Copyright Defense Fair Use Outline

06, 07. Copyright Defense - Fair Use

P.752-60, 775-88

• Fair use = Uses of work that are considered as fair not copyright infringement

• Origins of Fair Use (developed in common law

Justice Joseph Story in Folsom v Marsh (1841)

• P had published George Washington biography D took 353 pages to make 2 volumes of biography for less sophisticated readers

• Where the distinctions are very subtle and refine and almost evanescent, in the case of copyright, the identity of the 2 works in substance, and the question of piracy, often depend upon a nice balance…

• We must often look to the nature and objects of the selection made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supercede the objects, of the original work…

• A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism…

• But if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty...”

• Codified in 17 USC s.107

  • §107: Notwithstanding 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. In 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.

  • The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (overruling Salinger)

• Harper & Row v The Nation (1985)

  • Facts: Ford was to publish a memoir with H&R, which entered into an agreement with Time Magazine to publish excerpts prior to book release before that, The Nation obtained a purloined copy of Ford’s manuscript and published 300 words excerpts (the most salient aspect of the memoir) Times refused to pay the remaining for the right to publish a 7,500 excerpt of the book H&R sued for copyright infringement

    • The Nation claimed fair use (newsworthiness, factual character, relatively small amount of copying, freedom of speech)

      • can use copyrighted material in a reasonable manner without copyright owner’s consent there are implied consent to certain types of uses

      • rationale: constitutional policy of promoting art

  • Held: Ford’s memoir had not yet been published + The Nation’s article displaced a similar article for which Time had agreed to pay. Court assessed four s.107 factors:

    1. the purpose and character of the use:

       • though D has right to be the first to publish info, it went beyond simply reporting uncopyrightable info and actively sought to exploit the headline value of its infringement, making a news event out of its unauthorized first publication of a noted figure’s copyrighted expression

       • The Nation is exercising its constitutional free speech of the press, claiming that they are news-reporting

       • Prof disagree as the court wasn’t talking about commercial, but talked about “exploiting the headline value of its infringement, making a news event out of its unauthorized publication”

       • Almost everything would be commercial use not heavy weighed

    2. the nature of the copyrighted work;

       • unpublished historical narrative or autobiography

         • unpublished favor the plaintiff

         • fictional/ expression or factual work:

           • factual work: greater society value, less protection

           • here, despite describing something factual, it’s about the expressive use of words

       • excerpted portions went beyond conveying facts and merged idea and expression to include “subjective descriptions and portraits of public figures whose power lies in the author’s individualized expression”

    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

       • Despite insubstantial portion, D took the heart of the book

       • Quantitative: Nation took 300 words out of 200,000 words manuscript – not a lot quantitatively weighs

       • Qualitative – heart of the work – would weight against the fair use more

         • D took the most interesting and moving parts of the entire manuscript, value of excerpt and its key role

    4. the effect of the use upon the potential market for or value of the copyrighted work [most weigh for fair use]

       • Actual effect: sometimes cannot be

         • People allow to publish pre-published exerts, would undercut the value of the unpublished work without exclusivity

         • P can always claim it could have licensed it actual harm

         • If there is no market for the copyrighted work no actual harm

         • Here, D’s infringement directly caused The Times to cancel the agreement, P loss of profit

       • Potential effect: if we allow this sort of use to be fair, how would it affect copyrighted work in broadly

       • Prof: potential circular reasoning: P can always claim he could have licensed it if court does not deem fair use; but when court deem something is fair use, there would be no market of it

       • Dissent: Court may also allow customary uses

Salinger v. Random House, 811 F.2d 90 (2nd Cir. 1987)

• Held: the right of an author to control the way in which their work was first published, took priority over...

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