The best method of understanding the flexible principle
of fair use is to review actual cases decided by the courts.
Below are summaries of a series of fair use cases.
1. Cases Involving Text
- Not a fair use. An author copied more than half
of an unpublished manuscript to prove that someone was involved
in the overthrow of the Iranian government. Important
factors: A substantial portion was taken (half of the
work) and the work had not yet been published. (Love
v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).)
- Fair use. A biographer of Richard Wright quoted
from six unpublished letters and ten unpublished journal
entries by Wright. Important factors: No more than
1% of Wright's unpublished letters were copied and the purpose
was informational. ( Wright v. Warner Books, Inc.,
953 F.2d 731 (2d Cir. 1991).)
- Not a fair use. A biographer paraphrased large
portions of unpublished letters written by the famed author
J.D. Salinger. Although people could read these letters
at a university library, Salinger had never authorized their
reproduction. In other words, the first time that the general
public would see these letters was in their paraphrased
form in the biography. Salinger successfully sued to prevent
publication. Important factors: The letters were
unpublished and were the "backbone" of the biography--so
much so that without the letters the resulting biography
was unsuccessful. In other words, the letters may have been
taken more as a means of capitalizing on the interest in
Salinger than in providing a critical study of the author.
( Salinger v. Random House, 811 F.2d 90 (2d Cir.
1987).)
- Not a fair use. The Nation magazine published
excerpts from ex-President Gerald Ford's unpublished memoirs.
The publication in The Nation was made several weeks
prior to the date of serialization of Mr. Ford's book in
another magazine. Important factors: The Nation's
copying seriously damaged the marketability of Mr. Ford
's serialization rights. (Harper & Row v. Nation
Enters., 471 U.S. 539 (1985).)
- Not a fair use. A company published a book entitled
Welcome to Twin Peaks: A Complete Guide to Who's Who
and What's What, containing direct quotations and paraphrases
from the television show "Twin Peaks" as well as detailed
descriptions of plot, character and setting. Important
factors: The amount of the material taken was substantial
and the publication adversely affected the potential market
for authorized books about the program. (Twin Peaks v.
Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993).)
- Not a fair use. A company published a book of trivia
questions about the events and characters of the "Seinfeld"
television series. The book included questions based upon
events and characters in 84 "Seinfeld" episodes and used
actual dialogue from the show in 41 of the book's questions.
Important factors: As in the "Twin Peaks" case, the
book affected the owner's right to make derivative "Seinfeld"
works such as trivia books. ( Castle Rock Entertainment,
Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)
- Fair use. Publisher Larry Flynt made disparaging
statements about the Reverend Jerry Falwell on one page
of Hustler magazine. Rev. Falwell made several hundred
thousand copies of the page and distributed them as part
of a fund-raising effort. Important factors: Rev.
Falwell's copying did not diminish the sales of the magazine
(since it was already off the market) and would not adversely
affect the marketability of back issues. (Hustler Magazine,
Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D.
Cal. 1985).)
2. Artwork and Audiovisual Cases
- Not a fair use. A television
news program copied one minute and
15 seconds from a 72-minute Charlie
Chaplin film and used it in a news
report about Chaplin's death. Important
factors: The court felt that the
portions taken were substantial and
part of the "heart" of the film. (Roy
Export Co. Estab. of Vaduz v. Columbia
Broadcasting Sys., Inc. , 672
F.2d 1095, 1100 (2d Cir. 1982).)
- Fair use. The makers of a movie
biography of Muhammad Ali used 41
seconds from a boxing match film in
their biography. Important factors:
A small portion of film was taken
and the purpose was informational.
(Monster Communications, Inc. v.
Turner Broadcasting Sys. Inc.,
935 F. Supp. 490 (S.D. N.Y. 1996).)
- Not a fair use. A television
station's news broadcast used 30 seconds
from a fourminute copyrighted videotape
of the 1992 Los Angeles beating of
Reginald Denny. Important factors:
The use was commercial, took the heart
of the work and affected the copyright
owner's ability to market the video.
( Los Angeles News Service v. KCAL-TV
Channel 9, 108 F.3d 1119 (9th
Cir. 1997).)
- Fair use. In a lawsuit commonly
known as the Betamax case, the Supreme
Court determined that the home videotaping
of a television broadcast was a fair
use. This was one of the few occasions
when copying a complete work (for
example, a complete episode of the
"Kojak" television show) was accepted
as a fair use. Evidence indicated
that most viewers were "time-shifting"
(taping in order to watch later) and
not "library-building" (collecting
the videos in order to build a video
library). Important factors:
The Supreme Court reasoned that the
"delayed" system of viewing did not
deprive the copyright owners of revenue.
(Universal City Studios v. Sony
Corp., 464 U.S. 417 (1984).)
- Not a fair use. A poster of
a "church quilt" was used in the background
of a television series for 27 seconds.
Important factors: The court
was influenced by the prominence of
the poster, its thematic importance
for the set decoration of a church
and the fact that it was a conventional
practice to license such works for
use in television programs. (Ringgold
v. Black Entertainment Television,
Inc., 126 F.3d 70 (2d Cir. 1997).)
