Fair Use

Interpolation Pay compulsory mechanical license, perform song, and sample performance

VS Grand Upright v. Warner (1991)

Grand Upright Cont'd “Everybody else is doing it” “We asked and they never responded” Rule: In favor of O'Sullivan “Thou shall not steal” Sig: Unauthorized sampling is infringement; could punish under 17 USC 506 (criminal)

Bridgeport v. Dimension (2005)  Sample Troll, Catalog Company  "Get a license or do not sample. We do not see this as stifling creativity in any significant way."  Sig: Eliminates de minimis defense for sound recordings  Bright-line test=any unlicensed sample is an infringement  $4M from Ready to Die (2006)  Good Copy Bad Copy Good Copy Bad Copy

Newton v. Diamond (2003) 1992, “Pass the Mic” sampled James Newton's “Choir” Beastie Boys licensed the sound recording, but not underlying composition (3 notes / 6 seconds) Newtown sold the rights to his performance of the composition, but kept rights to composition Ruling: In favor of Beastie Boys Sig: de minimis defense if valid for use of compositions

Fair Use Basics A legal concept derived from common law Codified in 1976 Copyright Act Fair use in copyright; weaker in trademark No fair use in patent...yet Defendant must prove use to be fair Fair use exceptions= $4.5B in US economy

The Fair Use Test 17 U.S.C. 107 Commentary, Criticism, Education/Scholarship: a balancing “test” of 4 non-exclusive factors –Purpose and character: enrichment/profit, transformation –Nature of original work: Factual/creative, published? –Amount copied/Substantiality or importance to original –Market effect or harm on original

Parody vs. Satire Use just enough to “conjure up” the original Parody uses copyrighted material as a direct commentary of the work – This is has a strong fair use claim Satire is commentary on society in general using copyrighted material – This does NOT usually have a fair use claim Bush Parody

Campbell v. Acuff-Rose (1994) VS

Campbell Cont'd Supreme Court Ruling: in favor of 2 Live Crew, parody of “white bred original” Sig: Commercial parody can be fair use Paid license to Acuff (Orbinson's publisher)

VS. Sony v. Universal (1984)

Sony v. Universal cont'd Supreme Court decision “Betamax case” Sig: consumers taping TV shows for later viewing (“time shifting”) not infringement Sig: manufacturers of tapes and recorders not liable Making these practices and technologies not liable for copyright infringement=Home Video Market Space shifting: accessing media from different devices (i.e. Cloud) Format shifting: converting media files into different formats (i.e. ripping CDs into MP3s)

Private Use Non-commercial copying is allowable Cannot display or sell copies, which dilute the original's market Blank cassettes, VHS, writeable DVDs 1984 Betamax

Reproduced Billy Graham concert posters and tickets in 480 page Dead biography Reduced size Paired in timeline, etc. Case brief Bill Graham Archives v. Dorling Kindersley (2006)

Transformative Purpose different than original images and doesn't “exploit” them Posters used for historical not creative value Transformative market FAIR USE Fair Use?

Los Angeles News Service v. KCAL- TV Channel 9 (1997) Case Brief KCAL use 30 seconds of a 4-minute copyrighted video

Fair Use? The use was commercial Took the “heart” of the work Affected the copyright owner’s ability to market the video NOT a fair use

Leibovitz v. Paramount Pictures Corp (1998) Case Brief Ad for Naked Gun 33 1/3

Fair Use? Transformative Imitated the photographer’s style for comic effect or ridicule Artistic differences FAIR USE

Obama/Fairey/AP/Mannie Garcia

Let’s Apply Fair Use! Purpose/character: – For profit or political cause – Transformative? Nature of original: – Creative or Factual? Amount/Sub: – Qualitatively and quantitatively copied original? Market Effect: – Will it hurt the 2006 original? Increase?! FAIR USE? Plagiarism?

“I just want Shepard Fairey to say 'alright, you're the guy. Thank you.'” ~Mannie Garcia