Haiku and the Fair Use Doctrine
[This essay presents the personal opinion of its author concerning the
applicability of the Fair Use Doctrine to the copying for scholarship or
literary criticism of copyrighted haiku poetry. It is not, and is not
intended to be, legal advice. Although the author is a retired
attorney, he has never practiced copyright or intellectual property law.]
HAIKU & the FAIR USE DOCTRINE
date: 01-16-04
by: David A.Giacalone
“Common wisdom” about haiku is often incorrect. Unfortunately, that appears to hold true in the realm of copyright law and its Fair Use Doctrine, as applied to haiku poetry. Because haiku are such short poems, many commentators have suggested that copying any part of a haiku (and especially all or most of one) falls outside of Fair Use protection. Because such a belief clearly deters scholarship and criticism of haiku, and seems foolish as a matter of public policy, I decided to delve into the subject to see if the conclusion is valid.
My basic finding: There is no blanket rule against quoting part or all of a haiku. Context is everything. The Fair Use Doctrine can give significant protection to bona fide scholarship or criticism that requires the use of all or a significant portion of an individual haiku in order to effectively accomplish its purposes.
Below, I set out my understanding of the law and my reasoning, using a study of the “deja-ku” phenomenon (the similarity of many haiku to each other) as an example.
section 107
Under federal copyright laws, the protections given to the owner of a copyrighted work [17 U.S.C. Sec. 106] are specifically granted subject to the limitations provided in Sec. 107 — the exception for “fair use” of the work.
17 U.S.C. ? 107 states (emphasis added):
“Notwithstanding the provisions of section 106, 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. 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.”
The U.S. Supreme Court has stressed that the four statutory factors may not be “treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, 510 U.S. 569, at 578 (1994) (the “Pretty Woman”/2LiveCrew Case). Just yesterday (12/31/03), the renowned Judge Posner emphasized in Chicago Bd. Education v. Substance, Inc. (CA 7th Cir.) that “The fair use defense defies codification. As we said in Ty, the four factors that Congress listed . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically.”
The ability to use any part of so small a “work” as a haiku poem has mainly come into question, it seems, because Factor Three — the amount used in relation to the whole work — has often been stressed by editors and publishers (who often want to discourage fair use), as well as courts. The nature and purpose of the “copying” are crucial in deciding whether the amount copied is Fair Use. Therefore, blanket statements like the following in an article from Nolo.com:
“Copying 200 words from a work of 300 words wouldn’t be fair use. Nor would copying 12 words from a 14-word haiku poem.”
are too simplistic and absolute to be taken as serious legal analysis, even if they do appear frequently in web search results for <”Fair Use” +haiku>. Looking at the four factors, separately and together, excellent arguments can be made to support the quoting of entire haiku in a scholarly context or in literary criticism, such as a study of the “deja-ku” phenomenon (wherein poems by different haiku writers appear to be very similar to each other).
Because so little money is involved, it is rare that a case dealing with scholarly commentary and criticism reaches the courts. As one commentator on fair use noted when summarizing the court decision in Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998), “This case is remarkable for having gone to court at all; isolated scholarly uses of materials are seldom the subject of litigation. It is also a reminder that reasonable, limited, scholarly uses of materials are most likely to be fair use.” [from Key Court Case Summaries on Fair Use, the Copyright Management Center (Indiana Univ. - Purdue Univ.)]. Nonetheless, there are many cases that shed useful light on the issues involved in studying and commenting on the deja-ku phenomenon. Relevant equitable principles used in one case can be applied to new facts in an attempt to serve the purposes of the Copyright Laws (promoting science and the arts, including scholarship and criticism) through a “sensitive balancing of interests.” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (the Betamax video copying case).
the purpose of the use
Factor One, the Purpose and Character of the Use, seems clearly to weigh in favor of a project studying “deja-ku.” It is highly favorable that the purpose is literary criticism and scholary commentary. For example, in Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998), the defendant had taken large parts of a manuscript in order to appraise the early work of an established author. The court said that “Blythe’s transformative paper fits within several of the permissible uses enumerated in ? 107; it has productive uses as criticism, comment, scholarship, and literary research. While this finding is not determinative, it is one factor supporting the district court’s finding of a fair use. See Harper & Row , 471 U.S. at 561; Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991) (”[T]here is a strong presumption that factor one favors the defendant if an allegedly infringing work fits the description of uses described in section 107.”). Of course, copying haiku copyrighted by other writers merely to create a selection or collection of haiku (or similar) poetry would not be a usage favored under Factor One — there would be no transformative or supplemental use.
