Lack of Valid Copyright Throws Out “Who’s on First?” Copyright Claim

Abbott and Costello’s successors-in-interest sued the author and producers of the play Hand to God for copyright infringement. The play used a little over a minute of the Abbott and Costello “Who’s on First?” routine almost verbatim without authorization. The district court ruled that the use of the “Who’s on First?” routine in the play Hand to God was a fair use and not copyright infringement. My post Who’s on First? Copyright Infringement Question as Tangled as the Routine discusses the district court’s ruling.

On appeal, the Second Circuit held that the district court erred in ruling that the use of the routine in the play was a fair use. Nevertheless, the Second Circuit upheld the district court’s ruling in favor of the play’s author and producers on the alternative ground that Abbott and Costello’s successors-in-interest failed to plead a valid copyright interest. Since the play’s creators did not cross appeal the district court’s ruling that the Abbott and Costello successors-in-interest owned a valid copyright, the only issue on appeal was whether the district court correctly ruled that the use of the routine in the play was a fair use. The Second Circuit was obligated to rule on the fair use question before considering whether to uphold the district court’s ruling on an alternative theory. Had the Second Circuit affirmed the district court’s fair use analysis, the Second Circuit would not have considered the copyright validity question.

The Second Circuit did not discuss whether it was even appropriate for the district court to consider fair use on a Rule 12(b)(6) motion to dismiss for failure to state a claim. Fair use is an affirmative defense and is the defendant’s burden to prove, not the plaintiff’s. Fair use should not be decided on a motion to dismiss the plaintiff’s complaint for failure to state a claim. 

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Who’s on First? Copyright Infringement Question as Tangled as the Routine

The creators of the dark comedy play Hand to God included in their play dialogue from Who’s on First?, the iconic comedy routine created by Abbott and Costello.  Abbott and Costello’s heirs sued Kevin McCollum and others involved in creating Hand of God for copyright infringement.  McCollum and the other defendants argued that the heirs failed to allege a continuous chain of title to the routine, that the routine passed into the public domain and that the Hand of God creators made fair use of the routine.  The district court agreed that the plaintiffs did not sufficiently allege a copyright infringement claim and granted the defendants’ motion to dismiss for failure to state a claim.

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Google’s Book Digitizing Activities Ruled Fair Use

Authors of published books under copyright sued Google for copyright infringement, alleging that Google’s book copying activities for Google’s Library Project and Google Books project infringe the authors’ copyrights.  In Authors Guild, Inc. v. HathiTrust, authors alleged that the HathiTrust violated the authors’ copyrights by allowing Google to electronically scan HathiTrust members’ book collections and create a repository of the scanned works.  The Second Circuit ruled in that HathiTrust’s activities were fair uses.  It’s no surprise, then, that the Second Circuit also ruled in this case, Authors Guild v. Google, Inc., that Google’s activities were fair uses.  The Second Circuit’s ruling in the Google case is closely related, but not identical, to its ruling in HathiTrust.  My post, HathiTrust Book Scanning Ruled Fair Use, discusses the Second Circuit’s ruling in HathiTrust.

The opinion in the Authors Guild v. Google case was written by Second Circuit Judge Pierre N. Leval.  Judge Leval created the transformative use test as a way of determining whether a later work made fair use of a preceding work.  He described the transformative use test in his law review article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  The U.S. Supreme Court frequently referred to Judge Leval’s law review article in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  In Campbell, the Supreme Court adopted the transformative use test in ruling that 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.

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Fair Use Protects Copyright Holder of Unauthorized Parody

The Second Circuit began its opinion with its intriguing ruling:

The primary question presented is whether an unauthorized work that makes ‘fair use’ of its source material may itself be protected by copyright.

We hold, for substantially the reasons stated by the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contributions.

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Disgruntled Former Tenant Wins Fair Use of Ugly Photo of Real Estate Tycoon

Irina Chevaldina is a disgruntled former tenant of a shopping center owned by Raanan Katz.  Katz also owns a minority interest in the Miami Heat basketball team.  Seffi Magriso is a professional photographer who took a photo of Katz while he stood courtside at a basketball practice in Jerusalem.  The photo shows Katz with his tongue sticking out of his mouth and his eyebrows arched sharply upwards.  Katz, who thinks the photo is ugly and embarrassing, acquired the copyright to the photo from Magriso.  Chevaldina found the photo through a Google image search and incorporated it into her scathing blog posts about Katz and his business practices.   

Katz sued Chevaldina for copyright infringement.  The district court granted summary judgment in favor of Chevaldina based on her fair use argument.  The Eleventh Circuit affirmed the district court’s ruling.

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Reporter Hat On for the Fair Use Conference!

