Myths And Realities About Fair Use
from the and-a-quiz dept
Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.
Myths and Realities about Fair Use
MYTH: Fair Use is only valid when it is non-commercial.
REALITY: Fair use is designed to expand the range of cultural production, not just the range of non-commercial cultural production. Almost all the occasional litigation on fair use, which has determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in any commercial context, so long as the “four factors” of consideration tilt toward the value of new contributions to culture against the cost to current owners. Currently the simplest calculation, the one preferred by the courts, is to find transformation (reuse for a different purpose), and to make sure that only as much of the original has been used as is necessary for the transformation; this is best done with a justification for the habits and practices of a particular creative or user community.
MYTH: Any non-commercial use is fair.
REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers, and other creators in the online video environment, but the law doesn't in fact exempt non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's especially true in online situations, where you may not be making money off your work but somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim, that pocketbook problem can be overridden (depending on how severe it is). Simply not making money does not give you a fair use pass.
MYTH: Fair use is always valid if you're using it in an educational context, and especially within a classroom.
REALITY: Being a good guy is not necessarily enough. Educational uses have their own special exemptions, but fair use in any educational context will have to abide by the same logic as in other contexts. But because fair use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some very easy justifications for transformation (such as that students are analyzing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator's use might not be transformative. Sometimes codes of best practices apply; for instance, media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education (centerforsocialmedia.org/fair-use/best-practices/media-literacy).
MYTH: Fair use is only about criticism and commentary, like parody for example.
REALITY: Criticism, commentary, satire and parody are all great examples of ways in which copyrighted material is reused for a different purpose than for its original market, in the process of creating more culture. (How does satire differ from parody? They are closely related. Parody holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything including behavior.) But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might quotation for discussion--and much more.
MYTH: Fair use is “the right to hire a lawyer.”
REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at face value and repeated it many times since. But Lessig made that remark before the beginning of the current fair use movement, which has greatly clarified safe interpretations of fair use for many communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford, which encourages wider interpretation of fair use.
MYTH: Fair use needs a really good “test case” in the courts, to set precedent.
REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about the photograph he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test case” is establishing clear standards of interpretation. Such standards can be highly useful in any ensuing litigation.
MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined.
REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and get no trouble at all. They are in the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics. Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they will get plenty of opportunities to settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule.
People frequently confuse one kind of danger with another. For instance, the RIAA has sued a clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity and public awareness about the illegality of downloading copyrighted material available for sale by a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders bore no relation to any fair uses. Downloaders were simply accessing material they could buy for free, typically to use in exactly the way it was being marketed. The music industry may be backward- looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair users do not need to be frightened of RIAA lawsuits.
MYTH: Fair use is just a defense, not a right.
REALITY: Fair use is in fact a right that comes into play once someone accuses you of infringement. At that point, you would respond by saying that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you are both attacked and someone accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is a defense does not make it any less of a right.
MYTH: Fair use is just an interpretation, not part of the law.
REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law (and widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First Amendment rights.
MYTH: I can't use fair use, because the copyright holders would never agree to it.
REALITY: Fair use is a right that you employ simply by accessing material, copying it and incorporating it into your project within an appropriate context. You do not need to get anyone's permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; the attempt to license may even increase one’s case for fair use, if the material is vital to what you are trying to say. Some people like to alert the people whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship that involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on the best terms possible.
Fair Use: You Be the Judge
TV Program
You are planning to make a series of cable TV programs on the “real” Greek myths and epics, as they actually were told and understood in ancient times. To show how different those originals were from today’s ideas of the same stories, you plan to quote from Hollywood films. For instance, in an episode devoted to the hero Jason, you would open with a scene from the 1963 version of Jason and the Argonauts, in which Jason confronts one of Harry Harryhausen’s terrifying monsters. For a discussion of The Iliad, you would like to start with a battle scene from Troy, including a close-up of Brad Pitt as Achilles. In each of these cases, you would be choosing a clip that contrasts sharply with what you’ve found out about the “real” Greek tales. In addition, you would also like to do entertaining montages showing the importance of Greek myths in modern movies; Woody Allen’s Mighty Aphrodite, Pier Paolo Pasolini’s Medea and the Disney animated film Hercules might feature in such a montage, using evocative short clips to make the point of the continuing importance of Greek culture in general.
- Do you have a fair use right to use the introductory clips contrasting with your research results?
- Can you claim fair use for montages of clips from popular films to make a general point about the pervasiveness of these references in films today?
- Would it be better to stay away from the scenes that feature celebrities?
Scroll down for answer...