The well-respected 7th Circuit appellate court also highlighted the value of criticism, when it said: “[O]ne office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticisms intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts.” Chicago Bd. Education v. Substance, Inc. (12/31/03 CA 7th Cir.) Likewise, in Mattel Inc. v Walking Mountain (12-29-03) (the Food Chain Barbie case), the 9th Circuit noted: “By developing and transforming associations with Mattel’s Barbie doll, Forsythe has created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act. We find that this factor weighs heavily in favor of Forsythe.” The court concluded: “Finally, the public benefit in allowing artistic creativity and social criticism to flourish is great. The fair use exception recognizes this important limitation on the rights of the owners of copyrights. No doubt, Mattel would be less likely to grant a license to an artist that intends to create art that criticizes and reflects negatively on Barbie’s image. It is not in the public’s interest to allow Mattel complete control over the kinds of artistic works that use Barbie as a reference for criticism and comment.”
In addition, although having a commercial purpose does not exclude a finding of fair use or necessarily even weigh against it, having no commercial purpose (or little commercial expectation) is another important advantage. The Sundeman court, citing the Supreme Court’s Campbell opinion (the “Pretty Woman”/2 Live Crew case), noted: “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of ? 107, including news reporting, comment, criticism, teaching, scholarship and research, since these activities are generally conducted for profit in this country. Campbell, 510 U.S. at 584.“
the amount used
The supposed rule that an entire work can never be copied under the Fair Use doctrine is similar to the supposed rule that every haiku must have 17 syllables divided into lines of 5-7-5. Both are born from a combination of ignorance, misunderstanding, and over-simplification. The Supreme Court has long made it clear, and lower courts have been applying the principle, that the “extent of permissible copying varies with the purpose and character of the use.” More explicitly, courts have clarified repeatedly that (emphasis added):
Indeed, there is no per se rule against copying in the name of fair use an entire copyrighted work if necessary. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Ty, Inc. v. Publications Int’l Ltd., supra, 292 F.3d at 521; Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992).
The Substance court added: “The general standard, however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary—room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively.”
The 9th Circuit appeals court stated in its Food Chain Barbie case [Mattel Inc. v Walking Mountain (9th Cir. Ct. App., Dkt. 01-56695, 12-29-03)] that a work may be copied completely if it cannot, by its nature, be severed or if severing parts of it would defeat the user’s appropriate purpose. Therefore, the artist could include pictures of an entire Barbie Doll in his parody photographs, and need not sever parts of the Doll.
Similarly, the 7th Circuit appellate court explained in its 2002 Ty Beanie Baby case that Factor (3)’s focus on the relevant proportion of the work copied did not apply in situations where each of a large group of items is copyrighted separately and there cannot be a partial copying as a matter of fact (”no one, we imagine, wants a photograph of part of a Beanie Baby” in a collector’s guide to those artistic treasures). The 7th Circuit repeated that analysis very recently in Chicago Bd. Education v. Substance, Inc., where it noted it was “obvious” that — had the Board of Education copyrighted each exam question separately, rather than copyrighting the entire exam as one work — it would have been proper to copy an entire “work” (a particular exam question) in writing a criticism of the City’s standardized tests.
The case of Nunez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000), also presents a situation where the usage required copying an entire work — there, entire photographs. The defendant newspaper had reprinted nude photographs taken of the new Miss Puerto Rico Universe. The court found that the use as news, rather than for modelling, was transformative. (”Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, ‘the pictures were the story.’ It would have been much more difficult to explain the controversy without reproducing the photographs.”) When the plaintiff argued that defendant couldn’t claim Fair Use, because it had copied and used entire copyrighted photographs, the court quickly rejected the ploy, saying “to copy any less than that would have made the picture useless to the story.”
There are many precedents, therefore, for the proposition that copying an entire work can be justified under the Fair Use defense — when there is an acceptable use (such as criticism, parody, scholarship, research) and the nature of the copyrighted work, or of the use itself, reasonably requires copying the entire work. Other examples include videotaping an entire movie for time-shifting purposes [Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (the Betamax video copying case)]; and putting “thumbnail” images of entire photographs in an image search engine [ Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)].
Clearly, an entire haiku or a fragment thereof can be copied under the Fair Use defense, when the purpose is appropriate. Size is not a barrier. Indeed, the inherent brevity of haiku in many ways makes it unseverable for purposes of criticism and study. For example, each haiku in a volume of an author’s collected work may be separately copyrighted, but a critic could not adequately opine on the overall quality of the collection, or on changes in the writer’s style or foccus, without reproducing one or more entire haiku, despite each being an entire “work”. This concept seems so elemental, that it is difficult to imagine that one knowledgeable commentator on scholarly use of the Fair Use Doctrine could assert “The fair use of anything from a 17-syllable Japanese haiku is hotly debated by copyright lawyers. ” (Harold Orlans, in Chaotic and Shrinking, from Change, Nov. 1999)
The arguments for quoting entire haiku in an essay or article about deja-ku are almost too obvious to even mention here. The similarity of the actual words used in a haiku poem, their placement, and their close resemblance to other haiku, are the very essence of the study being made. To not quote the entire haiku would often frustrate the purposes of the essayist and the reader. To paraphrase Judge Posner in Chicago Bd. Education v. Substance, Inc,, you are entitled to criticize/study the haiku and to do that effectively you have to be able to quote from them or use the entire poem. In addition, as with the problem in the Substance Case of misleading or slanting the analysis by picking only some exam questions or certain exams and not others, it might often be unfair to the haiku writer, whose work is being studied or compared, to only quote part of a haiku and not the whole poem.
