September 20th Reading Notes
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.
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
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
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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding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
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
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