In an opinion and order issued on Monday, Southern District of New York Judge Sidney Stein found in favor of Premise Media and denied the Lennon clan a preliminary injunction prohibiting Premise from using a 15-second clip of John Lennon’s “Imagine” in their documentary on “intelligent design”.
Ono, Sean and Julian had sued Premise for the unauthorized use of the song.
Premise argued that the lyrics “nothing to kill or die for, and no religion too” was integral to the documentary, as it demonstrated many people’s belief that the world is better off without religion. Premise also argued that under the fair-use doctrine it has the right to comment on these lyrics.
Judge Stein agreed, noting that “the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”
While no fan of “intelligent design” and a big fan of Lennon, I can’t help but agree that Judge Stein nailed this opinion. Setting out boundaries of fair use (discussed here and here) is key to helping society understand what is and what is not OK to “borrow” and/or “use.”
Copyright—a set of exclusive rights to use certain content and to prevent unauthorized use by others.
Derivative work—incorporating pre-existing copyrighted work into a new work that is itself copyrightable. Creating derivative works is one of the exclusive rights reserved to the copyright owner, unless it falls under the fair use exception.
Fair use—the exception to the exclusive right where the content is “transformed” and used in a new way. Fair use has been summed up as the right–in some circumstances–to use copyrighted material without asking permission or paying for it.
To evaluate fair use of copyrighted material, the courts consider four factors set out in 17 U.S.C. 107:
the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.
For most courts, the most significant factor in this analysis is the fourth factor–effect on the market. If the new work reduces demand for the original work, then it’s very difficult for the secondary author to claim fair use. On the other hand, if the use does not compete with the original (a parody, criticism, or news report) it is more likely to be fair use. Courts also have applied the doctrine of fair use to visual collages and musical works, such as 2 Live Crew’s “Oh Pretty Woman.”
So what about a mashup? Such as the wildly popular “The United State of Pop” by DJ Earworm or the hard-to-come-by “Smells Like Booty” (the amazing mashup of “Smells Like Teen Spirit” and “Bootylicious”). This art form has been growing in popularity since 2003 and is seen in everything from the works of DJs, to Academy Award® montages, to small theater and choral productions.
Are mashups derivative works? Absolutely. Is this fair use? Probably so. Its certainly transformative and unlikely to replace demand for the original. We won’t know for sure until Avril LaVigne sues DJ Earworm.
“Today, fair use is the major way that new makers can get unlicensed access to the cultural production of their own society. The culture that is emerging can be channeled, encouraged, even deformed, but it cannot be cut off.”
The Center for Social Media enters the discussion on User-Generated Video Content in its new report: Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video Content. Funded by the Ford Foundation, the report examines the explosive growth of transformative works on the Internet. From parody to pastiche, Recut looks at trends in User-Generated Video Content, how it fits into the current framework of fair use law, and how we as a society depend on fair use to enrich our cultural heritage. Even if its just for a laugh.
“Fair use is a right to reuse copyrighted works…when the value to society is greater than the value to the copyright owner. This feature of the law is grounded in the purpose of copyright itself in U.S. law: to encourage the production of culture.”
After a campaign by the Council on American-Islamic Relations (”CAIR“) to raise money and convince advertisers to withdraw their support from the syndicated show Savage Nation, Michael Savage, brought a copyright lawsuit against CAIR. According to Savage’s complaint, CAIR had rebroadcast a large segment of one of his copyrighted programs to raise funds for their lobbying efforts.
The complaint states that “the segment misappropriated was in excess of four minutes…was used by CAIR for fund-raising purposes and…in a manner designed to cause harm to the value of the copyright material in the long and short term.”
This case will likely raise a lot of interesting questions regarding the boundaries between the first amendment and copyright law. It will certainly generate a lot of publicity for both CAIR and Mr. Savage.
On October 31, 2007, a number of progressive policy groups endorsed a set of Fair Use Principles for User Generated Video Content authored by the Electronic Frontier Foundation. In the world of Copyright and Fair Use, each step forward by content owners is typically followed by a step forward by fair use advocates seeking to secure content for public use. (Think: Spy vs. Spy.) The principles advocated by the Electronic Frontier Foundation (and other policy groups, like Public Knowledge) would interfere with YouTube’s recent attempts to filter out copyright-protected content from its online service.
Do these principles serve the public interest or do they go too far? Should content owners prove others are infringing instead of having persons posting content establish they have the right to do so (the Wikipedia model)? Should we adopt a model that burdens owners or users?
A comparison of the two approaches.
YouTube Model. Owners must spend time working with YouTube to ensure that thier content has been provided to YouTube so that it can filter out content. Otherwise, the owner must police YouTube and provide DMCA Takedown Notices in order to remove the content. Down side: some fair use materials will be screened out.
Wikipedia Model. Users must establish what right they have to upload material, whether they are the owner, licensee, or that material is public domain. Down Side: uploading material is more difficult under the Wikipedia Model.
The Fair Use Principles would increase the burden on YouTube (or its users), but would have little impact on Wikipedia, which removes any content not verified in a short period of time, while also providing a DMCA policy.
Policy groups (and YouTube) might do well to take a look at Wikipedia, which has a model that balances the public interest with the rights of authors and artists.
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