Copyright Law Ronald W. Staudt Class 22 November 12, 2013

§ 107. Limitations on exclusive rights: Fair use zNotwithstanding 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.) zIn 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.) z The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Koons’ Niagara Blanch v. Koons, 467 F. 3d 244 (2d Cir. 2006) zBut 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 ("I wanted to show some sort of erotic sense[;]... to get... more of a sexuality to the photographs.").

Koons’ Niagara Blanch v. Koons, 467 F. 3d 244 (2d Cir. 2006) z“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.'" zTransformative v. derivative– new function? zParody v. satire – yQuoting v. paraphrasing

Koons- String of Puppies Rogers 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.”

Cariou v. Prince yFacts DC held no fair useFacts –Appropriation art not per se fair use –D’s work must comment on P’s to be transformative –D said his purpose was the same at P’s to communicate –D uses other people’s originals to “reduce speculation.” 2d Cir Reverses –Prince’s testimony on transformativeness is not conclusive– critical fact is how the works appear to the reasonable observer

Cariou v. Prince z2d Cir yNeed not comment on Cariou or culture or even testify that he is trying to do so. Focusing on the art, 25 are transformative as a matter of law! yShow cancellation a misunderstanding– P and D not in same market. P can’t get Brangelina, DeNiro, Brady and Bundchen!

J.K. Rowling and the Lexicon Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513 (2008) zRowling’s publications zThe Lexicon zPrima Facie Case yImproper appropriation yDerivative work? zFair Use yDo the 4 factors

Bill Graham Archives zGrateful Dead posters? Like thumbnails?- D’s licencing fee as 4 th factor impact? z“…traditional, reasonable, likely to be developed markets”

Harper & Row v. Nation zFacts and more facts and moreFactsfactsmore zMajority Opinion yIncentives worked yImplied consent/lack of consent/criticism xBut unpublished traditionally different y106(3) and 107 and pari materia y“key but not necessarily determinative factor” x“Under ordinary circumstances the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use” y1 st Amendment & public figure exception to ©

Harper & Row v. Nation y4 factors x1: news v. commercial (see Sony repositioning-”separate factor that tends to weigh against a finding of fair use”) and intentionally aimed to scoop P’s licensee via theft x2: factual work v. unpublished Unpublished nature of work is a “key but not necessarily determinative factor” Under ordinary circumstances the author’s right to control the first publication of his undisseminated expression will outweigh a claim of fair use. x3. Expressive value of vebatim 300 words (13%) “the heart of the book” x4:”single most important element of fair use” actual harm, expression v. fact

Harper & Row v. Nation zDissent yLiterary form v. ideas or information yCategorical presumption against prepublication fair use zQuestions and note cases yCraft v. Kobler xCopier not at liberty to avoid “pedestrian” reportage by appropriating his subject’s literary devices xCritical v. decorative use

Castle Rock zFacts z4 factors y1:Transformative purpose? y2: Expressive nature y3: Amount used consistent with purpose? y4: Market effect: suppression or destruction v. usurpation or substitution zParody? The Joy of Trek zP didn’t go there? Market abandonment?

Clean Flicks zExclusive right? First sale doctrine? zMarket harm in fair use analysis zDerivative works and transformative uses- more confusion? ySee Professor Reese’s article cited at page 866. R. Anthony Reese, Transformativeness and the Derivative Work Right, 31 Colum. J. L. & Arts 467 (2008).

Transformative for fair use and derivative works in 106(2) zThe central purpose of this investigation is to see…whether the new work merely "supersede[s] the objects" of the original creation…("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.“ Campbell v. Acuff-Rose Music, 510 U.S. 569 zA “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. 101

Overview by result zCampbell- parody –fair zKoons sculpture – unfair zKoons painting – fair zAir Pirates – Mickey Mouse spoof- unfair zMattel – Food Chain Barbie - fair zHarper- prepublication scoop –unfair zBill Graham – Grateful Dead posters – fair zCastle Rock- SAT –unfair zClean Flicks- sanitized films – unfair zHarry Potter Lexicon- transformative but excessive- unfair

Leaffer Synthesis of Fair Use Noncommercialcommercial TransformativeEasiest fair useHard cases: Campbell Harper & Row ReproductiveHard cases: Sony Betamax Easiest no fair use