Fair Use

Is copyright law moving fast enough to keep up with the explosion of content on the web, and the ease with which it can be copied? An article in the ABA Journal, which is linked to the caption of this post, deals with the question of policing copyright violations pursuant to the Digital Millennium Copyright Act. The article discusses a recent California district court decision, Lenz v. Universal Music Corp, in which the the court held that before sending a takedown notice, a copyright holder has an obligation at least to consider whether the allegedly infringing material constitutes a fair use of copyrighted material. (The case involved a YouTube video of a small child dancing around with a few snippets of a Prince song playing in the background.) While it is easy enough to state the factors that a court is supposed to consider in determining whether a defense of fair use is available–including the type of use, the size of the portion used, and the effect of the use on the copyright’s value (17 U.S.C. § 107)–these factors are not so predictably applied in practice. The court stated: “Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements.” I wonder how the court knows that.

The issue of fair use also comes up in the lawsuit that LA artist Shepard Fairey filed last month against the Associated Press, which claimed that his ubiquitous Barack Obama “Hope” poster infringed the copyright in a photo taken by an AP photographer. Fairey has apparently admitted that he copied the photograph, but relies on the type of use he made, as well as the alterations he made in the process of transforming the photograph into a painting, to justify a claim of fair use. I’m not willing to take a position on this case, except to say that it illustrates that the determination of the fair use defense is often a complicated, fact-intensive inquiry.

What is needed is a simpler way for copyright holders to be able to assert a good faith claim of infringement, and obtain the removal of offending works. What is also needed is a clearer mechanism for content posters to know whether they are entitled to use copyrighted works. (By the way, the illustration accompanying this post, juxtaposing the Mannie Garcia AP photo and the Fairey poster, came from the New York Times website. I say I am making a fair use of this material, but if the New York Times, or the AP, or Mannie Garcia, or Shepard Fairey has a problem with my using this illustration, please let me know and it will be removed immediately.)

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