economic impact
The fourth factor does not entail asking if the usage might harm the copyright holder economically because the work receives a bad review or is otherwise shown in a bad light. Such injury is not part of the Fair Use balancing of interests. The fourth factor does ask to what extent the usage might cause harm by substituting for the copyrighted work rather than complementing it. The 7th Circuit’s decision in Ty, Inc.v. Publications Int’l Ltd ., 292 F.3d 512 (7th Cir. 2002) discusses the issue of “substituting” for the copyrighted product at length. Judge Posner notes in Ty, for example, that a parodist who takes too much from the target work “may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it.” Similarly, a reader might view a lengthy, comprehensive essay on deja-ku not as just a source of literary criticism or scholarship, but as a good substitute for purchasing the copyright holder’s volume of haiku.
Although a scholar/critic looking into deja-ku should be aware of this issue, it doesn’t seem likely to be a practical problem — not only because the deja-ku essay will have a lot of content other than haiku and probably only a small number from any one writer or publisher, but because no single haiku copyright holder will be able to show a significant amount of such harm. Even if such economic injury is shown, it must be weighed against the public benefit from the scholarly work or criticism.
One final issue: Unpublished work receives more protection under the copyright laws than does published work. That’s because the holder of a copyright should normally decide whether or not to publish a work. Nonetheless, when courts started refusing to uphold the Fair Use defense whenever the underlying work was unpublished, Congress amended the Act to clarify that being unpublished was only one factor in the equation.
conclusion
There is no blanket rule against quoting part or all of a haiku. Context is everything. The Fair Use Doctrine can give significant protection to scholarship or criticism that requires the use of all or a significant portion of an individual haiku in order to effectively accomplish its Sec. 107 purposes.
[As usual, I invite comment, especially from those expert in copyright law. Below, you will find excerpts from some of the cases discussed above.]
_____________________________________________________________
Postscript. The following excerpt from the article Scholarly Fair Use: Chaotic and Shrinking, by Harold Orlans (in Change, Nov. 1999), stresses the importance of asserting the right of fair use for scholarship:
The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly…. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author’s defense.(12)
Copyright holders “have no better leg up on fair use judgments than authors or editors,” a university press permissions editor writes; “…they are more likely to attempt to block usage that is in fact fair use.” Contributors to University of California Press journals are advised, “If, in light of these guidelines, you are confident that your proposed use of an excerpt is fair use, it is best not to ask for permission. Scholars should exercise the right of fair use when it applies; otherwise it could be eroded. Also, by asking…you would be tacitly admitting that permission is needed, thus undermining your claim that the fair use exception applies.
[This essay presents the personal opinion of its author concerning the applicability of the Fair Use Doctrine to the copying for scholarship or literary criticism of copyrighted haiku poetry.
It is not, and is not intended to be, legal advice. Although the author is a retired attorney, he has never practiced copyright or intellectual property law.]
Excerpts from Court Decisions
excerpts from MATTEL INC. v WALKING MOUNTAIN (9th Cir. Ct. App., Dkt. 01-56695, 12-29-03)
[1] Consistent with its policy goals, however, the Copyright Act recognizes certain statutory exceptions to protections on copyrights. At its core, the Act seeks to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-76 (1994). Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. See id. at 575-77 (“[F]ew, if any, things . . . are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow . . . .” (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436)). The fair use exception excludes from copyright restrictions certain works, such as those that criticize and comment on another work. 17 U.S.C. ? 107. See also Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir.) (holding that fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster”), cert. dismissed, 521 U.S. 1146 (1997).
[2] To determine whether a work constitutes fair use, we engage in a case-by-case analysis and a flexible balancing of relevant factors. Campbell, 510 U.S. at 577-78. The factors are “to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578. Depending on the particular facts, some factors may weigh more heavily than others. Id. at 577-79. The four factors we consider are: (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. Dr. Seuss, 109 F.3d at 1399-1404 (analyzing and applying 17 U.S.C. ? 107).
A. Purpose and Character of Use
The “purpose and character of use” factor in the fair use inquiry asks “to what extent the new work is transformative” and does not simply “supplant[ ]” the original work and whether the work’s purpose was for- or not-for-profit. Campbell, 510 U.S. at 579, 584.