ANSWER: (from the back of the book)
You might want to start by consulting the Documentary Filmmakers’ Statement of Best Practices in Fair Use (at centerforsocialmedia.org/fair-use). Documentarians’ choices are relevant whether the work is on television or in a theater or on DVD. Your use here is related to the Statement’s second category, of illustration. You have a clear new purpose that would “transform” your use of the old and new films, so you are in fair use range. Now you just need to take a good look at how much you are using, only using what you need, and whether what you are using demonstrates the new point you are making. In that introductory montage, is the link between what you are quoting and the subject matter of your program clear, or is that material designed just to tickle the viewer’s eye and keep them there past the commercial? Do the montages make the point you want to make? Have you made clear—perhaps in surrounding narration or set-up—what point this montage is intended to make? You don't need to worry about contracting with celebrities, because when you fair use material, you do not inherit any of the contractual obligations that the original maker entered into with talent. To avoid any problems with rights of publicity, however, you should be sure not to use unlicensed celebrity images in the advertising and promotion of your program.
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Filed Under: aclu, book club, eff, fair use, free speech, patricia aufderheide, peter jaszi, riaa
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Grey Zone~
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Non-Commercial use
I'm curious if it would stop all this BS with the RIAA/MPAA.
BUT it would actually allow them to target people selling bootleg copies in alleys and flea markets.
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Question!
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Re: Non-Commercial use
That's already illegal and they can already target it. There's just less of a market for that since people aren't buying as much physical media, infringing or otherwise.
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Liability, "average-citizen downloaders", and pre-1972 recordings
A related concern might be along the lines of "If it's possible to be hit by a lawsuit because a burglar got cuts from your rose bushes while climbing through a window, then it would seem foolish to assume that fair use isn't likely to trigger a lawsuit if it causes difficulty or offense to someone." It would be interesting to consider as to the actual circumstances in which lawsuits tend to be brought with regard to fair use (cases of strange lawsuits, both fictional and real, may not help public perception.) If bringing a suit involves a cost and effort in itself, are there cases where an actual lawsuit over fair use (compared to say, a mere demand to stop distributing a work) is more unlikely than not?
For instance, the RIAA has sued a clutch of average-citizen downloaders.
Is there any chance that some (if not all) of the "downloaders" may have been also sharing music or other material (perhaps unwittingly) via P2P software? (From what one understands, some P2P software may be such that downloading a file makes it by default shared from your system for others to find.) It would seem that unlawfully sharing a copyrighted work to the world (even unknowingly) would cause far more concern than merely downloading the work (even if such a download is infringing.)
For the sake of completeness, an issue that might come up is the applicability of fair use to sound recordings that were produced prior to Feb 15, 1972. (Federal copyright was first applied to sound recordings on Feb 15, 1972; recordings produced before that date may be subject to copyright under state laws and/or common law, which do not always have the same cutoffs and exceptions as federal copyright.) One possibility that has been touched upon is that it might (at least in some cases) be able to claim a "fair use" exception on First Amendment grounds, since fair use is supposedly one of the factors that prevents copyright from conflicting with free speech rights.
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I take issue with that line of thinking. It's just not true. It can't be proven one way or another that it does have a measurable impact because this goes into the realm of knowing the intentions and motivations of individuals (i.e. mind reading) that is impossible to ascertain. The pocketbook problem is more or less a hollow argument based on the assumption that if they can get it for free, they won't bother buying it. It also hinges on the assumption that the one and only way is to sell copies as discreet units of property, which they are not. The pocketbook problem is a myth.
If you don't want the unauthorized copying and sharing of your works to have an impact on your revenue, then you need to shift your revenue stream away from maintaining control over the distribution of works and toward the leveraging of your time and experience as the marketable good. Your time is finite and it's valuable. Therefore, you need to solicit people for money so you can invest your time into creating rather than investing it into other occupations.
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Re: Re: Non-Commercial use
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Re: Liability, "average-citizen downloaders", and pre-1972 recordings
Teenaged Cheerleader RIAA...
IIRC the idea of the damages only(?!) being $250 made the RIAA terrified they would no longer be able to scare people.
Of course this has lead to the current state of over 250,000 Does being told that they could be facing $150,000... if they don't pay a few thousand.
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Re: Re: Liability, "average-citizen downloaders", and pre-1972 recordings
Their concern was that the legal theory being promoted by her attorneys did not correspond to the law's requirements for "innocent" infringement (the issue dealt with copyright markings).
A federal district judge in Texas agreed with her attorney's theory. The decision was reversed on appeal by the 5th Circuit Court of Appeals. The reveral was appealed to the US Supreme Court via a petition for a writ of certiorari, which the court declined to grant.
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Re: Re: Re: Non-Commercial use
She has this fantasy about being a Siberian Tiger and lives her life as if she is. I have a pile of prey on the back porch just to prove that point!
