Chapter 13 The News About Copy Right & Fair Use

Top 10 Copyright Infringement News Stories of 2011 | Copyright Laywer

January brought more seizures by ICE and copyright infringement lawsuits by media giants. Here are the top 10 copyright lawyer stories of January 2011:

1. Justin.tv sued for copyright infringement. Copyright gorilla Zuffa, LLC, owner of Ultimate Fighting Championship, has sued video streaming website Justin.tv for failing to adequately implement measures to prohibit users from streaming copyrighted materials over the service. Though the DMCA typically shields service providers like Justin.tv from these types of lawsuits, Zuffa's copyright lawyer argues that Justin.tv does not do enough to prohibit copyright infringement.

2. RIAA sends threatning letter to ICANN chair Peter Dengate-Thrush. The Recording Industry Artists of America sent a threatening letter to ICANN chair Peter Dengate-Thrush in January. The letter, which can be readhere,expressed that the RIAA is concerned that a new music themed generic top-level domain name (gTLD) "will be used to enable wide scale copyright and trademark infringement." The RIAA is concerned that a pirate may "choose to hijack a music themed gTLD to enable wide scale copyright infringement of [the RIAA's] works." 

3. Adult content providers continue to sue downloaders. Adult content providers continue to sue downloaders, while groups, such as Adult Copyright Company, US Copyright Group, and John Steele's Media Copyright Group continue to identify porn downloaders on behalf of content providers. Most notably, XPays has sued 843 individuals for downloading or distributing copies of the Paris Hilton Sex Tape.

4. Movie studios continue to sue downloaders. Much like the adult content providers, movie studios continue to sue downloaders. US Copyright Group, which had filed suit against 4,577 downloaders and had its case dismissed due to joinder issues, has now initiated copyright infringement lawsuits against individuals in jurisdictions around the country.

5. 26 record labels sue BitTorrent search engine ISOHunt for copyright infringement. 26 record labels, including Sony, EMI, Warner, and Universal, have sued BitTorrent search engine ISOHunt for the alleged facilitation of copyright infringement in Canada. The record companies are seek approximately $4 million in statutory damages.

6. Google censors BitTorrent-related terms from autocomplete and instant search features. Google, under pressure from the MPAA and RIAA, has begun removing "piracy-related" search terms from its autocomplete and instant search features, such as torrent, BitTorrent, and uTorrent. Google has also removed the term "RapidShare," which is a web-based file sharing service.

7. MPAA and BRIEN take down 51 websites for copyright infringement. Through the joint efforts of the MPAA and BRIEN, 51 websites have been taken down for alleged copyright infringement. This is a continued effort to seize domain names that are alleged to have been used in the distribution of copyrighted materials.

8.Anime studios begin suing individual file sharers. Texas-based attorney Evan Stone, who was previously known for his representation of adult content producers, such as Larry Flynt Productions, has begun filing copyright infringement lawsuits against individual file sharers on behalf of anime producer Funimation. In a not-so-comedic twist, the first lawsuit has named 1,337 file sharers as defendants, which, to the uniformed, is the leet-speak spelling of "leet."

9. Blizzard sends DMCA takedown to YouTube over game mod, then backtracks. Video game developer/producer Blizzard entertainment sent a DMCA takedown notice to YouTube over a video that purported to display the fan-developed "World of Starcraft," a World of Warcraft mod. YouTube quickly removed the video, and Blizzard reached out to the developer and requested a name change after the modding community reacted.

10. Napster loses (again). Napster has lost a lawsuit to recover the $1.3 million in copyright attorneys fees it expended to defend against claims of infringement made by MSC Music America, which sued Napster for copyright infringement after record label Rounder, which entered into a publishing deal with Napster, failed to license Napster adequate copyright rights.http://tcattorney.typepad.com/digital_millennium_copyri/2011/02/top-10-copyright-infringement-news-stories-of-january-2011.html

Fair Use 

Cases Involving Text

• Fair use. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important factors: No more than 1% of Wright’s unpublished letters were copied and the purpose was informational. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)
• Fair use. Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Rev. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Important factors: Rev. Falwell’s copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues. (Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal. 1985).)
• Not a fair use. An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. Important factors: A substantial portion was taken (half of the work) and the work had not been published yet. (Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).)
• Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication.Important factors: The letters were unpublished and were the “backbone” of the biography—so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)
• Not a fair use. The Nation magazine published excerpts from ex-President Gerald Ford’s unpublished memoirs. The publication in The Nation was made several weeks prior to the date Mr. Ford’s book was to be serialized in another magazine. Important factors: The Nation’s copying seriously damaged the marketability of Mr. Ford’s serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)
• Not a fair use. A company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What, containing direct quotations and paraphrases from the television show Twin Peaks, as well as detailed descriptions of plots, characters, and setting. Important factors: The amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program. (Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993).)
• Not a fair use. A company published a book of trivia questions about the events and characters of the Seinfeld television series. The book included questions based upon events and characters in 84 Seinfeld episodes and used actual dialogue from the show in 41 of the book’s questions. Important factors: As in the Twin Peaks case, the book affected the owner’s right to make derivative Seinfeld works such as trivia books. (Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)
• Not a fair use. Although the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. Important factors: An important factor in the court’s decision was the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).)
• Not a fair use. In a case involving the author J.D. Salinger, an author wrote a book in which a character known as Mr. C was allegedly modeled after the character of Holden Caulfield, from Salinger’s Catcher in the Rye. After Salinger sued, the sequel’s author claimed that his work was a parody, an argument rejected by the district court. Important factors: Aging the character and placing him in the present day does not add something new, particularly since the character’s personality remains intact as derived from the original work. (Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009).)

