17 USCS § 107 
 
 
UNITED STATES CODE SERVICE
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*** CURRENT THROUGH P.L. 109-94, APPROVED 10/26/05 ***
 

TITLE 17. COPYRIGHTS 

CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT

 

 

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

 

17 USCS § 107 (2005)

 

§ 107.  Limitations on exclusive rights: Fair use

 

Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 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—

 

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

the nature of the copyrighted work;

 

the amount and substantiality of the portion used  in relation to the copyrighted work as a whole;

 

and  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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

HISTORY:

   (Oct. 19, 1976,  P.L. 94-553, Title I, § 101, 90 Stat. 2546; Dec. 1, 1990,  P.L. 101-650, Title VI, § 607, 104 Stat. 5132; Oct. 24, 1992,  P.L. 102-492, 106 Stat. 3145.)

 

HISTORY; ANCILLARY LAWS AND DIRECTIVES

 

Prior law and revision:

 

House Report No. 94-1476

   General background of the problem. The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory

recognition for the first time in section 107. The claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the

years, and there is ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at page 24 of the Register's 1961 Report, while by no means exhaustive, give some idea

of the sort of activities the courts might regard as fair use under the circumstances: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous

reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

 

   Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no

generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or

determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107:

 

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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."

 

   These criteria are relevant in determining whether the basic doctrine of fair use, as stated in the first sentence of section 107, applies in a particular case:

 

"Notwithstanding the provisions of section 106, 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."

 

   The specific wording of section 107 as it now stands is the result of a process of accretion, resulting from the long controversy over the related

problems of fair use and the reproduction (mostly by photocopying) of copyrighted material for educational and scholarly purposes. For example, the reference to fair use "by reproduction in copies or phonorecords or

by any other means" is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use. Similarly, the newly-added reference to "multiple copies for classroom use" is a recognition that, under the proper circumstances of fairness, the doctrine can be applied

to reproductions of multiple copies for the members of a class.

 

   The Committee has amended the first of the criteria to be considered--"the purpose and character of the use"--to state explicitly that this factor includes a consideration of "whether such use is of a commercial

nature or is for non-profit educational purposes."

 

This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use

decisions.

 

   General intention behind the provision.

 

 The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of

circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general

scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid

technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

 

   Intention as to classroom reproduction.

 

Although the works and uses to which the doctrine of fair use

is applicable are as broad as the copyright law itself, most of the discussion of section 107 has centered around questions of classroom reproduction, particularly photocopying. The arguments on the question are summarized at pp. 30-31 of this Committee's 1967 report (H.R. Rep. No. 83, 90th Cong.,1st Sess.), and have not changed materially in the intervening years.

 

   The Committee also adheres to its earlier conclusion, that "a specific exemption freeing certain reproductions of copyrighted works for  educational and scholarly purposes from copyright control is not

justified." At the same time the Committee recognizes, as it did in 1967, that there is a "need for greater certainty and protection for teachers." In an effort to meet this need the Committee has not only adopted further amendments to section 107, but has also amended section 504(c) to provide innocent teachers and other non-profit users of copyrighted material

with broad insulation against unwarranted liability for infringement. The latter amendments are discussed below in connection with Chapter 5 of the bill.

 

   In 1967 the Committee also sought to approach this problem by including, in its report, a very thorough discussion of "the considerations lying behind the four criteria listed in the amended section 107, in the context of typical classroom situations arising

today." This discussion appeared on pp. 32-35 of the 1967 report, and with some changes has been retained in the Senate report on S. 22 (S. Rep. No. 94-473, pp.63-65).

 

The Committee has reviewed this discussion, and considers that it still has value as an analysis of various aspects of the problem.

 

   At the Judiciary Subcommittee hearings in June 1975, Chairman Kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material. The response

to these suggestions was positive, and a number of meetings of three groups, dealing respectively with classroom reproduction of printed material, music, and audio-visual material, were held beginning in

September 1975. In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of

the Authors League of America, Inc., and the Association of American Publishers, Inc., stated:

 

      'You may remember that in our letter of March 8,1976 we told you that the negotiating teams representing authors and publishers and the Ad Hoc Group had reached tentative agreement on guidelines to insert in the Committee Report covering educational copying from books and periodicals under Section 107 of H.R. 2223 and S. 22, and that as part of that tentative agreement each side would accept the amendments to Sections 107 and 504 which were adopted by your Subcommittee on March 3, 1976.

 

      'We are now happy to tell you that the agreement has been approved by the principals and we enclose a copy herewith. We had originally intended to translate the agreement into language suitable for inclusion in the legislative report dealing with Section 107, but we have since been advised by committee staff that this will not be necessary.

 

      'As stated above, the agreement refers only to copying from books and periodicals, and it is not intended to apply to musical or audiovisual works.'.

 

      The full text of the agreement is as follows:

 

   Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions.

 

      With respect to books and periodicals. The purpose of the following guidelines is to state the minimum standards of educational fair use under

Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under

these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

 

      Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under

judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

 

      Guidelines.

         I. Single Copying for Teachers.

            A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

 

A.     A chapter from a book;

B.     An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a collective work;

D. A chart, graph, diagram, drawing,cartoon or picture from a book, periodical, or newspaper;

 

         II. Multiple Copies for Classroom Use.

 

            Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

 

A.     The copying meets the tests of brevity and spontaneity as defined below; and,

B.     Meets the cumulative effect test as defined below; if and,

  C. Each copy includes a notice of copyright.

 

         Definitions.

            Brevity.

               (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

 

               (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished

line of a poem or of an unfinished prose paragraph.]

 

               (iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

 

               (iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

 

            Spontaneity.

(i)                     The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

 

            Cumulative Effect.

               (i) The copying of the material is for only one course in the school in which the copies are made.

               (ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

               (iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

 

               [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections

of other periodicals.]

 

         III. Prohibitions as to I and II Above.

            Notwithstanding any of the above, the following shall be prohibited:

               (A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works

or excerpts therefrom are accumulated or reproduced and used separately.

               (B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

               (C) Copying shall not:

                  (a) substitute for the purchase of books, publishers' reprints or periodicals;

                  (b) be directed by higher authority;

                  (c) be repeated with respect to the same item by the same teacher from term to term.

               (D) No charge shall be made to the student beyond the actual cost of the photocopying.

 

   Agreed March 19, 1976.

 

   Ad Hoc Committee on Copyright Law Revision:

      By Sheldon Elliott Steinbach.

   Author-Publisher Group:

   Authors League of America:

      By Irwin Karp, Counsel.

   Association of American Publishers, Inc.:

      By Alexander C. Hoffman,

      Chairman, Copyright Committee.

 

   In a joint letter dated April 30, 1976, representatives of the Music Publishers' Association of the United States, Inc., the National Music

Publishers' Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision, wrote to Chairman Kastenmeier as follows:

 

      'During the hearings on H.R. 2223 in June 1975,you and several of your subcommittee members suggested that concerned groups should work together in developing guidelines which would be helpful to clarify Section 107 of the bill.

      'Representatives of music educators and music publishers delayed their meetings until guidelines had been developed relative to books and periodicals.

 

Shortly after that work was completed and those guidelines were forwarded to your subcommittee, representatives of the undersigned music organizations met together with representatives of the Ad Hoc

Committee on Copyright Law Revision to draft guidelines relative to music.

      'We are very pleased to inform you that the discussions thus have been fruitful on the guidelines which have been developed. Since private music teachers are an important factor in music education, due consideration has been given to the concerns of that group.

      'We trust that this will be helpful in the report on the bill to clarify Fair Use as it applies to music.'

   The text of the guidelines accompanying this letter

is as follows:

      Guidelines for educational uses of music. The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of HR 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised

guidelines.

 

      Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under

judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There [71] may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

 

         (A) Permissible Uses.

            (1) Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

            (2)

               (a) For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable

unit such as a section, movement or aria, but in no case more than (10% of the whole work. The number of copies shall not exceed one copy per pupil.

               (b) For academic purposes other than performance, a single copy of an entire performable unit (section, movement, aria, etc.) that is, (1)confirmed by the copyright proprietor to be out of print or (2) unavailable except in a larger work, may be made by or for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.

            (3) Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

            (4) A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

            (5) A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only

to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

         (B) Prohibitions

            (1) Copying to create or replace or substitute for anthologies, compilations or collective works.

            (2) Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises,  standardized tests and answer sheets and like material.

            (3) Copying for the purpose of performance, except as in A(1) above.

            (4) Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.

            (5) Copying without inclusion of the copyright notice which appears on the printed copy.

   The problem of off-the-air taping for nonprofit classroom use of copyrighted audiovisual works incorporated in radio and television broadcasts has proved to be difficult to resolve. The Committee believes that the fair use doctrine has some limited application in this area, but it appears that the development of detailed guidelines will require a more

thorough exploration than has so far been possible of the needs and  problems of a number of different interests affected, and of the various legal problems presented. Nothing in section 107 or elsewhere in the

bill is intended to change or prejudge the law on the point. On the other hand, the Committee is sensitive to the importance of the problem, and urges the representatives of the various interests, if possible under the leadership of the Register of Copyrights, to continue their discussions actively and in a constructive spirit. If it would be helpful to a solution, the Committee is receptive to undertaking further consideration of the problem in a future Congress.

 

   The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level.

 

However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated "purpose of the. . . guidelines is to state the minimum and not the maximum standards of educational fair use" and that the agreement acknowledges "there

may be instances in which copying which does not fall within the guidelines. . . may nonetheless be permitted under the criteria of fair use."

   The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the

purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties

will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months.

 

   Reproduction and uses for other purposes. The concentrated attention given the fair use provision in the context of classroom teaching activities should not obscure its application in other areas. It must be

emphasized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will differ from case to case.

   The fair use doctrine would be relevant to the use of excerpts from copyrighted works in educational broadcasting activities not exempted under section 110(2) or 112, and not covered by the licensing provisions of section 118. In these cases the factors to be weighed in applying the criteria of this section would include whether the performers, producers,

directors, and others responsible for the broadcast were paid, the size and nature of the audience, the size and number of excerpts taken and, in the case of recordings made for broadcast, the number of copies reproduced and the extent of their reuse or exchange.

 

The availability of the fair use doctrine to educational broadcasters would be narrowly circumscribed in the case of motion pictures and other

audiovisual works, but under appropriate circumstances it could apply to the nonsequential showing of an individual still or slide, or to the performance of a short excerpt from a motion picture for criticism or

comment.

 

   Another special instance illustrating the application of the fair use doctrine pertains to the making of copies or phonorecords of works in the

special forms needed for the use of blind persons.

 

These special forms, such as copies in Braille and phonorecords of oral readings (talking books), are not usually made by the publishers for commercial distribution. For the most part, such copies and phonorecords are made by the Library of Congress' Division for the Blind and Physically Handicapped with permission obtained from the copyright owners, and are

circulated to blind persons through regional libraries covering the nation. In addition, such copies and phonorecords are made locally by individual volunteers for the use of blind persons in their communities, and the Library of Congress conducts a program for training such volunteers. While the making of multiple copies or phonorecords of a work for general circulation requires the permission of the copyright

owner, a problem addressed in section 70 of the bill, the making of a single copy or phonorecord by an individual as a free service for a blind persons would properly be considered a fair use under section 107.

 

   A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film

has been deliberately destroyed, those that remain are in immediate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to

be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of "fair use."

 

   When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or

institution may copy and reproduce such parts of the work as are necessary to permit understandable comment on the statements made in the work.

 

   The Committee has considered the question of publication, in Congressional hearings and documents, of copyrighted material. Where the length of the work or excerpt published and the number of copies

authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern, the Committee believes that the publication would constitute fair use.

 

   During the consideration of the revision bill in the 94th Congress it was proposed that independent newsletters, as distinguished from house organs and publicity or advertising publications, be given separate treatment. It is argued that newsletters are particularly vulnerable to mass photocopying, and that most newsletters have fairly modest circulations.

 

Whether the copying of portions of a newsletter is an act of infringement or a fair use will necessarily turn on the facts of the individual case. However, as a general principle, it seems clear that the scope of

the fair use doctrine should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals.

 

The commercial nature  of the user is a significant factor in such cases: Copying by a profit-making user of even a small portion of a newsletter may have a significant impact on the commercial market for the work.

 

   The Committee has examined the use of excerpts from copyrighted works in the art work of calligraphers.

 

The committee believes that a single copy reproduction of an excerpt from a copyrighted work by a calligrapher for a single client does not represent an infringement of copyright. Likewise, a single reproduction of excerpts from a copyrighted work by a student calligrapher or teacher in a learning situation would be a fair use of the copyrighted work.

 

   The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives.

 

The doctrine of fair use applies to library photocopying, and nothing contained in section 108 "in any way affects the right of fair use." No provision of section 108 is intended to take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use.

 

   The criteria of fair use are necessarily set forth in general terms. In the application of the criteria of fair use to specific photocopying practices of libraries, it is the intent of this legislation to provide an appropriate balancing of the rights of creators, and the needs of users.

  

Effective date of section:

   Act Oct. 19, 1976,  P.L. 94-553, § 102, 90 Stat. 2598, provided that this section "becomes effective on January 1, 1978".

 

Amendments:

   1990. Act Dec. 1, 1990 (effective 6 months after enactment as provided by § 610 of such Act, which appears as 17 USCS § 106A note), in the introductory matter, substituted "sections 106 and 106A" for

"section 106".

 

   1992. Act Oct. 24, 1992 added the concluding matter.

 

NOTES:

Related Statutes & Rules:

   Exclusive rights in copyrighted works, 17 USCS § 106.

 

   Use of material in conjunction with computers and similar information systems, 17 USCS § 117.

 

   Use of certain works in connection with

noncommercial broadcasting, 17 USCS § 118.

   Action for infringement of copyright, 17 USCS §

501.

   Remittance of statutory damages, 17 USCS § 504.

   This section is referred to in 17 USCS §§ 106,

106A, 108, 118, 501, 504, 511; 18 USCS § 2319.

 

Research Guide:

Federal Procedure:

   7A Fed Proc L Ed, Copyrights §§ 18:136, 164, 169,

200, 226.

   27 Fed Proc L Ed, Pleadings and Motions § 62:78.

 

Am Jur:

   18 Am Jur 2d, Copyright and Literary Property §§

78-86.

 

Am Jur Trials:

   77 Am Jur Trials, Copyright Infringement

Litigation, p. 449.

 

Am Jur Proof of Facts:

   63 Am Jur Proof of Facts 3d, Proof of Copyright

Infringement by File Sharing, p. 1.

   74 Am Jur Proof of Facts 3d, Proof of Infringement

of the Visual Artist Rights Act of 1990, p. 1.

   38 Am Jur Proof of Facts 2d, Limitation on

exclusive rights under 1976 Act, p. 333.

 

Forms:

   8 Bender's Federal Practice Forms, Forms 34:181,

34:210, Federal Rules of Civil Procedure.

   9 Bender's Federal Practice Forms, Form 51:101,

Federal Rules of Civil Procedure.

   2 Rabkin & Johnson, Current Legal Forms, § 3.31,

Patents, Copyrights and Trademarks.

   6A Fed Procedural Forms L Ed, Copyright § 17:150.

   7A Am Jur Pl & Pr Forms (Rev ed), Copyright and

Literary Property § 63.

 

Intellectual Property:

   3  Nimmer on Copyright (Matthew Bender), ch 12A,

Copyright Protection Systems and Management

Information § 12A.16.

