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12C fair use
1909 Act: Not mentioned
1947 Act: Not mentioned
1976 Act: §107
FL 102 “Fair Use”
“Although fair use was not mentioned in the previous  copyright law, the fair use doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.” (Fact sheet FL102)
“[V]arious purposes for fair use: criticism, comment, news reporting, teaching, scholarship, and research.” (Fact sheet FL102)
“There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” (Fact sheet FL102)
In 1977, former President Gerald Ford contracted with Harper & Row to publish his at-the-time unwritten memoirs. The agreement gave them the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, Harper & Row negotiated a prepublication licensing agreement with Time magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford’s account of his pardon of former President Nixon. Shortly before the Time article’s scheduled release, an unauthorized source provided The Nation magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to “scoop” the Time article. As a result of the publication of The Nation’s article, Time canceled its article and refused to pay the remaining $12,500. Harper & Row then brought suit in Federal District Court against The Nation, alleging violations of the Copyright Act. The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication and that respondents’ use of the copyrighted material constituted an infringement under the Act, and the court awarded actual damages of $12,500. The Court of Appeals reversed, holding that The Nation’s publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a “fair use.” (Preceding paragraph is a close paraphrase of the Court’s summary.)
“Fair use” when “for purposes such as comment and news reporting is not an infringement of copyright.” The Supreme Court reversed the reversal, contending that The Nation had gone beyond “fair use,” for “In using generous verbatim excerpts of Mr. Ford’s unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right.” Further relevant because the book was yet unpublished, “the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.” The Nation was ordered liable for the lost $12,500, for, “Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression. Petitioners established a prima facie case of actual damage that respondents failed to rebut.”
illustration: President Gerald Ford speaking before Congress, as shown in a television commercial often broadcast while he sought the presidency in the 1976 election.
Webb sued to enforce his rights in Mrs. S.J. Hale’s book Flora’s Interpreter (1832), which defined 230 flowers. Defendant Powers was responsible for Miss S. C. Edgarton’s book The Flower Vase, containing the Language of Flowers and their Poetic Sentiments (1843), which defined 148 flowers. Among these 148, twenty were copied from Hale’s three-times-larger work, which was organized differently. The copying amounted to 156 words in all, plus 19 instances where parts of descriptions and localities were re-used. This was judged not an infringement. The decision notes that both books had made use of Flora’s Dictionary (1830) by Mrs. Wirt.
A thorough summary of this case is under work for hire. The central work in the case is a dramatic program broadcast by CBS television on September 9, 1957, which depicted the commotion which occurred the evening of August 30, 1938, when listeners to CBS radio had mistakenly believed that a CBS radio drama was news coverage of the invasion of Earth by Martians. The 1957 teleplay reproduced substantial portions of the 1938 radio script, which Welles had produced, but didn’t write nor own. What is pertinent in the present section is the following:
“The same script was used, but the rights in the script… did not belong to Welles. Hence Welles could have no valid objection to the use of this script in putting on another entirely different performance, with entirely different actors. Of course, the unexpected results of panic created by the performance of the radio show were news-worthy events, which any person would be entitled to reproduce and to which Welles could have no exclusive right of reproduction in any event.”
The decision does concede that “if Mr. Welles had owned rights in the script—there was a sufficient taking to constitute more than fair use, [yet] appellant’s case must fail because he had no such rights.”
CBS broadcast a half-hour program about Charlie Chaplin shortly after the great filmmaker/comedian’s death. Two-fifths of the program were film clips that had not been licensed from the copyright owner. CBS maintains their actions were permissible fair use, and that “its use of two of the [six] copyrighted works was authorized as a matter of law”.
CBS drew heavily from a compilation prepared to precede Chaplin’s appearance at the Academy Awards in 1972. That compilation had been licensed by the owner of the pertinent Chaplin films to be shown only on that one occasion, after which it remained in a tape stored by NBC which shortly prior to the CBS program was lent by NBC to CBS.
“In 1973, CBS had begun work on its own retrospective program about Chaplin for use at the time of Chaplin’s death. CBS soon learned of plaintiff’s copyrights on the Chaplin films and plaintiff’s plans to produce their own biography (The Gentleman Tramp). CBS repeatedly requested permission to use excerpts from the Chaplin films, but plaintiffs refused, explaining that they themselves were producing the ‘definitive’ Chaplin biography. Nevertheless, CBS prepared a ‘rough cut’ which included two scenes from copyrighted films which CBS had obtained in 1972 for use on its 60 Minutes program.”
