Case Summaries

Courts have ruled on the question of fair use in numerous cases, and the following summaries offer insight into the relatively moderate number of cases that are particularly instructive for the university community. Seldom have courts had to rule in cases that are specifically about the work of academics, so we most often need to derive lessons from cases raising comparable issues. These summaries generally follow the framework of the four factors outlined in the fair use statute, Section 107 of the Copyright Act:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Cases of interest:

Teaching: Copies for Classroom Instruction

Cambridge University Press v. Becker, 863 F.Supp.2d 1190 (N.D.Ga 2012).

See our blog post on this case here.

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).

Kinko’s was held to be infringing copyrights when it photocopied book chapters for sale to students as “coursepacks” for their university classes.

  • Purpose: When conducted by Kinko’s, the copying was for commercial purposes, and not for educational purposes. Because the purpose was also not transformative, this factor weighed against fair use.
  • Nature: Most of the works were factual—dealing with history, sociology, and other fields of study—a factor which weighed in favor of fair use.
  • Amount: The court analyzed the percentage of each work, finding that copying between five and 25 percent of the original full book was excessive, particularly because the parts copied were critical to the works and each of the chapters could stand alone.
  • Effect: The court found a direct effect on the market for the books, because the coursepacks competed directly with the potential sales of the original books as assigned reading for the students.

Conclusion: Three of the four factors leaned against fair use. The court specifically refused to rule that all coursepacks are infringements, requiring instead that each item in the “anthology” be subject individually to fair use scrutiny. Notice that the copying was made by a commercial user for a profit; the court left open the question of fair use by the nonprofit institution itself.

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Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).

A private copy shop created and sold “coursepacks” under circumstances similar to the Kinko’s case.  The copy shop here was also found to have acted outside the limits of fair use.

  • Purpose: The fact that the use was commercial and was not transformative caused this factor to weigh against fair use.
  • Nature: Although they were nonfiction materials, copied excerpts contained some degree of creative expression, cutting against fair use.
  • Amount: Defendant used between five and 30 percent of each work. This factor weighed against fair use.
  • Effect: The court gave particular emphasis to the effect on the market; accordingly, the court provided relatively little analysis of the other three factors. The court noted that licensing or potential licensing opportunities existed for all copied works, and other commercial copy shops routinely requested permission to reproduce copyrighted works. Such an existing licensing system was said to weigh heavily against fair use.

Conclusion: The court held that such photocopying by a commercial copy shop does not constitute fair use. As in the Kinko’s case, this court did not address the question of whether similar activities may be fair use if conducted by a university or nonprofit copy shop. This appeal was heard by all judges of the Court of Appeals for the Sixth Circuit. Evidencing that even judges can disagree about fair use, eight judges joined the ruling against fair use, while five judges dissented and would have found that the copying was fair use.

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Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982).

Commercial producers of educational motion pictures and videos sued a consortium of public school districts, which systematically recorded programs as they were broadcast on public television stations and provided copies of the recordings to member schools.

  • Purpose: Although the court was largely sympathetic with the educational purpose, it also said that convenience should not be a significant factor in the reasonableness of the purpose of the use, thus weighing against fair use.
  • Nature: Although the films had educational content, they were commercial products intended for sale to educational institutions, weighing against fair use.
  • Amount: The defendant was copying the entire work and retaining copies for as long as ten years, weighing against fair use.
  • Effect: The copying directly competed with the plaintiff’s market for selling or licensing copies to the schools, weighing against fair use.

Conclusion: The court had little trouble concluding that the activities were not fair use.

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Research: Copies for Study

American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).

The court ruled that photocopying of individual journal articles by a Texaco scientist for his professional research needs was not fair use.

