libel.

Whether the people involved are presidents like George Washington or Gerald Ford, or well-known authors like Morse, the public figure exception is based on an understanding of fair use in which the public need for the expression contained within a writer’s work is pivotal to making informed choices. If the author is an authority in a given subject, especially one that has obvious relevance for pressing issues, financial barriers to that material can have drastic consequences. And yet writers, like all workers, need to make a living. Writing nearly two hundred years before Harper & Row v. The Nation, and fifty years before Folsom v. Marsh, Morse was not articulating clear legal doctrine by any means, but rather musing on exceptions to exceptions. The copyright consciousness in which Morse wrote and published was one in which he could both reap the benefits of fair use and complain of piracy at the same time, in large part because both relied upon his carefully crafted public persona as a geographic expert. When looking at media, authority, and access through the lens of fair use, the early history of copyright is thus as much about public opinion as it is property.

Nora Slonimsky works on the history of copyright and its relationship with media regulation, state formation, and knowledge production in the long eighteenth century. Dr. Slonimsky is the Gardiner Assistant Professor of History at Iona College and Director of the Institute for Thomas Paine Studies (ITPS). This post also appears at the Copyright At Harvard Library blog.

_______

[i] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985): 3.

[ii] This was in the case of People v. Croswell (1804), in which Alexander Hamilton argued the truth defense. It was written into law by New York State the following year.

[iii] Jedidiah Morse, The American Geography; Or, A View of the Present Situation of the United States of America Containing – Astronomical Geography, Geographical Definitions, Discovery, and General Descriptions of America and the United States – of their Boundaries, Mountains, Lakes, Bays and Rivers, Natural History, Production, Population, Government, Agriculture, Commerce, Manufactures, and History –a Concise Account of the War, and of the Important Events with have Succeeded with a Particular Description of Kentucky, the Western Territory and Vermont – of their Extent, Civil Divisions, Chief Towns, Climates, Soils, Terrain, Character, Constitutional, Courts of Justice, Colleges, Academies, Religion, Islands, Indian, Literary and Humane Societies, Springs, Curiosities, Histories &c to Which is Added an Abridgement of the Geography of British, Spanish, French and Dutch Dominions in America and the West Indies – of Europe, Asia and Africa Illustrated with Two Sheet Maps – One of the Southern, the Other of the Northern States – From the Latest surveyors. Shepard Kollock: Elizabeth, New Jersey, 1789: vi-vii.

[iv] Morse, The American Geography, iv.

[v] Jedidiah Morse, “Letter from Jedidiah Morse to James Kent, January 21st, 1796,” Box Two, Morse Family Papers, Sterling Memorial Library, Yale University.

[vi] Morse, “Letter from Jedidiah Morse to James Kent.”

Fair Use Week 2019: Day Two With Guest Expert Brandon Butler

best practices, copyright, fair use

Some Software-informed Thoughts on Fair Use and Licensing for Fair Use Week

by Brandon Butler

I thought I knew a fair bit about fair use—then I started doing more work with software. That’s when I realized I hadn’t thought quite enough about fair use and licenses. This fair use week, I want to share a little bit of what I’ve been thinking. For too long my quick-and-dirty rule of thumb for licensed content was that fair use would be of little or no value for works covered by a license. That’s not an accurate picture, however, and it does a disservice to fair use!

 

Non-overlapping magisteria

I want to start with what I now see as the right way to think about these two issues. To borrow a fancy-sounding term from biologist Stephen Jay Gould, I conceptualize licenses and fair use as ‘non-overlapping magisteria‘ — separate and compatible sources of authority for anyone in need of guidance about when they can use in-copyright material. Each source of authority tells us something important, and the two can co-exist (and give us meaningful, useful guidance) even when they are in apparent conflict.

Licenses tell us the boundaries of the permission granted by the copyright holder. When I read a license, I learn what the license permits and what it does not permit. The copyright holder’s power to license her works is a very valuable asset. Licenses often permit uses that far exceed anything that could be done under ordinary copyright law—installation of the same software on multiple machines, simultaneous access to the same digital book by multiple users, or access by one user across multiple devices, and so on. But licenses typically include limits—”for personal use only,” “non-transferable,” and the like. These tell you where the permission granted in the license ends.

Fair use is a doctrine in copyright law that allows certain uses of in-copyright works regardless of permission. To put it another way, fair use is permission granted by law. Users can promise not to exercise their fair use rights, but no copyright holder can unilaterally take away the permission given by law.

It follows that user rights like fair use apply, by definition, precisely where permission has not been granted. A license that says “for personal use only” tells you the limits of the license. It doesn’t tell you the limits of fair use.

Which is not to say that fair use always picks up where licenses leave off. To the contrary, we would expect that in most ordinary cases fair use will not permit licensees to exceed the scope of a license. Limitations in licenses are usually put in place as a way of protecting (or segmenting) a market. Courts would be loathe to find fair use if your activity directly undermines ordinary market exploitation. However, when a license no longer supports an active market, and adherence to a license would frustrate core purposes of copyright (like scholarship or teaching), fair use can apply.

Unless They Do Overlap

There is one circumstance where license terms and fair use can come into direct conflict: where a user promises explicitly not to engage in activity protected by fair use (to create a parody from a licensed work, for example). Only licenses that not only limit the scope of permission, but also secure from the user a promise not to do certain things, can cause this conflict.

