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Recent Copyright Cases
Why should faculty members or students care about what a judge says in a copyright case? Isn't there a law that spells out what can and cannot be done? That's a reasonable observation on its face. However, like it or not, the copyright law is not written or implemented with such a degree of specificity and there's a lot of room for reasonable minds to differ in interpreting certain sections of it. In particular, the fair use section is one that is subject to interpretation and all of us in higher education rely on it daily. Therefore, when a particular case comes along that helps us determine the boundaries of fair use, it's worth paying attention to it.
Here are three "fair use" cases that can "transform" much of what you think you know about fair use.
1. Bill Graham Archives v. Dorling Kindersley, 448 F.3d 605 (2nd Cir. 2006)
• This is a key copyright case for fair use proponents, especially since it comes out of the 2nd Circuit, which is well known for its copyright decisions.
• The significance of this case for higher education is the court's reliance on and expansion of the transformative prong of the first fair use factor. If a use can be fairly described as 'transformative', the court seemed willing to minimize the importance of the other three factors and find the use to be fair.
• For a use to be characterized as 'transformative', the question is "whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114, S. Ct. 1164, 127 L.Ed.2d 500(1994).
• The implications of this are potentially enormous for higher education and online courses. In this case, the court found the use of four complete concert posters of the Grateful Dead imbedded in a coffee-table-type biographical work, Illustrated Trip, to be fair use. Illustrated Trip placed the posters in a timeline, creatively arranged, and reduced in size - and this was found to be transformatively different from the original purpose of the poster.
So strong was the transformative use, that the court virtually dismissed the second factor (nature of the work) and the third factor (amount taken), stating that taking the entire work is okay when necessary to make a fair use of the image.
Finally, for the fourth factor or market factor - the court stated that one should only consider the impact for potential licensing revenues for "traditional", "reasonable", or "likely to be developed " markets and a transformative market is not one of these. "In a case such as this, a copyright holder cannot prevent others from entering fair use markets merely by developing or licensing a market for parody, news reporting, educational or other transformative uses of its creative work."
| Practice Pointer: Get Creative! You will enhance the likelihood that using a copyrighted work, even in its entirety is fair, if your use does not merely supercede the original use. You're probably doing that already! |
2. Perfect 10, Inc. v. AMAZON.COM, Inc.; Perfect 10, Inc. v. Google, Inc. ,508 F.3d 1146 (9th Cir., 2007)
• This set of cases implicates critical digital copyright issues and resulted in a fair use finding resting on transformative use.
• Faculty and others who teach online will find these cases replete with interesting and helpful insights regarding what uses a court might consider fair.
• Background Facts: Perfect 10 sells full-size and reduced-size (for cell phones) copyrighted images of nude models. Google, through its image search, crawls the site and displays the thumbnail images but not the full-size ones. Instead, it provides information, including a url, where the full-size image may be viewed. Some of these sites display the Perfect 10 images but do not have permission to do so and are likely infringing. Additionally, the Perfect 10 images may reside in Google's cache as a matter of course. Amazon was also sued for giving users information provided by Google. Perfect 10 sued Google for displaying the thumbnails, providing the url to infringing sites, and caching their images.
• The significance of the problems it would have created for all of us if Perfect 10 had prevailed cannot be underestimated.
• Holdings and Dicta:
- The court found cache copies to be fair use;
- Google was not liable for providing urls of sites with infringing materials; and
- Google 's copy and display of the thumbnails was a fair use even though it affected Perfect 10's market.
• The key to this holding was, again, the transformative nature of Google's use. The court stated "The central purpose of this inquiry is to determine whether and to what extent the new work is transformative."
• The court found Google's use of thumbnails highly transformative since it served a different function than the original and served the public good. In fact, the transformative use was powerful enough to overcome the other fair use factors, including the amount (asking is the amount reasonable in relation to the purpose of copying?) and market effect (stating negative market effect cannot be presumed just because the original use was commercial if the subsequent use is transformative).
| Practice Pointer: Don't automatically assume your use is not fair just because the original use was commercial. Thumbnails are okay. You are not responsible for providing links to sites that may infringe. |
• For additional commentary on this key case, see the Electronic Frontier Foundation"s Perfect 10 v. Google., which features the article "Digital Copyright Battle Puts Linking at Risk".
3. Blanch v. Koons, 467 F.3d 244 (2d. Circ. 2006)
• Transformative use trumps again!
• In this third fair use case, the transformative nature of the questioned use resulted in a fair use decision.
• Background Facts: The question before the court was whether an artist's appropriation of a copyrighted image in a collage painting was protected fair use? Appropriation artist Jeff Koons used a portion of a previously published photograph (advertising silk stockings and Gucci sandals) in a large billboard size collage, Niagara. The portion he used was altered in several ways and used for an entirely different purpose with respect to what he wanted to convey to the viewers. In other words, it was highly transformative. (1st fair use factor).
• Again, the strength of this factor virtually overwhelmed the other three factors (nature of work, amount used and market effect - none).
| Practice Pointer: For once, some good news for collage artists. This case should be a real boon to our many creative artists, particularly those in the College of Design. |
For those interested in older, but landmark, copyright decisions, check out the Case Archives.