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Re: Re: Re: Liability, "average-citizen downloaders", and pre-1972 recordings
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I would've made this the very first bullet point. The incorrect notion that noncommercial use is fair use is a widely held misconception among noncommercial file-sharers, YouTube uploaders and remixers. The reality is that the "effect on the market for the work" test for fair use in U.S. copyright law is just one example of multiple factors that can be taken into account on a case-by-base basis, and has never(?) been accepted as a sole justification for use of the work. Even U.S. courts that are relatively sympathetic to the plight of noncommercial file-sharers are emphatic on this point (click).
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Parodies vs satires and normal humor
In the case of a parody, there may also be the issue of how much existing material is reused. The Fair Use Project at Stanford University Libraries claims that fair use is unlikely to allow a song parody to reuse more than a few existing lines of song lyrics, as a general rule. (When producing substantial parodies, this may be one of the reasons for artists such as Weird Al Yankovic to obtain permission.)
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Myths and Realities about the myths and realities discussed here.
Such community practices may indicate a culture that is arising IN SPITE of the law - not as a SUBSTITUTE for it. To the extent that it may make overreaching copyright regimes simply unable to enforce its own dictates as practical matter, then I'm all in favor of it. But that is very different than what the authors seem to suggest here - that come 'community members' can get together and somehow decide on their own how the courts are going to interpret the contours of fair use.
Other statements by the authors are simply incorrect. For instance, they don't seem to acknowledge the fact that courts (unfortunately) make a important distinction between 'parody' and 'satire' when considering copyright defenses. Presumably the authors are familiar with 'Dr. Seuss Enterprises v. Penguin Books'? Or Justice Kennedy's much discussed concurring opinion in 'Campbell v. Acuff-Rose Music'?
As one who has litigated many libel cases, I can say with no uncertainty that the law of defamation is FAR more defined than that of fair use - precisely for the reason that the authors seem to be against cultivation: We have decades' worth of published appellate-level court opinions that have developed the law in this area and made the boundaries less fuzzy. The authors' conclusion that "fair use is no vaguer or unclear than other rights of free expression" is a pure falsehood.
I am also at a loss to explain the authors' statement that fair use is only "occasionally litigated" because it is "regarded with such favor by judges". To begin with, the statement itself is contradictory since one could not possibly conclude that any legal matter that is only "occasionally litigated" could be described as being in "favor" by judges. Only a clear string of published legal opinions could demonstrate that - something which we clearly don't have now. (And for every successful fair use opinion the authors trot out, I'm confident that I could cite multiple counter examples which minimize the scope of fair use and which remain valid as legal precedent.) I have seen nothing to indicate that fair use is currently "in favor" by our courts. For decades, they have systematically chipped away at it - and I unfortunately see nothing to indicate a reversal of this trend. At the very least, I think the authors should provide some citations to back up their claims - not just provide conclusory statements as arguments.
I have more issues with the post as well. But I will save them for another time and simply thank the authors for jump-starting a much needed discussion.
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Re: Myths and Realities about the myths and realities discussed here.
Please excuse by boldness in suggesting that reciprocity is in order. Moreover, I must admit being somewhat confused by the incongruity between your statement that there is a significant body of caselaw at hand, spanning several decades, demonstrating the chipping away of fair use, and then that there is a dearth of caselaw associated with fair use.
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Re: Re: Myths and Realities about the myths and realities discussed here.
Fair use isn't being chipped away - however, there are plenty of people and groups trying to push it past what it is support to be, and they get regularly slapped down in the courts as being stupid (variations on remote TV viewing / recording / playback, example). Fair Use isn't infinite, and those who do go too far will fail. That doesn't mean fair use is chipped away, it just means it is MUCH better defined over time.
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Predicting Fair Use
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fair use, First Amendment, codes and more
One commenter says that "it might (at least in some cases) be able to claim a "fair use" exception on First Amendment grounds, since fair use is supposedly one of the factors that prevents copyright from conflicting with free speech rights." Indeed, one's First Amendment rights within copyright are exercised vigorously by fair use. It is that quality of fair use that allowed the Supremes to invoke it in Eldred and Golan.
This section, of course, briefly summarizes points made at much greater length throughout the book. One chapter deals with evolving judicial opinions, which does provide helpful data. Thank you to Matthew Sag, whose important work does necessary empirical work. Others who have also provided helpful empirical work include Barton Beebe and Pam Samuelson (citations for these and more are in the book).
The question of the value of codes is an important one. Codes have generally followed the logic of post-1990 judicial interpretation, which stresses transformativeness. (There are several chapters on the codes, how they were created and why they were created that way, and how they have worked out, by the way.) They are non-legal documents that interpret fair use according to the needs of the creative community in question (librarians have different needs than filmmakers or poets). They have been non-controversial and also extremely helpful. They have been used in two injunctions, both of which were failed challenges to fair uses. But more important, they help people put those malleable four factors to work using the knowledge of current judicial interpretation.
