Just Because Something Is Used For Profit, It Can Still Be Fair Use

from the so-the-court-says dept

Fri, May 19th 2006 3:07am — Mike Masnick

When it comes to copyright, content owners all too often believe it gives them a lot more control than it really does. For example, there's a belief that no one can ever use the content under "fair use" rules if it's for a commercial for-profit venture. One of the issues with fair use (which some in the entertainment industry continue to pretend doesn't exist) is that people often misread the four tests of fair use to believe that any commercial usage is not covered by fair use. Larry Lessig is pointing to an Appeals Court ruling highlighting why this isn't always the case. In the specific case, the Bill Graham Archives sued a book publisher for publishing a book about the Grateful Dead, using images of concert posters that were owned by the Archives. While the pictures are clearly being used for a commercial work, the court found that it was fair use. Specifically, they note that since the images are small and used within the context of descriptions about the history of the band, it's fine for fair use. It seems like a reasonable decision -- but could worry some copyright holders who freak out any time anyone uses their works in any way.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

DJSwing, 19 May 2006 @ 4:46am

Fair is such a subjective word
Determining what's fair is NOT an easy thing to do, which is why it needs to continue being on a case by case basis.
[ link to this | view in chronology ]
zsp, 19 May 2006 @ 5:17am

Google - Miro
That kind of freaking out was the case when google was forced to remove its 'special occasion logo' created for the anniversary of Miro. Or more precisely, they weren't forced to, but they preferred not to go into a debate about fair use (and noone can blame them).

This is so stupid.
[ link to this | view in chronology ]
- Michael, 19 May 2006 @ 9:35am
  
  Re: Google - Miro
  The Miro dispute actually arose under trademark law rather than copyright. Fair use under trademark (in the USA at least...) is much murkier than fair use under copyright (which itself is about as clear as the Missouri river in August). I can understand why Google would choose to keep its powder dry in that case.
  [ link to this | view in chronology ]
Tyshaun, 19 May 2006 @ 5:44am

this isn't as easy as you make it out to be...
If I had ownership of a substantial amount of content, I would fight whoever uses it without permission/compensation. How is this any diffferent than someone who owns a rental company or hotel? By your logic it might be OK for someone to just come up and borrow a car for a couple of hours or stay in a room, without paying, because its fair use.

Like it or not, most of the population still subscribes, for the most part, to the theory that if someone has ownership of content, they should be compensated for its use. I think about people like Michael Jackson who purchased The Beatles portfolio. I'm sure he didnt purchase it just because he likes the music, it was a money making venture.
[ link to this | view in chronology ]
- John, 19 May 2006 @ 5:59am
  
  You're a moron
  1st off your only afforded the 'ownership rights' that the law provides you. The law provides for the publics 'fair use' and that is where the beginning of a content owners rights end. Michael may buy the rights to the Beatles music to make money, but he doesn't get a penny when I hum it on my way to work or better, I create a parody of it, or lend my sister my CD of it.
  Clearly you are part of the problem spouting out opinions without knowing the full issue at hand.
  [ link to this | view in chronology ]
  - john, 19 May 2006 @ 6:00am
    
    Re: You're a moron
    your = you're
    [ link to this | view in chronology ]
  - Tyshaun, 19 May 2006 @ 10:36am
    
    Re: You're a moron
    1st off your only afforded the 'ownership rights' that the law provides you. The law provides for the publics 'fair use' and that is where the beginning of a content owners rights end. Michael may buy the rights to the Beatles music to make money, but he doesn't get a penny when I hum it on my way to work or better, I create a parody of it, or lend my sister my CD of it.
    Clearly you are part of the problem spouting out opinions without knowing the full issue at hand.
    
    First of all John, resorting to calling people names, for instance Moron, is usually the sign of a fairly simplistic and 'moronic' thought process.
    