   4  Nimmer on Copyright (Matthew Bender), ch 13,

Infringement Actions--Substantive Aspects § 13.05.

 

Annotations:

   Parody as copyright infringement or fair use under Federal Copyright Act (17 USCS §§ 101 et seq.). 75 ALR Fed 822.

 

   What Constitutes Fair Use of Letters or Diaries With Respect to Copyright Infringement Action for Purposes of 17 USCS § 107. 139 ALR Fed 93.

 

   What constitutes Fair Use of Medical, Scientific and Technical Writings With Respect to Copyright Infringement Action. 144 ALR Fed 537.

 

   Application of "De Minimis Non Curat Lex" to Copyright Infringement Claims. 150 ALR Fed 661.

 

   First Amendment Protection Afforded to Comic Books, Comic Strips, and Cartoons. 118 ALR5th 213.

 

 

Law Review Articles:

   Donnell. Fair Use by University Faculty Members Under the Copyright Revision Act of 1976. 16 American Business L J 17, Spring 1978.

 

   Leval. Toward a fair use standard. 103 Harv L Rev 1105, 1989-90.

   Weinreb. Fair's fair: a comment on the fair use doctrine [Discussion of "Toward a fair use standard"

 

by P N Leval, 103 Harv L Rev 1105-36 Mr '90]. 103 Harv L Rev 1137, 1989-90.

   Visual artists' rights in a digital age. 107 Harv L Rev 1977, June 1994.

 

   Damich. A comparison of state and federal moral rights protection: are artists better off after VARA? 15 Hastings Comm & Ent LJ 953, Summer 1993.

   Dratler. To copy or not to copy: the educator's dilemma. 19 J L & Educ 1, 1990.

 

   Hohensee. The Fair Use Doctrine in Copyright: A Growing Concern for Judge Advocates. 119 Mil L Rev 155, Winter 1988.

 

   Rosenfield. The Constitutional Dimension of "Fair Use" In Copyright Law. 50 ND Law 790, 1974-75.

 

   Free, Fair Use and The New Act. 22 NY LS L Rev 497, 1976-77.

   Samuels. Copyright and the New Communications Technologies. 25 NY LS L Rev 905, 1980.

 

   Treece. Library photocopying. 24 UCLA L Rev 1025,

1976-77.

 

   Patterson. Free Speech, Copyright, and Fair Use. 40

Vand L Rev 1, January 1987.

   VerSteeg. Federal moral rights for visual artists: contract theory and analysis. 67 Wash L Rev 827, October 1992.

 

Interpretive Notes and Decisions:

I. IN GENERAL

   1. Generally

   2. Purpose

   3. Effect of codification

 

II. DETERMINATION OF FAIR USE, GENERALLY

   4. Generally

   5. Mixed questions of law and fact

   6. Procedure

   7. Evidence of fair use

   8. --Intent of user

   9. Findings of fair use under particular facts

 

III. FAIR USE FOR PARTICULAR PURPOSES

   10. Criticism and comment

   11. News reporting

   12. Teaching, scholarship and research

   13. Parody, satire and burlesque

   14. --Character likeness

   15. --Skits and plays

   16. --Songs

 

IV. FACTORS CONSIDERED IN MAKING DETERMINATION AS TO

FAIR USE

 

A. In General

   17. Generally

   18. Nonexclusivity of enumerated factors

   19. Miscellaneous

 

B. Purpose or Character of Use

   20. Generally

   21. Commercial and business purposes

   22. Miscellaneous

 

C. Nature of Copyrighted Work

   23. Generally

   24. Commercial

   25. Educational and scholarly

   26. Informational and factual

   27. Personal works

   28. Unpublished works

 

D. Amount and Substantiality of Work Used

   29. Generally

   30. Verbatim and exact copying

   31. --Books and periodicals

   32. --Movies, television and videos

   33. Portion used in parody

   34. Portion used in maps

   35. Miscellaneous

 

E. Effect of Use on Market

 

1. In General

   36. Generally

   37. Necessity of damages

   38. Effect of parody on market

 

2. Effect of Use of Particular Works Under Particular

Circumstances

   39. Books

   40. Financial reports

   41. Letters

   42. Maps

   43. Movies

   44. Periodicals

   45. Photographs

   46. Radio broadcasts

   47. Scientific and scholarly works

   48. Software

   49. Songs

   50. Television and videos

   51. Miscellaneous

 

 

 

I. IN GENERAL

   1. Generally

 

Copyright does not prevent subsequent users from copying from prior author's work those constituent elements that are not original, such as quotations borrowed under rubric of fair use from other copyrighted works, facts, or materials in public domain, as long as such use does not unfairly appropriate author's original contributions. Harper & Row, Publishers, Inc. v Nation Enterprises (1985) 471 US 539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Fair use doctrine is equitable rule of reason that permits courts to avoid rigid application of copyright statute when, on occasion, such application would stifle the very creativity which that law is designed to foster. Stewart v Abend (1990) 495 US 207, 109 L Ed 2d 184, 110 S Ct 1750, 14 USPQ2d 1614.

 

Fair use doctrine contained in 17 USCS § 107 permits and requires courts to avoid rigid application of Copyright Act of 1976 (17 USCS §§ 101 et seq.) when, on occasion, such application would stifle very creativity which act is designed to foster, because, in enacting § 107, Congress meant to restate existing judicial doctrine of fair use, not to change, narrow, or enlarge doctrine in any way, and intended that courts continue common law tradition of fair-use adjudication. Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662,94 Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

"Fair use" means that others may copy theme or ideas of work, but not its expression. Sheldon v Metro-Goldwyn Pictures Corp. (1936, CA2 NY) 81 F2d 49, cert den (1936) 298 US 669, 80 L Ed 1392, 56 S Ct 835.

 

 

Fair use doctrine offers means of balancing exclusive right of copyright holder with public's interest in dissemination of information affecting areas of universal concern, such as art, science, history, or industry, and fair use cannot be determined by resort to arbitrary rules or fixed criteria, and requires examination of facts in each case. Meeropol v Nizer

(1977, CA2 NY) 560 F2d 1061, 2 Media L R 2269, 195 USPQ 273, cert den (1978) 434 US 1013, 54 L Ed 2d 756,98 S Ct 727, 196 USPQ 592.

 

 

Plaintiff's claim that use of its name in advertisement of product favorably evaluated in CONSUMER REPORTS will jeopardize its reputation for

honest product evaluation is not interest protected by copyright law and is not probable effect of such advertisement so that preliminary injunction is reversed, and since advertisement is not likely to

reduce demand for a copyrighted magazine, preliminary injunction against advertisement is reversed. Consumers Union of United States, Inc. v General Signal Corp. (1983, CA2 NY) 724 F2d 1044, 221 USPQ 400, reh den, en banc (1984, CA2) 730 F2d 47 and cert den (1984) 469 US 823, 83 L Ed 2d 45, 105 S Ct 100,224 USPQ 616.

 

 

Fair use applies to unpublished works, as well as to published works. Salinger v Random House, Inc. (1987, CA2 NY) 811 F2d 90, 13 Media L R 1954, 1 USPQ2d 1673, 87 ALR Fed 853, reh den (1987, CA2) 818 F2d 252, 2

USPQ2d 1727, cert den (1987) 484 US 890, 98 L Ed 2d 177, 108 S Ct 213.

 

Exceptions carved out in statute for particular purposes are at heart of fair use's protection of First Amendment, as they allow later authors to use previous author's copyright to introduce new ideas or concepts to public. SunTrust Bank v Houghton Mifflin Co. (2001, CA11 Ga) 268 F3d 1257, 60 USPQ2d 1225, 14 FLW Fed C 1391, reh, en banc, den (2001, CA11 Ga) 275

F3d 58.

 

 

Court-created doctrine of "fair use" demonstrates that Copyright Act does not cover all copying, and some forms of copying are universally deemed immune from liability. Williams & Wilkins Co. v United States (1973) 203 Ct Cl 74, 487 F2d 1345, 180 USPQ 49, 21 ALR Fed 151, affd (1975) 420 US 376, 43 L Ed 2d 264, 95 S Ct 1344, 184 USPQ 705.

 

"Copying" proscription of Copyright Act applies generally to books and periodicals in spite of earlier copyright laws proscribing only acts of "printing," "reprinting," and "publishing" relative to books and periodicals, although the extent of the "copying" proscription of Copyright Act is conditioned by "fair use" doctrine. Williams & Wilkins Co. v United States (1973) 203 Ct Cl 74, 487 F2d 1345, 180 USPQ 49, 21 ALR

Fed 151, affd (1975) 420 US 376, 43 L Ed 2d 264, 95 S Ct 1344, 184 USPQ 705.

 

Doctrine of fair use arises from essential nature of copyright; all persons may make fair use of copyrighted work; occasionally, courts refer to right to use noncopyrightable material in copyrighted work as "fair use"; in this meaning, question is only conventional one of whether material was copyrightable; primarily, however, fair use relates to

extent to which copyrightable material may be used without express license; in field of science and fine arts, broad scope is given to fair use; criticism is important and proper exercise of fair use; as one

draws away from fields of science or fine arts, and enters fields where business competition exists, scope of fair use is narrowed but still exists; purpose for which use is made is of major importance, in

consideration with other factors, in arriving at sound determination of extent of fair use; broader scope is permitted doctrine where field of learning is concerned and much narrower scope where taking is solely for commercial gain. Loew's, Inc. v Columbia Broadcasting System, Inc. (1955, DC Cal) 131 F Supp 165, 105 USPQ 302, affd (1956, CA9 Cal) 239 F2d 532,

112 USPQ 11, affd (1958) 356 US 43, 2 L Ed 2d 583, 78 S Ct 667, 116 USPQ 479, reh den (1958) 356 US 934, 2 LEd 2d 764, 78 S Ct 770 and (superseded by statute as stated in Fisher v Dees (1986, CA9 Cal) 794 F2d 432,

13 Media L R 1167, 230 USPQ 421).

 

 

Subsequent authors, publishers and general public may use copyrighted works in reasonable manner without consent of copyright owner on theory that such use is "fair use" of copyrighted material. Greenbie v Noble

(1957, DC NY) 151 F Supp 45, 113 USPQ 115.

 

 

Despite exclusive rights granted by Copyright Act, courts recognize that copying or other appropriation of copyrighted work will not entail liability if it is reasonable or "fair"; doctrine is equitable and is so

flexible as virtually to defy definition. Fair use presupposes good faith and fair dealing. Hope for commercial gain is not a significant factor; in view of public interest in having the fullest information available on murder of President Kennedy, it is fair use for defendant to make artistic copies of plaintiff's copyrighted photographs of death, and to

include such copies in serious book on the subject,especially since book is not bought because of pictures, but because of defendant's theory and there is little, if any, injury to plaintiff, which is not in competition with defendant. Time, Inc. v Bernard Geis Associates (1968, SD NY) 293 F Supp 130, 159 USPQ 663.

 

Conflicts between copyright laws and First Amendment freedom of speech can be resolved under fair use doctrine, and critical comment during political

campaign is especially favored freedom of speech right compared to interests of copyright proprietor. Keep Thomson Governor Committee v Citizens for Gallen Committee (1978, DC NH) 457 F Supp 957, 199 USPQ 788.

 

Required public disclosure of copyrighted tests and associated material raises serious fair use and federal pre-emption claims so that considering balance of hardships and irreparable injury, preliminary injunction against enforcement of state statute is granted. Association of Am. Med. Colleges v Carey (1980, ND NY) 482 F Supp 1358, 205 USPQ 42 (criticized

in Warden v Pataki (1999, SD NY) 35 F Supp 2d 354).

 

 

Fair use defense (17 USCS § 107) does not apply to actions brought under 17 USCS § 1201(a)(2), which deals not with infringement, but with technology primarily designed to circumvent technological measures that control access to copyrighted works. Universal City Studios, Inc. v Reimerdes (2000, SD NY) 82 F Supp 2d 211, 53 USPQ2d 1780, sanctions disallowed sub nom Universal City Studios, Inc. v Corley (2000,SD NY) 2000 US Dist LEXIS 10621, motion den sub nom Universal City Studios, Inc. v Reimerdes (2000, SD NY)98 F Supp 2d 449.

 

 

Fair use defense does not apply to actions brought under 17 USCS § 1201(a)(2). Universal City Studios, Inc. v Reimerdes (2000, SD NY) 111 F Supp 2d 348, 55 USPQ2d 1873, findings of fact/conclusions of law (2000, SD NY) 111 F Supp 2d 294, 55 USPQ2d 1873, injunction gr, application den (2000, SD NY) 111 F Supp 2d 346, affd (2001, CA2 NY) 273 F3d 429, 60 USPQ2d 1953 and amd (2001, SD NY) 2001 US Dist LEXIS 12548.

 

Where users of copyrighted computer games accepted end user license agreements by computer prior to using games and users reverse engineered games to develop emulator allowing access to games' Internet service,

users waived their fair use defense to reverse engineering by accepting terms of agreements. Davidson & Assocs. v Internet Gateway (2004, ED Mo) 334 F Supp 2d 1164.

 

 

Private parties are free to contractually forego limited ability to reverse engineer software product under exemptions of Copyright Act. Davidson & Assocs.v Internet Gateway (2004, ED Mo) 334 F Supp 2d 1164.

 

 

 

   2. Purpose

 

Purpose of copyright fair use doctrine is not to protect right of privacy, and privacy of deceased leader of plaintiff organization would not be adequate grounds for suppressing critical biography by granting injunction. New Era Publications International, ApS v Henry Holt & Co. (1988, SD NY) 695 F Supp 1493, 15 Media L R 2161, 8 USPQ2d 1713, affd (1989, CA2 NY) 873 F2d 576, 16 Media L R 1559, 10 USPQ2d 1561, reh den,

en banc (1989, CA2 NY) 884 F2d 659, 16 Media L R 2224,12 USPQ2d 1121 and cert den (1990) 493 US 1094, 107 L Ed 2d 1071, 110 S Ct 1168.

 

In copyright infringement action brought by director against company, director's use of "fair use" defense under 17 USCS § 107 was unavailing because he sought to use 17 USCS § 107 as "sword" in order to vest

copyright in unauthorized derivative work or at least to vest copyright in more of work than that to which director would have otherwise been entitled and because it was clear that Congress did not contemplate

such novel application of 17 USCS § 107. Sobhani v @radical.media, Inc. (2003, CD Cal) 257 F Supp 2d 1234, 66 USPQ2d 1195.

 

 

   3. Effect of codification

 

Federal Court of Appeals errs when, in determining that music group's defense under 17 USCS § 107 to copyright infringement suit concerning group's parody of original song is barred, court bases determination

on conclusions that parody's commercial nature renders parody presumptively unfair under § 107's first and fourth factors and that, as matter of law, group copied excessively from original, because (1) no such

evidentiary presumption is available to address either first factor or fourth factor, and (2) parody is not so insubstantial, as compared to copying, that third § 107 factor must be resolved as matter of law against

group, since, after copying original's first line of lyrics and copying and repeating original's opening bass riff, group departed markedly from original lyrics and produced distinctive sounds. Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S

800.

 

 

In evaluating parody of copyrighted work, as in evaluating any other use of such work, under 17 USCS § 107, all four § 107 factors are to be explored, and results weighed together case-by-case, in light of

purposes of copyright. Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

Fair use codification was not intended to depart from court-created principles and use factors developed in case law to determine fair use defense. Triangle Publications, Inc. v Knight-Ridder Newspapers, Inc.

