fair use in context: practical advice on copyright’s … › webfiles › fair use in...2010/12/15...

Fair Use in Context: Practical Advice on Copyright’s Fair Use Doctrine Peter Routhier FaegreBD

Outline

I. Setting the stage—copyright basics II. When does fair use matter? III. Considering the risks IV. Fair use in context

A. News clippings and other texts B. Pictures and photographs C. Comparative advertising

2

Copyright Basics

►Copyright protects any “original work of authorship fixed in a tangible medium of expression”—e.g., pictures, writings, designs, compilations, songs.

►Copyright rights arise regardless of registration. ►Most copying of protected subject matter is infringement of a copyright

right (reproduction, distribution, performance, display, transmission, derivation).

3

Fair Use Basics

►“Fair use of a copyrighted work . . . such as [for] criticism, comment, news reporting, [or] research,” is not infringing.

►The Act provides four (non-exclusive) fair use factors: ► The purpose and character of the use, including if it’s “commercial” or

“for nonprofit educational purpose.” ► The nature of the copyrighted work ► The amount and substantiality of the portion used in relation to the

copyrighted work as a whole ► The effect of the use upon the market for or value of the copyrighted

work

4

The transformative use puzzle

►Since the Supreme Court’s 1994 Cambell v. Acuff-Rose decision, the first factor (and fair use in general) has increasingly focused on whether a work is “transformative” ► Whether it “adds something new, with a further purpose or

different character, altering the first with new expression, meaning, or message.”

►At the same time, it is copyright infringement “to prepare derivative works,” which is defined to include “any . . . form in which a work may be recast, transformed, or adapted.”

5

What’s the Most Important Factor?

►The factors are not a checklist, and they are not weighed equally or exclusively.

►The “most important” factor varies based on the circumstances and the court. ► The Seventh Circuit usually considers the fourth factor—the effect of

the use on the market for the copyrighted work (i.e., economic effect)—the most important.

► The Second Circuit usually considers the first factor— the purpose and character of the use, especially whether it is “transformative”—the most important.

►With these varying approaches, can we find predictability?

6

Outline



7

When, and Why, Does Fair Use Matter?

►Copyright damages law permits broad theories of causation. ►Statutory damages range from $750-$150,000 per work. ►There are a number of active enforcers:

► Getty Images and other similar entities (photographs) ► Associated Press, Righthaven (news clippings) ► Rights Corp, BMI/ASCAP/SESAC (music) ► Your competitors and former business partners

8

But They’ll Never Find Out!

Or will they? ► Internal posters, presentations, etc.,

often make it online. ► Sales and other quasi-private

materials often find their way into competitors’ hands.

► Copyright terms are extremely long, the copyright owner’s failure to police is irrelevant, and the statute of limitations usually does not begin to run until the plaintiff discovers the alleged infringement.

9

Outline



10

Considering Enforcement Risk

►“They’ll never find out” is irrelevant to fair use as such. ►The risk of enforcement should be considered separately.

► First, you need a good faith basis to assert fair use.

► Then, you can consider the likelihood of enforcement as part of an overall risk analysis.

►Be careful of setting a bad precedent— you don’t want “they’ll never find out” to be a guidepost for your clients.

11

Outline



12

News Clippings Fair Use in Context

News Clippings — the Four Factors

►Excerpting others for “comment,” “criticism,” and “news reporting” is a classic fair use.

►But taking so much of the work as to “supersede” the value of the original is not fair use.

►Purpose of the use

►Nature of the work

►Amount and substantiality of the portion used

►Market effect

14

News Clippings — Transformative?

►Aggregating the work of others can be a transformative fair use, but typically only where technology adds searching or other new “transformative” functionality. ► E.g., Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) (Google image

search, which copies and aggregates low-resolution versions of copyrighted images in order to allow searching, is a transformational fair use).

►But even that may be insufficient. ► See Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d

537 (S.D.N.Y. 2013) (finding that the sale of an online news aggregating service was infringement and not fair use).

