A presentation by Kimberly Herman and Michael Palmisciano of the Boston law firm of Sullivan & Worcester

1. Fair is Fair – AnFair is Fair – An
Exploration ofExploration of
Copyright FairCopyright Fair
Use PrinciplesUse Principles
Kimberly B. Herman
Michael S. Palmisciano
Sullivan & Worcester LLP

2. Constitutional CopyrightConstitutional Copyright
 United States Constitution, Article I, Section 8, Clause 8
 The purpose of federal copyright law is “[t]o promote the Progress of
Science and useful Arts . . . .”

3. Statutory CopyrightStatutory Copyright
 “Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can
be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device.” 17 U.S.C. § 102(a)
 The following categories are included:
› Literary works
› Musical works
› Dramatic works
› Pantomimes and choreographic works
› Pictorial, graphic, and sculptural works
› Motion pictures and other audiovisual works
› Sound recordings
› Architectural works

4. What is “Fair Use”?What is “Fair Use”?
 Fair use is a defense to copyright infringement. Despite having
copyright protection, certain unauthorized uses are deemed “fair.”
 Fair use by statute (17 U.S.C. § 107):
› Criticism
› Comment
› News Reporting
› Teaching
› Scholarship
› Research
 Fair use by case law
› Parody
› Reverse engineering
› Data mining

5. The TestThe Test
 The statutory test for fair use is not clear-cut
 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

6. Is it Transformative?Is it Transformative?
 The heart of the matter is whether the work is transformative
 Consider whether the new work transformed the old one
sufficiently to create a new aesthetic, new insight or generally
achieves the goal of “promoting the Progress of Science and useful
Arts”

7. Richard Prince and Fair UseRichard Prince and Fair Use
PhotographyPhotography

8. Richard Prince and Fair UseRichard Prince and Fair Use
PhotographyPhotography
 Artist Richard Prince has made a name for himself in legal circles
 Prince’s work often involves altering the preexisting work of an
different artist, often without permission
 His works led to a landmark decision in Fair Use law

9. Cariou v. PrinceCariou v. Prince, 714 F.3d 694 (2d Cir. 2013), 714 F.3d 694 (2d Cir. 2013)
 Patrick Cariou, a photographer, spent several years gathering a
collection of photographs of Rastafarians living in Jamaica
 Richard Prince gathered some 30 of those photographs, made his
own alterations to them, and presented them at a gallery
 Many of the alterations involved blocking out facial features in an
attempt to downplay or remove humanity from the photographs
 Cariou sued for copyright infringement
 Prince argued fair use

10. Cariou v. PrinceCariou v. Prince

11. Cariou v. PrinceCariou v. Prince

12. Cariou v. PrinceCariou v. Prince

13. Cariou v. PrinceCariou v. Prince

14. Cariou v. PrinceCariou v. Prince
 The Second Circuit Court of Appeals found that most of the works
were transformative to a reasonable observer
 The photographs were fundamentally altered in terms of
composition, presentation, scale, color palette, and media
 Prince’s attempt to remove the humanity of the people in the
photographs spoke to his efforts to transform the meaning behind
the art

15. Emboldened by SuccessEmboldened by Success
 Following his win in the Second Circuit, Prince continued probing
the boundaries of fair use with his artwork
 In an ongoing case in the Southern District of New York Federal
District Court, Prince is again being sued for appropriating
photographs via Instagram
 The Court has not yet ruled on whether the photographs are fair
use (see next slide)
 How would you rule?

16. Graham v. PrinceGraham v. Prince, 15-Cv-10160(SHS) (S.D.N.Y.), 15-Cv-10160(SHS) (S.D.N.Y.)
Original Prince’s Version

17. YouTube’s Approach to Fair UseYouTube’s Approach to Fair Use

18. YouTube’s Approach to Fair UseYouTube’s Approach to Fair Use
 Courteously, YouTube maintains a page explaining fair use, and
providing several examples of what it considerers protected
 In dedication to its users, YouTube attempts to counter some
misinformation on the web
 It debunks four common myths:
› If I give credit to the copyright owner, my use is automatically fair use
 Not transformative! You also do not actually have the owner’s permission
› If I post a disclaimer on my video, my video is fair use
 Same as above; there are no magic words to protect your work
› Entertainment or non-profit uses are automatically fair use
 Purpose does matter, but remember that there are four factors in the test
› If I add any original material I created to someone else’s copyrighted work, my
use is fair use
 Your new work must add new expression, meaning, or message to the
original – adding something random will not be enough

