Archive for the ‘Fair Use’ Category

Ask Dr. Copyright

Wednesday, July 31st, 2013

Dr. Trademark Dear Doc:

I know you’ve explained the legal concept of “fair use” before, but I have a question about that. Does it infringe an author’s copyright in a book to paraphrase one sentence from the book in a movie, if you give credit to the author, or is it fair use?


Absolom Absolom,  Mississippi

Dear AbAb:

Funny you would ask that question, since it is a paraphrase of one asked by United States District Judge Michael P. Mills in his recent decision in Faulkner Literary Rights LLC v. Sony.¬† In that suit, the heirs of William Faulkner sued Sony Pictures, which distributed Woody Allen’s movie Midnight in Paris. In the movie, Owen Wilson’s character paraphrases Faulkner’s novel, Requiem for a Nun, when he says, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him too. I ran into him at a dinner party.”

The actual sentences from the novel are, “The past is never dead. It’s not even past.”

Given the obvious and serious legal issues at stake, the Faulkner heirs sued for violation of the Lanham Act and the Copyright Act. On a motion by Sony to dismiss the case, the judge read the book, watched the movie, and expressed his gratitude that he had not been asked to compare The Sound and the Fury with Sharknado.

The legal question, however, turned on what the Court saw as, “(1) whether the affirmative defense raised to the copyright infringement claim can properly be considered on a motion to dismiss; (2) whether the use in Midnight is justified under a de minimis copyright analysis; (3) if the alleged infringement is not de minimis, whether or not it constitutes fair use; (4) whether Faulkner’s Lanham Act claim has merit.”

Judge Mills, in his 17 page memorandum opinion, gives a textbook lesson in fair use analysis. It all really comes down in the end, however, to his belief that Woody Allen has created a, “transmogrification in medium” by taking a sentence from the novel and using it in a different medium (film) and for a different literary purpose. According to the Merriam-Webster Dictionary, “transmogrify” means, “to change or alter greatly and often with grotesque or humorous effect.” Ahhhh… so THAT’s what Woody Allen did!

So you see, Ab, it’s fair to misquote a famous author of serious literature, if you do it in film, with comic effect. So I guess, we can try it in a law firm newsletter, too… As Woody Allen once said, “I believe there is something out there watching us. Unfortunately, it’s the government.” (But then again, that’s a real quote.)

If you need to paraphrase a famous person, it would be good to check with the attorneys at LW&H – they’re not quite famous, but they do know a lot about copyright law.

Until next month…

The “Doc”

— Lawrence A. Husick, Esq.

The DMCA to the Rescue (Maybe) …

Wednesday, July 31st, 2013

copyright In a recent embarrassing broadcast by KTVU television of San Francisco, the morning anchor, Tori Campbell, identified the pilots of the recent San Francisco Asiana airline crash as “Captain Sum Ting Wong,” “Wi Tu Lo,” “Ho Lee Fuk,” and “Bang Ding Ow.” ¬† As she read the names, Campbell didn’t flinch and, even more perplexing, why didn’t the station snag the racist script before airing it?¬† To its credit, KTVU made a quick public apology and fired some employees.¬† The station was still faced with a newscast gone viral.¬† Just how would they remove all the copies of the broadcast on YouTube and other popular web sites?

Digital Millennium Copyright Act (DMCA) to the rescue!¬† Under the DMCA, a 1998 amendment to the US Copyright Act, copyright owners may request online service providers to take down works, which have been posted online without the owner’s permission.¬† We have written about take down notices in previous posts.¬† Service providers generally obey such requests to avoid liability for the illegal acts of their online subscribers.¬† And so, under the theory that the video posters had essentially stolen copies of the embarrassing newscast, KTVU undertook a “successful” campaign of sending “take down notices” to various web sites such as YouTube.¬† But how successful were they?¬† Well, if you really wanted to see the broadcast, you could find it on Bit Torrent and other file sharing sources but for the mainstream web surfers, KTVU’s campaign appeared largely successful.

KTVU may have been satisfied, but copyright lawyers were not.¬† There is a very compelling argument that the KTVU newscast was not protected by copyright law at all.¬† Section 107 of the U.S. Copyright Act places limitations on the exclusive rights granted by the Act.¬† Copies of works used for purposes such as criticism, comment (including parody), and news reporting are not, under the Section 107, infringing.¬† Rather, such use constitutes “fair use.”¬† Certainly, most people who posted copies of the broadcast did so for no¬† purpose other than criticism, comment, news or parody even it they thought it was funny.¬†¬† If they were posted for racist purposes, perhaps, KTVU has an argument but many, if not the majority of postings, were comments upon the stupidity and poor management of the KTVU newsroom. Based on the fair use theory, bloggers at The Desk submitted counter-notifications with YouTube demanding that the KTVU videos be reinstated. They were apparently successful given that the broadcast is still available here.¬†¬† The KTVU incident, nevertheless, demonstrates how creative use of copyright law can be used for reputation management even if the results are short-lived.

— Adam G. Garson, Esq.

