Fair Use Interpolation Pay compulsory mechanical license perform

Fair Use

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

Grand Upright v. Warner (1991) VS

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 $4 M from Ready to Die (2006) 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

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. 5 B 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)

Sony v. Universal (1984) VS.

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

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

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

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

Los Angeles News Service v. KCALTV 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?

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