19. YouTube’s Approach to Fair UseYouTube’s Approach to Fair Use
 YouTube receives a large number of takedown requests under
copyright law asking it to remove videos that owners say are
infringing
 Courts have held that rightsholders must consider fair use before
sending a takedown notice, so YouTube occasionally asks
rightsholders to confirm they have considered it
 If YouTube believes strongly enough in the merit of a video being
challenged by the copyright owner, it will occasionally indemnify
the video’s legal defense costs up to $1 million

20. Try the TestTry the Test
 The following slides contain links to several different videos that
make use of copyrighted material
 Try using the four part fair use test to see whether you think the
videos qualify as fair use or not
› Purpose/character of use; nature of copyrighted work; amount and
substantiality of portion used in relation to the whole; and effect upon potential
market for or value of the copyrighted work

21. Donald Duck vs. Glenn BeckDonald Duck vs. Glenn Beck

22. Donald Duck vs. Glenn BeckDonald Duck vs. Glenn Beck
 Jonathan McIntosh, a self-proclaimed “pop culture detective and
transformative storyteller,” creates remixes of mass media
narratives for critical and educational purposes
 One of his early pieces gained a great deal of popularity was a
remix involving more than 50 classic Donald Duck cartoon shorts
with radio broadcasts from Glenn Beck
 The video (2010) focused on the housing crisis, featuring Donald
Duck as the subject of a foreclosure, looking to Beck for guidance
and sympathy
 Beck released a response to the remix

23. Donald Duck Meets Glenn Beck in RightDonald Duck Meets Glenn Beck in Right
Wing Radio DuckWing Radio Duck
 “A re-imagined Donald Duck cartoon remix constructed using 50
classic Walt Disney animated shorts from the 1930s through
1960s. Donald's life is turned upside-down by the current
economic crisis and he finds himself unemployed and falling
behind on his house payments. As his frustration turns into despair
Donald discovers a seemingly sympathetic voice coming from his
radio named Glenn Beck. Will Donald's feelings of
disenfranchisement lead him to be persuaded by his radio's
increasingly paranoid and divisive rhetoric? Or will our favorite
Disney duck decide that this voice is not actually on his side after
all? Watch and find out!”

24. Donald Duck Meets Glenn Beck in RightDonald Duck Meets Glenn Beck in Right
Wing Radio DuckWing Radio Duck
View at https://www.youtube.com/watch?v=HfuwNU0jsk0

25. Insider Video of Glenn Beck RespondingInsider Video of Glenn Beck Responding
to Donald Duck Remixto Donald Duck Remix
 “Insider video footage of Glenn Beck's radio show on October 4th
2010 where he responds to the viral YouTube remix video ‘Doanld
(sic) Duck Meets Glenn Beck in Right Wing Radio Duck’”
 Beck mentions several times that the remix is fair use, despite his
apparent belief that Disney could have fought the video
 Rather than mount his own legal attack, Beck instead uses the
remix as a springboard for a discussion of how Disney hated
Communists – as if this somehow should be enough to have the
remix taken down

26. Insider Video of Glenn Beck RespondingInsider Video of Glenn Beck Responding
to Donald Duck Remixto Donald Duck Remix
View at https://www.youtube.com/watch?
annotation_id=annotation_406592&feature=iv&src_vid=HfuwNU0
jsk0&v=1ytW9l7TBI8

27. News Reporting and Fair UseNews Reporting and Fair Use

28. News Reporting and Fair UseNews Reporting and Fair Use
 News reporting (even of other news reporting) is a fair use
identified by statute. 17 U.S.C. § 107
 The basic function of fair use here is “to balance the author’s right
to compensation for his work, on the one hand, against the
public’s interest in the widest possible dissemination of ideas and
information on the other.” Triangle Publications v. Knight-Ridder,
626 F.2d 1171, 1174 (5th Cir. 1980)
 The principles of fair use apply to all forms of media
 Fair use allows journalists to operate efficiently and effectively in
creating news production by lowering risk of liability and
enhancing journalist confidence in making snap decisions

29. Asiana to Sue KTVU for BroadcastingAsiana to Sue KTVU for Broadcasting
Fake, Racist Pilot NamesFake, Racist Pilot Names
 An Asiana flight crashed in San Francisco in 2013
 Local TV station KTVU reported on the incident using false, racist
names for the pilots of the aircraft
 This video re-airs that clip without permission as the subject of its
own news reporting
 KTVU may not like the re-airing of its mistakes, but as a
newsworthy topic, fair use protected the creator of this video to
use the clip

