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Copyright Law: Fair Use

Record Label Picks Copyright Fight — With The Wrong Guy

An Australian record label may have picked a fight with the wrong guy. The label sent a standard takedown notice threatening to sue after YouTube computers spotted its music in a video.

It turns out that video was posted by one of the most famous copyright attorneys in the world, and Lawrence Lessig is suing back.

Lessig, a Harvard Law School professor, has lectured around the world about how copyright law needs to adapt to the Internet age. In his lecture, he shows examples of people who have used the Internet to "share their culture and remix other people's creations."

Law professor Lawrence Lessig, shown here in 2009, is suing an Australian record label for threatening to sue him over an alleged YouTube copyright violation.

Law professor Lawrence Lessig, shown here in 2009, is suing an Australian record label for threatening to sue him over an alleged YouTube copyright violation.

Neilson Barnard/Getty Images

One of the examples he likes to show is a series of remixes that use the song "Lisztomania" by the French band Phoenix. Someone remixed that song with clips from the iconic '80s movie The Breakfast Club. The remix went viral and inspired other videos in which people pretended to beBreakfast Club actors dancing to the song.

Copyright Vs. Fair Use

Lessig posted his lecture on YouTube, which uses a technology that scans videos to find copyrighted songs.

Many labels and artists have agreed to let songs stay up in return for a cut of the money that YouTube gets from ads it runs with the videos — but some labels, like Melbourne-based Liberation Music, which owns the rights to "Lisztomania," just want them taken down.

One day, "the computer bots finally got around to noticing that I had used a clip from this song," he says. "Liberation Music then fired off threats of a lawsuit to me if I didn't take it down."

At first, YouTube took it down. But being a copyright attorney, Lessig knew his rights. He was entitled to use these clips in a lecture under a legal doctrine known as fair use.

"If I'm using it for purposes of critique, then I can use if even if I don't have permission of the original copyright owner," he says.

Liberation Music eventually backed down. But Lessig decided to invoke another part of the copyright law, "which basically polices bad-faith lawsuits," he says — threats made fraudulently or without proper basis.

Lessig is suing Liberation Music because he wants labels to stop relying on automated systems to send out takedown notices, he says.


All Tech Considered-NPR.org

Other resources

Copyright Resources
For information on Copyright and Fair Use, check out the links below.  If you have any copyright questions, please check with your university library representative listed below.
CopyOwn
A resource on Copyright for the Higher Education Community
http://www.nethics.umd.edu/copyown/ 
How To Investigate Copyright
from the Library of Congress

PDF file

Georgia Fair Use case

October 18, 2014

Publishers Win Reversal of Court Ruling That Favored ‘E-Reserves’ at Georgia State U.

The answer matters not just to the parties to the case, Cambridge University Press et al. v. Carl V. Patton et al., but publishers, librarians, and professors at many other institutions. It’s already been more than six years since Cambridge, Oxford University Press, and SAGE Publicationssued Georgia State for copyright infringement. And the latest round of legal action guarantees that the case will drag on a while longer before it produces a reliably precedent-setting answer, if it does.

On Friday, in a setback for the university, a federal appeals court reversed a May 2012 ruling that mostly favored Georgia State. In a 129-page decision, a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit sent the case back to the U.S. District Court in Atlanta for further consideration. It also vacated Judge Orinda D. Evans’s decision to award injunctive relief and legal costs and fees to the university.

http://media.ca11.uscourts.gov/opinions/pub/files/201214676.pdf

Fair Use Exception

Congress allowed certain fair use exceptions in the Copyright Act as defined below:

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.

17 U.S.C. § 107 

TeachersFirst's Copyright and Fair Use Resources

Complete Copyright Webinar Video Now Available

Complete CopyrightWebinar video from the Tuesday’s ALA webinar “Complete Copyright for K–12 Librarians and Educators” is now available. As part of the webinar developed specifically for instructors and school librarians, bestselling copyright authority Carrie Russell discussed common copyright concerns explored in her newly released book of the same title.

Webinar participants will learn:

  • How to legally provide materials to students
  • Copyright must-knows for librarians and educators
  • Fair use
  • Creation of the copyright law
  • Use of copyright materials in school settings
  • Copyrighted content in the social media age

View the webinar now: http://ala.adobeconnect.com/p40nvbq84r5/

Digital Delivery in the Classroom

When the Technology, Education and Copyright Harmonization (TEACH) Act was enacted in 2002, librarians hoped that it would provide some clarity on copyright exceptions for the digital delivery of content for distance education. In reality, understanding what is permitted under the TEACH Act in combination with the Digital Millennium Copyright Act (DMCA) and existing exceptions like fair use have become more confusing to many practitioners.  As a result, there are many more questions from the field about what is permitted.  This piece was written in hopes of clarifying one aspect of the confusion—digital delivery of content to the “physical” classroom. Our thanks to Jonathan Band legal counsel to ALA and ARL, Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law and Kenneth D. Crews, Director of the Copyright Advisory Office at Columbia University for assistance in the drafting of and commenting on this document.

Fair Use Evaluator

The Fair Use Evaluator is an online tool that can help users understand how to determine if the use of a protected work is a “fair use.” It helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records.