(1980, CA5 Fla) 626 F2d 1171, 6 Media L R 1734, 207 USPQ 977.

 

17 USCS § 107 codifies doctrine of fair use under common law and predecessor statute so that it is unnecessary to determine effective date for fair use defense. Marcus v Rowley (1983, CA9 Cal) 695 F2d 1171,

217 USPQ 691.

 

Doctrine of fair use as restated in 17 USCS § 107 does not change, narrow or enlarge previous judicial doctrine of fair use, and factors mentioned in statute to be considered in determining fair use are illustrative and not exhaustive. Encyclopaedia Britannica Educational Corp. v Crooks (1982, WD NY)542 F Supp 1156, 214 USPQ 697.

 

 

II. DETERMINATION OF FAIR USE, GENERALLY

   4. Generally

 

In order to negate fair use, one need only show that if challenged use should become widespread, it would adversely affect potential market for copyrighted work; this inquiry must take account not only of harm to original but also of harm to market for derivative works. Harper & Row, Publishers, Inc. v Nation Enterprises (1985) 471 US 539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Commercial use of fictional story, which use adversely affects story owner's adaptation rights, is classic example of unfair use for purposes of 17 USCS § 107;thus, unauthorized use of pre-existing, copyrighted

story in motion picture derived from story is not fair use for purposes of § 107, where motion picture (1) does not fall into any of categories that are specified in § 107 as examples of fair use, and (2)does not meet criteria for fair use set forth in § 107. Stewart v Abend (1990) 495 US 207, 109 L Ed 2d 184, 110 S Ct 1750, 14 USPQ2d 1614.

 

With respect to provision of 17 USCS § 107 that fair use of copyrighted work does not constitute infringement, central purpose of investigating purpose and character of use under 17 USCS § 107(1) is to determine whether new work (1) merely supersedes objects of original creation, or (2) instead is transformative, that is, adds something new, with

further purpose or different character, altering first with new expression, meaning, or message; although such transformative use is not absolutely necessary for finding of fair use, the more transformative the

new work, the less will be significance of other factors, like commercialism, that may weigh against finding of fair use. Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94

CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

Under provision of 17 USCS § 107 that fair use of copyrighted work does not constitute infringement, parody needs to mimic original to make its point, and so has some claim to use creation of its victim's, or

collective victims', imagination, whereas satire can stand on its own two feet and so requires justification for very act of borrowing. Campbell v

Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500,114 S Ct 1164, 94 CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

Print and electronic publishers infringe copyrights of freelance authors, where (1) under agreements with print publishers, but without freelancers' consent, electronic publishers place copies of freelancers'

articles--along with all other articles from periodicals in which freelancers' work appeared—into computer databases that (a) contain thousands or millions of files containing individual articles from

thousands of collective works, either in one series or in scores of series, and (b) reproduce and distribute articles standing alone and not in context, (2) publishers thus exercise at least some rights that §

106 of Copyright Act (17 USCS § 106) initially assigns exclusively to authors, and (3) publishers do not assert that (a) articles are works made for hire within meaning of § 201(b) of Copyright Act (17 USCS §

201(b)), or (b) copies in databases represent "fair use" of articles within meaning of § 107 of Copyright Act (17 USCS § 107); such copying is not authorized by § 201(c) of Copyright Act (17 USCS § 201(c))--under

which owner of copyright in collective work is presumed to have acquired privilege of reproducing and distributing author's discretely copyrighted

contribution as part of that particular collective work, any revision of that collective work, and any later collective work in same series. N.Y. Times Co. v Tasini (2001) 533 US 483, 150 L Ed 2d 500, 121 S Ct 2381, 2001 CDOS 5260, 2001 Daily Journal DAR 6435, 29 Media L R 1865, 59 USPQ2d 1001, 2001 Colo J C A R 3509, 14 FLW Fed S 414.

 

Equitable rule of reason applies to fair use analysis, and commercial motives of user are important item of analysis. Financial Information, Inc. v Moody's Investors Service, Inc. (1984, CA2 NY) 751 F2d 501,

224 USPQ 632.

 

Burden of proof is on copier because fair use is affirmative defense. Chicago Bd. of Educ. v Substance, Inc. (2003, CA7 Ill) 354 F3d 624, 69 USPQ2d 1447, cert den (2004, US) 160 L Ed 2d 23, 125 S Ct 54.

 

In suit by copyright owners against provider of downloadable music via Internet for copyright infringement resulting from violation of license

agreement, district court rejected provider's argument that license authorizing public performance also implied right to copy music onto servers because "performance" and "reproduction" were clearly and

unambiguously separate rights under 17 USCS §§ 106(1) and (4). Country Rd. Music, Inc. v MP3.com, Inc. (2003, SD NY) 279 F Supp 2d 325, 68 USPQ2d 1296.

 

 

   5. Mixed questions of law and fact

 

In copyright infringement action, fair use is mixed  question of law and fact; where District Court has found facts sufficient to evaluate each of statutory factors relating to fair use defense, appellate court

need not remand for further factfinding, but may conclude as matter of law that challenged use does not qualify as fair use of copyrighted work. Harper & Row, Publishers, Inc. v Nation Enterprises (1985) 471 US

539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969,225 USPQ 1073.

 

Question of fair use, which is question of fact, usually arises in connection with scientific or other works dealing with common subject matter; thus, writings dealing with same historical event are

expected to have similarity of treatment. Eisenschiml v Fawcett Publications, Inc. (1957, CA7 Ill) 246 F2d 598, 114 USPQ 199, cert den (1957) 355 US 907, 2 L Ed 2d 262, 78 S Ct 334, 115 USPQ 426.

 

Concept of fair use has been established and applied in cases involving scientific, medical, and historical materials; though technically infringement, it is allowed on ground that appropriation is reasonable and

customary; whether use is fair use is matter of fact; thus, use of copyrighted book as source for article on historical personage could be termed fair, but use is not fair where article is not only based in large part on book but also mirrors manner and style in which copyright owner set down factual and historical material and expressed her thoughts and conclusions. Holdredge v Knight Publishing Corp. (1963, SD Cal) 214 F Supp 921, 136 USPQ 615.

 

 

Although fair use is mixed question of law and fact, it is nonetheless proper to decide issue at summary judgment stage if historical facts are undisputed and only question is proper legal conclusion to be drawn

from those facts. L.A.Times v Free Republic (2000, CD Cal) 28 Media L R 1705, 54 USPQ2d 1453, judgment entered (2000, CD Cal) 29 Media L R 1028, 56 USPQ2d 1862.

 

Although fair use is mixed question of law and fact, courts can nonetheless resolve fair use determinations on summary judgment motions. Video-Cinema Films, Inc. v CNN, Inc. (2001, SD NY) 29 Media L R 2551, 60 USPQ2d 1415.

 

 

   6. Procedure

 

Newspaper articles regarding memoirs of persons involved in Watergate scandal, offered as evidence that magazine's unconsented use of material from former president's memoirs in article about memoirs is excusable as standard journalistic practice is not proper subject for Supreme Court's judicial notice where exhibits were struck by Court of Appeals for

failure of proof at trial. Harper & Row, Publishers, Inc. v Nation Enterprises (1985) 471 US 539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Summary judgment that quotation from copyrighted letters is fair use is reversed to allow presentation of disputed evidence on historical nature of letters and effect of use on potential market for letters. Meeropol v Nizer (1977, CA2 NY) 560 F2d 1061, 2 Media L R 2269, 195 USPQ 273, cert den (1978) 434 US 1013,54 L Ed 2d 756, 98 S Ct 727, 196 USPQ 592.

 

When district court has found sufficient facts to evaluate each of statutory factors, appellate court need not remand but may determine fair use as matter of law. Nunez v Caribbean Int'l News Corp. (2000, CA1

Puerto Rico) 235 F3d 18, 29 Media L R 1108, 57 USPQ2d 1239.

 

Motion to dismiss complaint on ground that defendant's use is "fair use" is denied since determination of "fair use" should not be resolved on affidavits but is best left to trial judge. New York Tribune, Inc. v

Otis & Co. (1941, DC NY) 39 F Supp 67, 49 USPQ 361.

 

Summary judgment is appropriate for deciding fair use issue on facts not disputed by parties who both move for summary judgment and argue only different legal conclusions to be drawn from facts. Hustler Magazine,

Inc. v Moral Majority, Inc. (1985, CD Cal) 606 F Supp 1526, 226 USPQ 721, affd (1986, CA9 Cal) 796 F2d 1148, 13 Media L R 1151, 230 USPQ 646.

 

Although fair use is mixed question of law and fact, it is nonetheless proper to decide issue at summary judgment stage if historical facts are undisputed and only question is proper legal conclusion to be drawn

from those facts. L.A.Times v Free Republic (2000, CD Cal) 28 Media L R 1705, 54 USPQ2d 1453, judgment entered (2000, CD Cal) 29 Media L R 1028, 56 USPQ2d 1862.

 

Because fair use is affirmative defense to claim of infringement, defendant carries burden of proof on that issue. L.A.Times v Free Republic (2000, CD Cal) 28 Media L R 1705, 54 USPQ2d 1453, judgment entered

(2000, CD Cal) 29 Media L R 1028, 56 USPQ2d 1862.

 

Although fair use is mixed question of law and fact, courts can nonetheless resolve fair use determinations on summary judgment motions. Video-Cinema Films, Inc. v CNN, Inc. (2001, SD NY) 29 Media L R 2551, 60 USPQ2d 1415.

 

Task of ascertaining fair use is not to be simplified with bright-line rules, for statute, like doctrine it recognizes, calls for case-by-case analysis. Antioch Co. v Scrapbook Borders, Inc. (2003, DC Minn) 291 F

Supp 2d 980, 2004-1 CCH Trade Cases P 74307.

 

 

   7. Evidence of fair use

 

Magazine's unauthorized verbatim copying of 300 words of direct quotations from former president's soon-to-be-published memoirs involving original

expressions of great qualitative importance in memoirs and in magazine's article and resulting in cancellation of another magazine's agreement to pay for exclusive right to print prepublication excerpts, is not "fair use" of memoirs sanctioned by 17 USCS § 107 and constitutes infringement of copyright therein. Harper & Row, Publishers, Inc. v Nation Enterprises

(1985) 471 US 539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Evidence showing close similarity between complainant's and defendant's work was sufficient to make out prima facie case of unfair use by defendant.West Pub. Co. v Lawyers' Co-op. Pub. Co. (1897, CA2

NY) 79 F 756.

 

Summary judgment that use of copyrighted letters is fair use is reversed to allow evidence to be presented on effect of use on potential market for copyrighted letters and effect of way that letters were quoted and

edited. Meeropol v Nizer (1977, CA2 NY) 560 F2d 1061, 2 Media L R 2269, 195 USPQ 273, cert den (1978) 434 US 1013, 54 L Ed 2d 756, 98 S Ct 727, 196 USPQ 592.

 

Repeated denial of copying broadcast of copyrighted film by TV network is relevant to equities of fair use defense, which is denied. Iowa State University Research Foundation, Inc. v American Broadcasting Cos.

(1980, CA2 NY) 621 F2d 57, 6 Media L R 1855, 207 USPQ 97.

 

If "fair use" is to constitute defense it must be determined by consideration of all evidence in case; extent and relative value of copyrighted material, purpose for claimed "fair use," and effect on

distribution and objects of original work are some elements entering into determination of issue and, while intent to infringe is not essential to

plaintiff's cause of action, nevertheless defendant's intention bears on question of "fair use." New York Tribune, Inc. v Otis & Co. (1941, DC NY) 39 F Supp 67,49 USPQ 361.

 

Defendant who tried to get copyright proprietor to print copies of thoroughfare map revised to show fire zones and had copies printed elsewhere only after plaintiff's inexcusable delay, had implied license

under copyright. Key Maps, Inc. v Pruitt (1978, SD Tex) 470 F Supp 33, 203 USPQ 282.

 

Knowledge of TV network that it lacked license to use scenes from movies of famous actor and that copyright proprietor was preparing biographical work using similar scenes are considered in finding that jury was

correct in rejecting common law fair use defense. Roy Export Co. Establishment etc. v Columbia Broadcasting System, Inc. (1980, SD NY) 503 F Supp 1137, 208 USPQ 580, affd (1982, CA2 NY) 672 F2d 1095, 8 Media L R

1637, 215 USPQ 289, cert den (1982) 459 US 826, 74 L Ed 2d 63, 103 S Ct 60.

 

Desire of plaintiff to prevent copying of interviews from women supportive of pro-choice position on abortion is irrelevant to fair use of defendant's quotations from plaintiff's book on pro-life position

on abortion. Maxtone-Graham v Burtchaell (1986, SD NY)631 F Supp 1432, 229 USPQ 538, affd (1986, CA2 NY) 803 F2d 1253, 13 Media L R 1513, 231 USPQ 534, 5 FR Serv 3d 849, cert den (1987) 481 US 1059, 95 L Ed 2d 856,107 S Ct 2201.

 

Companies' motion for judgment as matter of law on fair use defense to stock market analyst's copyright infringement claim was denied where there was evidence from which jury could have found that company employees continued to improperly use copies of analyst's reports despite requests to stop such use. Lowry's Reports, Inc. v Legg Mason, Inc. (2004, DC Md)

302 F Supp 2d 455, 69 USPQ2d 1837.

 

 

   8. --Intent of user

 

Copying of all, or substantially all, of copyrighted song cannot be held to be fair use merely because infringer had no intent to infringe. Wihtol v Crow (1962, CA8 Iowa) 309 F2d 777, 135 USPQ 385.

 

Failure of defendant, who was former student of plaintiff, to seek permission for copying pages from book on cake decorating is considered in finding that copying was not fair use. Marcus v Rowley (1983, CA9 Cal) 695 F2d 1171, 217 USPQ 691.

 

Commercial motives of user are strong factor in equitable rule of reason analysis applied to fair use questions. Financial Information, Inc. v Moody's Investors Service, Inc. (1984, CA2 NY) 751 F2d 501,224 USPQ 632.

 

Defendant's copying of interview portions of plaintiff's book after seeking permission, which was refused, and making errors in copying, tending to reinforce defendant's different point of view,considered inadequate to deprive defendant of fair use defense. Maxtone-Graham v Burtchaell (1986, CA2 NY)803 F2d 1253, 13 Media L R 1513, 231 USPQ 534, 5 FR Serv 3d 849, cert den (1987) 481 US 1059, 95 L Ed 2d 856, 107 S Ct 2201.

 

Knowing that motion picture about athlete was copyrighted and that payment was expected for its use defeats claim of fair use for televising several

minutes of film. Iowa State University Research Foundation, Inc. v American Broadcasting Cos. (1978,SD NY) 463 F Supp 902, 203 USPQ 484.

 

Fair use doctrine applied to city's use of photograph of murder victim taken from plaintiff's website; city's use for evidentiary and investigatory value did not violate plaintiff's copyright on works. Shell v City of Radford (2005, WD Va) 351 F Supp 2d 510.

 

 

   9. Findings of fair use under particular facts

 

Extracts of analytical conclusions of copyrighted financial reports are prima facie infringement and are not excused as fair use coverage of underlying "news" events. Wainwright Secur. v Wall Street Transcript

Corp. (1977, CA2 NY) 558 F2d 91, 2 Media L R 2153, 194 USPQ 401, cert den (1978) 434 US 1014, 54 L Ed 2d 759, 98 S Ct 730, 196 USPQ 864.

