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A Staff Report by the Straight Dope Science Advisory Board
9-Nov-2006
Dear Straight Dope:
I am somewhat confused in regards to how exactly copyright law applies to works
of art. For example, how did Andy Warhol create his paintings of Campbell's soup
cans and sell them without facing legal action? It'd be great if you could clear
this up for me. —Javier G., Newark, NJ
Dear Straight Dope:
I'm confused about copyright law. Specifically, copying music and video. My
friends say that ripping songs from a CD or movies from a DVD is "fair use" and
that it's not illegal to copy these things as long as I don't charge for the
copies. Is that true? —Stan Rivers
SDStaff Gfactor and guest contributor acsenray reply:
This is part 2 of a four-part report. In
part 1 we gave the history of copyright
law and explained the concept in general terms. In this section we focus on the
much-misunderstood "fair use" provisions of the law. In subsequent
parts we'll summarize the penalties for copyright infringement and describe
other forms of legal protection for intellectual property.
William Patry's book The Fair Use Privilege in Copyright Law (2d ed.,
1995) traces the fair use privilege to its roots in English common law. The
earliest cases recognized privileges of "fair abridgement" and "review." Courts
distinguished between these concepts and "mere evasions," which simply copied
the original and didn't add anything to it. The term "fair use" was first used
by an English court in Lewis v. Fullerton (1839). Patry summarizes the
development of the doctrine:
the claim of fair use was denied because the defendant had not made any productive, creative use of the plaintiff's work; instead he had merely copied it … In Cary v. Kearsley [1803], the question was whether the material was "used fairly" toward creating a new work and whether such use was motivated by animus furandi. [The standard for whether a work had been "used fairly"] was described in Wilkins v. Aikin [1810] as the "fair exercise of a mental operation, deserving the character of an original work." In Whittingham v. Wooler [1817] and in Bell v. Whitehead [1839], criticism that did not supplant the market for or value of the original work and that was not designed to evade plaintiff's copyright was permitted. Finally, in Lewis … the term "fair use" was used in its current juxtaposition. The concept, however, existed from at least … 1803.
In other words, the original notion of fair use focused on whether the user
of the work added anything original and whether the new work supplanted the
market for the original.
The terminology and the standard underwent a similar development in the U.S. In
the American case frequently credited with establishing the fair use privilege
in U.S. law, Justice Story never mentioned the phrase "fair use." He was talking
about fair abridgement and relying on the English cases when he said:
It is clear, that a mere selection, or different arrangement of parts of the original work, so as to bring the work into a smaller compass, will not be held to be such an abridgment. There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work [Folsom v. Marsh, 9 F.Cas. 342 (No. 4,901) (CCD Mass. 1841)].
The term "fair use" did not appear in a reported American decision until 28
years later in Lawrence v. Dana (1869). It wasn't made part of the copyright statute until
the revision of 1976, which codified existing judicial
doctrine.
Section 107 now says, "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." It doesn't spell out exactly what is
– or is
not – fair use. It gives a partial list of factors: the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; the nature of the copyrighted work; the amount
and substantiality of the portion used in relation to the copyrighted work as a
whole; and the effect of the use upon the potential market for or value of the
copyrighted work.
In Campbell v. Acuff-Rose Music, a case involving 2 Live Crew's song "Pretty
Woman," Acuff-Rose, holder of the copyright to Roy Orbison's "Oh, Pretty
Woman," sued for copyright infringement. Justice Souter took the opportunity to
review some of the basic principles of fair use. First, he noted that the
statute did not permit an easy determination; fair use must be determined on a
case-by-case basis. Furthermore, courts have broad discretion in
deciding fair use issues. Justice Souter said that the four factors listed in section 107
were intended to "provide only general guidance" and that they certainly weren't
exclusive. "Nor may the four statutory factors be treated in isolation, one from
another. All are to be explored, and the results weighed together, in light of
the purposes of copyright." Sounds messy, doesn't it? When you're talking
about litigation, messy means expensive. We should make that point explicit: If
you've got a fair use defense, you've got a defense you can assert in a
potential lawsuit without getting laughed out of court. But having a messy defense to assert may not be very helpful
without the money to assert it.
Getting back to our story, Justice Souter stressed the importance of "transformative use"
in determining whether reproducing copyrighted material constitutes fair use. He continued:
Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use [citations and footnotes omitted].