    As per your point, of course I understand the idea of fair use when it comes to personal copies of media and such things, but I believe the point that was addressed in Mikes editorial was of the use of a picture in a publshed book. On that point, I'm sorry, I don't see why that's still considered fair use in the classic sense (I buy product X and have the right to reproduce product X for my own use). In this case, the author of the book was clearly using the image for more than just personal use as it was a puiblished piece.
    
    So yes, I do understand and agree with the concept of fair use I just don't understand how a court can decide that it's fair use to place copyrighted images in a book without the permission of the person holding the copyright. Seems to me that defeats the point of copy-right?
    
    Also, to the persno who said I am an RIAA troll, not so, in fact I said nothing about recorded media at all. I would suggest you stop spewing out "hate the man" dogma and actually think first about what was said.
    [ link to this | view in chronology ]
    - Mike (profile), 19 May 2006 @ 11:58am
      
      Re: Re: You're a moron
      So yes, I do understand and agree with the concept of fair use I just don't understand how a court can decide that it's fair use to place copyrighted images in a book without the permission of the person holding the copyright. Seems to me that defeats the point of copy-right?
      
      You should read the full decision. It lays it out step-by-step, why it meets the criteria of fair use.
      [ link to this | view in chronology ]
- nick, 19 May 2006 @ 6:14am
  
  Re: this isn't as easy as you make it out to be...
  Hey Mike - can we get a "silence the RIAA troll" button on this thing?
  [ link to this | view in chronology ]
- Jeremy, 19 May 2006 @ 6:35am
  
  Re: this isn't as easy as you make it out to be...
  Actually it is as easy as it's made out to be. The difference between a car and an image is that one is an object the other is not. when you borrow a car no one else can use it. If I take a picture of your car you have lost nothing.
  
  Copywrite law covers non-material items. They are different from hotel rooms or cars and any attempt to compare them is doomed to failure. So really your'e wrong and it's a lot easier than you seem to think it is.
  [ link to this | view in chronology ]
- Anonymous of Course, 19 May 2006 @ 6:37am
  
  Re: this isn't as easy as you make it out to be...
  What about the rights of the person who created
  or commisioned the poster? If I take a photograph
  of a work just how far do my rights go? What if
  the author had bought a reproduction of the
  poster at a shop and photographed of it for the book?
  
  You're right, it's not as easy. Is the act of photographing
  something always a creative act, or is the photographer
  sometimes no more than organic Xerox (TM) machine?
  
  If you're using a copy stand I'd lean towards the latter.
  [ link to this | view in chronology ]
- Jeff G., 19 May 2006 @ 6:59am
  
  Re: this isn't as easy as you make it out to be...
  Besides the obvious answer (given above) of "read the law" (fair use is written into the copyright act), there are any number of reasons why copyrights and works are not like hotels and cars.
  
  An economic reason is exclusivity of use. Only one person can use a car at a time and use of the car degrades the physical item. For a song, all of us here can listen to the song and it doesn't degrade it in any actual sense. This alone is reason to justify a difference in treatment for unauthorized uses.
  
  Unlike a car, if the law allows unauthorized use, there is no fear that the work itself is being harmed. Whereas, with a car, if the law allowed unauthorized uses, the owner would be deprived of the full enjoyment of the physical item (this is why we have federally mandated mileage-reimbursement rates - to require companies to pay for over-use of an automobile caused by the company). With a song, if I use the work without your permission the song itself is not harmed. Thus you can still get full enjoyment.
  
  The fair use analysis assures that my unauthorized use does not substantially cut into your economic enjoyment. But, economic enjoyment is just the benefit of the law - the PURPOSE of the law is "to promote the progress of science and the useful arts." Thus economic enjoyment will be derogated where the "fair use" promotes the progress of science and the useful arts but does not substantially interfere with the economic enjoyment of the work by its creator.
  [ link to this | view in chronology ]
- Mike, 21 May 2006 @ 12:15am
  
  Re: this isn't as easy as you make it out to be...
  What a poor comparison. Hotel rooms and car rentals are not covered by copyright laws. You can't quote a room or a Ford.
  