 

Reproduction by newspaper of independently newsworthy photographs without permission is fair use when those photographs were acquired and reproduced in good faith and work had already been distributed on limited basis. Nunez v Caribbean Int'l News Corp. (2000, CA1 Puerto Rico) 235 F3d 18, 29 Media L R 1108, 57 USPQ2d 1239.

 

In copyright infringement suit alleging that television network made unauthorized use of copyrighted news video footage, network's use of few

seconds of footage to promote its news coverage and as part of introduction of one of its programs constituted fair use where network made some transformative use of footage, copyrighted work was factual in nature, portion of footage used was small, and market-effect considerations weighed in favor of fair use. L.A. News Serv. v CBS Broad., Inc. (2002,CA9 Cal) 305 F3d 924, 2002 CDOS 9491, 2002 Daily Journal DAR 10661, 64 USPQ2d 1491, amd, reh den (2002,CA9) 2002 US App LEXIS 26210, reprinted as amd (2002,CA9 Cal) 313 F3d 1093, 30 Media L R 2473, 60 Fed Rules Evid Serv 306.

 

Willingness of copyright proprietor of medical journal articles to license government libraries copying articles does not alter conclusion that unlicensed copying is fair use, because Copyright Act does not provide for compulsory licensing and copyright proprietors would otherwise have full rights of injunction against libraries other than government

libraries. Williams & Wilkins Co. v United States (1973) 203 Ct Cl 74, 487 F2d 1345, 180 USPQ 49, 21 ALR Fed 151, affd (1975) 420 US 376, 43 L Ed 2d 264, 95 S Ct 1344, 184 USPQ 705.

 

Fair use does not apply to copying of manuals for computers and components to appropriate creative efforts for copier's own profit. Telex Corp. v

International Business Machines Corp. (1973, ND Okla)367 F Supp 258, 179 USPQ 777, 1973-2 CCH Trade Cases P 74774, affd in part and revd in part on other grounds (1975, CA10 Okla) 510 F2d 894, 184 USPQ 521, 1975-1

CCH Trade Cases P 60127, cert dismd (1975) 423 US 802, 46 L Ed 2d 244, 96 S Ct 8.

 

Fair use defense does not apply to copying of compilation of executive desk calendar by company active in desk calendar business for many years.

Baldwin Cooke Co. v Keith Clark, Inc. (1974, ND Ill) 383 F Supp 650, 183 USPQ 209, affd (1974, CA7 Ill) 505 F2d 1250, 183 USPQ 769.

 

Name index to multi-volume NEW YORK TIMES INDEX,although copying names from New York Times Index, and derived wholly from New York Times Index, is fair use. New York Times Co. v Roxbury Data Interface, Inc.(1977, DC NJ) 434 F Supp 217, 2 Media L R 2209, 194 USPQ 371.

 

Under judge-made doctrine of fair use defense, jury verdict of infringement is upheld on evidence that TV network used footage from copyrighted films without permission and in competition with derivative work prepared by copyright owner, and death of actor does not make past performances new events allowing such use. Roy Export Co. Establishment etc. v Columbia Broadcasting System, Inc. (1980, SD NY) 503 F Supp 1137, 208 USPQ 580, affd (1982, CA2 NY) 672 F2d 1095,8 Media L R 1637, 215 USPQ 289, cert den (1982) 459 US 826, 74 L Ed 2d 63, 103 S Ct 60.

 

Television networks were entitled to attorneys' fees and costs in copyright infringement action against them by copyright owner who claimed that networks' use of footage from movie in actor's obituaries violated

owner's copyright, as owner's claims that networks' use of footage was not fair use were objectively unreasonable; owner unreasonably argued that (1)

networks were required to show that their use of copyrighted material was essential or actual necessity and (2) networks' use of footage in obituaries was substantial and constituted "heart" of film.

Video-Cinema Films, Inc. v CNN, Inc. (2003, SD NY) 31 Media L R 1634, 66 USPQ2d 1473 (criticized in Penguin Books U.S.A., Inc. v New Christian Church of Full Endeavor, Ltd. (2004, SD NY) 32 Media L R 1673, 70 USPQ2d 1393).

 

Freelance photographer's copyright claim regarding use of his cover photographs on poster celebrating magazine's centennial was dismissed on basis of fair use; poster was transformative, cover photographs were

only small part of photographer's work, and use of cover photographs, along with scores of other cover photographs in celebratory poster that was never sold, did not have detrimental effect on market for those

photographs. Faulkner v Nat'l Geographic Soc'y (2003, SD NY) 294 F Supp 2d 523, 32 Media L R 1161, 69 USPQ2d 1370, affd in part and revd in part, remanded (2005,CA2 NY) 33 Media L R 1385, 73 USPQ2d 1980.

 

Where key, lyrics, instrumentation, and overall feel of second song were different from first and was intended to criticize cheerful perspective of first song, parody was fair use and did not infringe plaintiffs' copyright. Abilene Music, Inc. v Sony Music Entm't, Inc. (2003, SD NY) 320 F Supp 2d 84, 67 USPQ2d 1356.

 

Spider program that allowed potential yacht purchaser using website to access information about yachts for sale posted on similar website without knowing that program visited another website was fair use of copyrighted information on other website where information taken by spider program was factual and capable of only few expressions, thereby protected by

merger doctrine. Nautical Solutions Mktg. v Boats.com (2004, MD Fla) 17 FLW Fed D 635.

 

 

Software developer's copyright infringement claim was subject to summary judgment because use of source code to extract data fell well within fair use doctrine as previously articulated in other circuit courts and

modifications made fell within scope of software license. Evolution, Inc. v Suntrust Bank (2004, DC Kan) 342 F Supp 2d 943.

 

III. FAIR USE FOR PARTICULAR PURPOSES

   10. Criticism and comment

 

Making still photographs and sound recordings of motion pictures on behalf of City Council seeking to abate movies as obscene nuisance is not intrinsic use and does not detract from proprietor's exclusive

rights so that jury verdict determining fair use is affirmed as not clearly erroneous. Jartech, Inc. v Clancy (1982, CA9 Cal) 666 F2d 403, 8 Media L R 1404,213 USPQ 1057, cert den (1982) 459 US 826, 74 L Ed 2d

62, 103 S Ct 58, 103 S Ct 59, reh den (1982) 459 US 1058, 74 L Ed 2d 624, 103 S Ct 477 and reh den (1982) 459 US 1059, 74 L Ed 2d 624, 103 S Ct 477 and cert den (1982) 459 US 879, 74 L Ed 2d 143, 103 S Ct 175, reh

den (1982) 459 US 1059, 74 L Ed 2d 624, 103 S Ct 477, reh den (1983) 463 US 1237, 77 L Ed 2d 1453, 104 S Ct 33.

 

Plaintiff's pro-abortion book containing interviews of women with unwanted pregnancies is reportorial in nature so that copying of portions of interviews by defendant in anti-abortion book is criticism or comment that is protected by fair use. Maxtone-Graham v Burtchaell (1986, CA2 NY) 803 F2d 1253, 13 Media L R 1513, 231 USPQ 534, 5 FR Serv 3d 849, cert den (1987)481 US 1059, 95 L Ed 2d 856, 107 S Ct 2201.

 

Preparing and using one copy of unpublished manuscript analyzed in unpublished comment on famous author's work qualifies as fair use, so that judgment to this effect is affirmed. Sundeman v Seajay Soc'y (1998, CA4

SC) 142 F3d 194, 46 USPQ2d 1521.

 

Fair use copier must copy no more than is reasonably necessary to enable him to pursue aim of criticizing copyrighted work effectively; room must be allowed for judgment as to what is reasonably necessary, and judges must not police criticism with heavy hand. Chicago Bd. of Educ. v Substance, Inc. (2003, CA7 Ill)354 F3d 624, 69 USPQ2d 1447, cert den (2004, US) 160 L Ed 2d 23, 125 S Ct 54.

 

While critics may quote extensively from copyrighted works in order to comment effectively, almost total copying of copyrighted work cannot be considered "fair use" where use far exceeds any reasonable reproduction

for purposes of criticism, comment, or review. Robert Stigwood Group, Ltd. v O'Reilly (1972, DC Conn) 346 F Supp 376, 175 USPQ 403, 23 ALR Fed 961, affd without op (1973, CA2) 179 USPQ 712 and revd on other grounds

(1976, CA2 Conn) 530 F2d 1096, 189 USPQ 453, cert den (1976) 429 US 848, 50 L Ed 2d 121, 97 S Ct 135 and (superseded by statute as stated in Walt Disney Co. v Powell (1990, App DC) 283 US App DC 111, 897 F2d 565,

14 USPQ2d 1160) and (superseded by statute as stated in Stokes Seeds v Geo. W. Park Seed Co. (1991, WD NY) 783 F Supp 104, 21 USPQ2d 1934) and (superseded by statute as stated in Gamma Audio & Video v Ean-Chea

(1993, CA1 Mass) 11 F3d 1106, 29 USPQ2d 1257).

 

Quoting portion of article in "Consumer Reports" is not excusable as criticism or comment when used to promote sales of products. Amana Refrigeration, Inc. v Consumers Union of United States, Inc. (1977, ND Iowa) 431 F Supp 324, 195 USPQ 56.

 

Display of "TV Guide" magazine in televised comparative advertisement for competing TV magazine does not qualify as fair use on grounds of criticism, purpose of use, or effect on sales, but such use is

commercial free speech protected under First Amendment. Triangle Publications, Inc. v Knight-Ridder Newspapers, Inc. (1978, SD Fla) 445 F Supp 875, 3 Media L R 2086, 198 USPQ 28, affd (1980, CA5 Fla) 626

F2d 1171, 6 Media L R 1734, 207 USPQ 977.

 

Political comment or criticism is especially favored freedom of speech right so that political advertisement using 15 seconds of opponent's

copyrighted song is excused as fair use, especially considering that use of song is part of political message of advertisement. Keep Thomson Governor Committee v Citizens for Gallen Committee (1978, DC NH) 457 F Supp 957, 199 USPQ 788.

 

Mailing of brochure showing photographs of extracted portions of plaintiff's artworks to protest federal funding of such art is fair use, rather than copyright

infringement. Wojnarowicz v American Family Ass'n

(1990, SD NY) 745 F Supp 130, 17 USPQ2d 1337.

 

Publication in newsletter of critical comments on

selected portions of plaintiff's unpublished lecture

on public relations topics is fair use even though

transcript of tape recording of lecture was made

available to newsletter readers who inquired. Rotbart

v J.R. O'Dwyer Co. (1995, SD NY) 23 Media L R 1429, 34

USPQ2d 1085.

 

Fair use defense fails for unauthorized publication of

secret church documents on internet to expose workings

of church, and minimum statutory damages of $ 500 for

infringement of each of 5 compilations registered is

awarded. Religious Tech. Ctr. v Lerma (1996, ED Va) 24

Media L R 2473, 40 USPQ2d 1569.

 

 

   11. News reporting

 

Unauthorized use of helicopter videotape of beating

during riot after license request was refused raises

unresolved questions of whether use affected market

for tape, so that judgment is reversed and remanded.

Los Angeles News Serv. v KCAL-TV Channel 9 (1997, CA9

Cal) 108 F3d 1119, 97 CDOS 1797, 97 Daily Journal DAR

3379, 25 Media L R 1506, 42 USPQ2d 1080, cert den

(1997) 522 US 823, 139 L Ed 2d 39, 118 S Ct 81.

 

Reproduction by newspaper of independently newsworthy

photographs without permission is fair use when those

photographs were acquired and reproduced in good faith

and work had already been distributed on limited

basis. Nunez v Caribbean Int'l News Corp. (2000, CA1

Puerto Rico) 235 F3d 18, 29 Media L R 1108, 57 USPQ2d

1239.

 

In copyright infringement suit involving videotape of

riots, fair use defense shielded television network's

rebroadcast of portions of footage. L.A. News Serv. v

CBS Broad. (2002, CA9 Cal) 313 F3d 1093, 30 Media L R

2473, 60 Fed Rules Evid Serv 306.

 

While police were searching premises of bookbinder for

evidence of alleged crime, plaintiff's copyrighted

book of poems, which bookbinder had bound, was found;

editor accompanying police copied one poem and

published it in full in newspaper as part of article

describing search and alleged crime; publication of

entire poem was neither reasonable quotation or

extract from book nor in nature of article by reviewer

or commentator. Phillips v Constitution Publishing Co.

(1947, ND Ga) 72 USPQ 69.

 

Although facts about famous actor can be used freely,

excerpts from best of previous performances are not

merely news events upon death of actor and cannot be

used by TV network without permission. Roy Export Co.

Establishment etc. v Columbia Broadcasting System,

Inc. (1980, SD NY) 503 F Supp 1137, 208 USPQ 580, affd

(1982, CA2 NY) 672 F2d 1095, 8 Media L R 1637, 215

USPQ 289, cert den (1982) 459 US 826, 74 L Ed 2d 63,

103 S Ct 60.

 

News dissemination purposes of defendant's use of

plaintiff's photo of Oliver North-endorsed bulletproof

vest predominates in qualifying defendant for fair use

exemption, especially considering that no market has

appeared for plaintiff's photograph. Mathieson v

Associated Press (1992, SD NY) 23 USPQ2d 1685.

 

Brief quotations from church documents available from

court and from internet in news article reporting on

church actions against critics is fair use, so that

summary judgment is granted to defendant newspaper and

reporters. Religious Tech. Ctr. v Lerma (1995, ED Va)

908 F Supp 1362, 24 Media L R 1115, 37 USPQ2d 1258,

injunction den, motions ruled upon (1995, ED Va) 1995

US Dist LEXIS 17831, reconsideration den, injunction

den, motions ruled upon (1995, ED Va) 1995 US Dist

LEXIS 17868 and ops combined at (1995, ED Va) 908 F

Supp 1353.

 

Because factors favor a finding that defendant's use

of excerpts of tape depicting plaintiffs having sex

constitutes fair use, defendant is entitled to

judgment as a matter of law on cause of action for

copyright infringement. Michaels v Internet

Entertainment Group (1998, CD Cal) 27 Media L R 1097,

48 USPQ2d 1891.

 

 

   12. Teaching, scholarship and research

 

Critical biography of L. Ron Hubbard quoting brief

passages from subject's published works, without

affecting market for subject's published works, is

fair use, and district court decision to contrary is

reversed. New Era Publications Int'l ApS v Carol Pub.

Group (1990, CA2 NY) 904 F2d 152, 17 Media L R 1913,

14 USPQ2d 2030, cert den (1990) 498 US 921, 112 L Ed

2d 251, 111 S Ct 297 and (criticized in Religious

Tech. Ctr. v Lerma (1995, ED Va) 897 F Supp 260, 36

USPQ2d 1649).

 

Systematic copying of scientific articles by corporate

researchers for office archive purposes is not fair

use, principally because archival purpose is not

transformative use and copying deprives publisher of

revenue, so that judgment of infringement is affirmed.

American Geophysical Union v Texaco Inc. (1994, CA2

NY) 60 F3d 913, 35 USPQ2d 1513, 144 ALR Fed 745.

 

Professor-selected excerpts from scholarly texts

copied into coursepacks sold to students on per page

basis for use in courses taught by professors making

selections does not constitute fair use, so that

summary judgment for publishers of copied works is

affirmed. Princeton Univ. Press v Michigan Document

Servs. (1996, CA6 Mich) 99 F3d 1381, 40 USPQ2d 1641,

1996 FED App 357P, cert den (1997) 520 US 1156, 137 L

Ed 2d 495, 117 S Ct 1336.

