A Legal Blog by Aaron | Sanders, PLLC

Is it Fair Use? Information Wants to Be Free, but Copyright Is at the Turnpike

We Took the Whole Thing, But it Was for Journalism!

I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.

One of the lucky 333 analysts invited to the Swatch earnings call. Photo taken by Eric Danley under this Creative Commons license.

The Secret Pleasures of Earnings Calls

Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.

As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of the conference call to…


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Is it Fair Use? (Appellate Edition): Transformers in the Art Gallery

Parody ≠ Transformative Use

I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:

Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation

So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.

Is his Case More Appealing Than his “Art”?

Let’s play again, but at the…


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Is it Fair Use? Four Seasons of Fair/Foul Use

Ed Sullivan vs. the Jersey Boys

A long time ago, about 50 years ago, in the 1960’s, there was a band from New Jersey called the Four Lovers. When they failed at a 1960 audition to be the lounge singers at a New Jersey bowling alley called the Four Seasons, they re-named the band after the bowling alley, just so they could get something out of audition. In just a few years, they were the United States’ second-most popular band after the Beach Boys. They were the sort of band my mother (who grew up pretty close by in Philadelphia) loved: handsome, blue-collar, immigrant (the members were all Italian-American), smooth, well-groomed, a rock n’ roll band that was more pop than rock.

Even if you’re in your 20’s, you have heard of their songs, and you recognize Frankie Valli’s astounding falsetto, in songs like “Big Girls Don’t Cry,” “My Eyes Adored You” and “Rag Doll.” Ironically, the Four Seasons came from tough backgrounds, but worked hard to appear clean-cut, whereas later rock bands affected the kind of street-tough backgrounds the Four Seasons tried to hide.

Even after the Beatles arrived, the Four Seasons remained immensely popular. Indeed, they were one of…

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Throwing Back the Throwbacks on Is it Fair Use?

When History Really Just Commercial Nostalgia?

Last week I wrote about a copyright lawsuit involving the Baltimore Ravens, and in so doing, managed also to mention the San Francisco 49ers*. They both won their respective games and will now meet in the Super Bowl. In the future, I will charge for this sort of thing.

* Because I digressed into the history of the Ravens, who kind of used to be the Cleveland Browns, who used to be in the rival All-American Football League, until it folded and the Browns were invited into the NFL, along with … the 49ers. It’s not very a very direct connection, but I never let directness or the lack thereof interfere with my discussions about professional football, which I discuss with the sort of passion reserved only for kids who were always about 20 pounds too light and a half-step too slow to have a reasonable chance at ever starting.

I also mentioned, in connection with said copyright lawsuit, that a recent decision in that lawsuit (only the latest of many) yielded not one but two separate fair-use rulings.* And that both of these rulings were worthy of inclusion in Is it Fair Use?,…

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Is It Fair Use? Fowl Doings in Raven-land`

A Case that Just Keeps Giving to Copyright Lawyers

It’s been a long time since our last edition of the fast-paced game that’s sweeping the nation, Is It Fair Use? Yes, I’ve been busy, but the real reason is that there just haven’t been any really fun fair use cases in a while. It may turn out that 2011 was just a banner year for fair use cases, what with Elf off the Shelf (twice), Green Day’s screaming icon and the Rasta-rip-off case. And who could possibly forget the “What What in the Butt”/South Park case, which piled weirdness upon weirdness? 2012? Eh, not so much.

Bouchat v. Baltimore Ravens is one of the most vigorously litigated copyright cases of all time. No fewer than seven published opinions have emanated from the case, including three published appellate opinions. I was a little surprised and delighted to find that it’s still going strong. What’s better is the most recent opinion involves not one but two issues of fair use, which went different ways. The opinion (which I’m not linking to now) provides handy insight into the sticky question of what is fair use.

Play part of two of this edition of Is it…


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