Articles Posted in Fair Use

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I’m often presented some variation of this question: You: “I bought this really cool photograph at an art show. I love it and want to use this image as the logo for my start-up. No problem, right?” Me: “Wrong. Big problem.”

1-IMG_9152Here’s why: copyright means just that – the right to copy. Under the U.S. copyright law, the copyright owner holds a bundle of rights to the image represented in the photo. One of these rights is the right to copy it. Now, you may be able to license it from the photographer (assuming she hasn’t transferred her rights), or perhaps even use it for free with a simple attribution, but ownership of the thing itself – the tangible photo – does not transfer any right to copy the image found in the photo.

If you’re dead set on using that protected image, you had better manipulate it in such ways as to transform the image into something new, a “fair use” of the original. And you may not know whether your new work is a fair use of the old until a court decides. It’s clear that the boundaries of fair use are expanding, but there is no bright line test or checklist to consult to know in advance.

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The lawsuit filed against Led Zeppelin (May 31, 2014, U.S. District Court in Pennsylvania) by the estate of the late Randy California (of West Coast art rock band, Spirit) – forty-something years later – alleges that Led Zeppelin stole the iconic guitar figure and chord progression that opens “Stairway to Heaven” from a Spirit song written by California (né Randy Wolfe) called “Taurus”. Here, listen for yourself: “Taurus”; “Stairway”.

staircaseTo prevail, California’s estate must prove that Zep copied the prior work and that there is a substantial similarity between the two songs. Copying may be proved circumstantially based on evidence of access and similarity, and there’s an inverse relationship between the amount of access and similarity required: the more access, the less similarity needs to be shown. Similarly, the more similarity exists, the less access must be shown. “Stairway” was first recorded in 1970, and it’s well-documented that Zep had access to “Taurus” through Spirit’s live set, as the bands often performed together in the late-60s. In addition to copying, “substantial similarity” must be shown. “Substantial” means the copying is substantial in degree, as measured qualitatively or qualitatively. “Similar” means that the copy sounds similar to the ears of an ordinary member of the listening audience. Yes, in both songs there is a slow, descending chromatic melody against a common chord progression through the first four measures of each, though the Spirit tune is harmonized very differently from Zeppelin’s, and the guitar phrase in “Stairway” has an elegance lacking in “Taurus”. Yes, there are definite similarities but are they “substantial”?

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In April 2014, Esquire.com published Start a Band, an article by Tom Junod featuring yours truly. Upon opening the article, you’ll find a sound clip at the top called ‘Folsom’, a 50-second promo jingle for our little band, Cousin Billy, using the music – verbatim – though not the lyrics of ‘Folsom Prison Blues’, the Johnny Cash classic. Did Cousin Billy (and the much deeper pocket of Esquire/Hearst Publications) infringe Johnny Cash’s copyright interest in the song? Speaking for Cousin Billy, we sure hope not! But careful legal analysis shows that the jingle would be considered a parody of the original and thus excepted from infringement under the Fair Use doctrine.cousing billy singing

The Copyright statute provides a framework of analysis to determine Fair Use by weighing and balancing the following four factors:

“(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 Supreme Court explicitly recognized parody as a form of criticism or comment, and thus permitted as Fair Use, in Campbell v. Acuff-Rose Music, Inc. (hereafter “Acuff-Rose”), where the Court reviewed a case involving 2 Live Crew’s song, ‘Pretty Woman’, a send-up of the Roy Orbison original, ‘Oh, Pretty Woman.’ The following analysis conclusively exonerates Cousin Billy (together with Esquire magazine and its publisher, Hearst Publications). Continue reading

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GoldieBlox has settled the suit it commenced (!) against the Beastie Boys regarding use of their song, “Girl”, in its advertising campaign. You’ll recall that GoldieBlox, a toy maker seeking to break down stereotypical societal roles for young girls, had appropriated wholesale all of the music to the song, although it altered the lyrics in significant ways. The video went viral. Yikes!GoldieBlox then filed a preemptive strike lawsuit seeking to have the court determine that its use of the song was within the parameters of the ‘fair use’ exception to copyright infringement.