  • Purpose: While a research purpose generally favors fair use, Texaco’s research was conducted for commercial gain, and the use essentially served to replace additional subscriptions. This factor therefore weighed against fair use.
  • Nature: The articles were factual, which weighed in favor of fair use.
  • Amount: An article is an independent work, so copying the article was a reproduction of an entire copyrighted work, weighing against fair use.
  • Effect: The court found it unlikely that Texaco reasonably would have purchased more subscriptions to the relevant journals. However, because the photocopying directly competed with the ability of publishers to collect license fees, this factor weighed against fair use.

Conclusion: According to the court, the Copyright Clearance Center provided a practical method for paying fees and securing permissions, so the copying directly undercut the ability to pursue the market for licensing through the CCC. Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context. After issuing its conclusions, the Second Circuit amended its decision to clarify that it applies only to “institutional, systematic” copying, and that the ruling does not reach isolated copying by independent researchers. While this case is likely to have significant practical effects on private companies, its application to strictly nonprofit teaching and research is far from clear.

More Information

Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).

This case revealed the importance of fair use for the copying of computer code in order to gain access to the functional aspects of a computer program that are not protected by copyright. At the time of the case, the plaintiff, Sega, was a major manufacturer of video game consoles. Accolade, in order to gain access to the functional aspects of Sega’s code, deciphered, or “reverse engineered,” the object code into source code. In order to do so, Accolade had to copy both the object and source codes. Accolade used the knowledge it gained from the source code to write new code for games that would be compatible with the Sega system. Sega claimed that the copying and reverse engineering of its code was an infringement, but Accolade successfully argued that it was within fair use.

  • Purpose: The court noted that although copying for commercial purposes may lead to a presumption against fair use, this presumption can be overcome by the characteristics of a particular commercial use. Here, the use was “intermediate” because it was for the purpose of gaining access to the functional aspects of the program. Since these functional aspects were not protected by copyright, any commercial exploitation of the code was indirect. The court noted an additional benefit of Accolade’s intermediate copying: more games available to the public. Thus, Accolade’s purpose was found to favor fair use.
  • Nature: The court noted that computer programs are of a nature that is more practical than creative. They are mostly articles that accomplish tasks and contain many “logical, structural, and visual display elements that are dictated by the function to be performed.” Further, the only way to access the functional aspects of Sega’s system was to copy the code. The court also stressed that without the fair use exception, Sega would gain an effective monopoly over the functional aspects of its program—even though those aspects were not protectable by copyright or patent laws. Thus, the court found that the second factor favored fair use.
  • Amount: Because Accolade copied the entirety of Sega’s code, the court found that the amount weighed against fair use. The court noted, however, that because the ultimate use in question was limited, this factor warranted little weight in the fair use analysis.
  • Effect: The court noted that Accolade copied Sega’s work in order to create its own games, rather than simply exploit Sega’s creative expression. Also, Accolade did not attempt to beat Sega to market, but, rather, only attempted to compete in the same market. The court stressed that Accolade was not displacing the market for games produced by both Sega and its licensees, because purchasers of Accolade games would likely still want to purchase games produced by Sega. Thus, the fourth factor was found to favor fair use.

Conclusion: The factors weighed strongly in favor of fair use. This case opened important opportunities for researchers to use copyrighted works, particularly for objectives that would not compete with the original work and would have productive or constructive outcomes.

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Research: Quotations or Excerpts in Scholarly Presentation

Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).

This case is remarkable for having gone to court at all; isolated scholarly uses of materials are seldom the subject of litigation. It is also a reminder that reasonable, limited, scholarly uses of materials are most likely to be fair use. In this case, a researcher at a nonprofit foundation selected quotations from an unpublished literary manuscript of historical and cultural interest, and included the quotations in an analytical presentation that she delivered to a scholarly society.

  • Purpose: The use was scholarly and transformative, providing criticism and comment on the original manuscript, thus favoring fair use.
  • Nature: The unpublished nature of the work weighed against fair use, though this factor was not determinative.
  • Amount: The amount used was consistent with the purpose of scholarly criticism and commentary, and there was no evidence of taking “the heart of the work,” thus weighing in favor of fair use.
  • Effect: The court found no evidence that the presentation displaced any market for publishing the original work, and a presentation at a scholarly conference may in fact have increased demand for the full work. This factor therefore favored fair use.