In 1976 and December 1977, rbc made unsuccessful attempts to sell CBS a license to show The Gentleman Tramp. “Many of the same highlights of Chaplin’s films which had been included in the Compilation were included in The Gentleman Tramp.” Bert Schneider worked on both.
“On December 25, 1977, Charlie Chaplin died. Russell Bensley, director of the CBS Special Events Unit, attempted to contact Schneider and Rothman to see if they had changed their minds and would grant CBS permission to use excerpts. The same day, CBS obtained from NBC a copy of the Compilation which had been shown on the Academy Awards broadcast. Although CBS was unable to reach Schneider or Rothman, it decided to proceed with a retrospective. At that time, CBS had two possible versions available for broadcast, one the ‘rough cut’ consisting primarily of public domain footage, the other a new version which incorporated, with minor editions [editing], the Compilation as well as other copyrighted material. Richard Salant, the President of CBS News, made the final decision to use the latter version, 40% of which consisted of plaintiffs’ copyrighted films. That show was broadcast on December 26, 1977, between 11:30 P.M. and Midnight. (EST).”
CBS claimed that “its special constituted news reporting of a matter of intense public interest, the death of Charlie Chaplin. According to CBS, its use of the Chaplin films was essential to acquaint the public with the artistic genius of the controversial Chaplin. Due to Chaplin’s twenty year absence and his withholding of his later films from the American market, CBS argues, it could not properly communicate the significance of his life without showing these excerpts.”
However, “if, as CBS strenuously argued, it was essential to proper coverage of Chaplin’s death that some film clips be shown, the showing of excerpts in the public domain would have been sufficient, and [thus one can conclude] CBS’ decision to broadcast the offending version was motivated by commercial rather than educational considerations.” (The decision reports that “CBS acquired the Compilation from NBC based on the misrepresentation that it would use excerpts only on the nightly news.”)
In arguing whether fair use was exceeded, the decision examines how much of each film was used. CBS had taken the following amounts from the following films (complete length in parentheses):
1 min 45sec from City Lights (out of 1 hr 20m)
3 m 45s from The Kid (1 hr 00m)
1 m 25s from The Circus (1 hr 12m)
0 m 55s from Modern Times (1 hr 29m)
1 m 15s from Gold Rush (1 hr 12m)
(EDITOR’S NOTE: On the basis of the reported full lengths in the case, The Gold Rush and The Kid were the versions later recut by Chaplin.)
As to the lengths, it is valid to argue “that CBS’ use was quantitatively substantial. And even assuming that CBS’ use of some of the films was quantitatively small, the jury could reasonably have concluded that it was qualitatively great. CBS concedes that each of the scenes it used was amongst Chaplin’s best…”
CBS “maintains that Chaplin’s 1972 return to the United States to appear before a nationwide television audience was a major news event, [and] that the showing of the Compilation was an irreducible part of that event, [yet] it was the fact of Chaplin’s appearance and not the artistic works which were presented with it which was arguably newsworthy five years later, upon his death. CBS’ taking of virtually the entire Compilation cannot be justified by labeling it as part of a newsworthy event.”
On another matter, “CBS claims that plaintiffs’ representatives had authorized it to use excerpts from Modern Times and City Lights… CBS bases its argument on a March, 1972 letter agreement between CBS and Columbia Pictures (the United States theatrical distributors for the Chaplin films at the time) which granted CBS ‘in perpetuity, the irrevocable, non-exclusive right to use and exploit the footage as part of [a 60 Minutes] broadcast, or any expanded, abridged or changed version thereof, in any manner and in any media whatsoever throughout the world.’… It maintains, however, that the contractual language, by permitting ‘changed versions’ of the 60 Minutes broadcast, unambiguously authorized CBS to use the footage in question in its obituary tribute, Chaplin. However, as plaintiffs contend, 60 Minutes was a weekly prime time program with a regular cast and format; Chaplin was a special, one-time, late night obituary. The jury could have reasonably concluded that Chaplin was not an ‘expanded, abridged or changed version’ of 60 Minutes.” (All quotes are from the District Court decision, which was affirmed by the Appeals Court.)