A work must add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. at 579. The Supreme Court has recognized that parodic works, like other works that comment and criticize, are by their nature often sufficiently transformative to fit clearly under the fair use exception. Id. (recognizing that parody “has an obvious claim to transformative value”).
In our circuit, a “parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to ‘recall’ or ‘conjure up’ the object of his parody.” Dr. Suess, 109 F.3d at 1400. A parodic work, however, like other potential fair uses, has to “work its way through the relevant factors, and be judged case by case, in light of the ends of copyright law.” Campbell, 510 U.S. at 581. . . .
[3] “[T]he threshold question [in the analysis of this first factor] . . . is whether a parodic character may reasonably be perceived.” . . . .
By developing and transforming associations with Mattel’s Barbie doll, Forsythe has created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act. We find that this factor weighs heavily in favor of Forsythe.
Another element of the first factor analysis is whether the work’s “purpose” was commercial or had a non-profit aim. Campbell, 510 U.S. at 584. Clearly, Forsythe had a commercial expectation and presumably hoped to find a market for his art. [he received less than $4000 dollars from the project] However, as the Supreme Court noted in Campbell, even works involving comment and criticism “are generally conducted for profit in this country.” Id. (quoting Harper & Row, 471 U.S. at 592.) On balance, Forsythe’s commercial expectation does not weigh much against him. Given the extremely transformative nature and parodic quality of Forsythe’s work, its commercial qualities become less important. Id. at 579 (recognizing that the more “transformative the new work, the less will be the significance of the other factors”).
B. Nature of the copyrighted work
The second factor in the fair use analysis “recognizes that creative works are ‘closer to the core of intended copyright protection’ than informational and functional works.” Dr. Seuss, 109 F.3d at 1402 (quoting Campbell, 510 U.S. at 586). Mattel’s copyrighted Barbie figure and face can fairly be said to be a creative work. However, the creativity of Mattel’s copyrighted Barbie is typical of cases where there are infringing parodies. Campbell, 510 U.S. at 586 (“[P]arodies almost invariably copy publicly known, expressive works.”). As we have recognized in the past, “this [nature of the copyrighted work] factor typically has not been terribly significant in the overall fair use balancing.” Dr. Suess, 109 F.3d at 1402. In any event, it may weigh slightly against Forsythe.
C. Amount and substantiality of the portion used.
The third factor in the fair use analysis asks whether “ ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole,’ are reasonable in relation to the purpose of copying.” Id. (quoting 17 U.S.C. ? 107(3)). We assess the “persuasiveness of a parodist’s justification for the particular copying done,” recognizing that the “extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87.
[8] Mattel argues that Forsythe used the entirety of its copyrighted work and that this factor weighs against him. Mattel contends that Forsythe could have used less of the Barbie figure by, for example, limiting his photos to the Barbie heads.
First, Forsythe did not simply copy the work “verbatim” with “little added or changed.” Id. at 587-88.8
fn. 8/ We have, however, held that entire verbatim reproductions are justifiable where the purpose of the work differs from the original. Kelly v. Arriba Soft Corp., 336 F.3d 811, at 821 [where thumbnail images of plaintiff's photographs were used as part of an image search engine] (“This factor neither weighs for nor against either party because, although [the defendant] did copy each of [the plaintiff’s] images as a whole, it was reasonable to do so in light of [the defendant’s] use of the images.”).
A verbatim copy of Barbie would be an exact three dimensional reproduction of the doll. Forsythe did not display the entire Barbie head and body in his photographs. . . .
Second, Mattel’s argument that Forsythe could have taken a lesser portion of its work attempts to benefit from the somewhat unique nature of the copyrighted work in this case. Copyright infringement actions generally involve songs, video, or written works. See, e.g., Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003) (use of copyrighted Elvis Presley-related video clips, photographs, and music); Los Angeles News Serv., 305 F.3d at 924 (use of a few seconds of a copyrighted video footage by a news service); Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) (reproduction and distribution by nonprofit organization of an entire copyrighted work), cert. denied, 532 U.S. 958 (2001); Dr. Suess, 109 F.3d at 1394 (use of Dr. Suess’s “Cat in the Hat” format in written work about the O.J. Simpson trial). Because parts of these works are naturally severable, the new work can easily choose portions of the original work and add to it. Here because the copyrighted material is a doll design and the infringing work is a photograph containing that doll, Forsythe, short of severing the doll, must add to it by creating a context around it and capturing that context in a photograph. For our purposes, Forsythe’s use is no different from that of a parodist taking a basic melody and adding elements that transform the work. See Campbell, 510 U.S. at 589 (noting that 2 Live Crew’s rendition of “Pretty Woman” did not approach verbatim copying because, even though 2 Live Crew may have taken the most recognizable portion of the work, it had added “scraper” noises and overlays to the music). In both Forsythe’s use of the entire doll and his use of dismembered parts of the doll, portions of the old work are incorporated into the new work but emerge imbued with a different character.
