True Fair Use Is About Authorship and Nothing Else

Prominent copyright scholar Jane C. Ginsburg recently spoke at a Copyright Society of The U.S.A. event in Seattle.  The topic of her presentation was how fair use has “gone off the rails,” beginning with the Sony “Betamax” decision.  In the Sony Betamax decision, the U.S. Supreme Court decided that Sony’s sale of its video tape recorder did not violate the owners’ copyrights in programs aired on commercial television.  The court recognized “time-shifting,” recording television shows for later viewing, as a fair use.  Fair use is not an infringement of copyright, even though the work is used without the permission of, and without compensation to, the copyright owner.  Fair use is codified in 17 U.S.C. §107 and is one of the limitations on the exclusive rights of the copyright owner.

Professor Ginsburg distinguished true fair use from other uses which courts have categorized as fair use, but are in fact either social subsidies or market failures.  True fair use is about authorship, creating new expression.  Through authorship, a creative process, true fair use “transforms” a pre-existing work by bringing in new expression.  A famous example is the parody by 2 Live Crew of the Roy Orbison/William Dees song, “Oh, Pretty Woman.”  In contrast, the time shifting “fair use” in the Sony Betamax decision does not involve authorship of any kind.  The Sony Betamax case involved market failure.  With the technology that existed at the time of the Sony Betamax decision in 1984, there simply was not a way to license all of the time-shifters, i.e., potentially infringing consumers.  The consumers were the potential direct infringers, as they were the ones making the copies.  Sony was a potential contributory infringer only.  In the line of non-authorship fair use cases beginning with Sony and continuing to last week’s decision in the Google Book case, courts have adopted the theme that if it seems like a really good idea, it’s fair use.  If it benefits the public, let’s call it fair use.  Professor Ginsburg advocates re-focusing fair use on authorship, and not using copyright law, particularly fair use, to address public policy concerns it was not designed to address.

Scanning Towards a Googol Books – Google Fair Use Claims Prevail Over Authors’ Copyrights

In 2004, Google began scanning books with the permission of the libraries possessing copies of the books.  Since then, Google has scanned more than 20 million books.  Many of those books are protected by copyright.  Google scanned the books without obtaining permission from, or compensating, the copyright owners.  Google’s actions include digitally reproducing millions of copyrighted books, making downloadable copies available to libraries, displaying snippets from the books to the public and enabling key word search for the entire Google Book collection.  None of these activities allow the general public to reproduce the books in their entirety. 

Individual copyright owners and The Authors Guild, Inc. sued Google, alleging copyright infringement for scanning the books and making the content of the scanned books available for search, without permission from the copyright owners.  The issue for the district court to decide was “whether Google’s use of the copyrighted works is ‘fair use’ under the copyright laws.”  (Opinion pdf page 16).  The district court ruled in Google’s favor, dismissing the plaintiffs’ complaint.  I previously posted about this case in Google Book Settlement Rejected – For Good Reason and Google’s Fair Use Defense Takes Priority Over Author Class Certification

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Distribution Infringement Claims Sink With the Time-Barred Ownership Claims Ship

In a case of first impression in this circuit, the Ninth Circuit Court of Appeals differentiated between the two kinds of copyright infringement claims:  ordinary copyright infringement (copying, preparing derivative works, distributing, publicly performing or publicly displaying without the owner’s permission) and copyright infringement in which the dispute is about ownership.  Copyright infringement claims involve establishing 1) that the plaintiff is the owner of a valid copyright and 2) that the defendant copied the original elements of the plaintiff’s work.  Seven Arts Filmed Entertainment sought to establish itself as the copyright owner of the films Rules of Engagement, An American Rhapsody, and Who is Cletis Tout? and sued Paramount Pictures for allegedly distributing the films without a license.  Paramount argued that Seven Arts’ infringement claims were barred by the statute of limitations.  The Ninth Circuit viewed this case as an ownership dispute.

Section 507(b) of the Copyright Act of 1976 requires civil copyright actions to be “commenced within three years after the claim accrued.”  Most copyright infringement lawsuits focus on whether the defendant copied the plaintiff’s work.  When copying is the issue, infringement claims for copying that occurs more than three years before the lawsuit was filed are barred, i.e., prohibited, by the statute of limitations.  But the defendant can still be held liable for copying that occurs between the three year statute of limitations date and the present.  Each new infringing act creates a new claim for infringement.  (However, damages are determined per work infringed, not by the number of infringing acts.)  The issue for the Ninth Circuit to decide was “whether a claim for copyright infringement in which ownership is the disputed issue is time-barred if a freestanding ownership claim would be barred.”  (Opinion pdf page 9).  Could Paramount be held liable for continuing infringing acts if the statute of limitations prevented Seven Arts from establishing copyright ownership ?

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District Court Sometimes Required to Consult With Register of Copyrights

Mark Swift entered into a partnership with Michael Schaltenbrand and Joey Siddle.  They agreed that Medicate Pharmacy, a retail pharmacy owned by Schaltenbrand, would provide mail-order services to customers found by DeliverMed, a marketing firm owned by Swift.  The parties agreed to use the DeliverMed name to identify the services the partnership provided to customers.  Swift hired Deeter Associates to design a logo for the partnership to use in marketing its services.  Allan Kovin orally agreed with Linda Deeter, Deeter Associates’ Executive V.P., to perform the logo work as an independent contractor.  Kovin created a graphic design of a house and pestle and was the sole creator.

A dispute erupted among the partnership members.  Swift sued Schaltenbrand, Siddle and Medicate for federal and state law claims.  DeliverMed, Deeter Associates and Linda Deeter also sued the defendants, alleging trademark infringement claims for the defendants’ use of the logo.  Deeter Associates and Linda Deeter agreed to file the suit in exchange for a cash payment and expenses reimbursement from Swift.  DeliverMed applied to register a copyright for the logo.  DeliverMed represented to the Copyright Office that Linda Deeter was the author of the logo and that she transferred her copyright to DeliverMed by written agreement.  One week later, Deeter actually did sign a transfer of ownership agreement.  DeliverMed, Deeter Associates and Linda Deeter then amended their complaint to include a copyright infringement claim.  The district court ruled in the defendants’ favor on the copyright infringement claim and invalidated the copyright registration.  The Seventh Circuit Court of Appeals affirmed the district court’s ruling on the infringement claim, but determined that the district court erred in invalidating DeliverMed’s copyright registration.

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