Key Court Case Summaries on Fair Use

COPYING FOR EDUCATION

Basic Books, Inc. v. Kinko's Graphics Corp.,758 F.Supp. 1522 (S.D.N.Y. 1991).

Kinko's was held to be infringing copyrights when it photocopied book chapters for sale to students as "coursepacks" for their university classes.

Purpose: When conducted by Kinko's, the copying was for commercial purposes, and not for educational purposes.

Nature: Most of the works were factual—history, sociology, and other fields of study—a factor which weighed in favor of fair use.

Amount: The court analyzed the percentage of each work, finding that five to twenty-five percent of the original full book was excessive.

Effect: The court found a direct effect on the market for the books, because the coursepacks competed directly with the potential sales of the original books as assigned reading for the students.

Conclusion: Three of the four factors leaned against fair use. The court specifically refused to rule that all coursepacks are infringements, requiring instead that each item in the "anthology" be subject individually to fair-use scrutiny.

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Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).

A private copy shop created and sold "coursepacks" under circumstances similar to Kinko's, and the copy shop was also found to have acted outside the limits of fair use.

Purpose: When performed by commercial shop, copying is infringement even if professors select the coursepack materials.

Nature: Copied excerpts contained some degree of creative expression.

Amount: Defendant used more than five percent in all instances of copying.

Effect: Licensing or potential licensing opportunities existed for all copied works, and other commercial copy shops routinely requested permission to reproduce copyrighted works. This court held that the effect on the market is the most important factor of a fair-use determination; accordingly, the court provided relatively little analysis of the other three factors. The decision is built on market effect and particularly emphasizes (1) that an existing licensing system will weigh heavily against fair use, and (2) that "coursepack" production by a commercial copy shop does not constitute fair use even if professors select the copied materials.

Conclusion: As in the Kinko's case, this court did not address the question of whether "coursepack" production may be fair use if conducted by a university or nonprofit copy shop. This appeal was heard by all judges of the Court of Appeals for the Sixth Circuit. Eight judges ruled against fair use, and five judges dissented, finding that the copying should be fair use.

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Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982).

For-profit producers of educational motion pictures and videos sued a consortium of public school districts, which was systematically recording programs as they were broadcast on public television stations and providing copies of the recordings to member schools.

Purpose: The court was largely sympathetic with the educational purpose.

Nature: Although the films had educational content, they were commercial products intended for sale to educational institutions.

Amount: The defendant was copying the entire work and retaining copies for as long as ten years.

Effect: The copying directly competed with the plaintiff's market for selling or licensing copies to the schools.

Conclusion: The court had little trouble concluding that the activities were not fair use.

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COPYING FOR RESEARCH

American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).

The court ruled that photocopying of individual journal articles by a Texaco scientist for his own research needs was not fair use.

Purpose: While research is generally a favored purpose, the ultimate purpose was to strengthen Texaco's corporate profits. Moreover, exact photocopies are not "transformative;" they do not build on the existing work in a productive manner.

Nature: The articles were factual, which weighs in favor of fair use.

Amount: An article is an independent work, so copying the article is copying the entire copyrighted work.

Effect: The court found no evidence that Texaco reasonably would have purchased more subscriptions to the relevant journals, but the court did conclude that unpermitted photocopying directly competes with the ability of publishers to collect license fees.

Conclusion: According to the court, the Copyright Clearance Center provides a practical method for paying fees and securing permissions, so the copying directly undercut the ability to pursue the market for licensing through the CCC. Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context. The Second Circuit later amended its decision to clarify that it applies only to "systematic, institutional" copying, and that the ruling does not reach the isolated copying of independent researchers. While this case is likely to have significant practical effects on private companies, its application to teaching and research is far from clear.

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Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).

This case is remarkable for having gone to court at all; isolated scholarly uses of materials are seldom the subject of litigation. It is also a reminder that reasonable, limited, scholarly uses of materials are most likely to be fair use. A researcher at a nonprofit foundation selected quotations from an unpublished literary manuscript of historical and cultural interest, and she included those quotations in an analytical, oral presentation that she delivered to a scholarly society.

Purpose: Her use was scholarly, transformative, and provided criticism and comment on the original manuscript.

Nature: The court relied on a long series of cases to resolve that the "unpublished" nature of the work "militates against" fair use.

Amount: The amount used was consistent with the purpose of scholarly criticism and commentary, and there was no evidence of taking "the heart of the work."

Effect: The court found no evidence that the presentation displaced any market for publishing the original work, and a presentation at a scholarly conference may in fact have increased demand for the full work.