30. Asiana to Sue KTVU for BroadcastingAsiana to Sue KTVU for Broadcasting
Fake, Racist Pilot NamesFake, Racist Pilot Names
View at https://www.youtube.com/watch?
time_continue=1&v=j7eWbx7BgWs

31. The National AnthemThe National Anthem
 Take a look at this brief history of why the National Anthem is
played at professional sporting events
 The video points to Red Sox third baseman Fred Thomas as the
first professional athlete to stand and salute the flag during the
1918 World Series, as a military band played the Star Spangled
Banner
 You may notice that there is no good picture of Fred Thomas
anywhere in the video, yet a search of the Society for American
Baseball Research’s website brings up the photo on the next slide
 Using the picture would likely not have been fair use
 The creator could have paid for a license, but chose to use public
domain images instead

32. Fred ThomasFred Thomas

33. The National AnthemThe National Anthem
View at https://video.vice.com/en_ca/video/vice-sports-explains-
the-national-anthem/59c53de350c7fa7d0447780d

34. Slutever – Mormon War on PornSlutever – Mormon War on Porn
 A media company prepared a report on a 2016 Utah law declaring
porn a public health crisis
 The report thoughtfully presented a variety of viewpoints on the
law. The report explored how the law is driven by Mormon
cultural norms, which can lead to sexual repression. The host
visited a “Mormon porn set” where ex-Mormons create
“blasphemous” porn incorporating Mormon practices
 The report uses a clip from a local station’s news report on the
media’s reaction to the law and the public outcry
 The local news station was Mormon owned. It found the program
offensive and objected to use the clip of its news

35. Slutever – Mormon War on PornSlutever – Mormon War on Porn
View at https://www.youtube.com/watch?v=3PnOh5l80d8

36. Slutever – Mormon War on PornSlutever – Mormon War on Porn
 Use of the news clip from the local news station was fair use
because:
› The clip demonstrated the newsworthiness of the Utah law and the public
outcry against the law. It was news reporting of news reporting. It was
transformative
› The clip was short – less than 12 seconds. Only as much of the clip as necessary
was used
› The licensing market for the, at that point, year-old clip was limited
 The local news station’s objection to use of the clip was amusing
because the clip itself relies on the fair use doctrine when it uses
the recognizable logos of the BBC, Time, The Daily Show and USA
Today (presumably without obtaining permission) to illustrate the
same point: newsworthiness

37. From Porn to Seven Dirty (Indecent)From Porn to Seven Dirty (Indecent)
WordsWords
 Federal Communications Commission v. Pacifica Foundation, 438
U.S. 726, is the landmark Supreme Court decision defining the
power of the Federal Communications Commission to regulate
indecent speech as applied to broadcasting.
 This is George Carlin before a live audience in his best-known
routine Seven Words You Can Never Say on Television.
 This monologue was later aired as part of a radio broadcast. It was
heard by a man who complained to the FCC that his 15 year old
son listened in.
 Pacifica remains the cornerstone case allowing the FCC’s
regulation of indecent broadcast speech.
 Raises serious First Amendment concerns because of its chilling
effect.

38. Take a listen – May 1972Take a listen – May 1972
View at https://www.youtube.com/watch?v=kyBH5oNQOS0

39. Legal QuestionLegal Question
 Does the First Amendment deny the government the power to
restrict public broadcast of indecent language under any
circumstances?

40. Well how about this?Well how about this?

41. And this?And this?
 In Simple Life, Nicole Richie asked viewers if they'd ever tried to
"get cow shit out of a Prada purse." She then added, "It's not so
fucking simple."

42. A Pig in the ParlorA Pig in the Parlor
 “[W]hen the FCC finds that a pig has entered the parlor, the
exercise of its regulatory power does not depend on proof that the
pig is obscene.” (only indecent)
 Test:
› Is the speech patently offensive under a contemporary community standard?
 Factors to consider: Audience (is it likely children are watching?),
medium, time of day (6 a.m. to 10 p.m.), method of transmission.
 How is this regulation consistent with the First Amendment?
› The Court wrote: Of all forms of communication, it is broadcasting that has
received the most limited First Amendment protection.

43. Gotcha MomentGotcha Moment
View at https://www.youtube.com/watch?v=rMyDvqnwIm4

44. QUESTIONS?
kherman@sandw.com
mpalmisciano@sandw.com