On the other hand, the kind of use you seem most interested in, copying an
entire work for personal use, is unlikely to be considered fair use. For
example, in BMG Music v. Gonzalez, the 7th Circuit Court of Appeals held that an
individual who downloaded songs from a filesharing network because "she was just
sampling music to determine what she liked enough to buy at retail" was not
making a fair use of the works she copied. Of course, the fact that she didn't
delete the files after she listened to them probably hurt her case. The court
upheld a $22,500 damage award (30 songs at $750 per song) granted without trial.
The Supreme Court refused to review the case.
Though we'll discuss a few exceptions below, most wholesale copying is not fair use.
A related defense is de minimis infringement, but that won't help
you if you're duplicating entire works. On the contrary, the de minimis defense
hinges on the contention that the copyrighted work is a tiny portion of a new work,
created by the copier. A common example is a poster or photograph shown briefly
in a movie. But brevity is important, and this is another defense that does not
allow for clear-cut distinctions.
The defense didn't work when the television show "Roc" showed a poster by Faith
Ringgold. According to the court, the segments of the program in which the
poster was visible to any degree lasted between 1.86 and 4.16 seconds. The
aggregate duration of all nine segments was 26.75 seconds. The court found:
In some circumstances, a visual work, though selected by production staff for thematic relevance, or at least for its decorative value, might ultimately be filmed at such a distance and so out of focus that a typical program viewer would not discern any decorative effect that the work of art contributes to the set. But that is not this case. The painting component of the poster is recognizable as a painting, and with sufficient observable detail for the "average lay observer" to discern African-Americans in Ringgold's colorful, virtually two-dimensional style. The de minimis threshold for actionable copying of protected expression has been crossed.
In other words, if the work is recognizable in the new work, there's a good
chance the defense will fail.
In a later case, the same court upheld a de minimis infringement defense by the
producers of the movie Seven. In that case, the photos had more overall screen
time (the total onscreen time was about 36 seconds, and the longest
uninterrupted view was about 6 seconds), but they weren't in focus most of the
time. The court upheld the defense because the photographs "appear[ed]
fleetingly and [were] obscured, severely out of focus, and virtually
unidentifiable[.]" In this context a lawsuit over the use of a sculpture based
on a Frederick Hart work in the movie The Devil's Advocate (1997) is frequently
discussed. The parties settled the case so we'll never know how a court would have
ruled.
Some courts have recognized the de minimis infringement defense in cases
involving digital sampling of music. But recently the U.S. Court of Appeals for the Sixth
Circuit held that the de minimis defense does not apply unless the copier gets a
license from the owner of the copyright of the recording that was sampled. The
infringement in question was a two-second sample from a three-note guitar solo.
The sample was copied, the pitch was lowered, and the
copied piece was “looped” and extended to 16 beats. The Court rejected a de minimis defense, but sent the case back to the lower court to determine whether
the sample was a fair use. In other words, the de minimis defense may work
against the original composer of the copied song, who holds a copyright in the
composition itself; but it may not help you against the owner of the copyright
for the recording that you sample--you'll have to get a license for that.
Special rules apply to educators. For example, check out
section
110, which permits some
displays and performances of copyrighted works – but
not copying. Educational copying is covered by "guidelines." While
the guidelines aren't law (they weren't passed by Congress or imposed by a
court), they're considered safe harbors, whether under the fair use
doctrine or some other rule.
OK, now it's time for your question, Stan. You wanted to know
what you can legally do with a DVD or a CD. Some home copying is OK, but it's covered by a couple of special statutes, not fair use.
First, let's talk about what the Supreme Court has ruled. In the so-called Betamax case,
Sony Corp. v. Universal City Studios, Inc. (1983), the court gave tentative
approval to time-shifting of television programs with a VCR, which it defined as
"to record a program [one] cannot view as it is being televised and then to
watch it once at a later time." It's important to note what the court didn't say
here. It didn't say it's OK to tape TV programs and keep them for
posterity. Nor did it say it was OK to copy pre-recorded videotapes
– ever.
The courts haven't decided how the time-shifting rule applies to personal video
recording devices like Tivo.
The Supreme Court missed an opportunity to resolve the issue of verbatim copying
when the justices split evenly on the issue in Williams & Wilkins Co. v.
