Just Because Something Is Used For Profit, It Can Still Be Fair Use
from the so-the-court-says dept
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
Reader Comments
Subscribe: RSS
View by: Time | Thread
Fair is such a subjective word
[ link to this | view in chronology ]
Google - Miro
This is so stupid.
[ link to this | view in chronology ]
Re: Google - Miro
[ link to this | view in chronology ]
this isn't as easy as you make it out to be...
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 ]
You're a moron
Clearly you are part of the problem spouting out opinions without knowing the full issue at hand.
[ link to this | view in chronology ]
Re: You're a moron
[ link to this | view in chronology ]
Re: You're a moron
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 ]
Re: Re: You're a moron
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 ]
Re: this isn't as easy as you make it out to be...
[ link to this | view in chronology ]
Re: this isn't as easy as you make it out to be...
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 ]
Re: this isn't as easy as you make it out to be...
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 ]
Re: this isn't as easy as you make it out to be...
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 ]
Re: this isn't as easy as you make it out to be...
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 ]
Re: this isn't as easy as you make it out to be...
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 ]
Google - Miro
[ link to this | view in chronology ]
Re: Google - Miro
"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 ]
[ link to this | view in chronology ]
Re:
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 ]
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 ]
[ link to this | view in chronology ]
Fair use works both ways
[ link to this | view in chronology ]
Why is this issue even remarkable?
[ link to this | view in chronology ]
Re: Why is this issue even remarkable?
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 ]
Fair Use
[ link to this | view in chronology ]
it's not about what's fair...
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 ]
[ link to this | view in chronology ]