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.
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 , 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  as the “fair exercise of a mental operation, deserving the character of an original work.” In Whittingham v. Wooler  and in Bell v. Whitehead , 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:
- It’s OK to copy music onto an analog cassette, but not for commercial purposes.
- It’s also OK to copy music onto special audio CD-Rs, mini-discs, and digital tapes (because royalties have been paid on them) – but again, not for commercial purposes.
- Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of a CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
- The copy is made from an authorized original CD that you legitimately own.
- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
- The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
- Remember, it’s never OK to sell or make commercial use of a copy that you make.
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.
Send questions to Cecil via email@example.com.
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