Conclusion: The court ruled that the researcher was acting within fair use. This case is important for many reasons. It affirms that customary quoting of materials, consistent with scholarly aims, is often within fair use. Many courts have construed fair use narrowly when applied to unpublished materials, but this case demonstrates that under proper circumstances, copying and quoting from unpublished works can be fair use.

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Publications: Quotations or Excerpts of Text

Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).

In 1973, the plaintiff wrote a book based on interviews with women about their own pregnancies and abortions. The defendant wrote his own book on the same subject and sought permission to use lengthy excerpts from the plaintiff’s work. The plaintiff refused permission, and the defendant proceeded to publish his work with the unpermitted excerpts.

  • Purpose: Although defendant’s book was published by a commercial press with the possibility of monetary success, the main purpose of the book was to educate the public about abortion and about the author’s views. Though errors in the copying of the original work could weigh against fair use, here the court found the errors to be of little significance. Overall, this factor weighed in favor of fair use.
  • Nature: Though the plaintiff’s book contained “elements of creative journalistic effort,” it was said to be largely factual, weighing in favor of fair use.
  • Amount: The court resolved that quoting 4.3 percent of the plaintiff’s work was not excessive.  The verbatim passages were also not necessarily central to the plaintiff’s book.
  • Effect: The court found no significant threat to the plaintiff’s market. Indeed, the court noted that the plaintiff’s work was out-of-print and not likely to appeal to the same readers.

Conclusion: This case affirms that quotations in a subsequent work may be within fair use, even when they are lengthy. Implicit throughout the case is the fact that the plaintiff was unwilling to permit quotations in a book that argued an opposing view of abortion; thus fair use became the only effective means for the second author to build meaningfully on the scholarly work of others.

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Publications: Reprinting of Visual Images

Warren Publishing Co. v. Spurlock, 645 F.Supp.2d 402 (2009).

Spurlock published a book-form biography and illustrated retrospective of movie monster artist Basil Gogos. Spurlock’s book contained 160 reprints of Gogos’s work, including 24 reproductions of Gogos’s artwork taken from Warren’s copyrighted movie monster magazine covers. At summary judgment, the court ruled that Spurlock acted within fair use, based on its reasoning that the purpose and amount factors weighed strongly in Spurlock’s favor.

  • Purpose: The court considered Spurlock’s presentation of the images within an artist’s biography and career retrospective to be a transformative use, because the artwork was used for an entirely different purpose than the original purpose of cover art helping to sell magazines. The commercial nature of Spurlock’s book did not overcome the transformative purpose of the use, nor did Spurlock evidence bad faith by publishing the reproductions after unsuccessfully seeking Warren’s permission.
  • Nature: The nature factor weighed slightly in favor of Warren, because although the fact that the magazines were out-of-print implied a lack of demand and lack of market harm to Warren as a result of Spurlock’s use, the magazine covers were creative expressions and thus fell within the core of the Copyright Act’s protective purposes. Nevertheless, the court determined that this factor was of limited relevance given its prior finding of transformative purpose.
  • Amount: In determining the amount of the work that Spurlock used, the court found that the “work” was the magazine issue as a whole and did not consider the magazine’s cover to be an individually copyrighted work. The court then accordingly found that Spurlock’s cover art reproductions used only a small portion of each magazine issue, weighing in favor of fair use.
  • Effect: The court’s examination of effect focused on the market for derivative works of Warren’s magazines, specifically a proposed coffee table book of magazine covers. The court found that Warren’s failure to exploit its copyrights or any derivative market for more than 20 years substantially detracted from Warren’s argument of market harm. However, because summary judgment required the court to make all factual inferences in favor of Warren, it ultimately concluded that the effect factor weighed slightly against finding fair use.

