Copyright Law
Ronald W. Staudt
Class 22
November 12, 2013
§ 107. Limitations on
exclusive rights: Fair use
 Notwithstanding the provisions of sections
106 and 106A, 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.
§ 107. Limitations on exclusive
rights: Fair use (cont.)
 In determining whether the use made of a work in any
particular case is a fair use the factors to be considered
shall include—
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.
§ 107. Limitations on exclusive
rights: Fair use (cont.)

The fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is
made upon consideration of all the above
factors.
Koons’ Niagara
Blanch v. Koons, 467 F. 3d 244 (2d Cir. 2006)
But Koons asserts -- and Blanch does not deny - that his purposes in using Blanch's image are
sharply different from Blanch's goals in creating
it. Compare Koons Aff. at P4 ("I want the viewer
to think about his/her personal experience with
these objects, products, and images and at the
same time gain new insight into how these
affect our lives.") with Blanch Dep. at 112-113
("I wanted to show some sort of erotic sense[;]
. . . to get . . . more of a sexuality to the
photographs.").
Koons’ Niagara
Blanch v. Koons, 467 F. 3d 244 (2d Cir. 2006)
 “Koons is, by his own undisputed description, using
Blanch's image as fodder for his commentary on the
social and aesthetic consequences of mass media. His
stated objective is thus not to repackage Blanch's "Silk
Sandals," but to employ it "'in the creation of new
information, new aesthetics, new insights and
understandings.'"
 Transformative v. derivative– new function?
 Parody v. satire –
Quoting v. paraphrasing
Koons- String of Puppies
Rogers v. Koons, 960 F. 2d 301, 309 (2d. Cir 1992)
“Koons argues that his sculpture is a satire or parody of
society at large. He insists that "String of Puppies" is a
fair social criticism and asserts to support that
proposition that he belongs to the school of American
artists who believe the mass production of commodities
and media images has caused a deterioration in the
quality of society, and this artistic tradition of which he
is a member proposes through incorporating these
images into works of art to comment critically both on
the incorporated object and the political and economic
system that created it. These themes, Koons states,
draw upon the artistic movements of Cubism and
Dadaism, with particular influence attributed to Marcel
Duchamp, who in 1913 became the first to incorporate
manufactured objects (readymades) into a work of art,
directly influencing Koons' work and the work of other
contemporary American artists.”
Cariou v. Prince
Facts
DC held no fair use
– Appropriation art not per
se fair use
– D’s work must comment
on P’s to be
transformative
– D said his purpose was
the same at P’s to
communicate
– D uses other people’s
originals to “reduce
speculation.”
2d Cir Reverses
– Prince’s testimony on
transformativeness is not
conclusive– critical fact is
how the works appear to
the reasonable observer
Cariou v. Prince
 2d Cir
 Need not comment on Cariou or
culture or even testify that he is
trying to do so. Focusing on the art,
25 are transformative as a matter of
law!
 Show cancellation a
misunderstanding–
P and D not in same market. P can’t
get Brangelina, DeNiro, Brady and
Bundchen!
J.K. Rowling and the Lexicon
Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513 (2008)
Rowling’s publications
The Lexicon
Prima Facie Case
Improper appropriation
Derivative work?
Fair Use
Do the 4 factors
Bill Graham Archives
Grateful Dead
posters? Like
thumbnails?- D’s
licencing fee as 4th
factor impact?
“…traditional,
reasonable, likely to
be developed
markets”
Harper & Row v. Nation
Facts and more facts and more
Majority Opinion
Incentives worked
Implied consent/lack of consent/criticism
But unpublished traditionally different
106(3) and 107 and pari materia
“key but not necessarily determinative factor”
“Under ordinary circumstances the author’s right to control the
first public appearance of his undisseminated expression will
outweigh a claim of fair use”
1st Amendment & public figure exception to ©
Harper & Row v. Nation
4 factors
1: news v. commercial (see Sony repositioning-”separate
factor that tends to weigh against a finding of fair use”)
and intentionally aimed to scoop P’s licensee via theft
2: factual work v. unpublished
• Unpublished nature of work is a “key but not necessarily
determinative factor”
• Under ordinary circumstances the author’s right to control
the first publication of his undisseminated expression will
outweigh a claim of fair use.
3. Expressive value of vebatim 300 words (13%)
• “the heart of the book”
4:”single most important element of fair use”
actual harm, expression v. fact
Harper & Row v. Nation
Dissent
Literary form v. ideas or information
Categorical presumption against prepublication
fair use
Questions and note cases
Craft v. Kobler
Copier not at liberty to avoid “pedestrian”
reportage by appropriating his subject’s literary
devices
Critical v. decorative use
Castle Rock
Facts
4 factors
1:Transformative purpose?
2: Expressive nature
3: Amount used consistent with purpose?
4: Market effect: suppression or destruction
v. usurpation or substitution
Parody? The Joy of Trek
P didn’t go there? Market abandonment?
Clean Flicks
Exclusive right? First sale doctrine?
Market harm in fair use analysis
Derivative works and transformative usesmore confusion?
See Professor Reese’s article cited at page 866.
R. Anthony Reese, Transformativeness and the Derivative Work Right,
31 Colum. J. L. & Arts 467 (2008).
Transformative for fair use
and derivative works in 106(2)
 The central purpose of this investigation is to see…whether the new work
merely "supersede[s] the objects" of the original creation…("supplanting"
the original), or instead adds something new, with a further purpose or
different character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent the new
work is "transformative.“
Campbell v. Acuff-Rose Music, 510 U.S. 569
 A “derivative work” is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions,
annotations, elaborations, or other modifications which, as a whole,
represent an original work of authorship, is a “derivative work”.
17 U.S.C. 101
Overview by result
 Campbell- parody –fair
 Koons sculpture – unfair
 Koons painting – fair
 Air Pirates – Mickey Mouse spoof- unfair
 Mattel – Food Chain Barbie - fair
 Harper- prepublication scoop –unfair
 Bill Graham – Grateful Dead posters – fair
 Castle Rock- SAT –unfair
 Clean Flicks- sanitized films – unfair
 Harry Potter Lexicon- transformative but excessive- unfair
Leaffer Synthesis of Fair Use
Noncommercial commercial
Transformative
Easiest fair use
Reproductive
Hard cases:
Sony Betamax
Hard cases:
Campbell
Harper & Row
Easiest no fair
use