The decision against CBS was for $7,280 statutory copyright infringement (compensatory) for the feature films excerpted; $1 common-law copyright infringement on the Compilation (compensatory); $300,000 unfair competition (compensatory); $300,000 common-law copyright infringement (punitive) for CBS’s appropriation of the skill and labor that went into the Compilation; $110,000 unfair competition (punitive); and $5,000 statutory damages (award added by District Court judge, supplementing the other awards, which were determined by jury). The unfair competition awards were on the basis of New York state law. Some awards did not have to be paid given an “in lieu” prior arrangement, so just $410,000 was to be paid. CBS at that time earned the amount of the final payout roughly once every 16 hours.
In a footnote within the District Court decision, there is written: “CBS also presents the novel theory that plaintiffs had a duty to make the films available so that a fair use could be made and that plaintiff’s failure to do so justified the use which CBS made. This position incorrectly assumes that a fair use can be made of every copyrighted work; the fair use doctrine, as far as our research indicates, has never been put to such a reading, which would be totally at odds with the main thrust of the copyright laws insofar as they grant a monopoly to the copyright owner.”
(See full summary on this case, above.)
The defendant was a school district engaged in “educational cooperative large-scale videotape reproduction of copyrighted works originally broadcast and taken from the television airways”.
Educational TV channel WNED-Channel 17 “maintained a library of these videotaped works, and made copies for classroom use… . Library contained 4,500 videotaped programs during the 1976-77 school year. Most of these library holdings were obtained by the off-the-air recording of programs broadcast by television stations… . Master tapes were kept and used for making and distributing videotape copies for up to ten years.” The educational-films producers which filed the suit had leased their films to the educational television channel to be shown under contracts specifying when and how often the films would be shown, but the additional distribution had not been contracted, nor had the producers wanted the off-air tapes to compete with rental of 16mm and videocassettes intended for in-school showings. The Court ruled that “Plaintiff’s voluntary licensing of the works for broadcast by instructional television stations does not create unlimited fair use…” The Court also ruled that the “highly organized and systematic practice of making off-the-air videotapes… does not constitute fair use.”
“This appeal presents the issue whether the biographer of a renowned author has made ‘fair use’ of his subject’s unpublished letters.”
J.D. Salinger “has not published since 1965 and has chosen to shun all publicity and inquiry concerning his private life. In July 1983 Hamilton informed Salinger that he was undertaking a biography of Salinger to be published by Random House and sought the author’s cooperation. Salinger refused, informing Hamilton that he preferred not to have his biography written during his lifetime. Hamilton nonetheless proceeded and spent the next three years preparing a biography titled J.D. Salinger: A Writing Life.
“An important source of material was several unpublished letters Salinger wrote between 1939 and 1961… .”
Hamilton located most if not all of the letters in university libraries. “Prior to examining the letters at the university libraries, Hamilton signed form agreements… restricting the use he could make of the letters without permission of the library and the owners of the literary property rights.”
When in May 1986 Salinger received a set of the galley proofs of the current version, “he registered 79 of his unpublished letters for copyright protection” and “instructed his counsel” to prevent publication of the biography “until all of Salinger’s unpublished material were deleted.” Hamilton and Random House revised the text so that quotes were replaced by paraphrasing. “Somewhat more than 200 words remained quoted.”
Under the 1976 Act, “The copyright owner owns the literary property rights, including the right to complain of infringing copying, while the recipient of the letter retains ownership of ‘the tangible physical property of the letter itself.’”
“Hamilton’s purpose in using the Salinger letters to enrich his scholarly biography weighs… in Hamilton’s favor” but it doesn’t mean it “entitles him to a generous application of the fair use doctrine.” Hamilton was not entitled to quote so much that he kept or paraphrased Salinger’s literary devices rather than merely report the facts. Hamilton disliked this approach, because the alternative (in Hamilton’s words) “would make a pedestrian sentence I didn’t wish to put my name to.” The Judge decided that he “may frequently have to content himself with reporting only the fact of what his subject did, even if he thereby pens a ‘pedestrian’ sentence… . Since the copyrighted letters are unpublished, [this] weighs heavily in favor of Salinger.”
