I Didn’t Write This Conversation About Fair Use

Written by Stan Adams

Every year the Association of Research Libraries hosts a week-long celebration of Fair Use and its crucial role in a balanced copyright system. Fair Use is central to free expression and the vibrant creativity of the Web, and CDT is pleased to help celebrate Fair Use Week 2018.

“So what is fair use, really?”

Neil Turkewitz, Fair Use, Fairness, and the Public Interest

“You have asked the world’s most complicated question, …”

Jim Schacter, WNYC

“Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.”

Rich Stim, Stanford Fair Use and Copyright Center

“Fair use may not be what you expect. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?”

Copyright Advisory Services, Columbia University

“It’s codified in section 107 of the Copyright Act, intended primarily to promote such uses as criticism, comment, news reporting, teaching, scholarship or research.”

Neil Turkewitz, Fair Use, Fairness, and the Public Interest

“I have a flow chart on my wall that our legal department circulates showing how to think about fair use,”

Jim Schacter, WNYC

“It is not an all-purpose excuse to make use of someone else’s property for free.”

Neil Turkewitz, Fair Use, Fairness, and the Public Interest

“Fair use is an undeniably important plank of copyright law….A healthy and robust fair use doctrine is critical to us, since so much of what we create is built on the art that came before.”

Neil Turkewitz, Fair Use, Fairness, and the Public Interest

“Our members rely on the fair use doctrine every day when producing their movies and television shows – especially those that involve parody and news and documentary programs. And it’s routine for our members to raise fair use – successfully – in court.”

Ben Sheffner, MPAA and Fair Use: A Quick History

“All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.”

Kozinski, J.,  White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1515 (9th Cir. 1993)

“While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights.”

– Mike Masnick, Reminder: Fair Use is a Right — And Not ‘An Exception’ Or ‘A Defense’

“If every unauthorized use of copyrighted works were infringement, many socially valuable activities would be impaired. For example, a book review would be unable to quote the book in question without permission, and permission could be withheld without a favorable review, a large payment, or both. As one way to solve this problem, courts developed the doctrine of fair use, codified in the 1976 Copyright Act.”

Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

“The only guidance for fair use is provided by a set of factors outlined in copyright law. “

Rich Stim, Stanford Fair Use and Copyright Center

“There are four criteria for determining fair use, which sounds tidy, but it’s not. These criteria are vague and open to interpretation. Ultimately, when disagreement arises over what constitutes fair use, it’s up to the courts to make a decision.”

Jane Friedman, A Writer’s Guide to Fair Use

“The four factors judges consider are:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.”

Stanford University Libraries

“The hallmark of fair use jurisprudence in the past 20 or so years has been whether or not the secondary use is transformative.”

Brandy Karl, Transformative Fair Use: A Mashup T-Shirt Roundup

“If [the purpose and character of] your use can be considered “transformative,” this factor will weigh in your favor.”

Vimeo Help Center

“Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”

U.S. Copyright Office

“Transformative use is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.)

University of Minnesota, Understanding Fair Use

“To me, the Campbell v. Acuff-Rose case is still the gold standard when it comes to fair use,”

Stephen Zralek, Bone McAllester Norton

“Campbell v. Acu.ff-Rose Music, Inc. has unquestionably had transformative impacts on the doctrine of fair use in the U.S. copyright case law.”

– Pamela Samuelson, Possible Futures of Fair Use

“In 1964, Roy Orbison and William Dees co-authored the song “Oh, Pretty Woman” and assigned their rights in the song to Acuff-Rose Music. The song became a hit, and it has continued to generate profits for Acuff-Rose.”

– Lisa M. Babiskin, OH, PRETTY PARODY: CAMPBELL v. ACUFF-ROSE MUSIC, INC.

“I sat there [thinking], if we’re gonna compete with these guys, we don’t have the same budget they have, so what we’re gonna have to do is do something different: Let’s do comedy. Let’s sample some of these famous comedians, like Redd Foxx and Leroy & Skillet and Aunt Esther — and we’ll keep this bass music, this uptempo, Miami-style music,…We’re gonna do dance. And that will set us apart from everybody else.”

– Luther Campbell, 2 Live Crew

“Campbell became known as “The King of Dirty Rap.” He was sued by Acuff-Rose over a parody version of the Roy Orbison song “Oh Pretty Woman” for copyright infringement but the U.S. Supreme Court ruled in Campbell’s favor in 1994, finding that the song’s use of sampling of music for a parody represented fair use.”

– Dave McNary, Variety

“And then, at the same time, have people like Saturday Night Live and a whole other bunch of comedians file briefs on our behalf. Because if we would have lost the case then guys wouldn’t be able to imitate—do any more parodies in the country. So that was big for me. Of all the things, going to jail for the music.”

– Luther Campbell, 2 Live Crew

“Acuff-Rose claimed that the rap group’s lyrics “are not consistent with good taste or would disparage the future value of the copyright” and claimed that the music of the whole parody and lyrics of the first verse were too substantially similar to the original. 2 Live Crew claimed their use of “Oh, Pretty Woman” fell within the fair use exception of Section 107 of the Copyright Act of 1976.”

– Lisa M. Babiskin, OH, PRETTY PARODY: CAMPBELL v. ACUFF-ROSE MUSIC, INC.

“Acuff-Rose may not like it, and 2 Live Crew may not have created the best parody of the original, but nonetheless the facts convincingly demonstrate that it is a parody.”

– Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1155 (M.D. Tenn. 1991).

“The Supreme Court’s ruling in the case (Campbell v. Acuff-Rose) is still frequently cited in copyright disputes. For instance, [six] years ago the animated television show South Park staved off a legal challenge because of the fair-use standard created by the ruling”

– Nate Rau, Nashville attorney at center of landmark copyright case

“Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!”

– University of Minnesota, Understanding Fair Use

“The rights of the copyright holder have always been balanced against the more fundamental right of free speech. And free speech in the Internet age, more so than ever before, goes way beyond words and text. The way people express themselves on the Web increasingly involves images, video, animations, and other rich media, often in mash-ups of pre-existing works.”

– Erick Schonfeld, Fair Use Vs. Free Speech in the Internet Age: The Lane Hartwell Problem

“The Internet has its best moments when the line between content creator and content consumer erodes. Fair use enables that erosion, creating opportunities for comment, criticism, and other transformative uses of works.”

– Erik Stallman, Fair Use Gets a Legal Defense Fund and a Highlight Reel

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