Conclusion: Spurlock’s use of the magazine cover art was deemed to be fair use. Central to the court’s reasoning was the transformative nature of the use of the images in a biographical compilation. The court considered Spurlock’s purpose to weigh in favor of fair use even though the images were reproduced in a commercial product. Also significant was the court’s determination that the amount of the work used was based on an entire magazine issue rather than its cover image.

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Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).

Dorling Kindersley (DK) published a comprehensive “coffee table” book documenting the thirty-year history of the famous rock band, the Grateful Dead. The book included seven copies of old concert posters in which the plaintiff, Bill Graham Archives (BGA), owned the copyrights.

  • Purpose: The copied works (which accounted for “less than one-fifth of one percent of the book”) were greatly reduced in size and were displayed in biographical fashion to commemorate events in the Grateful Dead’s history. The copied works were accompanied by numerous other contextual devices, such as a timeline and descriptions of events, pictures of the band and its fans, and other mementos of the time. The use was therefore “transformative,” because the purpose differed from that of the original posters, and DK “did not seek to exploit the images’ expressive value for commercial gain,” which leaned in favor of fair use.
  • Nature: The copied works were artistic posters that were creative in nature, which typically would weigh against fair use. However, the court gave limited weight to this element of the fair use analysis, because DK used the copied posters for their historical value, rather than their creative value, and the use was transformative.
  • Amount: Even though DK copied the posters in their entirety, this finding does not necessarily weigh against fair use where the portion copied was necessary to fulfill the purpose of the proposed fair use. The court noted that the copied portions were greatly reduced from their original size and were displayed using the minimal size and quality needed to ensure the proper historical context. Thus, the third factor did not weigh against fair use.
  • Effect: Though BGA argued that the fact that DK did not pay a licensing fee caused it market harm, the court disagreed, stating that if a court were to find harm to the market every time a fee was not paid, then the fourth factor would always favor the copyright holder. The court then looked to the potential impact on future markets, noting that “copyright owners may not preempt exploitation of transformative markets.” Because DK’s biographical use was within a transformative market, the court found no market harm. An initial willingness to pay a licensing fee also did not prevent DK from making a fair use of the works.

Conclusion: The court found that DK’s use of the posters was within the limits of fair use. Thus, using copied artworks in a reduced size can be fair use so long as the use is transformative and not for purposes of exploiting the creative nature of the copied works. Even when the full work is reproduced, it can still be fair use if the amount used was necessary to further the purpose of the fair use. Furthermore, the copyright holder cannot prevent fair uses simply by creating new transformative markets for the copied works.

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Nuñez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000).

A newspaper published three suggestive and controversial photographs from the portfolio of a beauty pageant winner.

  • Purpose: The newspaper is a commercial enterprise and the use of the photos certainly boosted sales of the paper. However, the paper’s use of the photos was transformative; the original purpose of the photos may have been promotional, but the newspaper used them to inform the public about news events. The court ruled that this factor slightly favored fair use because of the informative use, the good faith of the newspaper in obtaining the photos, and the difficulty in reporting the news without the photos.
  • Nature: The court did not characterize the photos as either factual or creative, leaning toward a neutral conclusion on this factor. In addition, the court emphasized that the reproduction did not threaten the right of first publication, and that the photos already had been shown on the television news.
  • Amount: The entirety of each picture was copied, yet copying less than the whole would have rendered the photo useless to the purpose of news reporting. Ultimately, the court found this factor to be “of little consequence.”
  • Effect: The court found little or no effect (and if anything, a positive effect) on the market for these pictures, because a newspaper reproduction is not a market substitute for an 8” x 10” glossy. Because there was also little likelihood that a market for sale directly to newspapers would have been developed, the court found that this factor favored fair use.

Conclusion: The court emphasized that generally reproduction by newspapers of professional photographs is infringement. However, if the photo itself is newsworthy, the photo is acquired in good faith, and the photo has already been disseminated, publication may well be fair use.