I recently attended the University of Washington School of Law’s fair use conference:  Fair Use in the Digital Age:  The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test.”  What is Campbell v. Acuff-Rose and what’s the big deal about the “transformative use test” you may be asking yourself.  In Campbell v. Acuff-Rose, the question was whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.  In addressing that question, the U.S. Supreme Court asked for the first time whether the new work “adds something new, with a further purpose or different character, altering the first work with new expression, meaning, or message; in other words, whether and to what extent the new work is ‘transformative.’”   Judge Pierre N. Leval created the transformative use test in his article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  Judge Leval honored us with a key note speech at the fair use conference.

Over forty fair use scholars and practicing attorneys from across the country gathered at the conference and gave presentations on various aspects of fair use.  It was mindboggling to attend a day and a half conference focusing on fair use and to rub elbows with so many fair use super stars!  I can’t possibly describe the entire conference in detail in one blog post.  Instead, I’ll recount a few moments that I found particularly insightful.

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Media Outlet Use of Photo Not a Slam Dunk Fair Use

North Jersey Media Group (NJMG) owes the copyright to the seminal photograph of three firefighters raising the American flag in the rubble of the World Trade Center site on September 11, 2001 (the Work).  On September 11, 2013, Fox News posted a combined image of the Work next to the famous World War II photo of four U.S. Marines raising the American flag of Iwo Jima on the Justice with Judge Jeanine television show Facebook page.  Fox did not seek permission from NJMG before posting the combined image.  NJMG sued Jeanine Pirro and Fox News Network, LLC (collectively “Fox”) for copyright infringement.  Fox argued that their use was a fair use and brought a motion for summary judgment.  The district court denied Fox’s motion for summary judgment.

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Gossip Cop Can’t Bag An Easy Dismissal With Fair Use Claims

Gossip Cop makes it its business to provide celebrity gossip news.  BWP Media is an entertainment-related photojournalism company.  BWP owns numerous photographs and videos of celebrities, which it licenses to both online and print publications.  BWP sued Gossip Cop in the Southern District of New York for copyright infringement for posting three photos and one video on Gossip Cop’s website without BWP’s authorization.  Gossip Cop moved to dismiss BWP’s complaint for failure to state a claim upon which relief can be granted.  Gossip Cop claimed that its use of the four images is protected by the fair use doctrine.  In addition, Gossip Cop claimed that BWP failed to receive a copyright registration for one of the images, requiring dismissal of the complaint for that image.

The four images are a Mila Kunis/Ashton Kutcher image (Kunis/Kutcher image), a Robert Pattinson image (Pattinson image), a Liberty Ross image (Ross image) and a Gwyneth Paltrow image (Paltrow image).  The district court agreed with Gossip Cop that BWP did not possess a copyright registration of the Paltrow image, held that a pending copyright registration application was not good enough and granted Gossip Cop’s motion to dismiss regarding that image.  The district court denied Gossip Cop’s motion to dismiss for the other images.

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Plaintiff Proactively Shuts Down Defendant’s Fair Use Defense

In a typical fair use case, the defendant brings a motion for summary judgment that her actions in copying the plaintiff’s work are protected by the fair use defense.  In this case, plaintiffs Erickson Productions and Jim Erickson brought a motion for summary judgment asking the district court to rule that the defendant Kraig Kast is not protected by the fair use defense.  The district court agreed with Erickson and granted his motion for summary judgment.

Erickson is a professional photographer who licensed some of his photos to Wells Fargo.  Kast’s website designer copied some of Erickson’s photos from the Wells Fargo website and used them in Kast’s own website, Atherton Trust.  Kast admitted to the copying, but claimed fair use.  Kast argued that the commercial character of the use was minimal because he did not like the photos, that the photos weren’t meaningful to him and that he never intended for the photos to be used in the final Atherton Trust website.  Aside from Kast’s novel argument that his dislike of the photos is somehow relevant to fair use, the district court addressed Kast’s arguments that Erickson didn’t lose that much money and that the website designer dude done it.

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Nonprofit Educational Use is Fair Use and Trumps Lack of Transformation

Cambridge University Press, Oxford University Press and Sage Publications sued Georgia State University (GSU) for copyright infringement.  GSU made scanned materials from plaintiff’s books available to students over the Internet without obtaining permission or paying plaintiffs.  The district court ruled that the fair use defense protected GSU in forty-three instances and that GSU infringed in five instances.  The Eleventh Circuit ruled that the district court erred in its fair use analysis and reversed and remanded the case.

Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.

(Opinion pdf page 5).

The central issue in this case is under what circumstances GSU must pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to ERes or uLearn (GSU’s course content websites).

(Opinion pdf page 11).

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