Fair use

Question 1

Whats does the us 1976 copyright act say about fair use?

Answer 1

It dictates the limitations on exclusive rights, explaining that the fair use of a copyrighted work for uses of criticism, comment, teaching, research… is not an infringement of copying.

Question 2

Explain the Sony Betamex case

Answer 2

• The Supreme Court held (by a five to four majority) that the making of individual copies of complete
  television shows for purposes of time-shifting is fair use
• Two principal reasons:
  1. because time-shifting merely enabled viewers to see works which they had been invited to watch in
  their entirety free of charge, the fact that the entire work was reproduced, did not militate against a
  finding of fair use.
  2. because the plaintiffs had offered no convincing evidence of market harm, the non-commercial use
  of the VCR by consumers should be considered fair use.

Question 3

Explain the case Harper & Row v Nation Enterprises

Answer 3

• Publication of quotes and paraphrases from unpublished book (Gerald Ford’s A Time to Heal) by the
  newspaper The Nation.
• The publisher of Ford’s memoir had given The Time Magazine exclusive license to publish excerpts of
  the book before release; The Nation had access to the unpublished book from undisclosed source.
• The Supreme Court held that the amount taken was substantial enough to infringe copyright.
• The fourth factor (“market effect”) played heavily against a finding of fair use

Question 4

Explain the case Campbell v. Accuf-Rose Music.

Answer 4

Petitioners, a rap music group, were sued by respondent, the corporate owner of an original rock ballad, for copyright infringement. Petitioners claimed the song was a parody entitled to fair use protection under the Copyright Act of 1976. The court, however, found the commercial purpose of petitioner’s parody had prevented it from being a fair use. The case was appealed.

ISSUE:
Did the court err when it concluded that the commercial nature of petitioners’ parody had rendered it presumptively unfair?

ANSWER:
Yes

CONCLUSION:
The Court found that it was error for the court below to have concluded that the commercial nature of petitioners’ parody had rendered it presumptively unfair. The Court held that no such evidentiary presumption was available to address either § 107(1), the character and purpose of the use, or § 107(4), market harm, in determining whether tranformative use, such as parody, was a fair one. The Court held that a parody’s commercial character, which tended to weigh against a finding of fair use, was only one element that should be weighed in a fair use enquiry. Therefore, the court below was found to have given insufficient consideration to the nature of the parody under the fair use factors as set forth in § 107 in weighing the degree of copying.

Question 5

Give an example of an expressive fair use.

Answer 5

Mattel Inc. v. Walking Mountain Products, 353 F.3d 792 (9th Cir. 2003)
* (1st factor): Forsyte’s use is transformative: it adds “something new, with a further
purpose or different character, altering the first with new expression, meaning, or
message.”
* (2nd factor): Certain works require greater appropriations to convey their essence /
certain genres of criticism justifiably require more extensive takings than others.