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Web Sites: Posting for Public Access

NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004).

NXIVM produced executive business training seminars that generated considerable controversy. NXIVM brought a copyright infringement action against website operators for posting excerpts from NXIVM’s training manuals. The training manuals were unpublished in the sense that they were not available to the general public.

  • Purpose: The purpose of the use was deemed “transformative,” because it was to criticize NXIVM’s seminars and manual.  Because the use was transformative, the first factor favored fair use, even in light of the bad faith in which the manuals were obtained.
  • Nature: Because both sides conceded that the work was unpublished, the second factor weighed against fair use.
  • Amount: The amount used was only as necessary to further the transformative purpose.  Also, Ross did not take the “heart of the work,” because there was no specific portion that constituted the heart of NXIVM’s manual. Thus, the third factor weighed in favor of fair use.
  • Effect: The court found that criticism of a seminar or organization did not substitute for the seminar itself or its market, and any harm to the market as a result of such criticism was merely a byproduct of free expression and public discussion. Thus, the fourth factor leaned in favor of fair use.

Conclusion: This case demonstrates that even posting materials on publicly accessible websites can be within fair use, particularly if the use is in the context of critical discussion, and only portions are copied.

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Los Angeles Times v. Free Republic, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).

A bulletin board website allowed members to post full articles from newspapers in order to generate awareness and discussion of various subjects. Access to the site was unrestricted. The defendant was a for-profit corporation, but was in the process of seeking nonprofit tax status and did not charge for access to materials on its website.

  • Purpose: The articles were copied directly from the news sources and were not “transformative.” The judge was also not persuaded that a link to the news source would have been insufficient. While the court generally favored the claim of a “nonprofit” use, the court still found that posting the articles was drawing readers away from the commercial websites where the articles originated and served the same purpose as the original articles. This factor therefore weighed against fair use.
  • Nature: The articles were predominately factual, tipping this factor in favor of fair use.
  • Amount: The website included the full text of the articles, and the court found that the copying was more extensive than necessary to accomplish the defendant’s objectives.
  • Effect: The newspapers were seeking to exploit the market for the articles and draw traffic to their websites; the defendant was “usurping” the copyright owner’s potential markets.

Conclusion: The bulletin board’s use of the newspaper articles was deemed not to be fair use. This case offers a bit of caution about the difference between allowing public access to materials, as opposed to restricting access. Granting public access to entire works is much more difficult to justify as fair use.

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Video Production: Excerpts and Use of Works

Higgins v. Detroit Educational Television Foundation, 4 F.Supp. 2d 701 (E.D. Mich. 1998).

Higgins was a composer and copyright owner of a short song. Forty-five seconds of it were used as background music during the introductory and ending sequences of a program about drugs and youth that was broadcast on a PBS affiliate station in Michigan. The broadcaster also sold videotape copies of the program to educational institutions “for educational use only.” The court ruled that the station acted within fair use.

  • Purpose: The court noted that the defendant sold the tapes for educational purposes and did not earn a profit.  In addition, the use of the music faintly in the background was “transformative,” as it was used for a completely different purpose, thus weighing this factor in favor of fair use.
  • Nature: As a musical composition, the court found the work to be creative, thus tipping this factor against fair use (though not heavily, since the work was published).
  • Amount: The amount used was neither “qualitatively” nor “quantitatively” excessive.  The use did not include any lyrics of the original song and only a portion of the original music, and then only as background.
  • Effect: There was no evidence of lost sales, and the court concluded that brief excerpts as background music “cannot be said to be a substitution for the musical composition.”  The court acknowledged that any use is a “potential” loss of a sale or revenue, but the only market important in this analysis is the market that the copyright owner is realistically exploiting, in this case that of educational videotapes, in which the plaintiff appeared not to have an interest.

Conclusion: This decision suggests that use of clips of music and other creative works in nonprofit research and education can be lawful, especially when integrated into a project with limited circulation.

