Copyright Owner Receives the Pointy End of the Fair Use Sharp Stick

The theme of the Madison, Wisconsin, Mifflin Street Block Party when it began in 1969 was “take a sharp stick and poke it in the eye of authority.”  It’s not clear whether that is still the theme of the block party, but now long time Madison Mayor Paul Soglin, who attended the first Mifflin Street Block Party when he was a student at the University of Wisconsin, wants to shut down the annual party.  Sconnie Nation is a company that creates “in-house, unique, masterpieces” “with the goal of spreading Sconnie pride across the country.” Sconnie Nation created t-shirts with an image of Soglin’s face and the phrase “Sorry for Partying” emblazoned on the shirts.

Photographer Michael Kienitz sued Sconnie Nation for copyright infringement.  Sconnie Nation admitted that it created its image of Soglin by starting with a photo Kienitz took of Soglin at Soglin’s 2011 inauguration.  Sconnie Nation then posterized the image, removed the photo’s background, turned Soglin’s face lime green and surrounded the face with multi-colored writing.  The district court granted Sconnie Nation’s motion for summary judgment, ruling that Sconnie Nation’s use was a fair use.  The Seventh Circuit Court of Appeals affirmed.  Significantly, the Seventh Circuit chose not to address whether Sconnie Nation’s use was transformative.

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TVEyes’ Use of Fox News Content Transformative and Fair Use

Some people find what television commentators say about the news as relevant as the news itself.  TVEyes is for them.  TVEyes records the broadcast content of over 1,400 television and radio stations.  TVEyes’ subscribers can use the TVEyes database to monitor and track search terms and get transcripts and video clips of portions of the TV shows that came up as search hits.  Video clips are limited to ten minutes and most are less than two minutes.  Content is available on the TVEyes website for only 32 days.  TVEyes is not available to the general public.  Subscribers are contractually prohibited from reproducing, publishing, rebroadcasting, publicly showing or publicly displaying the video clips.  Subscribers can also watch live streaming of everything TVEyes is recording.  TVEyes subscribers include the White House, the U.S. Army, members of Congress, news agencies, businesses and law enforcement agencies. 

Fox News Network filed suit against TVEyes for copyright infringement.  Fox News sought to enjoin TVEyes from copying and distributing clips of Fox News programs.  Fox News is concerned that TVEyes will divert viewers, and thus revenue streams, away from Fox News’ cable programs and websites.  TVEyes claimed fair use.  Fox and TVEyes both moved for summary judgment.  The district court ruled that TVEyes’ use of Fox News’ content is fair use, except that the district court ruled that more evidence was necessary on the TVEyes features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs.  The district court denied Fox News’ request for an injunction.

9/12/2014 9:40 am PDT update from a FOX News spokesperson:  

“The Court only ruled that a specific portion of TVEyes’ service — its keyword search function — was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features — including allowing video clips to be archived, downloaded, emailed, and shared via social media — were fair use. The Court has called for another hearing on October 3, 2014.”

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HathiTrust Book Scanning Ruled Fair Use

The Second Circuit Court of Appeals upheld the district court’s decision that two of the three uses of copyrighted works by the HathiTrust Digital Library (HDL) are fair uses.  The three uses are full text search, access to the print-disabled and preservation.  Categorizing these uses as “fair uses” runs contrary to true fair use, according to Professor Jane C. Ginsburg.  My post, True Fair Use Is About Authorship and Nothing Else, further describes Professor Ginsburg’s position.  I agree with Professor Ginsburg that the uses upheld by the Second Circuit have nothing to do with authorship.  However, these uses benefit society and would not be allowed to continue if they weren’t found to be fair uses.  The greater question becomes how far should we extend copyright protection to benefit society when the legal analysis undertaken by the court doesn’t make sense from a legal theory point of view.

The HDL contains over ten million works contributed by colleges, universities and other nonprofit institutions.  The HathiTrust began in 2008, when thirteen universities agreed to allow Google to electronically scan their book collections and create a repository for the digital copies of the scanned works.  Authors and authors’ associations sued HathiTrust for copyright infringement.  The Second Circuit ruled that because third parties cannot file suit on behalf of authors under the Copyright Act, author associations based in the U.S. do not have standing to bring this suit.  Only the copyright owner can enforce the copyright.  Foreign author associations do have standing, though, and the Second Circuit proceeded with its analysis on that basis.  The Second Circuit did not discuss the standing of the individual author plaintiffs.

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Copyright Distribution Infringement Discrete from Copying Infringement

Andrew Diversey, a Ph.D. linguistics student at the University of New Mexico (UNM), sued several administrators and members of the Board of Regents for infringing his copyright in his unpublished dissertation.  Without Diversey’s authorization, a draft of his dissertation was deposited at the UMN Zimmerman Library and was sent to ProQuest, UNM’s dissertation publisher.  The district court ruled that Diversey’s claims were barred by the three year statute of limitations.  The Tenth Circuit Court of Appeals distinguished Diversey’s claim for unauthorized copying from his claim for unauthorized distribution and affirmed in part and reversed in part.

