Fair Use Lecture
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This document discusses fair use in copyright law in the United States. It covers the concept of fair use and the four factors used to determine if a use is considered fair: (1) the purpose and character of the use, (2) the nature of the work, (3) the amount of the work used, and (4) the economic impact of the use. The document examines how these factors have been applied in various court cases involving parody, news reporting, and time-shifting of television programs.
Fair Use Lecture
- 1. Fair Use in the USA William J. Moner // RTF 365 October 20, 2011
- 2. Course Notes Craig Aaron http://www.freepress.org Papers upload it to two places on blackboard: the Discussion Board as well as the Assignment area.
- 3. Quick Recap U.S. Constitution, Article I, Section 8, clause 8 Congress shall have 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. major laws: 1790, 1831, 1870, 1909, and 1976, plus the Digital Millennium Copyright Act (DMCA) of 1998 Twelve extensions of the term of copyright, including retroactive extensions in the past few decades.
- 4. What is Copyright Infringement? A violation of three elements: Originality Access Substantial Similarity
- 5. What is Originality? Ex nihilo? Or simply original enough
- 6. What is Access? If you dont know it exists, you cant copy it
- 7. What is Substantial Similarity? Distinction between exact replicas/copies and similarity The scientific proof? Reasonable Person test
- 8. What can be used without fear of copyright violation? Facts Ideas Public Domain Materials Idea/Expression Merger scenes-a faire doctrine
- 9. What about Copyrighted Works?
- 10. Oh, Pretty Woman
- 11. Oh, Hairy Woman
- 12. Fair Use The most commonly invoked defense against copyright infringement claims To use this defense, defendants must admit to copying the plaintiffs work
- 13. Four Inquiries Copyright Code, Section 107 of Title 17 of US Code (17 USC 107) Purpose and Character of the use Nature of the Work Amount Taken The Effect of the Taking on the Copyrights Value
- 14. Additional Inquiries (not in Code): Noted by observation of recent case law: The Intent and Motives of the Defendants The relationship of the use to the exercise of free speech Miller & Davis (1990, pp. 349-350)
- 15. Decisions Must Satisfy a Combination of these Inquiries In other words, these inquiries are interdependent
- 16. Inquiry 1: The Purpose and Character of the Use Non-profit educational uses (within limits) criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
- 17. Purpose and Character Pretty Woman by 2 Live Crew is protected as parody The Cat Not in the Hat: A Parody by Dr. Juice by Alan Katz is not protected as parody
- 18. Purpose and Character Naked Gun / More Demi Moore
- 19. Purpose and Character Sony VCRs
- 20. Purpose and Character Non-profit educational use guidelines: Brevity Spontaneity Cumulative effect From Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (Classroom Guidelines) Distinction between not-for-profit and commercial
- 21. Inquiry 2: The Nature of the Work Works not yet published e.g. Fords biography, Hubbards biography Counts against assertion of fair use, but not solely a determining factor (as is the case with most individual inquiries) Facts and Statistics vs. Creative or Imaginative Work: which is more easily defensible?
- 22. Inquiry 3: The Amount or Proportion Taken the amount and substantiality of the portion used in relation to the copyrighted work as a whole (from 17 USC 107) Dependent upon nature of the work and the nature of the use Parodies can take more; commercial derivatives cant borrow as freely
- 23. Inquiry 4: The Effect on Value / Economic Harm Justice OConnor: this inquiry is undoubtedly the single most important element of fair use. Lets talk about the Sony case does the VCR and taping of programs or videos effect the value of a given commercial products copyright?
- 24. The Effect of Taking Literary works such as The Seinfeld Aptitude Test or Welcome to Twin Peaks: A Complete Guide to Whos Who and Whats What Why hasnt anyone sued Girl Talk? Or Kutiman?
- 25. Girl Talk & Kutiman (time permitting) Great site for sampling research: http://www.whosampled.com/ Why hasnt Girl Talk been sued? Kutiman: http://thru-you.com/#/intro/
- 26. I Got AMashup Legendary K.O. via Kanye West via Ray Charles via? From Boyle (2008) The Public
- 27. References: 2 Live Crew. Pretty Woman. Accessed via Spotify. Aoki, K., Boyle, J., Jenkins, J. Bound By Law: Tales from the Public Domain. Duke Center for the Study of the Public Domain. Retrieved from http://www.law.duke.edu/cspd/comics/digital.php Benedict.com. Annie Liebovitz and the Naked Gun. http://www.benedict.com/Visual/Nakedgun/Nakedgun.aspx Boyle, J. (2008) The Public Domain. Chapter 6. http://www.thepublicdomain.org/download/ Charles, R. I Got a Woman http://www.youtube.com/watch?v=Mrd14PxaUco Legendary K.O. Bush dont like black people. http://www.youtube.com/watch?v=LOu_zIiihPI Mins Blog. Satire or Parody? http://blogs.law.harvard.edu/yuminemma/2009/12/16/satire-or-parody-dr-seuss- enterprises-v-penguin-books-usa/ Orbison, R. Oh Pretty Woman. Accessed via Spotify. Siegel, P. (2008). Communication Law in America: Second Edition. Chapter 6. Traditional. Jesus is All the World to Me. http://www.youtube.com/watch?v=0dY4h1P0OPs West, K. Gold Digger ft. Jamie Foxx. http://www.youtube.com/watch?v=6vwNcNOTVzY