 

Fair Use in Your Library after Georgia State

A recent federal court  decision involving copyright and the Georgia State University Library may shape fair use policies in academic libraries for decades.  A lower-court judge ruled that the Georgia State University Library was the "prevailing party" in a lawsuit brought by Cambridge University Press, Oxford University Press, and Sage Publications. The publishers have appealed that ruling. What does this all mean, and what does it mean for your library? In this webcast, copyright librarians and lawyers will explore and dissect the court's framework using specific examples from the case in order to explain the ruling of the case, the effect that the case may have on future fair use analyses, and its impact on library policies such as course reserves and interlibrary loan.  Please bring questions about fair use in your library!

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Fair Use cases

GENERALLY

1.Generally 

Any individual may reproduce a copyrighted work for a “fair use,” copyright owner does not possess exclusive right to such a use.  Sony Corp. of America v. Universal City Studios, Inc., U.S.Cal.1984, 104 S.Ct. 774, 464 U.S. 417, 78 L.Ed.2d 574, 220 U.S.P.Q. 665, rehearing denied 104 S.Ct. 1619, 465 U.S. 1112, 80 L.Ed.2d 148, 224 U.S.P.Q. 736.  Copyrights And Intellectual Property Key Number 53.2

Fair use is only exception to copyright holder's exclusive rights in his work;  overarching concept of fair use embraces use of copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research.  Acuff-Rose Music, Inc. v. Campbell, C.A.6 (Tenn.) 1992, 972 F.2d 1429, 23 U.S.P.Q.2d 1817, rehearing denied, certiorari granted in part 113 S.Ct. 1642, 507 U.S. 1003, 123 L.Ed.2d 264, reversed 114 S.Ct. 1164, 510 U.S. 569, 127 L.Ed.2d 500, 29 U.S.P.Q.2d 1961, on remand 25 F.3d 297.  Copyrights And Intellectual Property Key Number 53.2

Certain unauthorized but “fair” uses of copyrighted materials do not constitute copyright infringement.  Association of American Medical Colleges v. Cuomo, C.A.2 (N.Y.) 1991, 928 F.2d 519, 18 U.S.P.Q.2d 1106, certiorari denied 112 S.Ct. 184, 502 U.S. 862, 116 L.Ed.2d 146.  Copyrights And Intellectual Property Key Number 53.2

“Fair use doctrine” confers privilege on people other than copyright owner to use copyrighted material in reasonable manner without his consent, notwithstanding monopoly grant to the owner.  Hustler Magazine Inc. v. Moral Majority Inc., C.A.9 (Cal.) 1986, 796 F.2d 1148, 230 U.S.P.Q. 646.  See, also, Warner Bros., Inc. v. American Broadcasting Companies, Inc., D.C.N.Y.1981, 523 F.Supp. 611, 211 U.S.P.Q. 51, affirmed and remanded on other grounds 654 F.2d 204, 211 U.S.P.Q. 97, on remand 530 F.Supp. 1187, 215 U.S.P.Q. 690.  Copyrights And Intellectual Property Key Number 53.2

“Fair use doctrine” creates a limited privilege in those other than the owner of the copyright to use the copyrighted material in a reasonable manner without the owner's consent.  Fisher v. Dees, C.A.9 (Cal.) 1986, 794 F.2d 432, 230 U.S.P.Q. 421.  Copyrights And Intellectual Property Key Number 53.2

The “fair use” doctrine allows some limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection.  Pacific and Southern Co., Inc. v. Duncan, C.A.11 (Ga.) 1984, 744 F.2d 1490, 224 U.S.P.Q. 131, rehearing denied 749 F.2d 733, certiorari denied 105 S.Ct. 1867, 471 U.S. 1004, 85 L.Ed.2d 161, on remand 618 F.Supp. 469, 228 U.S.P.Q. 141.  Copyrights And Intellectual Property Key Number 53.2

Fair use provides to others than owner of copyright a privilege to use material in reasonable manner without owner's consent.  Amsinck v. Columbia Pictures Industries, Inc., S.D.N.Y.1994, 862 F.Supp. 1044, 33 U.S.P.Q.2d 1131.  Copyrights And Intellectual Property Key Number 53.2

“Fair-use doctrine” enables authors, other than copyright owners, to reasonably use copyrighted materials without copyright owner's consent.  Norse v. Henry Holt and Co., N.D.Cal.1994, 847 F.Supp. 142, 139 A.L.R. Fed. 691, 30 U.S.P.Q.2d 1648.  Copyrights And Intellectual Property Key Number 53.2

Fair use of copyrighted work is not an infringement of copyright.  Penelope v. Brown, D.Mass.1992, 792 F.Supp. 132, 23 U.S.P.Q.2d 1124.  Copyrights And Intellectual Property Key Number 53.2

Fair use is privilege against direct copyright infringement claim and is held in first instance by alleged direct infringer.  Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., N.D.Cal.1991, 780 F.Supp. 1283, 20 U.S.P.Q.2d 1662, affirmed 964 F.2d 965, 22 U.S.P.Q.2d 1857, as amended, certiorari denied 113 S.Ct. 1582, 507 U.S. 985, 123 L.Ed.2d 149.  Copyrights And Intellectual Property Key Number 53.2

Parody

Parody is included under the Fair Use Doctrine.  The Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) that:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. [omit citation].  If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

Thus, parody is subject to an analysis under the four criteria of the fair use doctrine.

November 14, 2013 Judge Hands Google a Big Victory in Lengthy Book-Scanning Case

Fair Use

A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

http://cyberlaw.stanford.edu/focus-areas/copyright-and-fair-use

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