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Ravens Flying B Logo Transformed from Team Identifier to Historical Artifact

Frederick Bouchat created a “Flying B” Baltimore Ravens football team logo in 1996.  Bouchat won a copyright infringement lawsuit against the Ravens when the team adopted a logo that strongly resembled the one designed by Bouchat.  Bouchat subsequently sued the Ravens and the NFL several times over their use of the Flying B logo.  In the most recent case, Bouchat sued the Ravens and the NFL over the appearance of the Flying B logo in three NFL documentaries and in the Club Level of the Ravens’ stadium.  The Fourth Circuit Court of Appeals upheld the district court’s fair use ruling in favor of the Ravens and the NFL.  The Fourth Circuit ruled that since the Ravens no longer use the Flying B logo to identify their team, incidental views of the Flying B logo in videos and displays about the team now serve a historical, not an expressive, function.  The uses by the Ravens and the NFL were fair uses because they were transformative.

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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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Dish’s Commercial-Skipping Feature Does Not Infringe Fox’s Copyrights

Fox is a major broadcast television network, broadcasting such shows as Glee, Bones and The Simpsons.  Fox owns the copyrights to the television shows airing on its network.  Dish Network is the third-biggest television service provider in the country.  Dish has had a contract to retransmit Fox’s content since 2002.  Dish’s current set-top box with digital video recorder (DVR) and video on demand capabilities is called the “Hopper.”  One of the Hopper’s features is “AutoHop,” which allows users to automatically skip commercials.  AutoHop is available only to users that have recorded programming using Dish’s PrimeTime Anytime service and is normally available the morning after the live broadcast.  AutoHop does not delete the commercials, so that users can still access them if they want to see them.  Dish technicians create the AutoHop feature by watching Fox’s primetime programming to mark the beginning and end of the commercial breaks.

Fox sued Dish in federal court, alleging copyright infringement and breach of contract.  The district court denied Fox’s motion for a preliminary injunction.  The district court ruled that Fox did not demonstrate a likelihood of success on most of its copyright infringement and contract claims.  Although the district court found that Dish likely both breached the contract and infringed Fox’s reproduction rights in making its quality assurance copies, the district court ruled that Fox failed to establish that it would likely suffer irreparable harm resulting from the quality assurance copies and therefore held that Fox was not entitled to an injunction.  The Ninth Circuit Court of Appeals affirmed the district court’s decision.

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Appropriation Artist’s Use of Book’s Photos Fair Use

Patrick Cariou’s book of photographs, Yes Rasta, captures portraits and landscapes from the years he spent living among the Rastafarians in Jamaica.  Richard Prince is an appropriation artist.  Appropriation art is a genre that involves “taking over into a work of art a real object or even an existing work of art.”  (Opinion pdf page 5).  Prince takes photos and other images produced by others and incorporates those photos and images into his paintings and collages.  Prince used the photos from Cariou’s book in thirty works of art.  The uses ranged from little alteration of Cariou’s work to almost entirely obscuring Cariou’s work.  Cariou sued Prince for copyright infringement.  Prince claimed the fair use defense.

The district court granted Cariou’s motion for summary judgment on copyright infringement and denied Prince’s motion for summary judgment on the fair use defense.  The district court interpreted the fair use statute to require that the secondary use “comment on, relate to the historical context of, or critically refer back to the original works” for the secondary use to qualify as a fair use.  The Second Circuit reversed the district court’s ruling on twenty-five of the thirty works at issue, holding that the fair use statute does not impose such requirements.

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Digital Used Music Sales Infringing, Not Protected by First Sale Doctrine

ReDigi Inc. claims that it is “the world’s first and only online marketplace for digital used music.”  (Opinion pdf page 1).  Capitol Records is the copyright owner for numerous songs sold on ReDigi’s website and did not authorize the sales.  Capitol Records sued ReDigi for copyright infringement, alleging direct copyright infringement, inducement of copyright infringement, contributory copyright infringement, vicarious copyright infringement and common law copyright infringement. 

The copyright owner’s exclusive rights under the Copyright Act include the right to make copies, distribute the work and publicly perform the work.  These rights are limited by the first sale doctrine, which allows the lawful owner of a particular copy of the work to sell the work without the permission of the copyright owner.  Last week’s blog post, First Sale Doctrine Not Limited by Geography, Rules U.S. Supreme Court, describes the first sale doctrine in detail.  “The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine.”  (Opinion pdf page 4.)  The district court ruled that it cannot.

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