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Lecture 24

PUBPOL 373 Lecture 1: September 20th Reading Notes

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Public Policy Studies

September 20th Reading Notes Fair Use  The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  Qualifications: o The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes  Whether such use is of a commercial nature or is for non-profit educational purposes o The nature of the copyrighted work o The amount and substantiality of the portion used in relation to the copyrighted work as a whole o The effect of the use upon the potential market for or value of the copyrighted work  The degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives  Not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant… would result in a substantially adverse impact on the potential market” for the original.  Include: Quotation of excepts 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 of 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.  The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above  No real definition of the concept has ever emerged, each case raising the question must be decided on its own facts  “Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”  Parody, like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.  The heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.  If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.  The mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country”  There is no protectable derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market.  An attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.  Copying for commercial gain has a much weaker claim to fair use than copying for personal enrichment  Ensures that the public would have free access to information by putting an end to “the continued use of copyright as a device of censorship”  Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.  The fact that parody by definition must borrow elements from an existing work, however, does not mean that every parody is shielded from a claim of copyright infringement as fair use.  Courts should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view. We will treat a work as parody if its aim is to comment upon or as opposed to scholarly or journalistic work.  The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.  It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public… to propose that fair use be imposed whenever the social value of dissemination outweighs any detriment to the artist, would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay it.  The Supreme Court in Campbell did not require that parodists take the bare minimum amount of copyright material necessary to conjure up the original work  Parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point. Even more extensive use than necessary to conjure up the original would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary.  Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the work’s overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original  The only harm to derivatives that need concern us is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright that the like threat to the original market.  Capitalizing on or benefiting from a books notoriety does not always amount to harmful substitution: if it died, no commercial parody, which by definition seeks to profit from another work’s notoriety by mocking it, would be permitted.  It is not copyright’s job to “protect the reputation” of a work or guard it from “taint” in any sense except an economic one – specifically, where substitution occurs. Campbell v. Acuff-Rose Music, Inc.  Breakdown: In 1964, Roy Orbison and William Dees wrote a rock ballad called “Oh, Pretty Woman” and assigned their rights in it to respondent Acuff-Rose Music, Inc. In 1989, Campbell wrote a song entitled “Pretty Woman,” which he later described in an affidavit as intended, “through comical lyrics, to satirize the original work…” They were willing to pay a fee for the use they wished to make of it.  Can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.  Because “the use of the copyrighted work is wholly commercial… we presume that a likelihood of future harm to Acuff-Rose exists.  We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the copyright act.  There was no evidence that potential rap market was harmed in any wat by 2 Live Crew’s parody, rap version Sony Computer Entertainment, Inc. v. Connectix Corporation  Breakdown: The purpose of the Virtual Game Station is to emulate on a regular computer the functioning of the Sony PlayStation console, so that computer owners who buy the Virtual Game Station software can play Sony PlayStation games on their computers. The Virtual Game Station does not contain any of Sony’s copyrighted material. In the process of producing the Virtual Game Station, however, Connectix repeat
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