Artwork and Audiovisual Cases

• Fair use. A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. Important factors: The thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. (Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).)
• Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
• Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the Kojak television show) was accepted as a fair use. Evidence indicated that most viewers were “time-shifting” (taping in order to watch later) and not “library‑building” (collecting the videos in order to build a video library). Important factors: The Supreme Court reasoned that the “delayed” system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)
• Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book.Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).)
• Fair use. A publisher of monster magazines from the 1950s, ‘60s, and ‘70s sued the creator and publisher of a book, Famous Monster Movie Art of Basil Gogos. (Gogos created covers for the magazines.) The book publisher had obtained licenses from the artist directly, but not from the magazine publisher who claimed copyright under work-made-for-hire principles. The district court determined that the use was transformative. Important factors: The use was for a biography/retrospective of the artist, not simply a series of covers of magazines devoted to movie monsters. In addition, the magazines were no longer in print, and the covers amounted to only one page of the magazine, not the “heart” of the magazine. (Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, 645 F. Supp. 2d 402, (E.D. Pa., 2009).)
• Fair use. A Google search engine infringed a subscription-only website (featuring nude models) by reproducing thumbnails. Important factors: The court of appeals aligned this case with Kelly v. Arriba-Soft (above), which also permitted thumbnails under fair use principles. (Perfect 10, Inc. v. Amazon. com, Inc., 508 F. 3d 1146 (9th Cir. 2007).)
• Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).)
• Not a fair use. A television station’s news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Important factors: The use was commercial, took the heart of the work, and affected the copyright owner’s ability to market the video. (Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)
• Not a fair use. A poster of a “church quilt” was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
• Not a fair use. The U.S. Postal Service (USPS) licensed the use of a photograph of the Korean War veterans’ memorial sculpture for a postage stamp, but failed to obtain permission from the sculptor who held copyright in the underlying three-dimensional work. The U.S. Court of Appeals for the Federal Circuit held that the use of the underlying sculpture depicted in the photograph was not permitted under fair use principles. Important factors: It was not enough to transfer the work from three dimensions to two dimensions (despite the creative use of photography and snow in conjunction with the photos). (Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).)

Internet Cases

• Fair use. The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet. Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary. (Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va. 1995).)
• Fair use. Displaying a cached website in search engine results is a fair use and not an infringement. A “cache” refers to the temporary storage of an archival copy—often a copy of an image of part or all of a website. With cached technology it is possible to search Web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company’s cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe.Important factors: Google was considered passive in the activity—users chose whether to view the cached link. In addition, Google had an implied license to cache Web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)
• Not a fair use. Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

Fair Use Case Studies

by CAROLYN BEELER

Fair use applies to intellectual property across mediums, from music to books to art. Because cases often don't make it to court and rulings are often contradictory, sometimes it's hard to say what is legal or illegal until a judge makes a ruling. A few recent examples:

EnlargeMannie Garcia/AP/Shepard Fairey

The poster created by artist Shepard Fairey, next to the AP photo upon which it was based.

Obama Hope Poster: Case Ongoing

Artist Shepard Fairey, who created the iconic Obama "Hope" image that was widely used during the 2008 presidential campaign, came under fire from The Associated Press for using a copyrighted image.

When the AP raised the issue with Fairey, he said the image was based off a photo of Obama and George Clooney that was taken at a Darfur event in 2007. He later admitted to having actually used a photo taken at a news event at the National Press Club in Washington, D.C. (pictured), which required less cropping to transform into the stylized image.

Fairey argues that he still changed the photo enough for the new work to fall under fair use laws. The AP says he didn't.

Fairey and the AP are suing each other for the rights to the images.

'Harry Potter Lexicon': Not Fair Use

Author J.K. Rowling sued the publishers of an encyclopedic Harry Potter guidebook called The Harry Potter Lexicon. Rowling argued that the guide did not fall under fair use standards because, unlike other companion or reference books to her series, it offered little new commentary or analysis, and lifted almost identical passages from her books.

EnlargeStaff/Getty Images

Gregg Gillis performs onstage during the Bonnaroo music festival in Manchester, Tenn., in June 2009.

In 2008, the judge ruled in Rowling's favor, saying that the reference work borrowed too much of Rowling's work and would cause her irreparable harm as a writer.

Girl Talk: Unchallenged

Mash-up artist Gregg Gillis, more commonly known as Girl Talk, mixes Top 40 hits together to create new music, sometimes sampling as many as 300 songs in a 50-minute set.

But unlike other hip-hop artists and DJs who have gotten into legal trouble for sampling, industry experts say Gillis has never been sued.

The fair use standards and legal precedent for sampling are murky, but they generally take into account the length of the sample, how much it is changed from the original, and if the new work could hurt the sales of the original.

AP/Fox

A parody of the song "When You Wish Upon a Star" was protected under fair use.

'Family Guy' Parody: Fair Use

Bourne Co., a music publisher that owns the rights to the song "When You Wish Upon a Star," sued Fox and the creators of the animated showFamily Guy for airing a parody of the song.

The lawsuit stated that the parody, called "I Need A Jew," was offensive and did damage to the original.

In 2009, the judge struck down the suit, ruling that the lyrics were "strikingly different" from those of the original.

http://www.npr.org/templates/story/story.php?storyId=123684026