From IP Buzz:
“Fair use…is not a jacket to be worn over an otherwise infringing outfit” explained Judge Rakoff in the latest decision that seems to indicate that courts are tempering the fair use defense to copyright infringement.
On September 8, 2017, Judge Rakoff issued his written opinion in Penguin Random House LLC et al. v. Frederick Colting et al., 1:17-cv-00386 (S.D.N.Y. Sep. 7, 2017), finding that defendant’s condensed and edited children’s versions of various classic novels, known as “KinderGuides,” did not fall under the fair use defense to copyright infringement.
Defendant argued that the guides were transformative and akin to “CliffNotes” for children, including “condensed [and] simplified” versions of the underlying works as well as original content in the form of “Main Characters,” “Key Words,” “Quiz Questions,” and “Analysis” pages. Opinion at 2. Judge Rakoff, however, disagreed with this characterization, noting that the guides used the vast majority of each underlying work, including its “themes, characters, plots, sequencing, pace, and settings,” without providing any significant analysis or additional context. Id. at 16.
The court found that defendant’s addition of brief “Analysis” and “Quiz Questions” sections to the work did not cure the infringement, stating that the guides “do not recount plaintiffs’ novels in the service of literary analysis, they provide literary analysis in the service of trying to make the guides qualify for the fair use exception[.]” Id. at 24.
. . . .
Given the non-dispositive and subjective nature of each fair use factor, the application of this doctrine can vary meaningfully over time and between courts. From 2013 to 2015, it seemed the pendulum had swung decidedly toward increased findings of fair use in a number of varying situations. Two key examples led many to comment that fair use was becoming so broad as to usurp copyright.
For example, in The Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), the Second Circuit held that Google’s publication of scanned segments of copyrighted works in its Google Books search results was a fair use of underlying copyrighted materials because, even though no commentary or changes in general were added to the copyrighted text itself, the purpose of the use was highly transformative in that Google used the materials to provide information about the book, not the book itself, to the searcher. The court also found that the segments of text shown were limited and that it was unlikely that Google’s use would interfere with the market for the protected works.
. . . .
In contrast with the above, over the past year or so courts – including in the Second Circuit – have begun to move away from this broad application of the fair use doctrine, adhering instead to a stricter view of what is transformative, placing more emphasis on the commercial nature of the infringing work, narrowing how much of a work can be “fairly used,” and focusing on what uses will leave the original work’s primary and secondary markets intact.
Link to the rest at IP Buzz
PG says Fair Use is a strange and wondrous place where (sometimes) judges who have not dealt with copyright matters either on the bench or in their pre-bench legal activities are required to become experts on an arcane niche of copyright law. The lawyers in such cases are usually experts in copyright law and are highly knowledgeable about the conflicting court decisions that govern fair use.
- The purpose of copyright law, as set forth in the United States Constitution is “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
- US Copyright laws, written pursuant to the constitutional copyright clause above, give the owner of copyright (usually, but not always, the author) the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
- To digitally transmit sound recordings by means of digital audio transmission.
- Fair Use is an exception to the author’s exclusive rights to reproduce, etc., his/her creative works. A person or entity operating under the Fair Use exception may utilize portions of the author’s work without infringing the author’s copyright.
- Fair use includes, but is not limited to (in the words of the statute) “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.”
- If you’re confused by that statutory language, Congress has helpfully provided a way of determining whether something is or is not covered by the fair use exception:
- 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.
- In making a decision whether a particular creative work (book, photo, painting, etc., etc.) violates the copyright of a creator of another creative work, the federal judge is required to consider each of these four factors, considering what the alleged violator did that falls under each factor, giving it some sort of weight, then considering each of the factors and their weights, determine which side of the fair use fence the new creative work falls into.
- If you were to worry that some judges lose their balance, your worries would be justified.
- Compared to the blooming garden of court decisions relating to the rights of drug dealers and the obligations of people who arrest them, copyright in general and fair use in particular are nearly barren deserts.
- Hence, whether an imaginary legal pendulum is swing towards or away from fair use is often analyzed from a handful of court decisions, most of which are closely tied to a specific set of facts
At this point, PG is certain the subject of fair use is much clearer in the minds of all the visitors to The Passive Voice.
Some activities clearly fall on one side of the fence or the other.
Copying 50% of someone else’s book and pasting it into your book will not be fair use. Quoting a sentence from someone else’s book and putting it in your book, particularly with attribution, will be fair use.