 

In case involving conspiracy to commit copyright

infringement by members of Internet piracy group,

district court properly denied defendant jury

instruction on fair use; group's site did not have

educational purpose--professor who operated it did so

without knowledge or authorization of university, and

he kept computer hidden in closet. United States v

Slater (2003, CA7 Ill) 348 F3d 666, 69 USPQ2d 1081.

 

Preliminary injunction, sought by author of business

training seminars, was properly denied where alleged

infringing materials were fair use of seminars and

where success on merits was unlikely, even if alleged

infringer was presumed to have acted in bad faith.

NXIVM Corp. v Ross Inst. (2004, CA2 NY) 364 F3d 471,

70 USPQ2d 1538, cert den (2004, US) 160 L Ed 2d 458,

125 S Ct 607.

 

Audio visual works copied off air from educational TV

broadcasts and disseminated by defendant in school

system are not sufficiently factual or necessary to

free flow of information within schools so that such

copying is fair use when suitable copies can be

purchased or licensed from plaintiffs. Encyclopaedia

Britannica Educational Corp. v Crooks (1982, WD NY)

542 F Supp 1156, 214 USPQ 697.

 

Defendant's extensive use of Stravinsky quotations

inherited by plaintiff goes beyond what is necessary

to show Stravinsky style and takes too much of

Stravinsky's lively prose to be justified as fair use,

so that preliminary injunction against defendant's

book, in its present form, is granted. Craft v Kobler

(1987, SD NY) 667 F Supp 120, 14 Media L R 1617, 4

USPQ2d 1064.

 

Use in symposium of medical technical paper coauthored

for previous symposium is fair use that does not

infringe copyright. Weissmann v Freeman (1988, SD NY)

684 F Supp 1248, 7 USPQ2d 1337, affd in part and revd

in part on other grounds (1989, CA2 NY) 868 F2d 1313,

10 USPQ2d 1014, 101 ALR Fed 91, reh den (Apr 14, 1989)

and cert den (1989) 493 US 883, 107 L Ed 2d 172, 110 S

Ct 219.

 

Critical biography of L. Ron Hubbard is strongly

entitled to fair use in copying from Hubbard's words

and unpublished letters (available from court records

of other litigation) to show boastfulness,

deceitfulness, and other undesirable characteristics

of Hubbard. New Era Publications International, ApS v

Henry Holt & Co. (1988, SD NY) 695 F Supp 1493, 15

Media L R 2161, 8 USPQ2d 1713, affd (1989, CA2 NY) 873

F2d 576, 16 Media L R 1559, 10 USPQ2d 1561, reh den,

en banc (1989, CA2 NY) 884 F2d 659, 16 Media L R 2224,

12 USPQ2d 1121 and cert den (1990) 493 US 1094, 107 L

Ed 2d 1071, 110 S Ct 1168.

 

Downloading software from microprocessor for telephone

signals for purpose of reverse engineering competing

device is fair use, so that judgment is granted to

defendant. DSC Communs. Corp. v Pulse Communs. (1997,

ED Va) 976 F Supp 359, 43 USPQ2d 1589, CCH Prod Liab

Rep P 27700, motion den, injunction den (1997, ED Va)

1997 US Dist LEXIS 10093 and affd in part and revd in

part on other grounds, vacated, in part on other

grounds, remanded (1999, CA FC) 170 F3d 1354, 50

USPQ2d 1001, cert den, motion gr (1999) 528 US 923,

145 L Ed 2d 240, 120 S Ct 286.

 

Educational purpose of TV program to discourage

violence by youth results in fair use of short

excerpts of plaintiff's music not affecting

plaintiff's market. Higgins v Detroit Educ. TV Found.

(1998, ED Mich) 4 F Supp 2d 701, 47 USPQ2d 1178.

 

Where parent of special education student sought

copies of son's test protocols under Cal. Educ. Code §

56504, parent and California Department of Education

were entitled to summary judgment as to school

district's declaratory relief suit because giving copy

of test protocols to parent fell within fair use

doctrine of 17 USCS § 107 where purpose of copies was

for nonprofit educational use and not for commercial

gain, amount copied was reasonable in relation to

purpose of copying, and there was showing of no

"meaningful likelihood" of adverse market effect.

Newport-Mesa Unified Sch. Dist. v Cal. Dep't of Educ.

(2005, CD Cal) 371 F Supp 2d 1170.

 

State statute requiring copies of test protocols to be

provided to parents of special education students

falls within acceptable "fair use" under federal

copyright law, and federal copyright law does not

preempt state statute; school giving parents of

special education students copies of their children's

test protocols when requested under Cal. Educ. Code §

56504 is fair use under 17 USCS § 107. Newport-Mesa

Unified Sch. Dist. v Cal. Dep't of Educ. (2005, CD

Cal) 371 F Supp 2d 1170.

 

 

   13. Parody, satire and burlesque

 

Under provision of 17 USCS § 107 that fair use of

copyrighted work does not constitute infringement,

parody needs to mimic original to make its point, and

so has some claim to use creation of its victim's, or

collective victims', imagination, whereas satire can

stand on its own two feet and so requires

justification for very act of borrowing. Campbell v

Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500,

114 S Ct 1164, 94 CDOS 1662, 94 Daily Journal DAR

2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S

800.

 

Threshold question when fair use is raised in defense

of parody is whether parodic character may reasonably

be perceived; only further judgment that court may

pass on work goes to assessment whether parodic

element is slight or great and copying small or

extensive in relation to parodic element, for work

with slight parodic element and extensive copying will

be more likely to merely supersede objects of original

than to constitute fair use; for purposes of 17 USCS §

107(1), song that copies original song's first line of

lyrics and copies and repeats original's opening bass

riff but then departs markedly from original lyrics

and involves distinctive sounds reasonably can be

perceived as commenting on original or criticizing

original, to some degree, so as to constitute parody,

which purpose and character might be determined to be

fair use. Campbell v Acuff-Rose Music (1994) 510 US

569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94

Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d

1961, 7 FLW Fed S 800.

 

Music group that includes on record album parody of

copyrighted song need not label whole album, or even

particular song, parody in order to claim protection

under provision of 17 USCS § 107 that fair use of

copyrighted work does not constitute infringement, nor

should group be penalized for song being group's first

parodic essay, because (1) parody serves its goals

whether labeled or not, and (2) there is no reason to

require parody to state the obvious or even the

reasonably perceived. Campbell v Acuff-Rose Music

(1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94

CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R

1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

For purposes of preliminary injunction and partially

developed record, poster posed by former Dallas Cowboy

cheerleaders imitating authentic poster but posing

women barebreasted is not parody that qualifies for

fair use defense. Dallas Cowboys Cheerleaders, Inc. v

Scoreboard Posters, Inc. (1979, CA5 Tex) 600 F2d 1184,

5 Media L R 1904, 203 USPQ 321 (criticized in

Westchester Media v PRL USA Holdings, Inc. (2000, CA5

Tex) 214 F3d 658, 55 USPQ2d 1225).

 

Defendants' use of similar looks, character, and style

of plaintiff's CAT IN THE HAT for book giving rhyming

and illustrated account of Simpson trial under title

THE CAT NOT IN THE HAT A PARODY BY DR JUICE is likely

to infringe, so that preliminary injunction is

affirmed. Dr. Seuss Enters., L.P. v Penguin Books USA,

Inc. (1997, CA9 Cal) 109 F3d 1394, 97 CDOS 2215, 97

Daily Journal DAR 4075, 25 Media L R 1641, 42 USPQ2d

1184, cert dismd (1997) 521 US 1146, 138 L Ed 2d 1057,

118 S Ct 27.

 

Defendant's photo of pregnant, nude, woman

painstakingly similar to plaintiff's photo except for

substitution of male head to advertise comic movie

qualifies as parody and fair use, so that summary

judgment for defendant is affirmed. Leibovitz v

Paramount Pictures Corp. (1998, CA2 NY) 137 F3d 109,

45 USPQ2d 1834.

 

Fact that parody, by definition, must borrow elements

from existing work does not mean that every parody is

shielded from claim of copyright infringement as fair

use. SunTrust Bank v Houghton Mifflin Co. (2001, CA11

Ga) 268 F3d 1257, 60 USPQ2d 1225, 14 FLW Fed C 1391,

reh, en banc, den (2001, CA11 Ga) 275 F3d 58.

 

For purposes of fair use analysis, court will treat

work as parody if its aim is to comment upon or

criticize prior work by appropriating elements of

original in creating new artistic, as opposed to

scholarly or journalistic, work. SunTrust Bank v

Houghton Mifflin Co. (2001, CA11 Ga) 268 F3d 1257, 60

USPQ2d 1225, 14 FLW Fed C 1391, reh, en banc, den

(2001, CA11 Ga) 275 F3d 58.

 

In historical burlesque, part of content is used to

conjure up general image of original; such limited

taking is permitted under doctrine of fair use;

doctrine permits burlesque to go somewhat farther so

long as taking is not substantial; burlesque is not

per se defense. Columbia Pictures Corp. v National

Broadcasting Co. (1955, DC Cal) 137 F Supp 348, 107

USPQ 344.

 

Sambo's Restaurant TV commercial imitating Dr. Pepper

commercials appropriates form, style, and content and

is not excused as fair use parody so that imitative

commercial is permanently enjoined. Dr. Pepper Co. v

Sambo's Restaurants, Inc. (1981, ND Tex) 517 F Supp

1202, 214 USPQ 947, 75 ALR Fed 811.

 

Copying and widespread dissemination by defendant of

parody of defendant appearing in plaintiff's magazine

is fair use, even though defendant used copies to

raise money from contributors. Hustler Magazine, Inc.

v Moral Majority, Inc. (1985, CD Cal) 606 F Supp 1526,

226 USPQ 721, affd (1986, CA9 Cal) 796 F2d 1148, 13

Media L R 1151, 230 USPQ 646.

 

Parody purpose behind GARBAGE PAIL KIDS stickers is

not to make social comment but to make money from

imitating plaintiff's dolls so that defendant's use is

not fair and is enjoined. Original Appalachian

Artworks, Inc. v Topps Chewing Gum, Inc. (1986, ND Ga)

642 F Supp 1031, 231 USPQ 850.

 

Defendant's poster advertising MOSCOW movie, is not

parody of plaintiff's poster, based on NEW YORKER

magazine cover, showing detailed New York City

environment in foreground receding to sparse detail on

rest of world, and defendant's poster, by copying

similar detail of New York City environment,

infringes. Steinberg v Columbia Pictures Industries,

Inc. (1987, SD NY) 663 F Supp 706, 3 USPQ2d 1593.

 

Parody defense for defendant's beer commercial

imitating plaintiffs' appearance and singing style as

rap group is rejected, resulting in complaint's

survival of motion to dismiss. Tin Pan Apple, Inc. v

Miller Brewing Co. (1990, SD NY) 737 F Supp 826, 17

Media L R 2273, 15 USPQ2d 1412 (criticized in

Leibovitz v Paramount Pictures Corp. (2000, SD NY) 55

USPQ2d 1598).

 

Movie advertisement mimicking famous photo of pregnant

and nude actress by showing apparently pregnant and

nude actor starring in movie qualifies as fair use

parody, so that judgment for defendant is granted.

Leibovitz v Paramount Pictures Corp. (1996, SD NY) 948

F Supp 1214, 41 USPQ2d 1598, affd (1998, CA2 NY) 137

F3d 109, 45 USPQ2d 1834.

 

In copyright infringement suit by manufacturer of

"SuperStar Barbie" doll, court found that patently

transformative character of accused works and

defendant's representations concerning their purpose

supported fair use defense; defendant asserted that

she was attempting to comment on what she perceived as

sexual nature of Barbie through her use of customized

Barbie figurines in sadomasochistic costume and/or

storylines. Mattel, Inc. v Pitt (2002, SD NY) 229 F

Supp 2d 315, 64 USPQ2d 1950.

 

Plaintiff wrestling-related entertainment company was

not entitled to licensing fee for work that otherwise

qualified under fair use defense as parody. World

Wrestling Fedn. Entm't, Inc. v Big Dog Holdings, Inc.

(2003, WD Pa) 280 F Supp 2d 413.

 

 

   14. --Character likeness

 

Fair use for parody purposes limits copying to minimum

necessary to bring up subject being parodied, and

copying likenesses of Walt Disney cartoon characters

in bawdy comic book where characters are involved in

"free thinking, promiscuous, drug ingesting

counterculture" exceeds limit and infringes. Walt

Disney Prods. v Air Pirates (1978, CA9 Cal) 581 F2d

751, 199 USPQ 769, cert den (1979) 439 US 1132, 59 L

Ed 2d 94, 99 S Ct 1054 and (criticized in Leibovitz v

Paramount Pictures Corp. (1998, CA2 NY) 137 F3d 109,

45 USPQ2d 1834).

 

Satirical purposes involved in lewd portrayal of dough

characters in pornographic magazine are considered in

finding that such portrayal comes within fair use

doctrine. Pillsbury Co. v Milky Way Productions, Inc.

(1981, ND Ga) 8 Media L R 1016, 215 USPQ 124.

 

Copyright on Superman character and works is not

likely to be infringed by parody version prepared for

TV "The Greatest American Hero" of bungling person

acquiring extraordinary powers and occasionally using

a Superman-type line in incongruous manner, so that

preliminary injunction is denied. Warner Bros., Inc. v

American Broadcasting Cos. (1981, SD NY) 523 F Supp

611, 7 Media L R 1595, 211 USPQ 51, affd, remanded

(1981, CA2 NY) 654 F2d 204, 7 Media L R 1973, 211 USPQ

97.

 

 

   15. --Skits and plays

 

Skit poking fun of New York City public relations

campaign and theme song "I Love New York" involving

converting song to "I Love Sodom" qualifies as parody

and is noninfringing fair use. Elsmere Music, Inc. v

National Broadcasting Co. (1980, CA2 NY) 623 F2d 252,

6 Media L R 1457, 207 USPQ 277.

 

Comic version of "Gone With The Wind" imitates and

follows plot and characterization of original and is

not predominantly satire or parody so that fair use

defense fails and stage presentation is preliminarily

enjoined. Metro-Goldwyn-Mayer, Inc. v Showcase Atlanta

Cooperative Productions, Inc. (1979, ND Ga) 479 F Supp

351, 5 Media L R 2092, 203 USPQ 822.

 

Stage play SCARLETT FEVER does not qualify as fair use

parody of GONE WITH THE WIND because of previous

conclusions by court unchallenged by disputed issues

of fact so that summary judgment that play does not

qualify as fair use is appropriate, even though

questions of fact remain as to damages.

Metro-Goldwyn-Mayer, Inc. v Showcase Atlanta

Cooperative Productions, Inc. (1981, ND Ga) 7 Media L

R 2190, 216 USPQ 685.

 

Skits franchised for delivery of telegrams with

simulated SUPERMAN and WONDER WOMAN characters renamed

SUPERSTUD and WONDER WENCH, with bawdy connotations,

trades upon originality of copyrighted works,

diminishes their value, and is not protected as fair

use. DC Comics, Inc. v Unlimited Monkey Business, Inc.

(1984, ND Ga) 598 F Supp 110, 224 USPQ 437.