The letters had been used too extensively to be permissible. Often “the Hamilton paraphrase tracks the original so closely as to constitute infringement… . The material closely paraphrased frequently exceeds ten lines from a single letter… . The letters are quoted or paraphrased on at least 40 percent of the book’s 192 pages.” The market for any potential book of Salinger’s letters (which Salinger had the legal right to offer) would be affected, probably only slightly, yet “some impairment of the market seems likely” in that Hamilton’s biography had “paraphrased so closely as to diminish interest in purchasing the originals.”
The fair use claim failed in this case. “The facts may be reported. Salinger’s letters contain a number of facts… and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of the copyright, and that right prevails over a claim of fair use under ‘ordinary circumstances.’”
“The corporate defendant, Michigan Document Services, Inc., is a commercial copyshop that reproduced substantial segments of copyrighted works of scholarship, bound the copies into ‘coursepacks,’ and sold the coursepacks to students for use in fulfilling reading assignments given by professors at the University of Michigan. The copyshop acted without permission from the copyright holders, and the main question presented is whether the “fair use” doctrine codified at 17 U.S.C. §107; obviated the need to obtain such permission.”
The Appeals Court “agree[d] with the district court that the defendants’ commercial exploitation of the copyrighted materials did not constitute fair use.”
A courseback came into being when, “by selecting readings from a variety of sources, the professor can create what amounts to an anthology perfectly tailored to the course the professor wants to present… .
“Three publishers — Princeton University Press, MacMillan, Inc., and St. Martin’s Press, Inc. — eventually brought the present suit against Mr. [James] Smith and his corporation [defendant]… .
“Each of the plaintiff publishers maintains a department that processes requests for permission to reproduce portions of copyrighted works. (In addition, copyshops may request such permission through the Copyright Clearance Center, a national clearinghouse.) MacMillan and St. Martin’s, both of which are for-profit companies, claim that they generally respond within two weeks to requests for permission to make copies for classroom use. Princeton, a non-profit organization, claims to respond within two to four weeks. Mr. Smith has not put these claims to the test, and he has not paid permission fees.”
A great deal of the decision discusses the lost licensing fees and that this should not be borne by publishers.
“The amounts used in the case at bar — 8,000 words in the shortest excerpt — far exceed the 1,000-word safe harbor that we shall discuss in the next part of this opinion. The defendants were using as much as 30 percent of one copyrighted work, and in no case did they use less than 5 percent of the copyrighted work as a whole. These percentages are not insubstantial. And to the extent that the third factor requires some type of assessment of the ‘value’ of the excerpted material in relation to the entire work, the fact that the professors thought the excerpts sufficiently important to make them required reading strikes us as fairly convincing ‘evidence of the qualitative value of the copied material.’”
The “fair use” claimed by the defendant went far beyond what was established as guidelines in the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals — “commonly called the Classroom Guidelines — which Congress gave its imprimatur to in 1976. Read excerpts.
There wasn’t much question that Universal’s movie 12 Monkeys reproduced Woods’s copyrighted drawing “Neomechanical Tower (Upper) Chamber.” “Terry Gilliam, the director, admits that in preparing the design of 12 Monkeys, he reviewed a copy of a book that included ‘(Upper) Chamber.’ Gilliam and Charles Roven, the producer, discussed the drawing with Jeffrey Beecroft, the production designer.”
“Universal argues that the infringement is de minimis because the infringing footage in 12 Monkeys amounts to less than five minutes in a movie 130 minutes long. Whether an infringement is de minimis is determined by the amount taken without authorization from the infringed work, and not by the characteristics of the infringing work. As discussed here, 12 Monkeys copies substantial portions of Woods’ drawing.” (preceding quoted from the court decision)
“The studio hastily settled with Woods for an undisclosed sum.” (Los Angeles Times, December 10, 1997)
(A more-detailed summary of this case is under similarity.)
Cases Summarized in Other Sections
|Chicago Record-Herald Co. vs Tribune Association (launch this) decided that one newspaper’s article on the same subject as a rival’s was not merely a presentation of the same facts but the appropriation of the earlier author’s thinking and wording.
All of the cases under similarity to some extent touch on (implicitly or explicitly) whether the later work in the case went beyond fair use of a predecessor.
“The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: ‘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.’” (Copyright Office fact sheet FL-102, Revised July 2006)
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