Ask Dr. Copyright … Happy Birthday to Dr. Copyright

Saturday, June 29th, 2013

Dr. Trademark Dear Doc:

I took my daughter out to dinner for her birthday at a local eatery (that’s what they call a restaurant when they want to charge more for the same old burritos) and at the end of the meal, all of the servers gathered around, slapped a sombrero on her head, and sang some stupid birthday song set to the tune of “La Cucaracha”. Not that I have anything against insects, mind you, but why, oh why can’t they just wish the kid happy birthday in the traditional American way? The manager claims that he does not want to pay royalties to Warner Music for publicly performing a copyrighted song. So, what gives? Do we get to sing “Happy Birthday” to my kid before she is ready to collect Social Security?


Happy Birthdad, to you.

Dear Hap,

I share your pain and frustration over this issue of burning importance, and so, apparently, does a newly formed company called, “Good Morning to You Productions Corp.” That company has filed a class action lawsuit against Warner/Chappell Music seeking the return of millions of dollars collected in royalties, and a determination that Happy Birthday To You is no longer protected by copyright.

The company is making a documentary film about the history of Happy Birthday. They were told by Warner that if they wished to use the song in their movie, they would have to pay $1,500.00 for a “synchronization license.” Fail to pay, and the law says that you may have to cough up as much as $150,000 in statutory damages. Chump change for Lucas or Spielberg, but for churchmouse-poor documentarians, that’s an awful lot of ramen noodles. So, in a wonderful case of art-imitates-life-imitates-art (or some such existential nonsense) GMTYPC hired lawyers to go after big, bad Warner/Chappell.

Here, in a nutshell (or at least a complicated paragraph) is what they claim: In 1893, Patty Smith Hill and Mildred Hill wrote a ditty called, “Good Morning To All.” They sold the rights to the song and it appeared in a book called “Song Stories for the Kindergarten” which was registered for copyright in 1894. Years later, the words “Happy Birthday” were substituted for “Good Morning” and in 1911, the Board of Sunday Schools of the Methodist Episcopal Church published the full “Happy Birthday” version, referencing a book called “Song Stories for the Sunday School” by Patty Hill. The Church filed for a copyright on this in 1912. According to the plaintiff, all of those copyrights either expired or were never renewed. In 1924, these lyrics appeared in another published song book. In 1935, a piano arrangement of the song was published. Under the current copyright law, works published after 1923 get 95 years of protection. But, GMTYPC alleges in its law suit that it has “irrefutable documentary evidence” (which is a good kind of evidence for a documentary film maker to have) that if there was ever a valid copyright on Happy Birthday To You, it expired in (drumroll) 1921, and all that Warner/Chappell ever owned, if it had anything, is a right to copy and distribute that 1935 piano arrangement. Period.

So what does GMTYPC want? They say that a class of everyone who has paid Warner/Chappell exists, and that Warner/Chappell collects more than $2 million per year in royalties on Happy Birthday – and that they class should get its money back (less, of course, really big legal fees). They want the court to declare that Happy Birthday is no longer protected by copyright and is in the public domain. And a bunch of other legal stuff.

As for the Doc, he can’t wait for the movie to come out…who knew that copyright law could be as thrilling as The DaVinci Code?

Have a copyright or other intellectual property law thriller? Ask the attorneys at Lipton, Weinberger & Husick – they’re pretty thrilling folks in their own right!

— Lawrence A. Husick, Esq.

Just How Much Can an Artist Appropriate and Get Away With — Plenty!

Tuesday, April 30th, 2013

copyright So, do you know what an “appropriation artist” is?¬† It’s an artist who uses preexisting objects or images to create new works of art.¬† While you might guess that appropriation artists keep many a copyright lawyer employed they also sell their works for large sums of money.¬† Take for example, Richard Prince, perhaps, the most famous appropriation artist.¬† In a recent exhibit of Rastafarian images referred to as the “Canal Zone” exhibit, he sold one work for more than two million dollars!¬† Prince didn’t create the base images for his works, rather he appropriated them from a collection of photos by Patrick Cariou, which Prince altered by “printing ‘lozenges’ over their subjects’ facial features and using only portions of some of the images.”

Patrick Cariou, who made approximately $8,000 from his book of Rastafarian photographs, believed that Prince ripped him off and sued him in federal court for copyright infringement. Prince defended himself by asserting the legal doctrine of “fair use,” which, under the U.S. Copyright Act, permits use of copyrighted works for purposes of “criticism, comment, news reporting, teaching, scholarship, or research.”¬† The lower court rendered its judgement in favor of Cariou holding that to qualify for fair use, the secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.”¬†¬† Because Prince’s works did not comment upon the original works of Cariou, the court held that Prince’s works did not qualify as fair use.¬† Prince, who was not short of funds, appealed.

In a complete reversal, the U.S. Court of Appeals for the Second Circuit rejected the reasoning of the District Court judge, and concluded that there is no legal requirement that the secondary use must comment upon the original work to qualify as fair use even if the use “serves some purpose other than those” cited by the statute.¬† The Court wrote that the requirement of fair use only requires that the new work be “transformative” and that it “alter the original with ‘new expression, meaning, or message.'”¬† The Court of Appeals held that Cariou’s work is “serene” and “beautiful” while Prince’s work, whch is “crude,” “jarring,” “hectic,” and “provocative,” is fundamentally different.