United States (1973). Because it was a 4-4 decision (Justice Blackmun did
not participate), the court was unable to establish precedent and left the lower
court opinion intact. The Court of Appeals in Williams & Wilkins had
ruled it was fair use for NIH's medical library and the National Library of
Medicine to provide photocopies of journal articles to
researchers. The court's decision
leaned heavily on the idea that the copying was non-profit, for the benefit of
science, and also that the 1909 act (then still in effect) was unclear on
whether photocopying was infringement in the first place (the 1976 act makes
clear that it is). No court since Williams & Wilkins has approved
verbatim copying.
In short, while U.S. courts haven't flatly declared wholesale copying illegal, they don't look kindly on it. Don't despair, though – Congress has created a few statutory exceptions. Most of these come from a 1992 amendment to the Copyright Act called the Audio Home Recording Act. An organization called Musicians United for Strong Internet Copyright summarizes the act and its implications:
These rules apply to audio recordings, not video
– it's called the Audio Home Recording
Act, after all.
Ripping music to your hard drive is still in dispute. The Recording
Industry Association of America has told the U.S. Supreme Court it was
"perfectly legal" to copy music from a CD to your hard drive, and
still says so on its
website. But the RIAA elsewhere claims it isn't legal at all. As MUSIC points out, if you
copy music to your computer for
non-commercial, personal use, it probably doesn't matter, but some cases suggest
that a computer hard drive isn't covered by the AHRA.
In the next part of this report, we'll discuss the penalties for infringement.
References
Adams, Cecil, "Must you get permission to record someone else's song?":
http://www.straightdope.com/classics/a1_324b.html
Crews, Kenneth, "The Law of Fair Use and the Illusion of Fair-Use Guidelines,"
Guidelines, 62 Ohio State Law Journal 599 (2001):
http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf
Fisher, Ken, "RIAA et al. says CD Ripping, Backups Not Fair Use,"
Arstechnica.com, February 15, 2006:
http://arstechnica.com/news.ars/post/20060215-6190.html
Hoon, Peggy, "The TEACH Act Toolkit," NCSU Libraries:
http://www.lib.ncsu.edu/scc/legislative/teachkit/
Howell, Astride, "Sample This!" Los Angeles Lawyer, September 2005 at 24:
http://www.lacba.org/Files/LAL/Vol28No6/2179.pdf
Lucas, Matthew, "The De Minimis Dilemma: A Bedeviling Problem of Definitions and
a New Proposal for a Notice Rule," 4.3 Journal of Technology Law & Policy 2
(2000): http://grove.ufl.edu/~techlaw/vol4/issue3/lucas.html
Music United for Strong Internet Copyright, "The Law," musicunited.org:
http://www.musicunited.org/2_thelaw.html
Patry, William, The Fair Use Privilege in Copyright Law (2d ed., 1995)
Peters, Marybeth, "Recommendation of the Register of Copyrights in RM 2002-4;
Rulemaking on Exemptions from Prohibition on Circumvention of Copyright
Protection Systems for Access Control Technologies," memorandum dated October
27, 2003
Power, Aaron, "The Mouse That Roared: Addressing the Post-Modern Quandary of
Mash-ups through Traditional Fair Use Analysis," 8 Vanderbilt J. Of
Entertainment And Tech. Law 531 (2006)
Ringgold v. Black Entertainment Television, 126 F.3d 70 (2nd Cir.
1997):
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=969329
Rimmer, Matthew, "The Grey Album: Copyright Law and Digital Sampling," Media
International Australia Incorporating Culture and Policy, No. 114, pp. 40-53
(2005):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=648323
Stanford University Libraries, "Copyright and Fair Use,"
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
The University of Texas System, "Fair Use of Copyrighted Materials," "The UT
System Crash Course in Copyright,"
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
von Lohman, Fred, "RIAA Says Ripping CDs to Your iPod is NOT Fair Use," Eff.org,
February 15, 2006: http://www.eff.org/deeplinks/archives/004409.php
—SDStaff Gfactor and guest contributor acsenray
Straight Dope Science Advisory Board
[Comment on this
answer.]
Staff Reports are researched and written by members of the Straight Dope Science Advisory Board, Cecil's online auxiliary. Although the SDSAB does its best, these articles are edited by Ed Zotti, not Cecil, so accuracywise you'd better keep your fingers crossed.
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