 

 

   16. --Songs

 

Threshold question when fair use is raised in defense

of parody is whether parodic character may reasonably

be perceived; only further judgment that court may

pass on work goes to assessment whether parodic

element is slight or great and copying small or

extensive in relation to parodic element, for work

with slight parodic element and extensive copying will

be more likely to merely supersede objects of original

than to constitute fair use; for purposes of 17 USCS §

107(1), song that copies original song's first line of

lyrics and copies and repeats original's opening bass

riff but then departs markedly from original lyrics

and involves distinctive sounds reasonably can be

perceived as commenting on original or criticizing

original, to some degree, so as to constitute parody,

which purpose and character might be determined to be

fair use. Campbell v Acuff-Rose Music (1994) 510 US

569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94

Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d

1961, 7 FLW Fed S 800.

 

Under provision of 17 USCS § 107 that fair use of

copyrighted work does not constitute copyright

infringement, mere fact that use is educational and

not for profit does not insulate use from finding of

infringement, any more than commercial character of

use bars finding of fairness. Campbell v Acuff-Rose

Music (1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct

1164, 94 CDOS 1662, 94 Daily Journal DAR 2958, 22

Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

Parody of plaintiff's song "When Sunny Gets Blue" by

defendant's song, "When Sonny Sniffs Glue" is properly

held fair use on summary judgment, and issue does not

involve facts that should have been submitted to jury.

Fisher v Dees (1986, CA9 Cal) 794 F2d 432, 13 Media L

R 1167, 230 USPQ 421.

 

Using entire "Mickey Mouse March" in sound track of

movie during sex scene is not fair use or excusable as

parody where entire work is used, and use is

preliminarily enjoined. Walt Disney Productions v

Mature Pictures Corp. (1975, SD NY) 389 F Supp 1397,

186 USPQ 48.

 

It is neither parody nor burlesque to substantially

copy music of copyrighted song, substitute dirty

lyrics, perform it for commercial gain, sell

recordings of it, and escape liability by calling end

result a parody or satire. MCA, Inc. v Wilson (1976,

SD NY) 425 F Supp 443, 199 USPQ 166, 2 Fed Rules Evid

Serv 612, affd in part and mod in part on other

grounds (1981, CA2 NY) 677 F2d 180, 211 USPQ 577.

 

Musical song entitled "Cunnilingus Champion of Company

C" similar in many ways to song "Boogie Woogie Bugle

Boy" is not burlesque or parody of ludicrous aspects

of original song, and is more burlesque or parody of

1940's sexual mores using Bugle Boy song as vehicle

and thus infringes and is not excusable as fair use.

MCA, Inc. v Wilson (1976, SD NY) 425 F Supp 443, 199

USPQ 166, 2 Fed Rules Evid Serv 612, affd in part and

mod in part on other grounds (1981, CA2 NY) 677 F2d

180, 211 USPQ 577.

 

IV. FACTORS CONSIDERED IN MAKING DETERMINATION AS TO

FAIR USE

 

A. In General

   17. Generally

 

Under provision of Copyright Act of 1976 that fair use

of copyrighted work does not constitute infringement,

parody, like other comment or criticism, may claim

fair use, because parody has claim to transformative

value that is looked for with respect to 17 USCS §

107(1) concerning purpose and character of use of

copyrighted work; for purposes of copyright law, nub

of definitions of parody is use of some elements of

prior author's composition to create new composition

that, at least in part, comments on that author's

works; if, on contrary, commentary has no critical

bearing on substance or style of original composition,

then claim to fairness in borrowing from another's

work diminishes accordingly, if claim does not vanish,

and other factors, like extent of commentary's

commerciality, loom larger; if parody whose wide

dissemination in market runs risk of serving as

substitute for original or licensed derivatives, then

it is more incumbent on one claiming fair use to

establish extent of transformation and parody's

critical relationship to original; by contrast, when

there is little or no risk of market substitution,

taking parodic aim at original is less critical factor

in analysis and looser forms of parody may be found to

be fair use, as may satire with lesser justification

for borrowing than would otherwise be required.

Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L

Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily

Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7

FLW Fed S 800.

 

Under provision of 17 USCS § 107 that fair use of

copyrighted work does not constitute infringement,

parody needs to mimic original to make its point, and

so has some claim to use creation of its victim's, or

collective victims', imagination, whereas satire can

stand on its own two feet and so requires

justification for very act of borrowing. Campbell v

Acuff-Rose Music (1994) 510 US 569, 127 L Ed 2d 500,

114 S Ct 1164, 94 CDOS 1662, 94 Daily Journal DAR

2958, 22 Media L R 1353, 29 USPQ2d 1961, 7 FLW Fed S

800.

 

Threshold question when fair use is raised in defense

of parody is whether parodic character may reasonably

be perceived; only further judgment that court may

pass on work goes to assessment whether parodic

element is slight or great and copying small or

extensive in relation to parodic element, for work

with slight parodic element and extensive copying will

be more likely to merely supersede objects of original

than to constitute fair use; for purposes of 17 USCS §

107(1), song that copies original song's first line of

lyrics and copies and repeats original's opening bass

riff but then departs markedly from original lyrics

and involves distinctive sounds reasonably can be

perceived as commenting on original or criticizing

original, to some degree, so as to constitute parody,

which purpose and character might be determined to be

fair use. Campbell v Acuff-Rose Music (1994) 510 US

569, 127 L Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94

Daily Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d

1961, 7 FLW Fed S 800.

 

Under 17 USCS § 107(3), extent of permissible copying

varies with purpose and character of use; this factor

calls for thought not only about quantity of materials

used, but also about their quality and importance;

whether substantial portion of allegedly infringing

work was copied verbatim from copyrighted work is

relevant question, for question may reveal dearth of

transformative character or purpose under 17 USCS §

107(1), or greater likelihood of market harm under 17

USCS § 107(4); work composed primarily of an original,

particularly heart of original, with little added or

changed, is more likely to be merely superseding use,

fulfilling demand for original, rather than fair use.

Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L

Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily

Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7

FLW Fed S 800.

 

Overall factors to be considered in applying "fair

use" doctrine are: (a) purpose and character of use,

(b) nature of copyrighted work, (c) amount and

substantiality of material used in relation to

copyrighted work as whole, and (d) effect of use on

copyright owner's potential market for and value of

work. Williams & Wilkins Co. v United States (1973)

203 Ct Cl 74, 487 F2d 1345, 180 USPQ 49, 21 ALR Fed

151, affd (1975) 420 US 376, 43 L Ed 2d 264, 95 S Ct

1344, 184 USPQ 705.

 

Some tests to be applied on question of fair use are:

(1) extent and relative value of extracts, (2) purpose

and whether quoted portions might be used as

substitute for original work, (3) effect on

distribution and objects of original work. Broadway

Music Corp. v F-R Pub. Corp. (1940, DC NY) 31 F Supp

817.

 

Copying is not excused under fair use doctrine because

of amount copied, extensive paraphrasing, and

commercial effect of plagiarization. Meredith Corp. v

Harper & Row, Publishers, Inc. (1974, SD NY) 378 F

Supp 686, 182 USPQ 609, affd (1974, CA2 NY) 500 F2d

1221, 182 USPQ 577.

 

Defendants conceded that copies of publisher's

newsletter distributed to research department

reproduced newsletters in their entirety, moreover,

employees of research department used copies to

advance business of defendants without due payment to

publisher, and copies made and used by members of

research department were perfect clones of single

subscription copy which substituted for additional

subscription copies, whose cost defendants avoided;

therefore, copying inside research department did not

constitute fair use. Lowry's Reports, Inc. v Legg

Mason, Inc. (2003, DC Md) 271 F Supp 2d 737, 69 USPQ2d

1754, motion for new trial denied, motion den,

costs/fees proceeding, injunction gr (2004, DC Md) 302

F Supp 2d 455, 69 USPQ2d 1837.

 

Defendant media conglomerate was entitled to summary

judgment on its unfair competition and false

designation of origin claims under Lanham Act and its

unfair competition under state law, where, under fair

use analysis, parties marketed their products in same

channels of trade where targeted goal was identical

and relationship of goods was so connected that

consumers would assume that products emanated from

same company; thus, there was no genuine issue of

material fact that there was likelihood of confusion

arising from consumers viewing of marks in site

owner's clip previews, which created assumption that

product marks represented was associated with

conglomerate, and fact that there was no actual

consumer confusion about origin of plaintiff's

trailers reported to defendant conglomerate was not

dispositive where every other indicia of likelihood of

consumer confusion was present to compelling degree.

Video Pipeline, Inc. v Buena Vista Home Entm't, Inc.

(2003, DC NJ) 275 F Supp 2d 543, 32 Media L R 1001, 67

USPQ2d 1887.

 

Summary judgment was granted to holder on issue of

copyright infringement liability, as defendants

conceded that elements were met and did not deny that

copyright holder established prima facie copyright

infringement claim and each of fair use factors

commended extension of copyright protection to

copyright holder's stickers and derivative products,

that is, defendants' books were derivative of holder's

copyrighted stickers and not transformative;

functionality of stickers did not overshadow but

complemented their creativity which counseled narrower

scope of fair use, quantity and quality of material

appropriated defendants was sufficient to allow

defendants' books to serve as market substitutes for

holder's derivative books; and there was substantial

likelihood that defendants' use would serve as market

replacement for original and that harm to that market

would occur. Antioch Co. v Scrapbook Borders, Inc.

(2003, DC Minn) 291 F Supp 2d 980, 2004-1 CCH Trade

Cases P 74307.

 

 

   18. Nonexclusivity of enumerated factors

 

Factors enumerated in 17 USCS § 107 as especially

relevant in determining whether use of copyrighted

material is fair are not meant to be exclusive;

however, there is no warrant for expanding doctrine of

fair use to create what amounts to public figure

exception to copyright; whether verbatim copying from

a public figure's manuscript in a given case is or is

not fair must be judged according to traditional

equities of fair use. Harper & Row, Publishers, Inc. v

Nation Enterprises (1985) 471 US 539, 85 L Ed 2d 588,

105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

List of examples stated in 17 USCS § 107 to give idea

of sort of activities courts might regard as fair use

under circumstances is not intended to be exhaustive

or to single out any particular use as presumptively

fair use. Harper & Row, Publishers, Inc. v Nation

Enterprises (1985) 471 US 539, 85 L Ed 2d 588, 105 S

Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

List of examples stated in 17 USCS § 107 to give some

idea of activities courts might regard as fair use

under circumstances is not intended to be exhaustive

or to single out any particular use as presumptively

fair use; fact that article arguably is "news" and

therefore productive use of copyrighted material is

simply one factor in fair use analysis. Harper & Row,

Publishers, Inc. v Nation Enterprises (1985) 471 US

539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969,

225 USPQ 1073.

 

Factors enumerated in 17 USCS § 107 as especially

relevant in determining whether use of copyrighted

material was fair are not meant to be exclusive.

Harper & Row, Publishers, Inc. v Nation Enterprises

(1985) 471 US 539, 85 L Ed 2d 588, 105 S Ct 2218, 11

Media L R 1969, 225 USPQ 1073.

 

 

   19. Miscellaneous

 

Under provision of 17 USCS § 107 that fair use of

copyrighted work does not constitute copyright

infringement, being denied permission to use work does

not weigh against finding of fair use, and thus music

group's request for permission to use copyrighted

song, which group used despite refusal of permission,

should not be weighed against finding of fair use.

Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L

Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily

Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7

FLW Fed S 800.

 

Trial court erred in failing to consider 4 factors

involved in fair use and merely concluding that

recording and selling portions of televised news clips

was not "inherently productive or creative" and thus

did not qualify as fair use. Pacific & Southern Co. v

Duncan (1984, CA11 Ga) 744 F2d 1490, 11 Media L R

1135, 224 USPQ 131, reh den, en banc (1984, CA11 Ga)

749 F2d 733 and cert den (1985) 471 US 1004, 85 L Ed

2d 161, 105 S Ct 1867.

 

In case involving conspiracy to commit copyright

infringement by members of Internet piracy group,

district court properly denied defendant jury

instruction on fair use because group's site was not

noncommercial, and site did not have educational

purpose; however, even if defendant could have shown

some noncommercial educational purpose, consideration

of other factors weighed against application of fair

use doctrine to Internet piracy in that group allowed

members to obtain unlawful, digital duplicates of

thousands of commercially available software programs,

which contributed to obvious harmful effect of

Internet piracy on potential market for copyrighted

work. United States v Slater (2003, CA7 Ill) 348 F3d

666, 69 USPQ2d 1081.

 

District court did not abuse its discretion in holding

that defendant film biographer likely did not use

copyrighted materials fairly and enjoining film

biographer from further distribution of its Elvis

Presley film biography because court weighed four

statutory fair use factors under 17 USCS § 107. Elvis

Presley Enters. v Passport Video (2003, CA9 Cal) 349

F3d 622, 2003 CDOS 9627, 32 Media L R 1129, 68 USPQ2d

1924, amd (2004, CA9 Cal) 2004 US App LEXIS 1850 and

reprinted as amd (2004, CA9 Cal) 357 F3d 896, cert den

(2004, US) 159 L Ed 2d 779, 124 S Ct 2886.

 

Defendant's copying and distribution of shareware

version of plaintiff's copyrighted computer games is

not fair use; court awards $ 20,000 in statutory

damages for copyright infringement. Storm Impact, Inc.

v Software of the Month Club (1998, ND Ill) 13 F Supp

2d 782, 48 USPQ2d 1266, judgment entered (1998, ND

Ill) 1998 US Dist LEXIS 12060.

 

Three of four factors weighed against allowing fair

use defense to website promoter of videos to retailer

clients that used excerpts from videos to make its own

trailers; even though portions of movies used in

trailers were not quantitatively large, qualitative

violation of copyright owners' property was

considerable. Video Pipeline, Inc. v Buena Vista Home

Entm't, Inc. (2002, DC NJ) 192 F Supp 2d 321, 30 Media

L R 1641, 62 USPQ2d 1464, affd (2003, CA3 NJ) 342 F3d

191, 31 Media L R 2185, 67 USPQ2d 1705, cert den

(2004) 540 US 1178, 158 L Ed 2d 79, 124 S Ct 1410.

 

B. Purpose or Character of Use

   20. Generally

 

Under 17 USCS § 107(3), extent of permissible copying

varies with purpose and character of use; this factor

calls for thought not only about quantity of materials

used, but also about their quality and importance;

whether substantial portion of allegedly infringing

work was copied verbatim from copyrighted work is

relevant question, for question may reveal dearth of

transformative character or purpose under 17 USCS §

107(1), or greater likelihood of market harm under 17

USCS § 107(4); work composed primarily of an original,

particularly heart of original, with little added or

changed, is more likely to be merely superseding use,

fulfilling demand for original, rather than fair use.

Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L

Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily

Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7

FLW Fed S 800.

 

Equitable rule of reason applies to fair use analysis,

and commercial motives of user are important item of

analysis. Financial Information, Inc. v Moody's

Investors Service, Inc. (1984, CA2 NY) 751 F2d 501,

224 USPQ 632.

 

In copyright infringement suit regarding use of

copyrighted materials in production and distribution

of video about popular singer, district court did not

abuse its discretion in granting preliminary

injunction based upon finding that use of copyrighted

materials was likely not fair use based upon purpose

and character of infringers' use of copyrighted

materials because: (1) although infringers' video was

biography, it was clearly commercial in nature and

they intended to profit from unlicensed use of

copyrighted materials; and (2) use of copyrights was

not consistently transformative because much of film

footage went beyond making reference for biography and

served same intrinsic entertainment value that was

protected by copyrights. Elvis Presley Enters. v

Passport Video (2004, CA9 Cal) 357 F3d 896, cert den

(2004, US) 159 L Ed 2d 779, 124 S Ct 2886.