The Beastie Boys, their label, publisher, producer and others, didn’t quite see it that way and filed counterclaims against GoldieBlox alleging copyright and trademark infringement, unfair competition and misappropriation of publicity rights. Most observers, this one included, believed that GoldieBlox’s use was a clear infringement and that a ‘fair use’ argument would not save it from itself. With the settlement, clearer minds have prevailed. Continue reading

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Lawrence Lessig is a noted Harvard Law professor but is perhaps better known for his work as a co-founder of Creative Commons, the non-profit org that’s devoted to expanding the range of creative works that can be shared and legally built upon by others. It’s fair to say that Lessig knows a little something about the Fair Use doctrine in American copyright law; he’s probably not the guy you want to tangle with on Fair Use issues.

IMG_3076In 2010, Lessig delivered the keynote address to a Creative Commons conference in Korea, discussing the present and future of cultural and technological innovation. As part of his lecture, he presented several amateur music videos, some of which depicted people dancing to the song, “Listzomania” by French rock band Phoenix, to illustrate a phenomenon begun by a YouTube user, called “avoidant consumer,” who posted a video combining scenes from several movies, with “Lisztomania” serving as the soundtrack to the video. Soon, others worldwide picked up on avoidant consumer’s creation and began to create their own versions of the video, with real people playing the roles of the actors in the original movies, and using “Lisztomania” as the soundtrack. Clearly, Lessig purpose in including these clips in his lecture was to illustrate how young people are using videos and other tools to create and communicate via the Internet. Continue reading

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church van gogh1The judicial trend is undeniable, as the scope of the fair use doctrine has been expanded to a point where the exception has almost devoured the rule.  Last year in Cariou v. Prince, the Second Circuit found that Richard Prince had “transformed” 25 out of 30 original Cariou images into something new, and Prince’s work was therefore protected by the fair use exception to copyright infringement. Problem is, the Cariou court didn’t quantify the amount of “transformation” required to obtain fair use protection. Consequently, Cariou’s, and any other photographer’s, right to exploit both his original work and derivative works based upon the original is seriously eroded. The Second Circuit couldn’t determine whether Prince had “transformed” the remaining 5 original Cariou works and remanded the case to the trial court for determination in light of the Circuit’s reasoning as to the other 25 works.

Now, photographers are collectively trying to put the brakes on this train. A number of prominent photo arts groups have joined the Cariou case on behalf of the original artist through an amicus brief regarding the 5 remaining artworks. In a nutshell, the amici assert that, “a fair use defense based on the mere appropriation of copyrighted material, without more, not only harms the market for original works, but also damages the artist’s market for sales of derivative works for items such as postcards, posters, and other public consumables.” In another recent law suit, photographer Lois Greenfield, sued painter Jill Pankey, alleging that Pankey appropriated 33 of Greenfield’s photographic images to create paintings (which Pankey freely admits). Pankey hasn’t yet answered the complaint, but you can bet she’ll assert that her work is subject to the fair use exception. Although clearly derivative of the original Greenfield photos, it appears that Pankey will have a pretty strong fair use “transformation” argument – after all, she has recreated as painted images the original Greenfield photo images, and they differ in several material visual respects. Continue reading

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old-camera-1352392502n6PAs it became clear that this World Wide Web thing was more than just a passing craze, in 1998, Congress passed the Digital Millennium Copyright Act (the “DMCA”). The DMCA provides a means for copyright holders to request websites (and their online service providers) to expeditiously “take down” infringing content and thereby avoid further legal liability. Recognizing the potential for abuse by sending false or misleading takedown notices, Congress also provided that “any person who knowingly materially misrepresents that material infringes on a copyright shall be liable for damages incurred by the alleged infringer.”

Suppose your run a website that hosts content you believe constitutes a parody or “fair use” of another’s material (both of which are exceptions to copyright protection). What should you do if you receive a takedown notice you believe is not justified?

First, gird yourself for the possibility of a lawsuit, but Congress did provide a counter-notice procedure to guard a website’s ability to maintain the allegedly infringing content. And rest assured that your online service provider will promptly take down the allegedly infringing content in order to shield itself from liability in the event you have indeed infringed another’s copyright. The offending content will likely remain down through the entire takedown notice and counter-notice period, which could run several weeks. Continue reading