  Like it or not, it does not matter what the population subscribes to, it is the law that has to be subscribed to.
  
  If the law allows for appropriate use of copyrighted material in the proper context, then so be it.
  
  Oh my gosh!!! How much do I owe you because I used your phrase "Like it or not"?
  [ link to this | view in chronology ]
- Slartibartfast, 22 May 2006 @ 9:40pm
  
  Re: this isn't as easy as you make it out to be...
  except, to take the example of a small hotel, you could let someone stay in a room for a couple of hours for free, but the hotel has an infinite number of rooms that cost nothing for upkeep. yes, that sounds insane, and would be impossible to do. but that's my point, that there is no effective analogy between physical objects and digitized information.
  
  note: would you care to examine the ethics of a system that allows people to own full rights and royalties to art they did not create?
  [ link to this | view in chronology ]
Clifford Edward VanMeter, 19 May 2006 @ 6:04am

Google - Miro
...they weren't forced to, but they preferred not to go into a debate about fair use (and noone can blame them).
Actually, I blame them them. Google is in a position to do what many smaller companies and individuals cannot — stand up to the bullies and tell them to "piss off". That they didn't do so in this case, particulalry since the artwork was meerly inspired by, as opposed to adapted from Miro, is shameful.
[ link to this | view in chronology ]
- Anonymous Coward, 21 May 2006 @ 6:40pm
  
  Re: Google - Miro
  Actually, I blame them them. Google is in a position to do what many smaller companies and individuals cannot — stand up to the bullies and tell them to "piss off".
  
  "Do no evil" is not the same thing as "fight each and every injustice". One of the signs of maturity is knowing what battles are worth fighting and what battles are not, given that you only have a finite amount of resources to devote.
  
  This isn't giving in to Chinese censorship that we're talking about here. It's just a "Google doodle".
  [ link to this | view in chronology ]
emichan, 19 May 2006 @ 7:01am

It's true that owning IP is different from owning actual property. Unfortunately, a lot of people confuse the two, and believe that holding a copyright gives them complete control of their content. This isn't true, and shouldn't be true. One of the main points made in the court decision is that the copyrighted images in the book were used in an historical context to enhance a historical/biographical work. This is considered scholarship, and comes under fair use, and the fact that the history was of popular culture is immaterial. I think we will see this kind of case a lot more in the future, especially as copyright protections are extended again, and again, and again, ad infinitum, much material of historical interest will still be copyrighted.
[ link to this | view in chronology ]
- Rick Gutleber, 19 May 2006 @ 7:24am
  
  Re:
  It's not so much that "we" are confusing IP with PP (physical property), it's that the whores in Congress who sold us out to Disney, et al, have transformed the "limited" copyright to be effectively perpetual. On top of that, they don't seem to have a whole lot of problem with what the **AA organizations want since they are passing legislation written by these groups (like DMCA) to erode the concept of Fair Use to be meaningless.
  
  If "we" are confusing IP and PP, it's only because the media conglomerates and their pets in Congress want it that way.
  [ link to this | view in chronology ]
Anonymous Coward, 19 May 2006 @ 7:09am

Heck - just give them what they want - let them keep their 'works' all to themselves.

It's getting more complicated lately to get media and use it in the format I choose than it is to just find an alternate way to spend my time...

