Copyright Law Ronald W. Staudt

Class 22April 13, 2009

§ 107.  Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

§ 107.  Limitations on exclusive rights: Fair use (cont.)

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.

§ 107.  Limitations on exclusive rights: Fair use (cont.)

  The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Campbell v. Acuff-Rose Music, Inc.Facts Procedural posture

DC—commercial no bar/conjure up test/no market impact C of A—commercial presumption(Sony); heart theft (Harper)

Souter sets the stage Must consider all 4 factors It is always a case by case analysis Footnote 10- damages instead of injunction

Campbell v. Acuff-Rose Music, Inc.Four factors

Purpose & Character of the use-- transformative use & effect on 2 3 4 and commercialism, includes parody? Parody v. satire. Presumption? Role of commercial use? Fn. 18 re “good faith”

Nature of the work parody special

Amount & substantiality of portion used- the heart or all –tied to 1 and 4

Market effect--- D & others, includes derivative market, Sony presumption? Lethal parody’s impact?Beneficial impact like song in a movie?

HoldingQuestions---Is parody unique? Where are we now?

Recap:Campbell v. Acuff-Rose Music, Inc.

Must consider all 4 factors It is always a case by case analysis Transformative use favored, though not required Parody is a transformative use Parody must criticize P’s work, not society Courts will not recognize derivative market for

critical works, but supplanting a derivative market for rap non-parody cuts against fair use

Commercial not presumptively unfair No presumption of market harm from commercial

nature of use unless mere duplication for commercial purposes

More parody examples…

Dr Seuss and Dr. Juice

Demi Moore and Leslie NielsonKoons Sculpture

Koons Oil Painting

Koons- String of PuppiesRogers v. Koons, 960 F. 2d 301, 309 (2d. Cir 1992)

“Koons argues that his sculpture is a satire or parody of society at large. He insists that "String of Puppies" is a fair social criticism and asserts to support that proposition that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. These themes, Koons states, draw upon the artistic movements of Cubism and Dadaism, with particular influence attributed to Marcel Duchamp, who in 1913 became the first to incorporate manufactured objects (readymades) into a work of art, directly influencing Koons' work and the work of other contemporary American artists.”

Koons’ Niagara

But Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.").

Koons’ Niagara

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is  thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

More parody examples…

The Wind Done Gone

Mickey Mouse and Air Pirates

Hypos on 739

Food Chain Barbie

Prima facie caseFair Use 4 Factors

Purpose and character of useParody --survey evidence and Q of lawCommercial?

Nature of the © work Amount and Substantiality of use

Takes all – weighs in favor of fair use

Market harmCritique damage/ market failure

J.K. Rowling and the Lexicon Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513 (2008) 

Rowling’s publicationsThe LexiconPrima Facie Case

Improper appropriation Derivative work?

Fair Use Do the 4 factors