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    Presenting a live 90-minute webinar with interactive Q&A

    Evaluating Fair Use for Copyrights Making Tough Calls on Excluding, Obtaining Permission, or Relying on Fair Use

    Today’s faculty features:

    1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

    TUESDAY, AUGUST 29, 2017

    Jennifer L. Elgin, Shareholder, Bean Kinney & Korman, Arlington, Va.

    Jon R. Tandler, Member, Sherman & Howard, Denver, Co.

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  • 5

    Evaluating Fair Use for Copyrights - Making

    Tough Calls on Excluding Third Party Content,

    Obtaining Permission or Relying on Fair Use

    Jon R. Tandler

    Sherman & Howard L.L.C.

    Stafford Publishing Webinar August 29, 2017

  • 6

    Exclusive Rights of Copyright

    Exclusive Rights of Copyright – Section 106 of Copyright Act

    “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;

    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”


  • 7

    Freedom of Speech vs. Copyright

    • The First Amendment of the U.S. Constitution

    – “Congress shall make no law . . . abridging the freedom of speech,

    or of the press.” (U.S. Const. Amend. I).

    • The Copyright Clause of the U.S. Constitution

    – Congress has the power “. . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (U.S. Const., Art. 1, §8, c. 8).

    Copyright law defines authors’ exclusive rights to control the exploitation of their works. The First Amendment prohibits Congress from passing laws which abridge free speech. The First Amendment does not invalidate all laws which in some measure abridge free speech; copyright law is one example.

  • 8

    Freedom of Speech vs. Copyright

    There must be a constitutional balance between the respective First Amendment and Copyright Clause interests, in order for the two to have co-existed for so many years:

    • Free speech interest – necessary for democracy

    • Copyright interest – necessary to promote the interests of creators for the common good

  • 9

    Freedom of Speech vs. Copyright

    The balance is based upon the distinction between an idea, and the expression of that idea.

    • Idea = free speech (ideas are not protectable

    under copyright law)

    • Original work of authorship fixed in a tangible medium = Copyrightable expression (protectable under copyright law)

    Fair use attempts to balance one’s use of another’s protected copyrighted expression in order to advance one’s ideas.

    The balance is difficult—so is fair use!

  • 10

    Basic Elements of Copyright Infringement

    • Fair use is an affirmative defense to copyright infringement. You don’t get to the defense/fair use analysis unless there is infringement in the first place!

    • The basic elements of copyright infringement, and thus what must be proven before fair use comes into play, are that the copyright owner must show:

    – Ownership of a valid copyright,

    – Access by the defendant, and

    – Copying in the secondary work of protectable matter from the original work such that there is substantial similarity between the two works. The critical analysis of substantial similarity varies with the type of work at issue.

    • Attribution is not a defense to copyright infringement.

  • 11

    Fair Use – An Affirmative Defense to Copyright Infringement

    • Section 107 of the Copyright Act – codification of prior case law:

    – 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.

    – Factors to be considered in determining whether a particular use is fair include the following four factors, which are illustrative and not exhaustive:

  • 12

    Fair Use – The Four Factors

    1. The purpose and character of the use, including whether commercial or non-profit.

    Primary focus of court’s inquiry is the extent to which the new work is transformative; the more transformative, the less significant the other factors. Campbell v. Acuff-Rose Music, Inc.

    2. The nature of the copyrighted work.

    ― More creative a work = more copyright protection

    ― More factual, information, or functional a work = less copyright protection under a fair use analysis

  • 13

    Fair Use – The Four Factors

    3. The amount and substantially of the portion used in relation to the copyrighted work as a whole.

    ― Proper analysis here includes qualitative and quantitative determinations, including whether material taken is the “heart of the work.” Harper & Row Publishers v. Nations Enterprises.

    4. The effect of use upon the potential market for the copyrighted work

    ― Effect on market (including potential market) for copyrighted work is “undoubtedly the single most important element of fair use.” Castle Rock Entertainment v. Carol Publishing Group.

  • 14

    Fair Use - Parody

    • A parody is a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. A parody is a ‘subset’ of the first fair use factor – the comic effect, ridicule or criticism is the transformative factor.

    • The “heart of parodist’s claim is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on the original.” Campbell v. Acuff- Rose Music, Inc.


  • Evaluating Fair Use for Copyrights:

    Making Tough Calls on Excluding, Obtaining Permission,

    or Relying on Fair Use

    Jennifer L. Elgin

    [email protected] (703) 284-7275


  • Why Do We Care? REMEDIES

     Injunction

     Damages:

    (1) The copyright owner’s actual damages and attributa