Fair Use Cases

• Consider the following cases. Do a little searching of your own to gathering more information

FOR EACH CASE

• How are the cases similar to Fairey v. the AP?
• How are they different from Fairey v. the AP?
• How will they influence your decision?

The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)

A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. Important factors: The thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. (Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).)

A seven-second clip from the Ed Sullivan TV was used in a staged musical history (“The Jersey Boys”) based on the career of the musical group, the Four Seasons. Important factors: The use was transformative (“Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music,” the judge wrote in the ruling. “By using it as a biographical anchor, [the defendant] put the clip to its own transformative ends.”) Further, the use caused no financial harm to the copyright owners of the show. SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013).

The painter, Richard Prince, created a collage using — in one collage — 35 images from a photographer’s book. The artist also used 28 of the photos in 29 additional paintings. In some instances the full photograph was used while in others, only the main subject of the photo was used. Important Factors. The Second Circuit Court of Appeals held that to qualify as a transformative use, Prince’s work did not have to comment on the original photographer’s work (or on popular culture). The Court of Appeals concluded that twenty-five of Prince’s artworks qualified as fair use and remanded the case to determine the status of the remaining five artworks. Cariou v. Prince, U.S. Court of Appeals for the 2nd Circuit, No. 11-1197.

A modified photo of a Wisconsin mayor was reproduced on a t-shirt and used to raise money for an event opposed by the mayor. Important factors: The Seventh Circuit was primarily persuaded by the level of alteration – the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.” Kienitz v. Sconnie Nation LLC, No. 13-3004 (7th Cir. Sept. 15, 2014).

A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).)

A poster of a “church quilt” was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

The U.S. Postal Service (USPS) licensed the use of a photograph of the Korean War veterans’ memorial sculpture for a postage stamp, but failed to obtain permission from the sculptor who held copyright in the underlying three-dimensional work. The U.S. Court of Appeals for the Federal Circuit held that the use of the underlying sculpture depicted in the photograph was not permitted under fair use principles. Important factors: It was not enough to transfer the work from three dimensions to two dimensions (despite the creative use of photography and snow in conjunction with the photos). (Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).)

Author J.K. Rowling sued the publishers of an encyclopedic Harry Potter guidebook called The Harry Potter Lexicon. Rowling argued that the guide did not fall under fair use standards because, unlike other companion or reference books to her series, it offered little new commentary or analysis, and lifted almost identical passages from her books. In 2008, the judge ruled in Rowling's favor, saying that the reference work borrowed too much of Rowling's work and would cause her irreparable harm as a writer.

Beeler, Carolyn. "Lines Between Fair Use And Copyright Theft Blurry." NPR. NPR, 25 Jan. 2010. Web. 01 Mar. 2015. <http://www.npr.org/templates/story/story.php?storyId=123684026>.

"Case Summaries." Columbia Copyright Advisory Office Case Summaries Comments. Columbia University, Mar. 2013. Web. 01 Mar. 2015. <http://copyright.columbia.edu/copyright/fair-use/case-summaries/>. Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Stim, Rich. "Summaries of Fair Use Cases." Stanford Copyright and Fair Use Center Summaries of Fair Use Cases Comments. Stanford University, 04 Apr. 2013. Web. 01 Mar. 2015. <http://fairuse.stanford.edu/overview/fair-use/cases/#artwork_visual_arts_and_audiovisual_cases>.