Conclusion: The court ruled that she was acting within fair use.

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COPYING FOR WEBSITES & PUBLIC DISSEMINATION

Los Angeles Times v. Free Republic, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000)

A bulletin board website allowed members to post full articles from newspapers in order to generate awareness and discussion of various subjects. Access to the site was unrestricted. The defendant was a for-profit corporation, but was in the process of seeking nonprofit tax status and did not charge for access to materials on its website.

Purpose: The articles were copied directly from the news sources and were not “transformative.” The judge was also not persuaded that a link to the news source would not be sufficient. While the court generally favored the claim of a “nonprofit” use, the court still found that posting the articles was drawing readers away from the commercial websites where the articles originated.

Nature: The articles are predominately factual, tipping the factor in favor of fair use.

Amount: The website included the full text of the articles, and the court found that the copying was more extensive than necessary to accomplish the defendant’s objectives.

Effect: The newspapers were seeking to exploit the market for the articles and draw traffic to their websites; the defendant was “usurping” the copyright owner’s potential markets.

Conclusion: The bulletin board’s use of the newspaper articles was deemed to not be fair use.

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Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2nd Cir. 1999).

Comline translated Japanese articles into English and prepared abstracts of the information.

Purpose: The abstracts were for news reporting. However, there was nothing transformative in the translation process because nothing new was added. Therefore, this factor leans against fair use.

Nature: Because the works were factual news articles, this factor is neutral on fair use.

Amount: The abstracts copied the crucial facts and ideas. Because it would have been possible to copy this information in a way that did not infringe, this factor leans against fair use.

Effect: The abstracts directly compete with and supersede the original articles.

Conclusion: The finding of three factors against fair use results in a defeat of the fair use defense.

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Nunez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000).

A newspaper published three of Nunez’s photographs. The photos were of a beauty pageant winner taken for her portfolio but a controversy surrounded the photos.

Purpose: The newspaper is a commercial enterprise and the use of the photos impacted sales of the paper. However, the paper transformed the use of the photos by using them to inform the public about the controversy surrounding the photos. The court deemed the informative use, good faith of the newspaper in obtaining the photos, and difficulty in reporting the news without the photos favored fair use.

Nature: The difficulty in calling the photos either factual or creative leans toward a neutral finding of fair use. In addition, the court emphasized the reproduction did not threaten Nunez’s right of first publication and the photos had already been shown on the evening news.

Amount: The entire pictures were copied, yet to copy less than the whole would render the photo useless to the purpose of news reporting.

Effect: There is little to no impact on the market for these pictures because a newspaper reproduction is not a market substitute for an 8” x 10” glossy.

Conclusion: The court emphasized that generally reproduction by newspapers of professional photographs is infringement. However, if the photo itself is newsworthy, the photo was acquired in good faith, and the photo had already been disseminated, fair use exists.

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INTERNET & WEBSITE DEVELOPMENT

Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002).

An internet search engine website copied Kelly’s photos off the internet. The photos were converted to small-scale “thumbnail” images. Clicking on the “thumbnail” would open a page that took the user to a full-size copy of the photo.

Purpose: Taking images and converting them into “thumbnails” (smaller, lower-resolution images), which serve a different purpose, is transformative. But placing the full-sized image on the website is not transformative. Therefore, this factor leans toward fair use for the “thumbnails” but against fair use for the full-sized image.

Nature: The works used are creative works of art, which leans against fair use in both cases.

Amount: This factor is neutral in the case of the “thumbnails” because it was necessary to copy the whole work for the intended use. However, it was not reasonable to copy the entire full-sized image, hence this factor leans against fair use.

Effect: The use of the “thumbnails” does not harm the market for the original images because there would be no way to obtain the original without visiting the creator’s website. But placing the full-sized images on the website harms all of the creator’s markets by giving users access to the works without requiring them to visit the original website.

Conclusion: Conversion of internet photos to “thumbnails” is fair use. However, copying full-size images onto a website is not fair use.

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Los Angeles Times v. Free Republic, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000)

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MULTIMEDIA PRODUCTION

Higgins v. Detroit Educational Television Foundation, 4 F. Supp. 2d 701 (E.D. Mich. 1998).

Higgins was a composer and copyright owner of a short song. Forty-five seconds of it were used as background music during the introductory and ending sequences of a program about drugs and youth that was broadcast on a PBS affiliate in Michigan. The broadcaster also sold videotape copies of the program to educational institutions "for educational use only." The court ruled that the station acted within fair use.

