by Cynthia Price
Legal News
Julie Ahrens of the Stanford Fair Use Project, speaking to a small group of attorneys gathered April 3 in Grand Rapids, quoted Lawrence Lessig’s wry observation: “‘Fair use’ in America is the right to hire a lawyer.”
The remark may be humorous, but it is also an accurate comment on what legitimately results from the fair use language. The doctrine is written in a way that lends to each individual case having to be decided by a judge.
Ahrens was at Grand Valley State University’s DeVos Center as part of a “Copyright Basics and Fair Use” conference held by the ACES (Arts, Communications, Entertainment and Sports) Section of the State Bar, led by Matthew Bower of Safford and Baker in Bloomfield Hills. It was co-sponsored by the Right to Write Foundation, a clearinghouse on fair use law and a fund to help artists defend fair use cases which operates out of Muskegon.
Ahrens said that there is dissatisfaction with the fair use doctrine, with critics clamoring for revising the law to include clear wording on what can and cannot be done. Ahrens says, “In my opinion that would be a bad option.” She feels that it is difficult to foresee what problems will arise, citing the game-changing effects of the Internet, with no guarantee such a paradigm shift will not occur again. She therefore prefers the flexibility of the current wording.
Section 107 of the 1976 copyright law reads:
“Limitations on exclusive rights: Fair use. Notwithstanding the provisions of sections 106 and 106A, 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.”
Not that there are zero standards against which such judgments must be made. The statute continues:
“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.”
Standard (2) has come to center on the word “transformative,” which is fairly ambiguous. Even at Saturday’s conference audience members, some of whom had a great deal of expertise, evidenced widely varying ideas of what that means.
For Ahrens and others, it is a very simple test: if the purpose of the fair use work is different from the purpose of the copyrighted original, it can be regarded as transformative.
Ahrens and Bower emphasized that although there is now a substantial body of case law, most of the decisions have been made in the lower courts. In fact, the majority of important cases have been tried either in New York’s Second Circuit or California’s Ninth Circuit.
Ahrens went through significant cases in those courts, including one about a Seinfeld trivia book and the famous Obama “Yes We Can” poster versus the original photograph.
Ahrens argued that to weaken the fair use doctrine and require licensing for all content-related works would mean a restriction on the right of free speech. Original authors could refuse licenses to those who criticize or differ with them.
The case study chosen for Saturday’s session has a lot of local connections. It was the Harry Potter Lexicon case, brought by author J.K. Rowling against Muskegon’s RDR Books to prevent publication of the guide. (The statute also reads, “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”)
Grand Rapids Legal News for 9/17/08 covered the facts of the story, as did a panel which included Ahrens, Bower and Roger Rapoport, president of RDR Books. Presenters pulled out some important factors in Judge Robert Patterson’s decision, which they regarded as fair and thorough.
One was in further defining the term “derivative work” associated with copyright and fair use law. Patterson opined that a lexicon or dictionary is not a derivative work in the way a movie based on a book is; the original author has no exclusive rights over them.
Patterson’s decision to award minimal damages to J.K. Rowling was based largely on his judgment that the lexicon manuscript included too much direct quotation from the original work. This served as guidance for RDR Books’ eventual publication of the book, now called just The Lexicon, which has since been issued in translation in several other countries.
The panelists pointed out that there seems to have been a shift in determining what constitutes fair use from a reliance on the standard about commercial use, which used to be paramount. The courts now look more to the nature of the original work and the intent of the defending artist.
They also noted that what copyright protects is the author’s individual expression and not the ideas contained therein.
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