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National Center for Jewish Film v. Riverside Films LLC, 2012 WL 4052111 (C.D.Cal. Sept. 14, 2012).

Riverside Films created a documentary about a 19th Century Yiddish author that also examined the last 150 years of Jewish history using clips from four films copyrighted by the National Center for Jewish Film.

  • Purpose: The court found that, by adding voiceovers, other scenes, and commentary, by editing the original clips, and by changing the clips through overall production, the use was transformative.  Although the court did not explicitly conclude that the use was commercial, even if it had, the court concluded that “the more transformative the new work,” the less significance is attached to other variables related to purpose.  Thus, this factor favored fair use.
  • Nature: The original clips were very old and possibly in the public domain.  In addition, the court found that there likely was copyright only in the subtitles accompanying the clips and not in the clips themselves, weighing this factor slightly in favor of fair use.
  • Amount: The clips used were not highly substantive, and the use was minimal, favoring fair use.
  • Effect: The court found that the documentary did not serve as a replacement for the original films because it did not duplicate them, nor would it dissuade consumers from buying the original films.  In fact, the court found that the documentary could likely cause a newfound interest in the original films, leading the court to weigh this factor in favor of fair use.
  • Bad Faith: The court analyzed bad faith as a fifth consideration in its determination of fair use, even though it is not a statutory factor, finding that bad faith could potentially bar the fair use defense entirely.  The court found the defendants’ acts reasonable in light of the tenuous copyrights in the original films, and weighed this consideration in favor of fair use.

Conclusion: The court ruled that the use of plaintiff’s films was a fair use because it added and transformed the original films through editing and commentary.  The court elevated the consideration of bad faith, and it is worth noting that while bad faith is not a statutory factor in the determination of fair use, the bad faith or good faith of the user can be an important consideration in swaying the court for or against a finding of fair use.

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Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.Supp.2d 962, (C.D.Cal. 2012).

Two groups prepared films expounding on their differing views on a sharply controversial issue.  The defendants borrowed heavily from the films owned by the plaintiff to create their opposing message.

  • Purpose: The court found that the defendants’ films were parodies of the plaintiff’s films, intended to criticize, comment on, and disparage the plaintiff’s views.  The use was sufficiently transformative because it added a new soundtrack, images, and video clips to the original that expressed the defendants’ message, weighing this factor in favor of fair use.
  • Nature: The original work was “informational, functional, and creative.”  However, the court found that this factor is not significant in the context of parody, weighing this factor only slightly against fair use.
  • Amount: Though a significant amount of the plaintiff’s film was used, the court found that the portion was necessary for the audience to recognize the defendants’ films as parodies, weighing in favor of fair use.
  • Effect: The court found that there was no cognizable market harm because the court determined that harm caused by parody and criticism is not a recognizable injury under the Copyright Act, weighing this factor in favor of fair use.

Conclusion: The court ruled that the defendants’ use of the plaintiff’s film was fair use. This court may have been influenced by the desire to support an important public debate surrounding the controversial issue of abortion rights.

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SOFA Entertainment, Inc. v. Dodger Productions, Inc., 2013 WL 1004610, (9th Cir. 2013).

Dodger Productions used a seven-second clip, owned by SOFA Entertainment, of Ed Sullivan’s introduction of the Four Seasons on The Ed Sullivan Show in its musical Jersey Boys.

  • Purpose: The court found that Dodger used the clip to mark an important moment in the Four Seasons’ career, rather than merely for its entertainment value, finding such use to be transformative and heavily in favor of fair use.
  • Nature: The clip mainly conveyed factual information rather than creative performances, weighing in favor of fair use.
  • Amount: The clip was found to be both quantitatively small and qualitatively insignificant because it simply identified the Four Seasons, weighing in favor of fair use.
  • Effect: The court determined that the use of the clip was not a substitute for the original and did not threaten plaintiff’s business model, favoring a finding of fair use.