Moreover, Forsythe was justified in the amount of Mattel’s copyrighted work that he used in his photographs. Mattel’s argument that Forsythe could have used a lesser portion of the Barbie doll is completely without merit and would lead to absurd results. We do not require parodic works to take the absolute minimum amount of the copyrighted work possible. As the Supreme Court stated in Campbell, “[o]nce enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the [work’s] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.” Id. at 587. We conclude that the extent of Forsythe’s copying of the Barbie figure and head was justifiable in light of his parodic purpose and medium used. This factor also weighs in his favor.
D. Effect of the use upon potential market
The fourth factor asks whether actual market harm resulted from the defendant’s use of plaintiff’s protected material and whether “unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market” for the original or its derivatives. Id. at 590 (quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright ? 13.05[A](4), at 13-102.61 (1993)). This inquiry attempts to strike a balance between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. The less adverse effect that an alleged infringing use has on the copyright owner’s expectation of gain, the less public benefit need be shown to justify the use. Dr. Suess, 109 F.3d at 1403 (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981)). . . . We address only potential harm because the actual harm to works of Mattel’s licensees was non-existent. . . . however, it is highly unlikely that it will substitute for products in Mattel’s markets or the markets of Mattel’s licensees. In Campbell, the Court clearly stated, “as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor.” Campbell, 510 U.S. at 591. Nor is it likely that Mattel would license an artist to create a work that is so critical of Barbie.
As to Mattel’s claim that Forsythe has impaired Barbie’s value, this fourth factor does not recognize a decrease in value of a copyrighted work that may result from a particularly powerful critical work. Id. at 593 (“The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market . . . .”). We recognize, however, that critical works may have another dimension beyond their critical aspects that may have effects on potential markets for the copyrighted work. Id. at 592 (recognizing that the new work “may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works”). Thus, we look more generally, not only to the critical aspects of a work, but to the type of work itself in determining market harm. . . . Forsythe’s work could only reasonably substitute for a work in the market for adult-oriented artistic photographs of Barbie. We think it safe to assume that Mattel will not enter such a market or license others to do so. As the Court noted in Campbell, “the market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” 510 U.S. at 592.
[10] Finally, the public benefit in allowing artistic creativity and social criticism to flourish is great. The fair use exception recognizes this important limitation on the rights of the owners of copyrights. No doubt, Mattel would be less likely to grant a license to an artist that intends to create art that criticizes and reflects negatively on Barbie’s image. It is not in the public’s interest to allow Mattel complete control over the kinds of artistic works that use Barbie as a reference for criticism and comment.
[11] Having balanced the four ? 107 fair use factors, we hold that Forsythe’s work constitutes fair use under ? 107’s exception. His work is a parody of Barbie and highly transformative. The amount of Mattel’s figure that he used was justified. His infringement had no discernable impact on Mattel’s market for derivative uses.
Finally, the benefits to the public in allowing such use — allowing artistic freedom and expression and criticism of a cultural icon — are great. Allowing Forsythe’s use serves the aims of the Copyright Act by encouraging the very creativity and criticism that the Act protects. Kelly, 336 F.3d at 819-20. We affirm the district court on its grant of summary judgment on Mattel’s copyright infringement claims.
excerpts from
Chicago Bd. Education v. Substance, Inc. (12/31/03 CA 7th Cir.) http://caselaw.lp.findlaw.com/data2/circs/7th/031479p.pdf
Posner, Circuit Judge.
[Schmidt is a critic of standardized testing and published 6 complete exams given by the Chicago school board in his organization's magazine, "Subtance." The exams were each copyrighted.] As Schmidt points out, one office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticisms intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts.
The board thus is correct that Schmidt did it harm going beyond the force of his criticisms. Yet he was entitled to criticize the tests and to do that effectively he had to be able to quote from them, just as a parodist has to be able to quote, sometimes very extensively, from the parodied work in order to make the criticism of it that is implicit in parodying it comprehensible. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588 (1994); Ty, Inc. v. Publications Int’l Ltd., supra, 292 F.3d at 518; SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271-74 (11th Cir. 2001). Indeed, there is no per se rule against copying in the name of fair use an entire copyrighted work if necessary. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Ty, Inc. v. Publications Int’l Ltd., supra, 292 F.3d at 521; Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992). This would be obvious if the school board had copyrighted each question separately, as it might well have done, since it wants to reuse questions without necessarily reusing an entire test.
