A Legal Blog by Aaron | Sanders, PLLC

Is it Fair Use? Who’s on First (Copyright Fair Use Factor)?

Abbott and Costello Meet the Copyright Lawyer (1 1/2 Stars)

It’s time for another round of “Is it Fair Use?”, the fast-paced, heart-racing game that’s sweeping the nation. This episode of “Is it Fair Use?” features one of the classic skits of American Comedy: “Who’s on First?”

Pure gold. Most of us have this routine more or less memorized, and yet, even knowing all the jokes, the routine is never fails to make us laugh.

Along Came a Demonic Hand Puppet

Much more recently, a Broadway play, called Hand to God, about—if I’m understanding this correctly—a possibly possessed hand puppet, used about the first minute’s worth of routine. The play is about “an introverted student in religious small-town Texas who finds a creative outlet and a means of communication through a hand puppet, which turns into his evil or devilish persona.” It’s meant to be a “dark comedy.”

Early in the play, we get a sense of what we’re in for when the boy with the puppet tries to impress a girl by reenacting the “Who’s on First?” routine, between himself and the hand puppet. (The puppet naturally plays the Costello role.) After about a minute of the routine, pretty much verbatim, the girl…

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Oracle v Google (Part 2): Was it Fair Use?

Bringing Merger in Through the Side Door

This is part 2 in a series (of at least three posts). Part 1 is here.

Regular readers of the IP Breakdown—both of you—will recall a semi-regular feature called Is it Fair Use?, which is a fast-paced game in which I give you a lot of facts and an analogous (and often binding) case, and let you decide whether the use of the copyrighted work was a fair use or not. This game has been sweeping the nation for about four and a half years, apparently in layer of negligible thickness.

My point in this feature is that close fair use determinations are unpredictable because they are based on—at least—four fact-intensive factors that often end up as a kind of cultural value judgment. While many fair-use determinations are pretty easy, the ones that end up being decided by a court are usually pretty hard.

Juries Are Scary.

The fair use issue in Oracle v. Google represented a kind of triple witching. First, it involved fair use. Second, it went to trial. Third, it went to a jury trial. Twice. Most fair-use determinations seem to be made by judges, on summary judgment or even Rule 12(b)(6)—which…

We are Google. This is the Googleplex. The old rules don't apply to us. Also, these cute Android statutes rise at night and suck the innovation out of small companies. Photo by Runner1928.

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Richard Prince Is a Jerkface, but Don’t Blame Instagram

If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in” the thing you posted.

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap…

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

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Is it Fair Use? Do the TVEyes Have It?

Do the TVEyes Have It?

Welcome back to another episode of Is it Fair Use?, the fast-paced, brain-teasing game that’s sweeping the nation!

TVEyes charges $500 a month to monitor about 1400 television and radio stations, 24 hours a day, seven days a week, for certain keywords and phrases that are important to you. The service is invaluable to anybody that has to keep up-to-date on current events, such as politicians, public-relations firms, the military and law firms. It’s also useful to police and health departments for tracking how well their public messages are getting out: if the police issue an “Amber” alert, they like to know whether the report really is being reported adequately by the local media.

When you log on to your TVEyes account, you’re given a list of all instances where TVEyes detected the keyword or key-phrase. You can drill down on each instance by clicking on it. You’re then presented with a transcript showing the immediate context for the keyword and a thumbnail (if it’s a TV show) of an image of the show. If you click on that, your browser plays a copy of the broadcast, together with a running transcript, starting 14 seconds before the…


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

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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