COPYRIGHT LAW 2004 Columbus School of Law The Catholic University of America Prof. Fischer Class of APRIL 7, 2004

WRAP-UP: FAIR USE To determine whether fair use applies, courts must consider 4 fair use factors in 17 U.S.C. § 107. Courts are allowed to consider other factors too, and they sometimes do, such as considering the amount and substantiality of the portion used in comparison to the defendant’s work, as well as the propriety of the defendant’s content.

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished?

Fair Use and Parody: The Acuff- Rose case Does it matter if the parody is in bad taste, or not funny? Do you agree with Justice Souter’s analysis? Why or why not?

The Cat in the Hat case Why did the court rule against the parody defense for the book on the O.J. Simpson Trial?

Annie Leibovitz Naked Gun Case

Why did Leibovitz sue over the “Naked Gun” ads. Did fair use apply? Why or why not? Is this consistent with the Dr. Seuss case?

Gone With the Wind case Suntrust Bank v.Houghton Mifflin (11 th Cir. 2001) According to the 11 th Circuit, should the The Wind Done Gone be treated as a fair use parody even though it was not comic? Why or why not? Do you agree?

Seinfeld case: Castle Rock v. Carol Pub. (2d Cir. 1998) Was the preparation and sale of Seinfeld Aptitude Test a fair use, according to the Second Circuit? Why or why not?

Fair Use Generally Are all these cases just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?

Fair Use Generally: To Consider Are all these fair use cases that we read in the last class just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?