Lecture delivered to the RTF 365 class at the University of Texas at Austin, 10/20/2011.

1. Fair Use in the USA
William J. Moner // RTF 365
October 20, 2011

2. Course Notes
 Craig Aaron
 http://www.freepress.org
 Papers
 upload it to two places on blackboard: the Discussion
Board as well as the Assignment area.

3. Quick Recap
 U.S. Constitution, Article I, Section 8, clause 8
 Congress shall have the power:
"To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries."
 U.S. major laws:
1790, 1831, 1870, 1909, and 1976, plus the Digital
Millennium Copyright Act (DMCA) of 1998
 Twelve extensions of the term of
copyright, including retroactive extensions in the
past few decades.

4. What is Copyright Infringement?
 A violation of three elements:
 Originality
 Access
 Substantial Similarity

5. What is Originality?
 Ex nihilo?
 Or simply “original enough”

6. What is Access?
 If you don’t know it exists, you can’t copy it

7. What is Substantial Similarity?
 Distinction between exact replicas/copies and
similarity
 The scientific proof? “Reasonable Person” test

8. What can be used without fear of copyright
violation?
 Facts
 Ideas
 Public Domain Materials
 Idea/Expression Merger
 scenes-a faire doctrine

9. What about Copyrighted Works?

10. Oh, Pretty Woman…

11. Oh, Hairy Woman…

12. Fair Use
 The most commonly invoked defense against
copyright infringement claims
 To use this defense, defendants must admit to
copying the plaintiff’s work

13. Four Inquiries
 Copyright Code, Section 107 of Title 17 of US
Code (17 USC 107)
 Purpose and Character of the use
 Nature of the Work
 Amount Taken
 The Effect of the Taking on the Copyright’s Value

14. Additional Inquiries (not in Code):
 Noted by observation of recent case law:
 The Intent and Motives of the Defendants
 The relationship of the “use” to the exercise of free
speech
 Miller & Davis (1990, pp. 349-350)

15. Decisions Must Satisfy a Combination of
these Inquiries
 In other words, these inquiries are
interdependent

16. Inquiry 1:
The Purpose and Character of the Use
 Non-profit educational uses (within limits)
 “criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research”

17. Purpose and Character…
 “Pretty Woman” by 2 Live Crew is protected as
parody
 “The Cat Not in the Hat: A Parody by Dr. Juice”
by Alan Katz is not protected as parody

18. Purpose and Character…
 Naked Gun / More Demi Moore

19. Purpose and Character…
Sony VCRs

20. Purpose and Character …
 Non-profit educational use guidelines:
 Brevity
 Spontaneity
 Cumulative effect
From Agreement on Guidelines for Classroom Copying in
Not-for-Profit Educational Institutions (Classroom
Guidelines)
 Distinction between not-for-profit and
commercial

21. Inquiry 2:
The Nature of the Work
 Works not yet published
 e.g. Ford’s biography, Hubbard’s biography
 Counts against assertion of fair use, but not solely a
determining factor (as is the case with most
individual inquiries)
 Facts and Statistics vs. Creative or Imaginative
Work: which is more easily defensible?

22. Inquiry 3:
The Amount or Proportion Taken
“the amount and substantiality of the portion used
in relation to the copyrighted work as a whole”
(from 17 USC 107)
 Dependent upon nature of the work and the
nature of the use
 Parodies can take more; commercial derivatives
can’t borrow as freely

23. Inquiry 4:
The Effect on Value / Economic Harm
 Justice O’Connor: this inquiry “is undoubtedly
the single most important element of fair use.”
 Let’s talk about the Sony case … does the VCR
and taping of programs or videos effect the value
of a given commercial product’s copyright?

24. The Effect of “Taking”…
 Literary works such as The Seinfeld Aptitude
Test or Welcome to Twin Peaks: A Complete
Guide to Who’s Who and What’s What
 Why hasn’t anyone sued Girl Talk? Or Kutiman?

25. Girl Talk & Kutiman (time permitting)
 Great site for sampling research:
 http://www.whosampled.com/
 Why hasn’t Girl Talk been sued?
 Kutiman: http://thru-you.com/#/intro/

26. I Got AMashup…
Legendary K.O.
via
Kanye West
via
Ray Charles
via?
From Boyle (2008) The Public

27. References:
 2 Live Crew. “Pretty Woman.” Accessed via Spotify.
 Aoki, K., Boyle, J., Jenkins, J. “Bound By Law: Tales from the Public Domain.”
Duke Center for the Study of the Public Domain. Retrieved from
http://www.law.duke.edu/cspd/comics/digital.php
 Benedict.com. “Annie Liebovitz and the Naked Gun.”
http://www.benedict.com/Visual/Nakedgun/Nakedgun.aspx
 Boyle, J. (2008) The Public Domain. Chapter 6.
http://www.thepublicdomain.org/download/
 Charles, R. “I Got a Woman” http://www.youtube.com/watch?v=Mrd14PxaUco
 Legendary K.O. “Bush don’t like black people.”
http://www.youtube.com/watch?v=LOu_zIiihPI
 Min’s Blog. “Satire or Parody?”
http://blogs.law.harvard.edu/yuminemma/2009/12/16/satire-or-parody-dr-seuss-
enterprises-v-penguin-books-usa/
 Orbison, R. “Oh Pretty Woman.” Accessed via Spotify.
 Siegel, P. (2008). Communication Law in America: Second Edition. Chapter 6.
 Traditional. “Jesus is All the World to Me.”
http://www.youtube.com/watch?v=0dY4h1P0OPs
 West, K. “Gold Digger ft. Jamie Foxx.”
http://www.youtube.com/watch?v=6vwNcNOTVzY