In these cases, though, what is the consequence for the licensee who breaks her promise? I’d suggest that if such uses are still fair, then failure to comply with the license can’t make you a copyright infringer. You may be in breach of the agreement, and the licensor could sue for damages due to the breach, but the extraordinary statutory damages (infamously up to $150k per work for willful infringement) associated with copyrights are off the table. This should lower the stakes considerably for folks considering fair use.

One last thing you can consider if you’re concerned about anti-fair use language in a license agreement: a contract only binds the parties to the agreement, not third parties. Someone who comes to possess a digital work without ever affirmatively agreeing to license terms (e.g., a second-hand purchaser who never sees a shrink-wrap license or clicks on a pop-up “I agree” button) is not likely to be bound by those terms. They would also not be able to benefit from the license, but that’s where fair use would have a role to play.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He was a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law from 2013 to 2016. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2019: Day One With Guest Expert Kenneth Crews

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We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew Case!

Fair Use and the Growth of Creativity: Celebrating a Quarter Century

by Kenneth D. Crews

Dust off the CD player and get in the mood for Boyz II Men and Ace of Base.  We’re gonna party like it’s 1994!  In just several days, on March 7 next week to be exact, we can celebrate the 25th anniversary of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  You know that a case about early rock music by a guy named Skyywalker has got to be good.  The Campbell decision is in fact the most important fair use court ruling – ever.

That’s right.  Campbell is the most important fair use ruling in the history of the known universe.  It has been cited in nearly 700 subsequent decisions from U.S. courts and has been the springboard thousands of articles and studies. The case is referenced with joy by copyright professionals around the world who yearn for the clear rights we now have in the U.S. to make the critical and even despicable parodies, as the Supreme Court unequivocally sanctioned.

Skewering and criticizing are among the most American pursuits – they are extensions of our beloved free speech traditions – and the Court preserved the spirit of that Weltanschauung in the framework of fair use and copyright law.  The task for the Supreme Court was to discern and articulate when fair use would allow the creation of a parody without infringing the copyright in the underlying work.  The subject matter in the Campbell case was the pop song, Oh, Pretty Woman, made famous in 1964 by the singer and songwriter, Roy Orbison.

2LiveCrew1

A parody, unlike a satire, necessarily makes use of a specific original work.  A satire might use a song or other existing work to critique or mock something else.  Think of Weird Al Yankovic being generally gluttonous to the tune of Beat It.  Many other songs could have been the vehicle for pie hole humor.  By contrast, a parody comments on the underlying work itself; a parody must use at least a bit of the work it is seeking to attack.

2LiveCrew2

In the Campbell case, the rap group 2 Live Crew rewrote the original Orbison opus in a quest to criticize and comment on its sentiment of a simple and perhaps misguided romantic episode.  Justice David Souter, one of the most well-read Supreme Court jurists in recent decades, recast the legal analysis with grace of a literary analysis and the comprehension of a constitutional scholar.  Souter recognized through the unanimous decision that fair use is essential to a functional copyright law, to critical reflection, and to the inspiration of new creativity:

[T]he 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. . . .

The Court gave a strong endorsement to the policies behind the law, but the most enduring legacy of Campbell has been its restructuring of the legal principles of fair use.  The Supreme Court had previously rendered fair use decisions about quoting from a presidential autobiography and recording a TV broadcast at home.  While the Court based its decisions on the four factors in the fair use statute, the analysis was often muddled and supported by interpretative principles that tended to ossify fair use at a time when the need for flexibility was on the rise.

Flexibility in fair use allows the law to apply to diverse works for a widening range of new uses. The Supreme Court in Campbell abandoned earlier edicts against commercial uses, and even against using the “heart” of a work.  The Court turned away from declaring market harm as the most important factor, and it elevated the notion of “transformative” uses.  Under Campbell, all four factors of fair use are to be evaluated together, and each is weighted according to the strength of the evidence.

Justice Souter vividly understood that parody is a form of criticism, and society is best served through open commentary on music, literature, art, politics, and more.  The subject of Campbell may have been a chipper ditty with a virtuous sentiment and a compelling bass riff.  Through the last 25 years, however, the real subject of Campbell has become clear.  The more flexible conception of fair use that Campbell espouses is not only about using existing works – it is about creating an entire new breed of works.

Consider again life in 1994.  The Simpsons was in its fifth season, and parody recordings had been the oeuvre of Allan Sherman and Stan Freberg.  But by coming in 1994, the Campbell decision inadvertently became a turning point in relationship of copyright to technological change.  The internet was in its formative years, YouTube was a decade from inception, and the more aggressive parodies of South Park and The Daily Show were mere brainstorms.  Campbell opened the way for fuller exploitation of the humor, taste, media, political intrigue, cable networks, worldwide connections, and digital tools that were about to revolutionize our lives.

The flexibility that Campbell brought to fair use has allowed this social and intellectual transformation to prosper.  It also fostered the creativity of appropriation art, the trenchant dissection of political news, and the digitization and analysis of millions of books and other copyrighted works.  The Campbell ruling brought new meaning to fair use exactly when technology was widening possibilities, and when our social and political climate demanded a critical examination – and even a stinging parody.  The Supreme Court showed tremendous foresight in 1994 and gave us something to truly celebrate a quarter century later.

Kenneth D. Crews is an attorney and international copyright consultant with Gipson Hoffman & Pancione in Los Angeles, California.  He was previously on the faculty and founding director of copyright offices at Columbia University and Indiana University, and he has been a consultant for the World Intellectual Property Organization since 2007.  Dr. Crews is the author of Copyright Law for Librarians and Educators, forthcoming soon in a 4th edition.