Transcript Standard Setting in High

Class 12
Copyright, Winter, 2014
Fair Use
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
773.702.0864/[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
107. Limitations on exclusive
rights: Fair use

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.
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107 (Cont.)

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;
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107 (Cont.)
(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.
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Situating Fair Use

Fair Use v. Fair Access
To
return to day 1, copyright isn’t in the main an
access regime
You might be able to make a use that would be
fair—noninfringing—but still have no right to
access the underlying work
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Situating Fair Use

Fair Use Right?
Section
107 provides that uses that qualify are not
infringing meaning that no copyright violation
arises
That doesn’t say that the use can’t violate other
law
Fair use is an affirmative defense (Campbell)
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Situating Fair Use

Fair Use Right?
Much
talk of fair use “right” (and see 17 USC
108(f)(4)) but affirmative defense framing better
tracks overall statutory conception set out in 107
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Dr. Seuss v. Penguin, 109 F.3d 1394
(9th
8
Cir. 1997)
Says the Court

Not Fair Use
“These
stanzas and the illustrations simply retell
the Simpson tale. Although The Cat NOT in the
Hat! does broadly mimic Dr. Seuss’ characteristic
style, it does not hold his style up to ridicule. The
stanzas have “no critical bearing on the substance
or style of” The Cat in the Hat. Katz and Wrinn
merely use the Cat’s stove-pipe hat, the narrator
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Says the Court

Not Fair Use
(‘Dr.Juice’),
and the title (The Cat NOT in the Hat!)
‘to get attention’ or maybe even ‘to avoid the
drudgery in working up something fresh.’ AcuffRose, 510 U.S. at 580.”
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Says the Court
“While
Simpson is depicted 13 times in the Cat’s
distinctively scrunched and somewhat shabby red
and white stove-pipe hat, the substance and
content of The Cat in the Hat is not conjured up by
the focus on the Brown-Goldman murders or the
O.J. Simpson trial.”
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Says the Court
“Because
there is no effort to create a
transformative work with ‘new expression,
meaning, or message,’ the infringing work’s
commercial use further cuts against the fair use
defense.”
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Leibovitz v. Paramount, 137 F.3d 109
(2nd
13
Cir. 1998)
Says the Court

Fair Use
“Whether
it ‘comments’ on the original is a
somewhat closer question. Because the smirking
face of Nielsen contrasts so strikingly with the
serious expression on the face of Moore, the ad
may reasonably be perceived as commenting on
the seriousness, even the pretentiousness, of the
original.”
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Says the Court
“The
contrast achieves the effect of ridicule that
the Court recognized in Campbell would serve as
a sufficient ‘comment’ to tip the first factor in a
parodist’s favor. … In saying this, however, we
have some concern about the ease with which
every purported parodist could win on the first
factor simply by pointing out some feature that
contrasts with the original.”
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Says the Court
“Being
different from an original does not
inevitably ‘comment’ on the original. Nevertheless,
the ad is not merely different; it differs in a way
that may reasonably be perceived as commenting,
through ridicule, on what a viewer might
reasonably think is the undue self-importance
conveyed by the subject of the Leibovitz
photograph.”
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Says the Court
“A
photographer posing a well known actress in a
manner that calls to mind a well known painting
must expect, or at least tolerate, a parodist’s
deflating ridicule.”
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Parody Videos?

1984 Hillary
Original
1984 Apple commercial
Obama campaign ad

George Bush/U2
U2
live
The George Bush version
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Doing the Legal Analysis

Key Questions
Which
copyrighted works are implicated in each
video?
Is the work being used to conjure it so as to
criticize it?
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Playing the Two Songs
in Campbell

Columbia-USC Music Copyright Infringement
Website
http://mcir.usc.edu/cases/1990-
1999/Pages/campbellacuffrose.html
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Campbell on Parody

Says the Court
“The
germ of parody lies in the definition of the
Greek parodeia, quoted in Judge Nelson’s Court
of Appeals dissent, as ‘a song sung alongside
another.’ 972 F. 2d, at 1440, quoting 7
Encyclopedia Britannica 768 (15th ed. 1975).”
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Campbell on Parody

Says the Court
“Modern
dictionaries accordingly describe a
parody as a ‘literary or artistic work that imitates
the characteristic style of an author or a work for
comic effect or ridicule,’”
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Campbell on Parody

Says the Court
“or
as a ‘composition in prose or verse in which
the characteristic turns of thought and phrase in
an author or class of authors are imitated in such
a way as to make them appear ridiculous.’ ”
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Sup Ct’s Analysis in Campbell

Distinguishing Parody and Satire
“Parody
needs to mimic an original to make its
point, and so has some claim to use the creation
of its victim’s (or collective victims’) imagination,
whereas satire can stand on its own two feet and
so requires justification for the very act of
borrowing.”
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Sup Ct’s Analysis in Campbell

Definition of Satire

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OED
 a work “in which prevalent follies or vices are
assailed with ridicule”
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The Need for Control?

Applying Copyright’s Incentive Theory
Do
we think that we need to give the author
control over potential parodies to get the author to
create the work in the first place?
How many authors won’t create if they can’t
control subsequent parodies?

Does this mean that the fair use analysis is too
ex post and insufficiently ex ante?
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Trying to be Welfarists

The Voluntary Licensing Baseline
Campbell
approached Acuff-Rose for a voluntary
license of the work
Campbell wasn’t willing to pay a price that AR was
willing to accept


Does this mean that Campbell values the use
less than AR did?
Does the use reduce welfare?
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Analysis

Doing Numbers
Assume
AR values no parody at $50; Campbell
will make $40 from doing parody
Campbell can’t buy parody right from AR
Consumer Surplus?
 If consumer surplus > $10, parody increases
welfare CS + $40 - $50
 Campbell and AR ignore that in their deal
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Trying to be Coasians

Two Alternative Worlds
1:
Author controls parody right
2: Author doesn’t control parody right

Hypo in Alternative 1
Campbell
approaches AR, offers too little, no
parody produced
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Trying to be Coasians

Hypo in Alternative 2
Campbell
is going to make parody; AR
approaches Campbell and offers to pay him not to
do so
Problem is universe of potential Campbells exist
and AR would have to pay each not to make
parody

Assignment of property right matters
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Applying the Four Factors in Sec.
107

The Four Factors
(1)
Purpose and Character of the Use
(2) The Nature of the Copyrighted Work
(3) The Amount Used
(4) The Effect on the Market/Value of the Work
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Applying the Four Factors in Sec.
107

(1) Purpose and Character of the Use
Commercial
use doesn’t necessarily result in
unfair use

(2) The Nature of the Copyrighted Work
Music
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is core copyright expression
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Applying the Four Factors in Sec.
107

(3) Amount Used
Lyrics
OK, remand on question of “whether
repetition of the bass riff is excessive copying”

(4) Market for Work
Includes
market for derivative work; remand for
info on market for rap versions of Pretty Woman
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The Illustrated Trip
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The Illustrated Trip:
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Copyright Page
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The Illustrated Trip:
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Picture Credits
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The Illustrated Trip:
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Picture Credits
Seven Pages

See the book
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