So where to draw the line? The question cannot be answered precisely. The fair use defense defies codification. As we said in Ty, the four factors that Congress listed when it wrote a fair use defense (a judicial creation) into the Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically. Ty, Inc. v. Publications Int’l Ltd., supra, 292 F.3d at 522; see also Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 577-78; Harper & Row, Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at 560. The general standard, however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary—room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively. Ty, Inc. v. Publications Int‘l Ltd., supra, 292 F.3d at 521; Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2003); Sundeman v. Seajay Society, Inc., supra, 142 F.3d at 206.
excerpts from Ty, Inc.v. Publications Int’l Ltd ., 292 F.3d 512 (7th Cir. 2002).
Posner, Circuit Judge. [Ty is the manufacturer of Beanie Babies. These well-known beanbag stuffed animals are copyrightable as "sculptural works," 17 U.S.C. sec.sec. 101, 102(a)(5); Publications International, Ltd. (PIL), is publisher of a series of books, with titles such as For the Love of Beanie Babies and Beanie Babies Collector's Guide, that contain photographs of Beanie Babies.]
Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright sec. 13.05[B][1], p. 13-193 (2002), is not fair use.
The distinction between complementary and substitutional copying (sometimes — though as it seems to us, confusingly — said to be between “transformative” and “superseding” copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, . . . but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use.. . . A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original’s market, are not fair use. . . . The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it.
Book reviews and parodies are merely examples of types of work that quote or otherwise copy from copyrighted works yet constitute fair use because they are complements of (though sometimes negative complements, as in the case of a devastating book review) rather than substitutes for the copyrighted original.
The complication here is that the photographs are embedded in text, in much the same way that quotations from a book are embedded in a review of the book. Ty regards the text that surrounds the photographs in PIL’s Beanie Baby books as incidental; implicitly it compares the case to one in which a book reviewer quotes the whole book in his review.
Both the book review and the collectors’ guide are critical and evaluative as well as purely informational; and ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work. Ty’s concession that a Beanie Babies collectors’ guide is not a derivative work narrows the issue presented by PIL’s appeal nicely (at least as to those books that are plausibly regarded as collectors’ guides) to whether PIL copied more than it had to in order to produce a marketable collectors’ guide. Ty points out that PIL’s books copied (more precisely, made photographic copies of) the entire line of Beanie Babies, just like the book reviewer who copies the entire book. But the cases are clear that a complete copy is not per se an unfair use, see, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 447-50 (1984); id. at 480 (dissenting opinion); Worldwide Church of God v. Philadelphia Church of God, Inc., supra, 227 F.3d at 1118, and the suggested analogy overlooks the fact that a collectors’ guide, to compete in the marketplace, has to be comprehensive.
Ty goes so far as to argue that PIL not only cannot publish photos of all the Beanie Babies but cannot publish color photos of any of them, and perhaps cannot publish black and white photos of any of them or even sketches but must instead be content with the name of the Beanie Baby and a verbal description. Such a guide would sink like a stone in the marketplace no matter how clever and informative its text, since Ty licenses publishers to publish photos of all the Beanie Babies in the licensees’ collectors’ guides. It would be like trying to compete with a CD of Beethoven’s Fifth Symphony by selling the score.
Factors (1) and (2) are empty, except that (1) suggests a preference for noncommercial educational uses, picking up the reference earlier in
the statute to “teaching . . . scholarship or research.” Factor (3) is inapplicable to Beanie Babies, each one of which is copyrighted separately, so that there can be no partial copying as a matter of fact (no one, we imagine, wants a photograph of part of a Beanie Baby). Factor (4) at least glances at the distinction we noted earlier between substitute and complementary copying, since the latter does not impair the potential market or value of the copyrighted work except insofar as it criticizes the work, which is the opposite of taking a free ride on its
value.
excerpts from Nunez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000)
This appeal raises the question whether the reproduction of independently newsworthy photographs without permission is a “fair use” pursuant to 17 U.S.C. ? 107 when those photographs were acquired and reproduced in good faith and the work had already been distributed on a limited basis. Because we find that such use is fair, we affirm the district court’s grant of summary judgment. . . . .
However, the district court also found that the pictures were shown not just to titillate, but also to inform. Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs. This informative function is confirmed by the newspaper’s presentation of various news articles and interviews in conjunction with the reproduction. Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, “the pictures were the story.” It would have been much more difficult to explain the controversy without reproducing the photographs. And although such an explanatory need does not always result in a fair use finding, see Iowa State Univ. Research Found. v. American Broad. Cos., Inc., 621 F.2d 57, 60 n.6 (2d Cir. 1980), it weighs in the favor of appellee.
