Attorney Steve® - Copyright Infringement Defenses - Fair Use cases
Here are some of the important fair use cases to know. Some FIND a fair use and some DO NOT. Call us if you need a fair use opinion letter. We offer low flat rate legal fees for most non-litigation assignment.
Fair use. The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet. Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary. (Religious Technology Center v. Pagliarina, 908 F.Supp. 1353 (E.D. Va., 1995).)
Fair use. Displaying a cached website in search engine results is a fair use and not an infringement. A “cache” refers to the temporary storage of an archival copy—often a copy of an image of part or all of a website. With cached technology it is possible to search Web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company's cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. Important factors: Google was considered passive in the activity—users chose whether to view the cached link. In addition, Google had an implied license to cache Web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F.Supp.2d 1106 (D. Nev., 2006).)
Fair use. A real estate blog copied the first eight sentences from a newspaper article. Important factors. The blogger had copied only eight sentences and had not copied the “valuable” section (the commentary included with the article), and the court did not believe that the copying would affect the market for the article (the third and fourth fair use factors). Righthaven LLC v. Realty One Group, Inc., No. 2:10-cv-LRH-PAL, 2010 WL 4115413 (D. Nev., October 19, 2010).
Fair use. A nonprofit organization posted a newspaper article about police discrimination on its website. The newspaper assigned its right in the article to a third party, Righthaven, which filed the lawsuit. Important factors. The court's reasoning was influenced by the fact that Righthaven had acquired the copyright and was not in the newspaper business (it appeared to be in the “litigation business”). For that reason, the court reasoned that the nonprofit's use was transformative because its purpose was to educate the public about immigration issues, whereas Righthaven had no such purpose for the article (because it was not in the news business). And also, because Righthaven was not in the news business, it could show no harm from the defendant's dissemination of the article. Righthaven LLC v. JAMA, No. 2:2010-cv-01322, 2011 WL 1541613 (D. Nev., April 22, 2011).
Fair use. A user of an online political forum posted a five-sentence excerpt from a newspaper article with a link back to the newspaper's website. Important factors: The use was quantitatively small and did not cause the newspaper financial harm. In addition, the online political forum was permitted to use the safe harbor provisions of the Digital Millennium Copyright Act. Righthaven LLC v. Democratic Underground, No. 2:10-cv-01356-RLH (GWF).
Fair use. Google made digital copies of millions of books submitted to it by libraries, scanned them and made them available to search through its Google Books service, so that users could—for free—identify relevant words, terms, or snippets from the scanned text. Google also allowed participating libraries to retain the copies they submitted. Important factors: Google's digitization was deemed a transformative use because it provided limited information about the books without allowing users more complete access to the works. Authors Guild v. Google, Inc., No. 13-4829 (2d Cir. 2015).
Shirman v. WHEC-TV, LLC (https://www.copyright.gov/fair-use/summaries/shirman-whec-tv-wdny2019.pdf)
Summary: Boris Shirman recorded interviews with and took photographs of young voters voting in the 2016 presidential election. Shirman compiled these into a video montage. WHEC, a TV news broadcaster, aired a story about first-time voters in the upcoming election and used portions of the audio and video of Shirman's video. Fair use WAS NOT FOUND.
Important Factors: WHEC simply repackaged/republished Shirman's video for commercial purposes (not in favor of fair use). Shirman often licenses his work, so its use by WHEC in a non-transformative matter impacted his ability to profit (not in favor of fair use). The court considered WHEC's claim that the amount used was unsubstantial, however, this was dismissed after consideration of the previous two factors.
BWP Media USA, Inc. v. Gossip Cop Media, Inc. (https://www.copyright.gov/fair-use/summaries/bwp-media-gossip-cop-no13cv7574-sdny2016.pdf)
Summary: BWP Media owns copyrights to photos of celebrities and writes gossip articles. Gossip Cop used three photos from one of BWP Media's articles without authorization in a piece that critiqued the article for whether it was real or rumors. Fair use WAS NOT FOUND.