 

"Purpose and character of use" factor favored alleged

copyright violator because court perceived allegedly

infringing merchandise as commenting on, or

criticizing, original works; alleged infringer

transformed pseudo-ferocious nature of professional

wrestling into humorous "dog-fight," and sale of

parodic merchandise for their own sake was entitled to

more indulgence that original work used to advertise

product. World Wrestling Fedn. Entm't, Inc. v Big Dog

Holdings, Inc. (2003, WD Pa) 280 F Supp 2d 413.

 

 

   21. Commercial and business purposes

 

Systematic copying of scientific articles by corporate

researchers for office archive purposes is not fair

use, principally because archival purpose is not

transformative use and copying deprives publisher of

revenue, so that judgment of infringement is affirmed.

American Geophysical Union v Texaco Inc. (1994, CA2

NY) 60 F3d 913, 35 USPQ2d 1513, 144 ALR Fed 745.

 

Direct economic benefit is not required to demonstrate

commercial use. A&M Records, Inc. v Napster, Inc.

(2001, CA9 Cal) 2001 CDOS 1255, 2001 Daily Journal DAR

1611, 57 USPQ2d 1729, amd, reprinted as amd (2001, CA9

Cal) 239 F3d 1004, 2001 CDOS 1255, 2001 Daily Journal

DAR 1611, 57 USPQ2d 1729, injunction gr (2001, ND Cal)

2001 US Dist LEXIS 2186, affd (2002, CA9 Cal) 284 F3d

1091, 2002 CDOS 2635, 2002 Daily Journal DAR 3223, 62

USPQ2d 1221, 52 FR Serv 3d 5 and (criticized in In re

Aimster Copyright Litig. (2003, CA7 Ill) 334 F3d 643,

67 USPQ2d 1233).

 

In copyright infringement suit regarding use of

copyrighted materials in production and distribution

of video about popular singer, district court did not

abuse its discretion in granting preliminary

injunction based upon its analysis of nature of

copyrighted works; although some of film and

television footage was properly characterized as

newsworthy, still photographs and songs were more

inherently creative. Elvis Presley Enters. v Passport

Video (2004, CA9 Cal) 357 F3d 896, cert den (2004, US)

159 L Ed 2d 779, 124 S Ct 2886.

 

Using exact copies of questions from MCAT medical

college test in business of preparing students to take

test is not fair use because of commercial nature of

use and damage that use does to test. Association of

American Medical Colleges v Mikaelian (1983, ED Pa)

571 F Supp 144, 219 USPQ 1032, affd without op (1984,

CA3 Pa) 734 F2d 3 and affd without op (1984, CA3 Pa)

734 F2d 6.

 

Performance of copyrighted work by defendant need not

be alleged to be "for profit" because "for profit"

requirement is not included in rights granted under 17

USCS § 106 and "not for profit" exemption is included

in 17 USCS § 110. La Salle Music Publishers, Inc. v

Highfill (1985, WD Mo) 622 F Supp 168, 228 USPQ 63.

 

Defendant's goal of disseminating scientific and

technical information rapidly to its many researchers

is business purpose that directly exploits copied

contents of plaintiff's technical journals and is

summarily adjudged to infringe, and is not justified

as fair use. American Geophysical Union v Texaco, Inc.

(1992, SD NY) 802 F Supp 1, affd (1994, CA2 NY) 37 F3d

881, 32 USPQ2d 1545, reprinted as amd (1994, CA2 NY)

60 F3d 913, 35 USPQ2d 1513, 144 ALR Fed 745 and reh

den, amd (1994, CA2 NY) 1994 US App LEXIS 36735, cert

dismd (1995) 516 US 1005, 133 L Ed 2d 486, 116 S Ct

592.

 

Neither fair use nor parody defenses raise questions

of fact on defendant's copying of cartoon dog in

limited edition sculptural work, since dog is not

subject of parody and copying was for profit, so that

summary judgment of copyright infringement is granted.

United Feature Syndicate v Koons (1993, SD NY) 817 F

Supp 370, 28 USPQ2d 1401.

 

Defendant's copying and use of plaintiff's copyrighted

basic input-output system (BIOS) for its video game

system does not constitute fair use since defendant

copied system for commercial purpose; since nature of

plaintiff's work is creative and record shows that

defendants copying was substantial and harmful to

plaintiff, court grants plaintiff's motion for

preliminary injunction. Sony Computer Entertainment,

Inc. v Connectix Corp. (1999, ND Cal) 48 F Supp 2d

1212, 50 USPQ2d 1920, revd, remanded (2000, CA9 Cal)

203 F3d 596, 2000 CDOS 1106, 2000 Daily Journal DAR

1601, 53 USPQ2d 1705, cert den (2000) 531 US 871, 148

L Ed 2d 118, 121 S Ct 172.

 

 

   22. Miscellaneous

 

Disassembly of object code of computer game to gain

access to unprotected ideas and functional elements

embodied in copyrighted computer program, combined

with legitimate reason for seeking such access, is

fair use of copyrighted work; but this does not

preclude possible copyright infringement of

defendant's competing work. Sega Enters. v Accolade,

Inc. (1992, CA9 Cal) 977 F2d 1510, 92 CDOS 8612, 92

Daily Journal DAR 14275, 24 USPQ2d 1561, amd on other

grounds (1993, CA9) 93 Daily Journal DAR 304.

 

National school tournament of academic games for

students is fair use of games acquired from plaintiff.

Allen v Academic Games League of Am. (1996, CA9 Cal)

89 F3d 614, 96 CDOS 5183, 96 Daily Journal DAR 8379,

39 USPQ2d 1471.

 

Where there were no triable issues of fact exist on

whether defendant's parodic use of plaintiff's product

constituted fair use, court weighed four 17 USCS § 107

fair use factors on appeal, and determined that use

constituted fair use and, therefore, affirmed grant of

summary judgment in defendant's favor. Mattel Inc. v

Walking Mt. Prods. (2003, CA9 Cal) 353 F3d 792, 69

USPQ2d 1257.

 

Summary judgment was properly granted in favor of

photographer whose photographic work used only so much

of plaintiff's product as was necessary to make

photographer's parodic use of product readily

identifiable; court found that photographer's use

qualified as nominative fair use and it was highly

unlikely that any reasonable consumer would have

believed that photographer sponsored or was affiliated

with work. Mattel Inc. v Walking Mt. Prods. (2003, CA9

Cal) 353 F3d 792, 69 USPQ2d 1257.

 

Morality issues raised by defendant in copying and

disseminating parody of defendant appearing in

plaintiff's magazine differ from plaintiff's satirical

purposes and are permitted by fair use. Hustler

Magazine, Inc. v Moral Majority, Inc. (1985, CD Cal)

606 F Supp 1526, 226 USPQ 721, affd (1986, CA9 Cal)

796 F2d 1148, 13 Media L R 1151, 230 USPQ 646.

 

To "authorize" public performance of motion picture

does not lead to liability under copyright act unless

direct infringement has occurred, and since

defendant's authorization of overseas performances

does not infringe U.S. copyright law, plaintiff's

action for liability based on such authorization is

dismissed. Danjaq, S.A. v MGM/UA Communications, Co.

(1991, CD Cal) 773 F Supp 194, 91 Daily Journal DAR

11500, 21 USPQ2d 1665, affd (1992, CA9 Cal) 979 F2d

772, 92 CDOS 9181, 92 Daily Journal DAR 15253.

 

Although plaintiff has copyright in settlement

brochure submitted to defendant, and defendant is

ordered not to make any further copies of brochure,

copyright does not involve possession of brochure,

which plaintiff gave to defendant, so that return of

brochure to plaintiff is denied. Khandji v Keystone

Resorts Management, Inc. (1992, DC Colo) 140 FRD 697,

23 USPQ2d 1156.

 

In considering whether defendants' appropriation of

plaintiffs' photographs was fair use, court found that

first factor under 17 USCS § 107(1), purpose and

character of use, favored plaintiffs because

defendants' book merely superseded objects of

plaintiffs' 13 books (and plaintiff's at-issue

photographs which defendants had lifted from books and

reproduced in their book). Schiffer Publ'g, Ltd. v

Chronicle Books, LLC (2004, ED Pa) 73 USPQ2d 1090,

judgment entered (2005, ED Pa) 2005 US Dist LEXIS 416,

motion gr, in part, motion den, in part, costs/fees

proceeding, judgment entered (2005, ED Pa) 2005 US

Dist LEXIS 9996.

 

Court was prevented from properly weighing "character

of use" factor in favor of either party on record

company's summary judgment motion in copyright

infringement action against publisher because genuine

issues of material fact existed as to following:

whether publisher's use of recordings in its magazine

was motivated by sales or by news reporting on alleged

racism of successful hip-hop artist and whether

publisher acted in bad faith when it acquired

recordings. Shady Records, Inc. v Source Enters.

(2004, SD NY) 73 USPQ2d 1954.

 

C. Nature of Copyrighted Work

   23. Generally

 

Partly creative and partly informational nature of

plaintiff's book on cake decorating has neutral

influence on whether copying by defendant was fair

use. Marcus v Rowley (1983, CA9 Cal) 695 F2d 1171, 217

USPQ 691.

 

Although plaintiff's published information on called

bonds involves little creativity, defendant's

publication of plaintiff's information is equally

uncreative so that fair use finding is reversed and

remanded. Financial Information, Inc. v Moody's

Investors Service, Inc. (1984, CA2 NY) 751 F2d 501,

224 USPQ 632.

 

Creative purpose of parody deserves smaller scope for

fair use purposes so that copying of parody for fund

raising purposes by religious organization is properly

held to be fair use. Hustler Magazine, Inc. v Moral

Majority, Inc. (1986, CA9 Cal) 796 F2d 1148, 13 Media

L R 1151, 230 USPQ 646.

 

Copying of form from copyrighted form book and

delivery of six copies to persons with whom defendant

is dealing is not infringement but fair use; when

plaintiff put on general market a book of forms, he

implied right to their private use, especially in view

of notice on cover. American Institute of Architects v

Fenichel (1941, DC NY) 41 F Supp 146, 51 USPQ 29.

 

Statement in copyrighted tax manual that it is hoped

that it will assist counties, cities, and taxing

districts, is invitation to use and adoption, and use

of forms in book is not unlawful. Aldrich v Remington

Rand, Inc. (1942, DC Tex) 52 F Supp 732, 59 USPQ 210.

 

In considering whether defendants' appropriation of

plaintiffs' photographs was fair use, court could not

say that second factor under 17 USCS § 107(2), nature

of copyrighted work, favored either party because

at-issue photographs of fabric patterns were taken

less for aesthetic purposes than some other

photographs, but on other hand, photographs were

certainly more creative than purely factual works such

as compilation of telephone numbers. Schiffer Publ'g,

Ltd. v Chronicle Books, LLC (2004, ED Pa) 73 USPQ2d

1090, judgment entered (2005, ED Pa) 2005 US Dist

LEXIS 416, motion gr, in part, motion den, in part,

costs/fees proceeding, judgment entered (2005, ED Pa)

2005 US Dist LEXIS 9996.

 

 

   24. Commercial

 

Rock ballad's creative expression for public

dissemination falls within core of copyright's

protective purposes. Campbell v Acuff-Rose Music

(1994) 510 US 569, 127 L Ed 2d 500, 114 S Ct 1164, 94

CDOS 1662, 94 Daily Journal DAR 2958, 22 Media L R

1353, 29 USPQ2d 1961, 7 FLW Fed S 800.

 

Commercial nature of copyrighted magazine having cover

displayed in comparative advertisement does not affect

fair use determination. Triangle Publications, Inc. v

Knight-Ridder Newspapers, Inc. (1980, CA5 Fla) 626 F2d

1171, 6 Media L R 1734, 207 USPQ 977.

 

Purely commercial nature of defendant's copying of

televised news casts and selling clips to parties

involved in newscasts, together with fact that entire

newscasts are copied and copies of complete features

are sold, is considered in finding that copying is not

fair use, even though originator destroys works

shortly after televising and does not distribute news

clips itself. Pacific & Southern Co. v Duncan (1984,

CA11 Ga) 744 F2d 1490, 11 Media L R 1135, 224 USPQ

131, reh den, en banc (1984, CA11 Ga) 749 F2d 733 and

cert den (1985) 471 US 1004, 85 L Ed 2d 161, 105 S Ct

1867.

 

In case involving conspiracy to commit copyright

infringement by members of Internet piracy group,

district court properly denied defendant jury

instruction on fair use; group's site was not

noncommercial--members had to contribute valuable

services to received commercially available software.

United States v Slater (2003, CA7 Ill) 348 F3d 666, 69

USPQ2d 1081.

 

Television commercial is useful only to proprietor of

advertised product, and value and effectiveness of

commercial are not impaired by use of words in several

single frames from commercial to survey consumer

response for advertising research purposes, which is

fair use. Bruzzone v Miller Brewing Co. (1979, ND Cal)

202 USPQ 809.

 

Quiz book based on episodes of fictional Seinfeld TV

series copies protected work and is not fair use, so

that summary judgment of liability for infringement is

granted to plaintiff. Castle Rock Entertainment v

Carol Publ. Group (1997, SD NY) 955 F Supp 260, 42

USPQ2d 1336, affd (1998, CA2 NY) 150 F3d 132, 47

USPQ2d 1321.

 

 

   25. Educational and scholarly

 

Question of fair use, which is question of fact,

usually arises in connection with scientific or other

works dealing with common subject matter; thus,

writings dealing with same historical event are

expected to have similarity of treatment. Eisenschiml

v Fawcett Publications, Inc. (1957, CA7 Ill) 246 F2d

598, 114 USPQ 199, cert den (1957) 355 US 907, 2 L Ed

2d 262, 78 S Ct 334, 115 USPQ 426.

 

It is reasonable and customary for biographers to

confer to and utilize earlier works dealing with same

subject and occasionally to quote directly from such

works. Rosemont Enterprises, Inc. v Random House, Inc.

(1966, CA2 NY) 366 F2d 303, 150 USPQ 715, 23 ALR3d

122, cert den (1967) 385 US 1009, 17 L Ed 2d 546, 87 S

Ct 714, 152 USPQ 844.

 

Student-produced film on wrestler is not so

educational or so limited in marketability as to

justify unauthorized copying and broadcasting by TV

network as fair use. Iowa State University Research

Foundation, Inc. v American Broadcasting Cos. (1980,

CA2 NY) 621 F2d 57, 6 Media L R 1855, 207 USPQ 97.

 

Concept of fair use has been established and applied

in cases involving scientific, medical, and historical

materials; though technically infringement, it is

allowed on ground that appropriation is reasonable and

customary; whether use is fair use is matter of fact;

thus, use of copyrighted book as source for article on

historical personage could be termed fair, but use is

not fair where article is not only based in large part

on book but also mirrors manner and style in which

copyright owner set down factual and historical

material and expressed her thoughts and conclusions.

Holdredge v Knight Publishing Corp. (1963, SD Cal) 214

F Supp 921, 136 USPQ 615.