Rather, what is important here is that plaintiffs’ photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely “supersede[] the objects of the original creation[s],” but instead used the works for “a further purpose,” giving them a new “meaning, or message.” Campbell, 510 U.S. at 579. It is this transformation of the works into news - and not the mere newsworthiness of the works themselves - that weighs in favor of fair use under the first factor of ? 107. See id. (central inquiry is whether defendant’s use is transformative”); see also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478 (1984) (Blackmun, J., dissenting) (key question is whether defendant’s use “result[s] in some added benefit to the public beyond that produced by the first author’s work”).
Appellee’s good faith also weighs in its favor on this prong of the fair use test. See Harper & Row, 471 U.S. at 562-63; Haberman, 626 F. Supp. at 211. First, El Vocero attributed the photographs to N? Although acknowledgment does not excuse infringement, the failure to acknowledge counts against the infringer. See Narell v. Freeman, 872 F.2d 907, 914 (9th Cir. 1989). Second, El Vocero obtained each of the photographs lawfully. An unlawful acquisition of the copyrighted work generally weighs against a finding of fair use; no such theft occurred here. See Haberman, 626 F. Supp. at 211. Third, as the district court explicitly found, El Vocero did not aim to use the photographs to compete with N?/STRONG>, nor to supplement his right of first production, as the photographs had already been distributed to the modeling community. See id. at 212. Finally, appellee asserts that it believed in good faith that the photographs were available for general, unrestricted circulation and redistribution, and appellant offers little evidence to rebut this assertion.
In sum, the highlighting of the photograph on the front cover of El Vocero exposes the commercial aspect of the infringing use, and counts against the appellee. However, the informative nature of the use, appellee’s good faith, and the fact that it would have been difficult to report the news without reprinting the photograph suggest that on the whole, this factor is either neutral or favors a finding of fair use.
D. Amount and Substantiality of the Use
The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. ? 107(3). However, such an inquiry must be a flexible one, rather than a simple determination of the percentage used. See Campbell, 510 U.S. at 588-89 (acknowledging that for a parody to be effective, it had to take enough material to evoke the original); Harper & Row, 471 U.S. at 565-67 (emphasizing the importance rather than the amount of material copied). The “inquiry must focus upon whether ‘the extent of . . . copying’ is consistent with or more than necessary to further ‘the purpose and character of the use.’” Castle Rock, 150 F.3d at 144 (quoting Campbell, 510 U.S. at 586-87). In this case, El Vocero admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story. As a result, like the district court, we count this factor as of little consequence to our analysis. Cf. Amsinck v. Columbia Pictures Indus., Inc., 862 F. Supp. 1044, 1050 (S.D.N.Y. 1994) (fact that entire mobile included in film did not hurt defendants).
excerpts from Sundeman v. Seajay Society, http://www.law.emory.edu/4circuit/apr98/971339.p.html
“Copying an entire work weighs against finding a fair use, Advanced Computer Servs. v. Mai Sys. Corp., 845 F. Supp. 356, 365 (E.D. Va. 1994), however, it does not preclude a finding of fair use. Id. at 366 (citations omitted). “[T]he extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87.”
Character
“The enquiry here may be guided by the examples given in the preamble to ? 107, looking to whether the use is for criticism, or comment, or news reporting, and the like . . . . The central purpose of this inquiry is to see . . . whether the new work merely`supersede[s] the objects’ of the original creation, 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. Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. . . . [T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 578-79 (citations omitted).
We find that the district court was correct in characterizing Blythe’s paper as “a scholarly appraisal of Blood of My Blood from a biographical and literary perspective.” Baskin v. Seajay Society,Inc., No. 3:90-1100-0, at 30 (D.S.C. February 5, 1997). A reading of Blythe’s paper clearly indicates that she attempted to shed light on Rawlings’ development as a young author, review the quality of Blood of My Blood, and comment on the relationship between Rawlings and her mother. The “further purpose” and”different character” of Blythe’s work make it transformative, rather than an attempt to merely supersede Blood of My Blood.
While it does quote from and paraphrase substantially Blood of My Blood, its purpose is to criticize and comment on Ms. Rawlings’ earliest work. Thus, Blythe’s transformative paper fits within several of the permissible uses enumerated in ? 107; it has productive uses as criticism, comment, scholarship, and literary research. While this finding is not determinative, it is one factor supporting the district court’s finding of a fair use. See Harper & Row , 471 U.S. at 561; Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991) (”[T]here is a strong presumption that factor one favors the defendant if an allegedly infringing work fits the description of uses described in section 107.”).
b. Purpose
The Foundation contends that Blythe was partially motivated by prospective royalties from the publication of her scholarly criticism, and that such commercial motivation negates any scholarly motivation. Under the fair use doctrine, commercial use of an allegedly infringing work is more disfavored than noncommercial use. See Sony, 464 U.S. at 449. Nonetheless, while there is evidence that Blythe hoped to profit from her paper, this factor alone is not dispositive of the fair use issue. “[T]hough it is a significant factor, whether the profit element of the fair use calculus affects the ultimate determination of whether there is a fair use depends on the totality of the factors considered; it is not itself controlling.” Rogers v. Koons, 960 F.2d 301, 309 (2d Cir.) (citation omitted), cert. denied, 506 U.S. 934 (1992).14
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14 “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of ? 107, including news reporting, comment, criticism, teaching, scholarship and research, since these activities are generally conducted for profit in this country. Campbell, 510 U.S. at 584 (citation and internal quotation omitted)(emphasis added).
