A Legal Blog by Aaron | Sanders, PLLC

Is it Fair Use? Who’s on First? ANSWER

Answer: NOT (necessarily) FAIR USE!

Read the opinion, TCA Television Corp. v. McCollum, here.

If you’ve found this answer without reading the question, here’s the question.

I kind of deked you, didn’t I? Sorry.

But given the trend of the caselaw out of the Second Circuit, weren’t you just a little bit surprised? How easy it would have been to find the use of “Who’s on First?” transformative and, thus, fair? The trial court was convinced.

It is tempting to reading this opinion as a criticism of Cariou and an attempt to reign in some of its implications. And in some ways, that’s not a bad reading. For one thing, it acknowledges that Cariou “might be thought to represent the high-water mark of our court’s own recognition of transformative works” and that “it has drawn some criticism.” More important, whereas Cariou seemed to let transformative use run wild, by untethering it from any relationship with the underlying work, the “Hand to God” case puts at least some of the focus back onto the underlying work:
…the focus inquiry is not simply on the new work, i.e., on whether that work serves a purpose or conveys an overall expression, meaning, or message different from the copyrighted…

Read More»

Does Actual Knowledge Kill or Merely Suppress the Sony-Betamax Rule?

Court: Actual Knowledge Kills Sony-Betamax Dead, and That Might Make a Difference

Hey, I sort of called it. In my last blog post, I embarked on a journey of self-discovery in which I learned that ISPs were not effectively immune to claims for constructive copyright infringement. In this journey, I had to come to terms with the real possibility that the Sony-Betamax rule—that a product cannot create contributory copyright liability if it has substantial non-infringing uses—applies only where the claim is based on “constructive” knowledge (i.e., you should have known, as opposed to, you knew). This explained something that had puzzled me: why was Cox Communications even liable for the claims of contributory copyright infringement brought by Rightscorp? After all, internet service has a tremendous number of non-infringing uses. The answer (in my analysis) was: because Cox had actual knowledge of its customers’ infringement, for the same reason its repeat-infringer policy was such a hilarious shambles.

Actual Knowledge + Current Continuing Relationship

Earlier this week, the court in the Cox Communications case ruled on some post-judgment motions and followed very much the same reasoning in denying Cox’s motion challenging the jury verdict. Regarding the application of the Sony-Betamax rule, the court this…

A Sony Betamax video tape recorder. Weighed about 36 pounds. Copyright owners tried to stop it & lost (barely). Ended up giving copyrighted properties a second life as home video. Ironic, dontchya think? Groundbreaking. Lost out to JVC's VCR. Then VCRs stopped being a thing. Time marches on.

Read More»

Three’s Company Answer


The opinion in Adjmi v. DLT Entertainment, Ltd. can be read here. If you didn’t read the question, forget you ever saw the answer and click here.

The court was persuaded that, by taking a darker, more realistic view of Three’s Company’s themes, 3C criticized Three’s Company’s “happy-go-lucky” tone. Once the court found 3C to be a parody, all of the fair-use factors fall into line, as I’ve discussed previously.

What about Salinger? The “sequel” in Salinger felt like an attempt to trade on a famous book’s goodwill. To the extent the defendant tried to use the “sequel” to comment on Catcher in the Rye or J.D. Salinger, he failed—so badly that the court felt his intentions were post-hoc rationalizations. The defendant was just rehashing the themes of Catcher in the Rye without adding much insight. 3C, by contrast, is pretty clearly taking Three’s Company into a new artistic direction.

Did Adjmi win merely because Three’s Company is lowbrow, whereas Catcher in the Rye is highbrow? Courts, after all, aren’t supposed base their copyright rulings on artistic judgment. I think “high brow” works like Catcher in the Rye are probably much harder to parody the way 3C parodied Three’s Company—though they…

Read More»

TVEyes Answer

Answer: YES, FAIR USE!

Note: If you arrived at this page from elsewhere and want to play Is it Fair Use, stop reading and click here.

The Court held that TVEyes’ service was fair use. You can read the entire opinion here.

As with so many fair-use decisions, most notably the recent one involving the movie Deep Throat, the fair-use analysis more or less turned on whether the defendant’s use was “transformative.” Although I thought the Deep Throat decision was correct, I criticized the way the court used transformativeness to determine all four fair-use factors. You get a little bit of that here, as well, but the case for transformativeness isn’t nearly so strong.

In this case, the court followed Hathi Trust and the Google Books decision for the proposition that “databases that convert copyrighted works into a research tool for further learning are transformative.” Evidently, it believed that, so long as it could distinguish Meltwater, the use had to be transformative. In distinguishing those decisions, the court focused on the difference between video and print media. In particular, the print that Meltwater used was easily available elsewhere, whereas the video in TVEyes wasn’t.

Unlike the indexing and excerpting of news articles, where the printed word…

Read More»

Is it Fair Use Lovelace Answer

Fair Use!

Note: If you came here from elsewhere and want to play Is it Fair Use, stop reading now and click here instead.

Read the opinion, if you want.

Not Bad, Just Misunderstood

The concept of “transformative use” goes in for all kinds of abuse, some of which may be found on this very blog. It originally stood for the idea of taking all or part of a pre-existing copyrighted work and using it to make something new. It involves an artistic, rhetorical, expository or structural choice. When Judge Leval first invented the concept in 1990, he described it thus:

If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it.

Transformative use has expanded well beyond this initial conception, in part because Judge Leval also described a transformative…

Read More»

Swatch v Bloomberg Answer

Answer: YES, FAIR USE!


NOTE: If you haven’t read the question, you might want to click here.

In The Swatch Group Mgmt. Servs. Ltd. v. Bloomberg LP, the Second Circuit Court of Appeals held that Bloomberg’s use of a recording of Swatch’s earnings call was fair use. In reaching this decision, the court found:

Bloomberg was engaged in “news reporting,” even though all it did was make the recording available to the public without commentary. The court rejected Swatch’s semantic argument that there was a difference, somehow, between “news” and “data.”
An SEC’s regulation requiring American companies (but not foreign ones like Swatch) to immediately disseminate material nonpublic information helped Bloomberg’s case much more than it hurt. Swatch had argued that the foreign-company exemption meant that there was no public interest in the recording. But the issue wasn’t compliance with the regulation, per se (which is a different legal issue), but the value the regulation underlines, that material information affecting investor decision-making should be made public.
Bloomberg’s use of the recording was commercial, which normally counts against fair use, but mostly because Bloomberg is a commercial enterprise that benefits only indirectly from the use of the recording. The recording was available only to paying…

Read More»