Purpose: The court noted that the defendant sold only a modest number of copies of the tapes and did not earn a profit; the use of the music faintly in the background was also "transformative."

Nature: As a musical composition, the court found the work to be creative, thus tipping this factor against fair use.

Amount: The amount used was neither "qualitatively" nor "quantitatively" excessive. The use did not include any lyrics of the original song and only a portion of the original music, and then only as background.

Effect: The court looked to whether the particular use by the defendant harmed a realistic market for the song. The plaintiff presented no evidence of lost sales, and the court concluded that the brief excerpts as background music "cannot be said to be a substitution for the musical composition." The court acknowledged that any use is a "potential" loss of a sale or revenue, but the only market important in this analysis is the market that the copyright owner is realistically exploiting: "The market niche that the Defendants have filled is the educational videotape niche. Clearly, Plaintiff has no interest in occupying this niche."

Conclusion: The Higgins decision suggests that use of clips of music and other creative works in nonprofit research and education can be lawful, especially when integrated into a project with generally limited circulation.

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PREPARATION OF PUBLICATIONS

Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2nd Cir. 1998).

Carol Publishing Group published a trivia book based on the popular television show Seinfeld.

Purpose: The preparation of trivia questions about a television show is not a transformative use. Additionally, because the book was created for commercial gain, this factor leans against fair use.

Nature: The television show is fictional which leans against fair use.

Amount: Examining this factor in context, while the wrong answers are original, the questions were based directly from the television episodes. The creation of 643 trivia questions leans against fair use.

Effect: While there was no proof of actual market harm, the court found this book harmed a future market niche, which the copyright holders may develop in the future.

Conclusion: Creating a trivia book based on a television series is not fair use.

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Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).

In 1973, the plaintiff wrote a book based on interviews with women about their own pregnancies and abortions. The defendant wrote his own book on the same subject and sought permission to use lengthy excerpts from the plaintiff's work. The plaintiff refused permission, and the defendant proceeded to publish his work with the unpermitted excerpts.

Purpose: Although defendant's book was published by a commercial press with the possibility of monetary success, the main purpose of the book was to educate the public about abortion and about the author's views.

Nature: The interviews were largely factual.

Amount: Quoting 4.3 percent of the plaintiff's work was not excessive, and the verbatim passages were not necessarily central to the plaintiff's book.

Effect: The court found no significant threat to the plaintiff's market. Indeed, the court noted that the plaintiff's work was out-of-print and not likely to appeal to the same readers.

Conclusion: This case affirms that quotations in a subsequent work are permissible, sometimes even when they are lengthy. Implicit throughout the case is the fact that the plaintiff was unwilling to allow limited quotations in a book that argued an opposing view of abortion; thus fair use became the only effective means for the second author to build meaningfully on the scholarly work of others.

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Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9thCir. 2000).

Philadelphia Church of God (PCG) reproduced and distributed an out-of-print publication owned by Worldwide Church of God (WCG). The publication was the foundation of PCG’s religious beliefs.

Purpose: The court found that the copying and distribution of the work had a direct correlation with the increase in church membership at PCG (the infringer). Therefore, the court found this factor leaned against fair use.

Nature: The creativity of the work leans this factor against fair use.

Amount: The entire work was copied and the court determined that a reasonable person would expect PCG to pay WCG for the right to copy and distribute the work. Hence, this factor also leans against fair use.

Effect: The verbatim copying and distribution of the work has a harmful effect on WCG’s ability to prepare an annotation and market the work in the future.

Conclusion: The court found the fair use defense failed in all factors and ordered a permanent injunction against PCG. It is not fair use for a non-profit religious organization to copy verbatim a religious publication of another non-profit religious organization even though the work is no longer available.

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USES OF PHOTOGRAPHS

Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., 55 F.Supp.2d 1113 (D. Nev. 1999).

Tiffany Design (TD) created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Speciality (RTS) admitted to scanning and inserting into their own image, at least six architectural works from TD’s design.

Purpose: It was conceded that the use of the copyrighted material in its finished product was for a commercial purpose.

Nature: The image copied was a computer-enhanced photograph, with numerous original elements of lighting, perspective, shading, and subject orientation.

Amount: The entire image was scanned.

Effect: Incorporation of components of the scanned image may have a great effect upon commercial demand for TD’s depictions of the Las Vegas Strip.

Conclusion: Scanning an image in order to copy creative elements and insert them into a new work is not fair use.

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Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002).

Nunez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000).

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