1. Copyright Fundamentals Fair Use Victor H. Bouganim WCL, American University

2. Victor H. Bouganim, WCL, American University, Spring 2001 DEFENSES F FAIR USE F Independent Creation F Consent / License F Copyright Misuse F First Amendment F Immoral/Illegal /Obscene Works

3. Victor H. Bouganim, WCL, American University, Spring 2001 FAIR USE 17 U.S.C. Section 107 F Notwithstanding the provisions of section 106, 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...

4. Victor H. Bouganim, WCL, American University, Spring 2001 Fair Use - con’t 17 U.S.C. Section 107 F In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: –the purpose and character of the use –the nature of the copyrighted work –the amount and substantiality of the portion used –the effect of the use upon the potential market

5. Victor H. Bouganim, WCL, American University, Spring 2001 FAIR USE F Videotaping? F Photocopying? F Parodies?

6. Victor H. Bouganim, WCL, American University, Spring 2001 Harper & Row Publishers v. Nation Enterprises Supreme Court (1985) F Issue: To what extent the “fair use” defense sanctions the unauthorized use of quotations from a public figure’s unpublished manuscript. F Even though news reporting is one of the statutory uses that may be found “fair,” the Court found that the commercial nature of the use was presumptively unfair. F Further, the Court found that Nation acted in bad faith. F Following an examination of the four statutory factors, the Court rejected the fair use defense in this case.

7. Victor H. Bouganim, WCL, American University, Spring 2001 CLASS DISCUSSION F Are there any other factors that should be relevant to a fair use inquiry? F Is there a strong public interest in allowing The Nation to publish its story that should outweigh the statutory factors? F Are there circumstances in which the “public interest” is so strong that it will outweigh the privacy interests of those who have no intention of ever publishing a copyrighted work?

8. Victor H. Bouganim, WCL, American University, Spring 2001 Sony Corp. v. Universal City Studios Supreme Court (1984) F A group of movie studios sued the makers of VCRs, alleging that they were liable for contributory infringement F The issue was whether the VCR was capable of other substantial non-infringing uses F One potential use recognized by the Court was private, noncommercial time-shifting in the home F The Court stated that “to the extent time-shifting expands public access to freely broadcast television programs, it yields societal benefits” F Such use supports the concept of fair use

9. Victor H. Bouganim, WCL, American University, Spring 2001 CLASS DISCUSSION F Are there circumstances in which a non-infringing use might be substantial enough to justify marketing a product even though it is not “commercially significant”? F To constitute fair use, must a use benefit the public? F If so, does this this factor effectively eclipse the factors identified in the statute?

10. Victor H. Bouganim, WCL, American University, Spring 2001 American Geophysical Union v. Texaco Second Circuit (1994) F Eight articles from the Journal of Catalysis were photocopied for use by one of Texaco’s researchers. F Issue: whether the fair use defense to copyright infringement applied to the photocopying of articles in a scientific journal F The court found that the first, third and fourth factors weighed in favor of American Geophysical Union F In its holding for American Geophysical Union, the court emphasized the fourth factor, and, specifically, the availability of photocopying licenses and lost licensing revenue

11. Victor H. Bouganim, WCL, American University, Spring 2001 Campbell v. Acuff-Rose Music Supreme Court (1994) F Issue: whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” may be a fair use F The Court found that 2 Live Crew’s song would be an infringement, but for a finding of fair use through parody F The Court examined the four statutory factors under the circumstances of the case F The Court reversed and remanded, finding that the lower court gave too much weight to the parody’s commercial character and too little consideration to the nature of the parody when determining the extent of copying

12. Victor H. Bouganim, WCL, American University, Spring 2001 CLASS DISCUSSION F Are copyright owners likely to allow parodies voluntarily? F Must an alleged infringer’s primary intent be to parody the copyrighted work?