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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.
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unauthorized source provided The Nation Magazine with the unpublished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. |
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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 (9th 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.
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