15

News Clippings — the Cases

►Most commercial news aggregators, online and off, have been found infringing. Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 72 (2d Cir. 1999) (finding that the sale of offline abstracts of news articles was infringement and not fair use); Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537 (S.D.N.Y. 2013) (finding that the sale of an online news aggregating service was infringement and not fair use).

16

News Clippings — Best Practices

►Summarize rather than quote. ► If quoting, quote only a small portion of the work. ►Link back to the original article rather than superseding it. ►Don’t count on being transformative.

17

Outline



18

Pictures Fair Use in Context

Pictures — the Four Factors

►Educational?

►Excerpted? Changed?




►Market effect

20

Pictures — Transformative?

Arguably transformative, but settled prior to a ruling

Held not infringing, but not based on transformative use

21

Pictures — the Cases

►Getty Images has an aggressive online enforcement campaign, and has filed about a dozen lawsuits over the years against entities refusing to settle. ► E.g., Getty Images v. Ruth Industries, Case No. 08-cv-3564 (S.D.N.Y).

►There are a number of small plaintiff’s firms that file suit before sending a demand in order to extract a higher settlement. ► See http://www.prdaily.com/Main/Articles/

How_using_Google_Images_can_cost_you_8000_14912.aspx ►Copyright owners are now supposed to consider fair use prior to

sending a DMCA takedown notice. But if it’s online, even if it’s fair, expect to receive an infringement notice. ► Lenz v. Universal Music, Case No. 13-16106 (9th Cir. Sept. 14, 2015).

22

http://www.prdaily.com/Main/Articles/How_using_Google_Images_can_cost_you_8000_14912.aspx

http://www.prdaily.com/Main/Articles/How_using_Google_Images_can_cost_you_8000_14912.aspx

Pictures — Best Practices

►Obtain indemnification from web designers and others responsible for content creation.

►Obtain a specific or blanket license and/or use public domain works. ►Even if it’s a clear fair use, limit distribution so as to avoid overzealous

enforcers.

23

Outline



24

Comparative Advertising Fair Use in Context

Cf. Advertising — the Four Factors

►Excerpting for “comment” and “criticism” can be fair use—but only to the extent necessary to make the comment or criticism.

►Comparative advertising is favored in law, including as a “purpose” in the fair use analysis, but not immune.

►The effect on the market for the product is irrelevant to fair use.




►Market effect

26

Cf. Advertising — Transformative?

►Does comparative advertising “merely supersede[] the objects of the original creation, or instead add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message“? Campbell, 510 U.S. at 579.

►Comparative advertising is its own “further purpose,” and therefore appears fundamentally transformative. ► E.g., Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214

F.3d 1022, 1027 (9th Cir. 2000) (vacating preliminary injunction, on fair use grounds, where defendant used screenshots of plaintiff's copyrighted video games in a side-by-side advertisement with screenshots of the games as run on defendant's software emulator).

27

Cf. Advertising — the Cases

►But there is by no means a general exception to copyright infringement in cases of comparative advertising, and the cases come out both ways. ► Ashley Furniture Industries Inc. v. American Signature, Inc., Case No

2:11-cv-427 (S.D. Ohio Sept. 19, 2011) (denying motion for summary judgment in comparative advertising copyright infringement case on fair use grounds)

► Triangle Publ'ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175-78 (5th Cir. 1980) (fair use defense applied to advertisements featuring a side-by-side comparison of two magazines to demonstrate the larger size of one magazine)

► Southco, Inc. v. Kanebridge Corp., No. 99-cv-4337, 2000 WL 21257, at *6 (E.D. Pa. Jan. 12, 2000) (concluding, at the preliminary injunction stage, that comparative advertising was not fair use)

28

Cf. Advertising — Best Practices

►To the extent possible, avoid literal copies of pictures, photographs, etc., that your competitor itself authored.

►Make the comparative purpose explicit. ►Search for registrations in order to avoid statutory damages. ► Incorporating copyright infringement considerations into your

comparative advertising review can reduce risk.

29

Questions

Peter Routhier Associate | Minneapolis +1 612 766 8770 [email protected]

fair use in context: practical advice on copyright’s … › webfiles › fair use in...2010/12/15...

Documents