Here’s an example from the court’s opinion, what do you think?

From Yes Rasta by Patrick Cariou (from the opinion)
Graduation by Richard Prince (from the opinion).

— Adam G. Garson, Esq.

The Dead Hand of William Faulkner Claims Foul

Friday, November 30th, 2012

copyright The estate of William Faulkner is furious.¬† In the past month it has filed two copyright infringement lawsuits, one against Sony Picture Classics and another against Northrop Grumman Corporation and the Washington Post Company.¬† In the Sony case, the Faulkner Estate claims that Sony infringed Faulkner’s copyright in the famous phrase from Requiem for a Nun, “The past is never dead.¬†¬† It’s not even the past.”¬† when the lead character in Woody Allen’s film, “Midnight in Paris.” exclaims, “The past is not dead!¬† Actually, it’s not even past.”¬† In the case of the suit against Grumman and the Washington Post, the Faulkner estate claims that it printed without the estate’s permission, Faulkner’s phrase, “We must be free not because we claim freedom, but because we practice it,” in a full page advertisement paid for by Grumman.¬† The offending quote was from¬† Faulkner’s essay, On Fear: the South in Labor.¬† Defendants in both lawsuits will raise the “fair use” defense to blunt The Faulkner estate’s attack.¬† So let’s take a brief look at the “fair use” doctrine.

“Fair use” is a copyright doctrine that permits one to use copyrighted material without seeking permission from the copyright owners if it falls within certain categories: criticism, news reporting, teaching, scholarship, or research.¬† The problem is that the copyright statute fails to give specific guidance on how to identify fair use other than to list factors to be considered:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

As a result, the law of fair use is one of the most vague and unpredictable areas of copyright law.¬† Let’s take a peek at the arguments that the lawyers will likely make in the Faulkner estate case against Sony. The Sony lawyers’ principal argument will be that the amount and substantiality of the Faulkner quote is insignificant. The Faulkner estate lawyers, on the other hand, will argue that first, Midnight in Paris does not arguably fall within the statutory categories of¬†criticism, news reporting, teaching, scholarship, or research and, second, despite the short length of the quote, Sony is using it for commercial purposes. The Sony lawyers, of course, scoff at the suggestion, asserting that use of the Faulkner quote will have absolutely no commercial impact upon the market value of the copyrighted work, which is more than 60 years old. See the article in for a first-hand account of the war of words.¬† The arguments raised by lawyers in the Grumman case will be similar. Should the cases actually go to trial, an unlikely scenario, copyright experts everywhere will be closely watching.

Adam G. Garson, Esq.

Major League Baseball Should Play Fair with Fair Use

Thursday, May 31st, 2012

baseball batOn May 28th, Phillies versus the Mets, ace-pitcher Cole Hamels, allowed four runs in eight innings but got out of an eighth-inning jam by making the right pitches at the right time.¬† But it was first baseman Ty Wigginton’s game.¬† He saved the day by going 3-for-3 with a double, home run, two walks, and a career-high six RBI’s.

So, now that I’ve given you a brief synopsis of the game, were you aware that Major League Baseball (MLB) believes I’m guilty of copyright infringement?¬† Yes, that’s right, MLB prohibits all accounts of the game for any purpose.¬† According to Dr. Copyright, who graciously provided me an emergency consultation,¬† I shouldn’t worry, though.¬†¬† Here’s why.

You’ve probably heard the mantra before or during every broadcast of a major league baseball game (football, too):

Any rebroadcast, reproduction or other use of the pictures and accounts of this game without the express written consent of Major League Baseball is prohibited.

The National Football League has a similar warning:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

These warnings are harsher than they need to be.¬† Do your think that every journalist covering a baseball game has obtained permission from the MLB to write a story about it?¬† Of course not.¬† But who gives the sports leagues authority to prohibit you from recounting a game?¬† The answer is no one, not even copyright law.¬† The prohibition is not only harsh, it’s flat wrong.

There is little dispute that broadcasts of sporting events are copyrighted events.¬† If one were to record a game and post it on YouTube (assuming that you could do so), the copyright police would bring it down before you could turn off your computer.¬† This is the leagues’ right.¬† They produce and distribute the game and, therefore, have a right to make sure that others are not profiting from their endeavors.¬† But recounting a sports story, whether verbally or in print, is not a copyright infringement, it falls under the broad designation of “fair use”.¬†¬† Fair use is¬† written into the U.S. Copyright Act (Title 17 ¬ß 107) and permits use of copyrighted works for purposes of criticism, news reporting, teaching, scholarship or research.¬† Granted, the boundaries of fair use are fuzzy — courts have and continue to wrestle with what constitutes fair use — but it remains one of the bulwarks of first amendment protection from those who claim a monopoly on information. So, the bottom line is don’t be intimidated by misinformation.

— Adam G. Garson, Esq.