Copyright Fair Use Cases

This is certainly not an exhaustive list of copyright fair use cases, but this page contains some of the more important cases to be aware of in this area.  For basic information relating to fair use see Copyright Fair Use.

Select Supreme Court Fair Use Cases

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164 (1994) – Respondent Acuff-Rose Music, Inc., filed suit against petitioners, the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew’s song, “Pretty Woman,” infringed Acuff-Rose’s copyright in Roy Orbison’s rock ballad, “Oh Pretty Woman.” While this case does not necessarily have any particular importance for the topic of academic use of copyrighted material, this case does represent the last time the United States Supreme Court addressed the fair use doctrine. Additionally, the Court explains, as have other courts, that a use that is transformative in nature is particularly worthy of the mantel of fair use protection. In this respect the Court stated: “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. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the 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.”

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) – In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford’s account of his pardon of former President Nixon. Shortly before the Time article’s scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to “scoop” the Time article. As a result of the publication of The Nation’s article, Time canceled its article and refused to pay the remaining $12,500 to petitioners. Petitioners then brought suit in Federal District Court against respondent publishers of The Nation, alleging, inter alia, violations of the Copyright Act (Act). After considering the four fair use factors listed in 17 USC § 107, the Supreme Court found the use to NOT be a fair use, in large part because The Nation copied the heart of the story.

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) – Petitioner Sony Corp. manufactures home video tape recorders (VTRs), and markets them through retail establishments, some of which are also petitioners. Respondents own the copyrights on some of the television programs that are broadcast on the public airwaves. Respondents brought an action against petitioners in Federal District Court, alleging that VTR consumers had been recording some of respondents’ copy-righted works that had been exhibited on commercially sponsored television and thereby infringed respondents’ copyrights, and further that petitioners were liable for such copyright infringement because of their marketing of the VTRs. The Supreme Court explained that any individual may reproduce a copyrighted work for a “fair use”; the copyright owner does not possess the exclusive right to such a use. The Court held that the recording accomplished by VTRs was only time-shifting in nature and even though 100% of the copyrighted work was copied, the use nonetheless constituted a fair use.

Select Appellate Court Fair Use Cases

American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995) – Plaintiffs American Geophysical Union and 82 other publishers of scientific and technical journals (the “publishers”) brought a class action claiming that Texaco’s unauthorized photocopying of articles from their journals constituted copyright infringement. Among other defenses, Texaco claimed that its copying was fair use under section 107 of the Copyright Act, 17 U.S.C. § 107. After considering the four fair use factors, the Second Circuit held that the photocopying was NOT a fair use.

In Kelly v. Arriba, 280 F.3d 934 (9^th Cir. 2002), the Court of Appeals for the Ninth Circuit ruled that this type of linking violates the copyright owner’s right to display, which is one of the rights a copyright bestows upon the holder.  See 17 USC 106.  The latest in the Kelly v. Arriba linking battle occurred on July 7, 2003, when the Court of Appeals for the Ninth Circuit withdrew its earlier opinion in Kelly v. Arriba Soft Corp (February 6, 2002). The Court filed this substitute decision holding that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act. However, the Court held that the district court should not have reached whether Arriba’s display of Kelly’s full-sized images is a fair use because the parties never moved for summary judgment on this claim and Arriba never conceded the prima facie case as to the full-size images. The district court’s opinion is, therefore, affirmed as to the thumbnails and reversed as to the display of the full-sized images. The Ninth Circuit remanded for further proceedings consistent with this opinion. Each party was ordered to bear its own costs and fees on appeal. The petition for rehearing en banc is now mooted. This is rather significant because the earlier decision of the Ninth Circuit called into question inline_linking, and declared that such linking was a copyright infringement. The original opinion was criticized because when one engages in inline linking there is no copy being made by the alleged infringer. Rather, the object inline linked is pulled directly from the host server with no intermediate copy being made by the accused infringer. For more information on this development see Kelly v. Arriba Soft Corp (9th Cir. July 7, 2003) and Court backs thumbnail image linking (CNET).

Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983) – This is an appeal from a dismissal on the merits of a suit for copyright infringement brought by a public school teacher who is the owner of a registered copyright to a booklet on cake decorating. The defendant, also a public school teacher, incorporated a substantial portion of the copyrighted work into a booklet which she prepared for use in her classes. Both parties moved the district court for summary judgment. The district court denied both motions and dismissed the action on the merits on the ground that defendant’s copying of plaintiff’s material constituted fair use. The Ninth Circuit ruled that the photocopying was NOT a fair use, reversed the dismissal entered by the District Court and ordered summary judgment be entered for the plaintiff. The case was ordered remanded for a determination of damages pursuant to the provisions of the Copyright Act.