We say that judicial favor toward fair use discourages plaintiffs from charging infringement among other reasons because by and large lawyers understand that they could well lose and warn their clients about the risk.
Thank you again for your interest.
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Applying fair use outside the USA
To be sure, when looking for works that are out of copyright, it is possible for the copyright status of a work to vary from one nation to another. For instance, the US-based Librivox site has an advisory about available audiobooks possibly being subject to copyright restrictions outside the USA. (Among other things, the Creative Commons licenses and the CC0 dedication may have the advantage of making a work somewhat reusable (or, in the case of CC0, as close as possible to being in the public domain) worldwide.)
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Re: Re: Myths and Realities about the myths and realities discussed here.
HARPER & ROW, PUBLISHERS, INC., ET AL. 471 U.S. 539 (1985)
Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998)
Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009)(Although an appeals court later reversed the issue of preliminary injunctions here, it agreed that "Defendants will not likely be able to make out such a [Fair Use] defense".
Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982)
Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).)
I can keep citing other cases as long as you need me to. But this should help you get started.
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Re: Re: Re: Myths and Realities about the myths and realities discussed here.
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Fair Use
I have written and lectured on the subject for decades. This
article was "sent" to me by a client so I could warn others. It is misleading, innacurate and no one ought rely on its validity when putting their money or profession on the line.
Get the advice of a competent attorney and do not use the article as advice or a guide in affairs that matter.
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Re: Predicting Fair Use
Literally 97% of all cases are settled prior to trial. No "study" can include these cases. If you have read reported decisions by Federal Courts then you have read a tiny, tiny portion of "fair use" cases and only the ones that were not resolved via ie a judge telling one side or the other that they had no case.
Love these studies! Ask attorneys who actually litigate these matters with flesh and blood clients, judges, adversaries and judges. Did you do that? No sir you did not. Not your fault. Such a comprehensive study would be impossible to conduct. I can't talk about 95% of my fair use cases and most other attorneys can't either. The information and nuances of litigation are priviliged even when there is - on those rare occasions - a written opinion from a judge.
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Re: Re: Re: Myths and Realities about the myths and realities discussed here.
I have been writing, lecturing and litigating this issue for decades but Mr. Levine, I learned that since we are only attorneys and not photographers, illustrators or artists our opinions on the law carry less weight with most creatives than an unqualigied bloggers with an audience.
Readers who follow advice from non-proffesionals wind up paying lawyers.
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The authors here are simply wrong about a variety of their claims.
Tell me more about these views after you read the latest decision from the 9th Circuit:
http://www.ca9.uscourts.gov/datastore/opinions/2012/08/14/10-56710.pdf
http://www.pol itico.com/blogs/under-the-radar/2012/08/court-mag-violated-copyright-by-printing-wedding-photos-1321 87.html
This confirms that we need to study the "myths and realities" concerning the article in this post before we discuss the myths and realities of fair use in the real world.
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Try explaining that to the Defendant who lost in the SECOND federal appeals court decision involving fair use to come out this week alone...
http://www.ca6.uscourts.gov/opinions.pdf/12a0267p-06.pdf
"[F]air use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are..."
Each new published case proves just how wrong this analysis is. Page 4 in the latest case from the 6th Circuit (linked to above states that the Defendant's counsel (a very knowledgeable and respected attorney on the East Coast who has been practicing IP law for nearly 40 years) advised the Defendant that it "could publish the photograph as 'fair use' without the need for permission". All of the many IP attorneys I know would probably be split 50/50 on this question.
Again - facing IP questions in the real world of actual litigation is very different than the conclusions drawn up by academics and industry groups.
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Re: The authors here are simply wrong about a variety of their claims.
"In the years following the 1976 Act, courts have decided countless cases involving the fair use doctrine. Some commentators have criticized the factors, labeling them 'billowing white goo' or 'naught but a fairy tale,' echoing courts that threw up their hands because the doctrine is 'so flexible as virtually to defy definition.' Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation omitted). A leading treatise in this area notes that the statute provides “no guidance as to the relative weight to be ascribed to each of the listed factors,” and, in the end, “courts are left with almost complete discretion in determining whether any given factor is present in any particular use.” Nimmer on Copyright § 13.05[A] (footnotes omitted).
We acknowledge the porous nature of the factors but nonetheless recognize that we are obliged to make sense of the doctrine and its predicates."
Again, the authors' conclusion that "fair use is no vaguer or unclear than other rights of free expression" is a pure falsehood as the 9th Circuit itself points out here.
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