The fair dealing index tracks a variety of court decisions to help lawyers and non-lawyers better understand the types of uses that courts have previously found fair – or unfair. The decisions span several federal courts, including the U.S. Supreme Court, appellate courts, and district courts. Please note that while the index covers a wide range of cases, not all fair dealing legal notices are all. The Copyright Office will regularly update and expand the index. However, even if the percentage is relatively small, this factor may work against fair use if the material used is qualitatively very important. For example, in a case where The Nation magazine published excerpts from Gerald Ford`s upcoming memoirs, totaling only 300 to 400 words of verbatim quotations, the Supreme Court ruled that the third factor was against fair use because the excerpts contained Ford`s discussion of his Nixon pardon and other key passages that the court considered the “centerpiece” of the work. [2] An important consideration in subsequent cases of fair dealing is the extent to which the use is transformative. In Campbell v.
Acuff-Rose Music Inc of 1994,[13] the U.S. Supreme Court held that if the purpose of the use is transformative, it increases the likelihood that the former factor promotes fair use. [14] Prior to Campbell, federal judge Pierre Leval argued that transformativity was at the heart of fair use analysis in his 1990 article Towards a Fair Use Standard. [11] Blanch v. Koons is another example of a processor-focused fair use case. In 2006, Jeff Koons used a photograph by commercial photographer Andrea Blanch in a collage painting. [15] Koons appropriated a central part of an advertisement she had been commissioned to produce for a magazine. Koons prevailed in part because its use was perceived as transformative under the first fair use factor. A number of appeal decisions have recognized that a parody may be a protected fair use, including the latter (Leibovitz v. Paramount Pictures Corp.); the Ninth (Mattel v. Walking Mountain Productions); and eleventh circles (Suntrust Bank v. Houghton Mifflin Co.).
In the case of Suntrust Bank in 2001, Suntrust Bank and Margaret Mitchell`s estate sued unsuccessfully to prevent the release of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the story from the perspective of slaves rather than slave owners. The Eleventh Circuit, which used Campbell, found that The Wind Done Gone was fair use and overturned the district court`s injunction against its publication. How does fair use apply to photocopying course materials? The two main considerations are whether the work is published or not and to what extent the work is creative. Unpublished works enjoy greater protection than published works, because the author has the right to determine if and when his work is published. The fact that a previously published work is out of print may tend to promote fair use, as the work is not otherwise available. If you apply fair use factors to multimedia content, the analysis will likely be somewhat different from the analysis of textual records above. In May 2015, artist Richard Prince published a photography exhibition at the Gagosian Gallery in New York entitled “New Portraits”. His exposure consisted of screenshots of Instagram users that were largely unchanged, including Prince`s comment.[54] [55] [56] Although no Instagram user allowed Prince to use his images, Prince argued that adding his own comment to the images was fair dealing, so he did not need permission to use the images or pay royalties for its use. [55] One of the coins sold for $90,000. With respect to the works submitted by Painter, the gallery where the images were shown published the notice that “All images are subject to copyright.” [57] Several lawsuits have been filed against Painter in relation to the New Portraits exhibition.
[56] Prior to 1991, sampling was common practice in some musical genres and copyright considerations were considered largely irrelevant. The strict decision against rapper Biz Markie`s appropriation of a Gilbert O`Sullivan song in Grand Upright Music, Ltd. v. Warner Bros. Records Inc.[30] changed practices and opinions overnight. Designs now had to be licensed as long as they reached “a legally recognizable level of appropriation”. [44] This left the door open to the de minimis doctrine for short or undetectable samples; Such uses would not reach the level of copyright infringement, because according to the de minimis doctrine, “the law does not care about trifles”. However, 3 years later, the Sixth Circuit effectively eliminated the de minimis doctrine in Bridgeport Music, Inc. v.
Dimension Films, ruling that artists “must obtain a license or not sample.” [45] The Court later clarified that its opinion did not apply to fair use, but that between Grand Upright and Bridgeport, practice had indeed changed to dispose of unauthorized samples. The first factor focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial, it is less likely to be fair use, and if it is non-commercial, it is more likely to be fair dealing. Transformative uses are those that add something new, with a different purpose or character, and do not replace the original use of the work.