Important Factors: The entire images were used and the images were NOT altered in any way (not in favor of fair use). Gossip Cop used the images for the same reason as BWP Media, to document celebrities, however, BWP Media had paid to use these images on their site whereas Gossip Cop copied them for free (not in favor of fair use). BWP commercially licenses photos for the purpose of attracting interest to the licensee's stories, so Gossip Cop's use did hurt their market (not in favor of fair use).
News Service (LANS) v. Reuters Television Int'l, Ltd. (https://www.copyright.gov/fair-use/summaries/lanews-reuters-9thcir1998.pdf)
Summary: LANS filmed segments of the 1992 LA riots. Reuters recorded their broadcast and transmitted it to overseas subscribers. Fair use WAS NOT FOUND.
Important Factors: Alleged infringing works were factual in nature (in favor of fair use). Reuters used the segments for commercial purposes (not in favor of fair use). Reuters' use was not transformative (not in favor of fair use). LANS could not prove a loss of sales from Reuters' use, but the court found that someone seeking to purchase the footage from LANS could just get it from Reuters' (not in favor of fair use).
News Service (LANS) v. KCAL-TV Channel 9 (https://www.copyright.gov/fair-use/summaries/lanews-kcaltv-9thcir1997.pdf)
Summary: LANS filmed segments of the 1992 LA riots. LANS refused to grant a license to KCAL-TV to use the footage, but KCAL-TV used it multiple times on commercially sponsored news programs anyway. Fair use WAS NOT FOUND.
Important Factors: KCAL-TV argued the work was newsworthy and its use was in the public interest (in favor of fair use). The court found that “the use was still commercial because defendant was in the business of gathering and selling news and competed with other stations for advertising dollars.” (not in favor of fair use).
Television Digest, Inc. v. U.S. Telephone Association (USTA) (https://www.copyright.gov/fair-use/summaries/televisiondigest-ustelass'n-ddc1993.pdf)
Summary: USTA paid for one subscription of Television Digest's newsletter. They photocopied the one copy they had paid for and distributed it to their employees. Fair use WAS NOT FOUND.
Important Factors: USTA argued that its use of the newsletter was for educating and news reporting purposes, but this was dismissed when its use was deemed commercial because the copying saved USTA the costs of paying for multiple subscriptions (not in favor of fair use). The argument that the use was for time-shifting (i.e. recording a TV show on your DVR) purposes was dismissed because the newsletter could be “put aside and read at any time” (not in favor of fair use).
Iowa State Univ. Research Found., Inc., v. ABC Inc. (https://www.copyright.gov/fair-use/summaries/iowastate-abc-2dcir1980.pdf)
Summary: Iowa State University-owned copyright for a student film that documented a student-athlete preparing for the 1972 Olympics. ABC broadcasted portions of the film without authorization. Fair use WAS NOT FOUND.
Important Factors: ABC had the right to use the uncopyrightable facts contained in Iowa State's film, but there was “no need to ‘bodily appropriate' [their] ‘expression' of that information by utilizing portions of the actual film” (not in favor of fair use). The two works at issue served the same function, and ABC's work used “essential” footage from Iowa State's film (not in favor of fair use). ABC claimed to assess its value for possible purchase while they denied ever using Iowa State's film (poor conduct that hurt chances of fair use).
Ferdman v. CBS Interactive Inc. (https://www.copyright.gov/fair-use/summaries/ferdman-cbs-interactive-sdny2018.pdf)
Summary: Steven Ferdman, a photographer, took photos of actor Tom Holland at the filming of Spider-Man: Homecoming. He uploaded the photographs to a licensing service. GameSpot (online publication of CBS) used Ferdman's photos in two articles about the movie without authorization. Fair use WAS NOT FOUND.
Important Factors: CBS claimed that the photographs were used for news reporting and commenting, but the court rejected this and found that the intention of GameSpot's articles were “simply [to show] that the photographs exist” (not in favor of fair use). “[GameSpot's] use of the photographs in its articles is a clear substitute for the market use of [Ferdman's] photographs” (not in favor of fair use).
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