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.

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 don’t know it exists, you can’t 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 plaintiff’s 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 Copyright’s 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. Ford’s biography, Hubbard’s 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
can’t borrow as freely

23. Inquiry 4:
The Effect on Value / Economic Harm
 Justice O’Connor: this inquiry “is undoubtedly
the single most important element of fair use.”
 Let’s talk about the Sony case … does the VCR
and taping of programs or videos effect the value
of a given commercial product’s copyright?

24. The Effect of “Taking”…
 Literary works such as The Seinfeld Aptitude
Test or Welcome to Twin Peaks: A Complete
Guide to Who’s Who and What’s What
 Why hasn’t anyone sued Girl Talk? Or Kutiman?

25. Girl Talk & Kutiman (time permitting)
 Great site for sampling research:
 http://www.whosampled.com/
 Why hasn’t 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 don’t like black people.”
http://www.youtube.com/watch?v=LOu_zIiihPI
 Min’s 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