A Legal Blog by Aaron | Sanders, PLLC


Is it Fair Use? Lovelace, Deep Throat and Transformative Uses

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Is it Fair Use?

We haven’t played Is it Fair Use? since we started the IP Breakdown (though we had several editions on our firm site). If you aren’t familiar, it’s the fast-paced game that’s sweeping the nation where I present you the facts of a recently decided copyright or trademark case, and you guess how the court ruled on the issue of fair use. You’re usually better off just flipping a coin than trying to work through any kind of analysis, because fair use is usually pretty much unpredictable.

This edition of Is it Fair Use features the notorious pornographic feature Deep Throat, which is best known for lending its name to Bob Woodward and Carl Bernstein’s crucial inside anonymous source during their Watergate muckraking. It also resulted in what I believe is the only conviction of an actor for criminal obscenity

The Linda Lovelace Puzzle

Confession: I’ve never seen the movie, nor have felt any compelling reason to do so. It’s sometimes called a “classic,” by which I think people mean it’s a terrible movie but had a certain cultural impact. And I’m old enough to remember its cultural impact. Along with a few other pornographic movies from the early 1970’s,…

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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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