At this rate, no one will even be writing books in a few years. But that's ok, because if you own them and accidentally leave it open at the coffee shop and the guy next to you happens to read a couple words, you'll both end up in jail for violation of "fair use". Then I'm sure teachers will end up getting prosecuted for showing movies in class or reading out of a book or magazine for 'fair use' violations.
[ link to this | view in chronology ]
Vishy, 19 May 2006 @ 8:29am

Some kind of editing gaffe in the title? The way it is now--"Just Because Something Is Used For Profit, It Can Still Be Fair Use"--just doesn't read right. It should be changed to either "Just Because Something Is Used For Profit Doesn't Mean It Can't Still Be Fair Use" or "Even If Something Is Used For Profit, It Can Still Be Fair Use".
[ link to this | view in chronology ]
Michael Ayers, 19 May 2006 @ 8:51am

Fair use works both ways
Absolutely right. The fact that something is not used for a commercial purpose does not automatically strike out the fact that it may still be a fair use. However, this works the other direction, too. Just because a copy is NOT used for a commercial purpose does not automatically mean it IS a fair use. There are four fair use critiera. No single one of them is dispositive. There's a fair amount of extremism to go around on the issue of fair use.
[ link to this | view in chronology ]
Michael, 19 May 2006 @ 9:39am

Why is this issue even remarkable?
The only thing that's remarkable about the decision discussed in the story is that we're even talking about it. This is pretty-much hornbook law if the facts are as I see them in the description above, and it would not even be a discussion point if the people who own these posters had bothered to do 5 minutes of research.
[ link to this | view in chronology ]
- Nick, 19 May 2006 @ 3:40pm
  
  Re: Why is this issue even remarkable?
  I wonder how many people have actually read the case.
  
  It's remarkable because this case says that a copyright owner is not necessarily entitled to license fees in every "potential market." This is huge. Rather than having rights in all derivative markets, the court said copyright owners have claims only to "traditional, reasonable, or likely to be developed markets." The court reasoned that the use was transformative, thus the market for licensing the use was a "transformative market," and thus the copyright owner's rights are less.
  
  It's remarkable because another court found otherwise in a similar situation in Perfect 10 v Google. The problem there was that Perfect 10's images were turned into thumbnails and made available through a Google search. That court said Google's use was not fair because P10 had a derivative market to sell thumbnails for cell phones, so Google's use was not fair because it usurped P10's ability to make money in this new market. The same issue is central to the Authors' Guild lawsuit against Google. AG says there is a market in licensing the use of digital copies of their books and is suing Google because it won't pay. Applying Graham, Book Search has created a "transformative market" and thus the AG has less of a claim to demand Google pay if Google can show that it's use is fair (which it is because it falls under the explicit exception for scholarship).
  
  Yes, it's important that this court found that the commercial element of the book did not defeat the fair use claim. More important is the shift in the potential market prong of fair use (the fourth factor). It's remarkable because it clears up the scope of what a potential market is and it is not infinite as other cases have hinted. It's remarkable in that it shifts the balance more towards creativity and fair use, and away from the content owner. It's remarkable because it gives some bite back to fair use.
  [ link to this | view in chronology ]
Techie, 19 May 2006 @ 10:01am

Fair Use
I do a number of graphic work and photos that I put on my personal websites...I don't mind people using my work as long as credit is given...maybe say a link to my site ;)
[ link to this | view in chronology ]
Annie Frisbie, 19 May 2006 @ 12:14pm

it's not about what's fair...
Even if you can prove fair use in a court-of-law, can you afford to? Say you use an image of Mickey Mouse in your book or documentary on the history of artwork featuring mice. You are probably completely justified in using this image, because the image is one among many, and because the context is appropriate. As long as you're not trying to sell the book based upon its having an image of Mickey Mouse, you can argue fair use.

BUT - that doesn't mean that Disney, notoriously litigious over the use of its creations, won't sue you & your publisher or distributor just to tie you up in court and keep your book from going to print, or your film from being exhibited. It's not about winning or losing for them - it's about using the courts as a bludgeon to stifle true freedom of expression. It's about power, not what's right.
[ link to this | view in chronology ]
Right Said Annie!, 19 May 2006 @ 3:42pm

Right Said Annie! Couldent have put it better myself!
[ link to this | view in chronology ]