 

Scholarly character of plaintiff's work on pregnancy

by mistake containing interviews of women quoted by

defendant is considered in finding that defendant's

use of 4.3 percent of plaintiff's interviews is fair

use. Maxtone-Graham v Burtchaell (1986, SD NY) 631 F

Supp 1432, 229 USPQ 538, affd (1986, CA2 NY) 803 F2d

1253, 13 Media L R 1513, 231 USPQ 534, 5 FR Serv 3d

849, cert den (1987) 481 US 1059, 95 L Ed 2d 856, 107

S Ct 2201.

 

 

   26. Informational and factual

 

Informational nature of product evaluations in

CONSUMER REPORTS gives broader scope to fair use of

underlying facts reported, and mention of favorable

product evaluation in advertisements, accompanied by

disclaimer, requires reversal of preliminary

injunction against advertisement. Consumers Union of

United States, Inc. v General Signal Corp. (1983, CA2

NY) 724 F2d 1044, 221 USPQ 400, reh den, en banc

(1984, CA2) 730 F2d 47 and cert den (1984) 469 US 823,

83 L Ed 2d 45, 105 S Ct 100, 224 USPQ 616.

 

Letter to editor of legal newspaper explaining facts

involved in newsworthy controversy between attorney

and client is informational subject matter subject to

liberal fair use, and publishing portion of letter,

but not all of letter as requested by author is

nevertheless fair use. Diamond v Am-Law Pub. Corp.

(1984, CA2 NY) 745 F2d 142, 223 USPQ 709 (ovrld as

stated in U2 Home Entm't, Inc. v Lai Ying Music &

Video Trading, Inc. (2005, SD NY) 2005 US Dist LEXIS

9853).

 

Audio visual works copied off air from educational TV

broadcasts and disseminated by defendant in school

system are not sufficiently factual or necessary to

free flow of information within schools so that such

copying is fair use when suitable copies can be

purchased or licensed from plaintiffs. Encyclopaedia

Britannica Educational Corp. v Crooks (1982, WD NY)

542 F Supp 1156, 214 USPQ 697.

 

Copying more than half of unpublished manuscript,

without permission of author, is not justified as fair

use because manuscript deals with facts involving

overthrow of Iranian government, author's narration of

those facts being protected by copyright. Love v

Kwitny (1989, SD NY) 706 F Supp 1123, 16 Media L R

1305, 9 USPQ2d 2038.

 

 

   27. Personal works

 

Summary judgment that quotation from copyrighted

letters is fair use is reversed to allow presentation

of disputed evidence on historical nature of letters

and effect of use on potential market for letters.

Meeropol v Nizer (1977, CA2 NY) 560 F2d 1061, 2 Media

L R 2269, 195 USPQ 273, cert den (1978) 434 US 1013,

54 L Ed 2d 756, 98 S Ct 727, 196 USPQ 592.

 

Singing style of Johnny Mathis in well-known recording

of plaintiff's song "When Sunny Gets Blue" is parodied

successfully in defendant's song "When Sonny Sniffs

Glue" so that judgment of fair use is affirmed. Fisher

v Dees (1986, CA9 Cal) 794 F2d 432, 13 Media L R 1167,

230 USPQ 421.

 

Famous writer's unpublished letters quoted and closely

paraphrased in at least 59 passages of biography is

not fair use and is preliminarily enjoined. Salinger v

Random House, Inc. (1987, CA2 NY) 811 F2d 90, 13 Media

L R 1954, 1 USPQ2d 1673, 87 ALR Fed 853, reh den

(1987, CA2) 818 F2d 252, 2 USPQ2d 1727, cert den

(1987) 484 US 890, 98 L Ed 2d 177, 108 S Ct 213.

 

Plaintiff's personalized and anecdotal diary written

during years when plaintiff was ambassador to England

from Shah of Iran is not historical work that

defendants are free to copy from so that publication

of extensive excerpts in Iranian newspaper infringes.

Radji v Khakbaz (1985, DC Dist Col) 607 F Supp 1296,

226 USPQ 610.

 

 

   28. Unpublished works

 

Unpublished nature of work is key, though not

necessarily determinative, factor tending to negate

defense of fair use; under ordinary circumstances,

author's right to control first public appearance of

his undisseminated expression will outweigh claim of

fair use. Harper & Row, Publishers, Inc. v Nation

Enterprises (1985) 471 US 539, 85 L Ed 2d 588, 105 S

Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Fair use applies to unpublished works, as well as to

published works. Salinger v Random House, Inc. (1987,

CA2 NY) 811 F2d 90, 13 Media L R 1954, 1 USPQ2d 1673,

87 ALR Fed 853, reh den (1987, CA2) 818 F2d 252, 2

USPQ2d 1727, cert den (1987) 484 US 890, 98 L Ed 2d

177, 108 S Ct 213.

 

Unpublished nature of letter sent by plaintiff to

students and prospective students of creative writing

class is considered in finding that unauthorized

publication of excerpt of about one-half of letter is

copyright infringement. Lish v Harper's Magazine

Foundation (1992, SD NY) 20 Media L R 2073, 25 USPQ2d

1081, amd on other grounds, reconsideration den, in

part (1993, SD NY) 20 Media L R 2228, 25 USPQ2d 1556,

reported in full (1993, SD NY) 807 F Supp 1090.

 

D. Amount and Substantiality of Work Used

   29. Generally

 

Under 17 USCS § 107(3), extent of permissible copying

varies with purpose and character of use; this factor

calls for thought not only about quantity of materials

used, but also about their quality and importance;

whether substantial portion of allegedly infringing

work was copied verbatim from copyrighted work is

relevant question, for question may reveal dearth of

transformative character or purpose under 17 USCS §

107(1), or greater likelihood of market harm under 17

USCS § 107(4); work composed primarily of an original,

particularly heart of original, with little added or

changed, is more likely to be merely superseding use,

fulfilling demand for original, rather than fair use.

Campbell v Acuff-Rose Music (1994) 510 US 569, 127 L

Ed 2d 500, 114 S Ct 1164, 94 CDOS 1662, 94 Daily

Journal DAR 2958, 22 Media L R 1353, 29 USPQ2d 1961, 7

FLW Fed S 800.

 

If all common material in books was result of copying

by defendant, only answer to charge of tortious

plagiarism is that common matter was in public domain

or was so trifling as not to count; since common

matter is not so trifling that it can be ignored,

question is whether borrowing, although substantial,

was fair use; borrowing series of concrete incidents

and details was not fair use. MacDonald v Du Maurier

(1944, CA2 NY) 144 F2d 696, 62 USPQ 394.

 

Almost total copying of copyrighted work cannot be

considered "fair use," and addition of variations to

make "better" production cannot justify infringement.

Robert Stigwood Group, Ltd. v O'Reilly (1972, DC Conn)

346 F Supp 376, 175 USPQ 403, 23 ALR Fed 961, affd

without op (1973, CA2) 179 USPQ 712 and revd on other

grounds (1976, CA2 Conn) 530 F2d 1096, 189 USPQ 453,

cert den (1976) 429 US 848, 50 L Ed 2d 121, 97 S Ct

135 and (superseded by statute as stated in Walt

Disney Co. v Powell (1990, App DC) 283 US App DC 111,

897 F2d 565, 14 USPQ2d 1160) and (superseded by

statute as stated in Stokes Seeds v Geo. W. Park Seed

Co. (1991, WD NY) 783 F Supp 104, 21 USPQ2d 1934) and

(superseded by statute as stated in Gamma Audio &

Video v Ean-Chea (1993, CA1 Mass) 11 F3d 1106, 29

USPQ2d 1257).

 

 

   30. Verbatim and exact copying

 

Taking of material from copyrighted work may not be

excused merely because insubstantial with respect to

infringing work; conversely, fact that substantial

portion of infringing work is copied verbatim from

copyrighted work is evidence of qualitative value of

copied material, both to originator and to plagiarist

who seeks to profit from marketing someone else's

copyrighted expression. Harper & Row, Publishers, Inc.

v Nation Enterprises (1985) 471 US 539, 85 L Ed 2d

588, 105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Disputed evidence on effect of quotation of over 1,000

words from more than 28 copyrighted letters and

effects resulting from way that letters were quoted

and edited requires reversal of summary judgment based

on fair use. Meeropol v Nizer (1977, CA2 NY) 560 F2d

1061, 2 Media L R 2269, 195 USPQ 273, cert den (1978)

434 US 1013, 54 L Ed 2d 756, 98 S Ct 727, 196 USPQ

592.

 

Quoting factually explanatory part of letter to

editor, without publishing entire letter as

conditioned by author, is fair use and is not

infringement by unfair editing. Diamond v Am-Law Pub.

Corp. (1984, CA2 NY) 745 F2d 142, 223 USPQ 709 (ovrld

as stated in U2 Home Entm't, Inc. v Lai Ying Music &

Video Trading, Inc. (2005, SD NY) 2005 US Dist LEXIS

9853).

 

Quoting and close paraphrasing of over 10 percent of

unpublished letters of famous author exceeds fair use

and is preliminarily enjoined. Salinger v Random

House, Inc. (1987, CA2 NY) 811 F2d 90, 13 Media L R

1954, 1 USPQ2d 1673, 87 ALR Fed 853, reh den (1987,

CA2) 818 F2d 252, 2 USPQ2d 1727, cert den (1987) 484

US 890, 98 L Ed 2d 177, 108 S Ct 213.

 

Although what was appropriated for defendants' play

was comparatively small part of plaintiff's two volume

biography, it formed substantial part of play and most

of taking was verbatim; substantial taking is not

matter of lines or inches but exists when part taken

had merely value and formed greater part of one act of

play. Harris v Miller (1941, SD NY) 50 USPQ 306, amd

on other grounds (1941, SD NY) 50 USPQ 625.

 

Broadcasting one entire part of four-part musical

composition, time consumed being third of time

required for performance of whole work, is not fair

use. Associated Music Publishers, Inc. v Debs Memorial

Radio Fund, Inc. (1942, DC NY) 46 F Supp 829, 54 USPQ

461, affd (1944, CA2 NY) 141 F2d 852, 61 USPQ 161,

cert den (1944) 323 US 766, 89 L Ed 613, 65 S Ct 120,

63 USPQ 358.

 

It is not fair use to copy four bars from copyrighted

musical composition where such four bars are portion

of composition upon which popular appeal and

commercial success of composition depend. Robertson v

Batten, Barton, Durstine & Osborn, Inc. (1956, DC Cal)

146 F Supp 795, 111 USPQ 251.

 

Fair-use defense applies to copying of less than 3

percent of copyrighted letters in manner forming

insignificant part of work, especially where matter

copied is of historical interest and evidence does not

show reduction of market for copyrighted letters.

Meeropol v Nizer (1976, SD NY) 417 F Supp 1201, 191

USPQ 346, affd in part and revd in part on other

grounds (1977, CA2 NY) 560 F2d 1061, 2 Media L R 2269,

195 USPQ 273, cert den (1978) 434 US 1013, 54 L Ed 2d

756, 98 S Ct 727, 196 USPQ 592.

 

Copying of small but significant portions of financial

reports is not fair use, because copied portions

represent essence of reports and are substantial in

quantity. H. C. Wainwright & Co. v Wall Street

Transcript Corp. (1976, SD NY) 418 F Supp 620, 194

USPQ 328, affd (1977, CA2 NY) 558 F2d 91, 2 Media L R

2153, 194 USPQ 401, cert den (1978) 434 US 1014, 54 L

Ed 2d 759, 98 S Ct 730, 196 USPQ 864.

 

Name index to NEW YORK TIMES INDEX, although using

from 8 percent to 15 percent of NEW YORK TIMES INDEX,

is fair use and serves public interest in

dissemination of information. New York Times Co. v

Roxbury Data Interface, Inc. (1977, DC NJ) 434 F Supp

217, 2 Media L R 2209, 194 USPQ 371.

 

Use of 15 seconds of opponent's 3-minute recorded song

in political advertisement takes small portion of

copyrighted work and does not affect market for song

and is excused as fair use, especially considering

that use of song is involved in message of political

advertisement. Keep Thomson Governor Committee v

Citizens for Gallen Committee (1978, DC NH) 457 F Supp

957, 199 USPQ 788.

 

Although defendant copied entire page of parody aimed

at defendant in plaintiff's magazine, original

portions of parody copy amount to only small

percentage of magazine and are used by defendant to

raise money for conservative and religious causes so

that defendant's copying is fair use. Hustler

Magazine, Inc. v Moral Majority, Inc. (1985, CD Cal)

606 F Supp 1526, 226 USPQ 721, affd (1986, CA9 Cal)

796 F2d 1148, 13 Media L R 1151, 230 USPQ 646.

 

Fair use does not apply to performance of entire songs

by amateurs in country music theater at which

admission is charged. Bourne Co. v Speeks (1987, ED

Tenn) 670 F Supp 777, 6 USPQ2d 1046.

 

In considering whether defendants' appropriation of

plaintiffs' photographs was fair use, court found that

third factor under 17 USCS § 107(3), amount and

substantiality of work, favored plaintiffs because,

quantitatively, defendants took all of plaintiffs'

work, and qualitatively, "heart" of plaintiffs' work

was appropriated. Schiffer Publ'g, Ltd. v Chronicle

Books, LLC (2004, ED Pa) 73 USPQ2d 1090, judgment

entered (2005, ED Pa) 2005 US Dist LEXIS 416, motion

gr, in part, motion den, in part, costs/fees

proceeding, judgment entered (2005, ED Pa) 2005 US

Dist LEXIS 9996.

 

 

   31. --Books and periodicals

 

Factors enumerated in 17 USCS § 107 as especially

relevant in determining whether use of copyrighted

material is fair are not meant to be exclusive;

however, there is no warrant for expanding doctrine of

fair use to create what amounts to public figure

exception to copyright; whether verbatim copying from

a public figure's manuscript in a given case is or is

not fair must be judged according to traditional

equities of fair use. Harper & Row, Publishers, Inc. v

Nation Enterprises (1985) 471 US 539, 85 L Ed 2d 588,

105 S Ct 2218, 11 Media L R 1969, 225 USPQ 1073.

 

Magazine's unauthorized verbatim copying of 300 words

of direct quotations from former president's soon to

be published memoirs, involving original expressions

of great qualitative importance in memoirs and in

magazine's article and resulting in cancellation of

another magazine's agreement to pay certain sum of

money for exclusive right to print prepublication

excerpts, is not fair use of memoirs. Harper & Row,

Publishers, Inc. v Nation Enterprises (1985) 471 US

539, 85 L Ed 2d 588, 105 S Ct 2218, 11 Media L R 1969,

225 USPQ 1073.

 

Display of copyrighted magazine cover in comparative

advertisement does not use substantial amount of

copyrighted work or tend to reduce market for magazine

and is permitted under fair use defense. Triangle

Publications, Inc. v Knight-Ridder Newspapers, Inc.

(1980, CA5 Fla) 626 F2d 1171, 6 Media L R 1734, 207

USPQ 977.

 

Defendant's copying of 11 most important pages of

plaintiff's 35 page book on cake decorating so that

the 11 copied pages comprise about half of defendant's

24 page book is substantial taking that is not

protected by fair use. Marcus v Rowley (1983, CA9 Cal)

695 F2d 1171, 217 USPQ 691.

 

Advertisement using 29 words of 2100 word magazine

article in CONSUMER REPORTS to show favorable product

evaluation is relatively insubstantial use, resulting

in reversal of preliminary injunction against

advertisement. Consumers Union of United States, Inc.

v General Signal Corp. (1983, CA2 NY) 724 F2d 1044,

221 USPQ 400, reh den, en banc (1984, CA2) 730 F2d 47