Conclusion: The court ruled that the defendant’s use of a clip from plaintiff’s work was fair use, particularly because it not only did not harm the plaintiff’s copyright but also because “society’s enjoyment of Dodger’s creative endeavor [was] enhanced with its inclusion.”

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Photographs: Use and Alteration of Photographic Images

Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., 55 F.Supp.2d 1113 (D. Nev. 1999).

Tiffany Design created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Specialty produced a composite image of Las Vegas and included images of at least six buildings scanned and inserted from Tiffany’s work.

  • Purpose: The use of the images and the developments of the composite picture were to create a commercial product, weighing against fair use.
  • Nature: The image copied was a computer-enhanced photograph, with numerous original elements of lighting, perspective, shading, and subject orientation. The creative nature of the original work tipped this factor against fair use.
  • Amount: The entire image was scanned, although only portions were used.
  • Effect: The court found that incorporation of components of the scanned image could harm the commercial demand for Tiffany’s depictions of the Las Vegas Strip, causing this factor to weigh against fair use.

Conclusion: The court ruled that the defendants’ use of images did not constitute fair use. Thus, scanning and manipulating a highly creative work may be beyond the limits of fair use, especially if the ultimate purpose is to include elements of the original work in a commercial product that might compete with the existing market for the original.

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Cariou v. Prince, _ F.3d _ (2d Cir. 2013).

Patrick Cariou published a book of photographs of Rastafarians and landscapes taken in Jamaica.  Richard Prince utilized portions of and entire images from Cariou’s photographs in 28 paintings, many of which were shown in the Gagosian Gallery.

  • Purpose: The court found Prince’s use to be transformative because his images were different in character, gave Cariou’s photographs a new expression and used new aesthetics that communicated a different result.  Though Prince’s works were found to be commercial, the court chose not to place much significance on their commercial nature because they were transformative.
  • Nature: The photographs were found to be creative and published, weighing against a finding of fair use.  However, the court noted that this factor is of "limited usefulness" when the work is used for a transformative purpose.
  • Amount: Though many of Prince’s paintings used substantial parts of or entire photographs, the court determined that because Prince transformed Cariou’s photographs, this factor weighed heavily in favor of fair use.
  • Effect: The court found that this factor weighed in favor of fair use because Prince’s works appealed to a different sort of collector, namely the famous and the wealthy, than Cariou’s and because Cariou did not actively market his works or sell them for significant sums.

Conclusion: The court held that Prince’s works made fair use of Cariou’s photographs, demonstrating that appropriation art that utilizes portions of or entire works created by others might be fair use if they are changed to create a new expression or communicate a different result.

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Digital Libraries and Collections

Authors Guild, Inc. v. HathiTrust, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012).

A number of university libraries entered into agreements with Google under which Google would digitize works in the libraries’ collections and provide them with digital copies.  Many of those libraries deposited the digital copies with the HathiTrust Digital Library.  HathiTrust displayed in full only those books that were in the public domain or for which the copyright owner had authorized use.  For protected works, HathiTrust provided a full-text search that only showed the page numbers on which a term was found and the number of times the term appeared on each page.

  • Purpose: The uses of the works for scholarship and research, for superior search capabilities, and to facilitate access for print-disabled persons were found to be transformative, weighing this factor in favor of fair use.
  • Nature: Some of the works involved were fiction and other types of creative works that would normally tip the factor against fair use.  However, the court found that since the use was transformative, the second factor was not dispositive.
  • Amount: The entire works were copied; however, the court found that the amount was necessary for the purpose.
  • Effect: The court found that the defendants’ use did not usurp any existing or viable potential transformative market.

Conclusion: The court ruled that the defendants’ use of the works constituted fair use.  Thus, digitizing and making available works in a limited capacity can be lawful under rigorously controlled conditions, especially when the use is transformative and specifically for use by scholars and print-disabled persons.  This decision is currently on appeal. 

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