“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562. Courts should also “consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially.” Sega Enters. Ltd. v. Accolade, Inc. , 977 F.2d 1510, 1523 (9th Cir.1992). This public benefit typically involves”the development of art, science, and industry.” Rosemont Enters., Inc. v. Random House,Inc., 366 F.2d 303, 307 (2d Cir. 1966) (citation omitted), cert. denied, 385 U.S. 1009 (1967).
Amount and Substantiality of Amount Copied
“Copying an entire work weighs against finding a fair use, Advanced Computer Servs. v. Mai Sys. Corp., 845 F. Supp. 356, 365 (E.D. Va. 1994), however, it does not preclude a finding of fair use. Id. at 366 (citations omitted). “[T]he extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87.”
excerpts from Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003),
Leslie Kelly, is a professional photographer who has copyrighted many of his images of the American West. Some of these images are located on Kelly’s web site or other web sites with which Kelly has a license agreement. The defendant, Arriba Soft Corp.,1 operates an internet search engine that displays its results in the form of small pictures rather than the more usual form of text. Arriba obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called “thumbnails,” the user can then view a large version of that same picture within the context of the Arriba web page.
This case involves two distinct actions by Arriba that warrant analysis. The first action consists of the reproduction of Kelly’s images to create the thumbnails and the use of those thumbnails in Arriba’s search engine. The second action involves the display of Kelly’s images through the inline linking and framing processes when the user clicks on the thumbnails. Because these actions are distinct types of potential infringement, we will analyze them separately. . . .
There is no dispute that Arriba operates its web site for commercial purposes and that Kelly’s images were part of Arriba’s search engine database. As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use.15 Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images. Instead, Kelly’s images were among thousands of images in Arriba’s search engine database. Because the use of Kelly’s images was not highly exploitative, the commercial nature of the use only slightly weighs against a finding of fair use.
The second part of the inquiry as to this factor involves the transformative nature of the use. We must determine if Arriba’s use of the images merely superseded the object of the originals or instead added a further purpose or different character. Kelly’s images for its thumbnails was transformative. Despite the fact that Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works used for illustrative purposes. His images are used to portray scenes from the American West in an esthetic manner.
Arriba’s use of Kelly’s images in the thumbnails is unrelated to any esthetic purpose. Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites. In fact, users are unlikely to enlarge the thumbnails and use them for artistic purposes because the thumbnails are of much lower resolution than the originals; any enlargement results in a significant loss of clarity of the image, making them inappropriate as display material.
Kelly asserts that because Arriba reproduced his exact images and added nothing to them, Arriba’s use cannot be transformative. It is true that courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium.17 Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CD’s into computer MP3 format does not change the fact that both formats are used for entertainment purposes.
Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs. Even in Infinity Broadcast Corp. v. Kirkwood,18 where the retransmission of radio broadcasts over telephone lines was for the purpose of allowing advertisers and radio stations to check on the broadcast of commercials or on-air talent, there was nothing preventing listeners from subscribing to the service for entertainment purposes. Even though the intended purpose of the retransmission may have been different from the purpose of the original transmission, the result was that people could use both types of transmissions for the same purpose.
This case involves more than merely a retransmission of Kelly’s images in a different medium. Arriba’s use of the images serves a different function than Kelly’s use-improving access to information on the internet versus artistic expression. Furthermore, it would be unlikely that anyone would use Arriba’s thumbnails for illustrative or esthetic purposes because enlarging them sacrifices their clarity. Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
Comparing this case to two recent cases in the Ninth and First Circuits reemphasizes the functionality distinction. In Worldwide Church of God v. Philadelphia Church of God,19 we held that copying a religious book to create a new book for use by a different church was not transformative.20 The second church’s use of the book merely superseded the object of the original book, which was to serve religious practice and education. The court noted that “where the use is for the same intrinsic purpose as [the copyright holder's] . . . such use seriously weakens a claimed fair use.”21
On the other hand, in Nunez v. Caribbean International News Corp.,22 the First Circuit found that copying a photograph that was intended to be used in a modeling portfolio and using it instead in a news article was a transformative use.23 By putting a copy of the photograph in the newspaper, the