- Fair Use. A search
engine’s practice of creating
small reproductions (“thumbnails”)
of images and placing them on its
own website (known as “inlining”)
did not undermine the potential market
for the sale or licensing of those
images. Important Factors.
The thumbnails were much smaller and
of much poorer quality than the original
photos and served to index the images
and help the public access them. (Kelly
v. Arriba-Soft, 03 C.D.O.S. 5888 (9th
Cir. 2003).)
3. Internet Cases
- Not a fair use. Entire publications of the Church
of Scientology were posted on the Internet by several individuals
without Church permission. Important factors: Fair
use is intended to permit the borrowing of portions of a
work, not complete works. (Religious Technology Center
v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)
- Fair use. The Washington Post used three
brief quotations from Church of Scientology texts posted
on the Internet (see previous case). Important factors:
Only a small portion of the work was excerpted and the purpose
was for news commentary. ( Religious Technology Center
v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).)
4. Music Cases
- Fair use. A person running for political office
used 15 seconds of his opponent's campaign song in a political
ad. Important factors: A small portion of the song
was used and the purpose was for purposes of political debate.
(Keep Thomson Governor Comm. v. Citizens for Gallen Comm.,
457 F. Supp. 957 (D. N.H. 1978).)
- Fair use. A television film crew, covering an Italian
festival in Manhattan, recorded a band playing a portion
of a copyrighted song "Dove sta Zaza." The music was replayed
during a news broadcast. Important factors: Only
a portion of the song was used, it was incidental to the
news event and did not result in any actual damage to the
composer or to the market for the work. ( Italian Book
Corp, v. American Broadcasting Co., 458 F. Supp. 65
(S.D. N.Y. 1978).)
5. Summaries of Parody Cases
- Fair use. The rap group 2 Live Crew borrowed the
opening musical tag and the words (but not the melody) from
the first line of the song "Pretty Woman" ("Oh, pretty woman,
walking down the street "). The rest of the lyrics and the
music were different. Important factors: The group's
use was transformative and borrowed only a small portion
of the "Pretty Woman" song. The 2 Live Crew version was
essentially a different piece of music and the only similarity
was a brief musical opening part and the opening line. (Note:
The rap group had initially sought to pay for the right
to use portions of the song but were rebuffed by the publisher
who did not want "Pretty Woman" used in a rap song.) (Campbell
v. Acuff-Rose Music, 510 U.S. 569 (1994).)
- Fair use. The composers of the song, "When Sunny
Gets Blue," claimed that their song was infringed by "When
Sonny Sniffs Glue, " a 29second parody that altered the
original lyric line and borrowed six bars of the song. A
court determined this parody was excused as a fair use.
Important factors: Only 29 seconds of music were
borrowed (not the complete song ). (Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986).) (Note: As a general rule,
parodying more than a few lines of a song lyric is unlikely
to be excused as a fair use. Performers such as Weird Al
Yankovic, who earn a living by humorously modifying hit
songs, seek permission of the songwriters before recording
their parodies.)
- Fair use. Comedians on the late-night television
show "Saturday Night Live" parodied the song "I Love New
York" using the words "I Love Sodom." Only the words "I
Love" and four musical notes were taken from the original
work. Important factors: The "Saturday Night Live"
version of the jingle did not compete with or detract from
the original song. (Elsmere Music, Inc. v. National Broadcasting
Co., 482 F. Supp. 741 (S.D. N.Y.), aff'd 632 F.2d 252
(2d Cir. 1980).)
- Not a fair use. An author mimicked the style of
a Dr. Seuss book while re-telling the facts of the O.J.
Simpson murder trial in The Cat NOT in the Hat! A Parody
by Dr. Juice. The Ninth Circuit Court of Appeals determined
that the book was a satire, not a parody, because the book
did not poke fun at or ridicule Dr. Seuss. Instead, it merely
used the Dr. Seuss characters and style to tell the story
of the murder. Important factors: The author's work
was nontransformative and commercial. (Dr. Seuss Enterprises,
L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th
Cir. 1997).)
- Fair use. A movie company used a photo of a naked
pregnant woman and superimposed the head of actor Leslie
Nielsen. The photo was a parody using similar lighting and
body positioning of a famous photograph taken by Annie Leibovitz
of the actress Demi Moore for the cover of Vanity Fair
magazine. Important factors: The movie company's
use was transformative because it imitated the photographer's
style for comic effect or ridicule. (Leibovitz v. Paramount
Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
- Not a fair use. An artist created a cover for a
New Yorker magazine that presented a humorous view
of geography through the eyes of a New York City resident.
A movie company later advertised their film Moscow on the
Hudson using a similar piece of artwork with similar elements.
The artist sued and a court ruled that the movie company
's poster was not a fair use. Important factors:
Why is this case different than the previous case involving
the Leslie Nielsen/Annie Leibovitz parody? In the Leibovitz
case, the use was a true parody, characterized by a juxtaposition
of imagery that actually commented on or criticized the
original. The Moscow on the Hudson movie poster did not
create a parody; it simply borrowed the New Yorker's parody
(the typical New York City resident's geographical viewpoint
that New York City is the center of the world). ( Steinberg
v. Columbia Pictures Industries, Inc., 663 F. Supp.
706 (S.D. N.Y. 1987).)
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