How to Copy "Right" (And How Fair Use Decides We're Not "Wrong")

Dilemma

What case law has to say about it

Celebrity blogger, Perez Hilton, enhances copyrighted pictures of celebrities and posts his versions of the pictures on his blog. 

Perfect 10, Inc. v. Google, Inc. et al. (2005): Collecting copyrighted images and displaying altered copies of the images in a public forum does violate the “fair use” clause of copyright law.

A teacher distributes fifty copies of a copyrighted poem to her class.

MacMillan Co. v. King (1914): “Fair use” doctrine does allow for the free distribution of academic works in classrooms for educational purposes, provided that the copies are not sold for profit or reprinted.

A man videotapes a popular sitcom in his home and later makes copies of the tape for several friends. 

Sony Corp. of America v. Universal City Studios, Inc. (1984): Television shows are broadcast on public airwaves and recording material from public airwaves using at-home equipment does not violate copyright law. Further, distributing those recordings does not violate “fair use” terms because they are of inferior quality to that of the original.

“Weird” Al Yankovic parodies Chamillionaire’s “Ridin’ Dirty” in his song, “White and Nerdy.”

Harper and Row Publishers Inc. v. Nation Enterprises (1985): If a derivative work diminishes the market for the primary work by taking directly from that primary work, then “fair use” has been violated. However, if a derivative work encompasses elements of the primary work (as with a parody) but does not substantially draw from the material of that work, then the derivative work is within the scope of “fair use.”

What the undergraduates think

What the legal literature says

“I think ‘fair’ and "fair use" are achieved by using or borrowing another's work, with credit, in a way that complicates or furthers your own work . . . I suppose my real issue with 'fair' is that it feels like it ought to be respectful . . . I think we are following pretty closely the prescription of the Constitution, and to it more closely would require a loss of our freedoms” - FatCatRex

“The statutory listing of preferred uses [under the fair use doctrine] includes . . . criticism, comment, news reporting, scholarship, and research . . . [and] teaching” (Duke Law Journal 99).

“First Amendment speech ‘is often not reasoned or evenhanded, but slashing and one-sided.’ As a result, free speech and fair speech are not interchangeable concepts. They are concepts at war . . . [F]ree and fair speech are two very different things – at least when state actors are put in charge of determining what speech counts as fair” (Rubenfeld 18).

 “I do not think that everything in our culture has an owner.  Individuals should be compensated for their time and ideas, but to some point it becomes excessive . . . Sometimes I wonder what the signers of the U.S. Constitution would think about society using the Constitution as a tool to moderate monetary compensation in pop culture.” - veritatemdilexi

“Copyright’s fair use exception is largely ‘econocentric’; it is organized to a considerable extent around the idea of fairness to the copyright owner’s economic interests . . . [I]n determining whether a given expression of opinion was fair, judges or juries are to consider whether the opinion was expressed for commercial purposes; whether it referred to [the original work] no more than necessary; and most important, whether it advanced a rival intellectual property scheme that might serve as [the original work’s] substitute in the market” (Rubenfeld 19-20).

“[In the example of Rhianna using Soft Cell’s musical arrangement, Soft Cell] shared their musical patterns with Rihanna. The artists do not seem to mind . . . this use . . . however to listeners and fans, it may be upsetting to hear that Rihanna used someone else's music to enrich her own lyrics. The lack of total originality is what seems to be unfair to outsiders, but not to the actual artists involved . . . It happens in all forms of media, such as novels and movies.” – thatcaliforniagirl13

“If the initial inquiry shows that non-consensual use has cause no diminution in demand [of the original work], the use will be fair, thus eliminating the need to consider the nature of the use. However, if diminution in demand occurs, the nature of the use must be considered to determine whether the economic interest of the copyright holder is to be subordinated . . . [A court must decide] whether or not the nature of the use justifies a diminution in demand.” (Duke Law Journal 96).

“The law can do a lot but part of the problem I feel is that almost every problem is a new problem. There's not enough precedence for dealing with these new copy-right situations. To start with I don't think we've done enough to establish the level to which authors (actors, singers, artists) have control or ownership. If we could establish the parameters of authorship we could establish the transgressions.” – AyaSeaver (via Facebook)

“[Some] argue that the fair use doctrine should be significantly narrowed because digital technology improves a copyright owner’s ability to commodify intellectual property, making it more like tangible property, and reduces the transaction costs associated with bargaining and enforcement . . . [C]opyright [is] a bargain between the public and copyright holders. . . [and] copyright’s current expansion has myopically focused only on the copyright holder’s side of the bargain. . . If copyright [were to] expand, that expansion should reflect what the public considers to be legitimate works of authorship . . . [We must] ‘stop defining copyright in terms of reproduction’ and focus instead on commercial exploitation” (Ku 281, 285).

Recommendation

Possible Complications

We need to quantify fair use doctrine in that we need to be able to measure how much of a work can be taken from its original format and added to a new work to still allow that new work to have a different format than that of the original work.

Since there are so many types of media, quantifying fair use would involve deciding where infringement lies within the context of each individual type of media. It would be difficult in deciding how to equate, for example, how much of a text could be fairly put into another textual work in light of how much of an audio track could be fairly added to another musical work. Further, some types of media would be difficult – if not impossible – to quantify due to the great variation of subcategories of media within one “type.” If we decided that no visual work could include more than twenty seconds of another visual work, for example, questions like, “What if the original work was twenty seconds long, and the derivative creator then used the entire original work?” would most definitely arise. When considering the possibility of quantifying the amount of media that can be fairly taken, perhaps each amount would have to be considered on a case-by-case basis; however, if this were the fact, then the problem of subjectivity in copyright law at the judicial level would still undeniably exist.

The language of the fair use doctrine itself has to be decoded. We must define what “novel” means, where ideas and expressions differ, and how the public (and not just the copyright owner) benefits from being able to compile past works in a new medium.

Section 101 of the U.S. Copyright Law presents definitions necessary for understanding the law, yet it leaves out those words that can be subjectively interpreted. While the problems associated with fair use are mostly found in its language, the question of whether or not we are able to agree on a definition that would eliminate some of the subjectivity surrounding the doctrine remains. As veritatemdilexi stated in her response to my survey, the words “fair” and “unfair” are polarizing. Adding definitions to subjective words in this law would polarize it even further, thus giving more power to the law and less power to the deciding nature of the courts. With more polarization in the fair use doctrine, we risk running into the problem presented by Rubenfeld; fair use could jeopardize free speech.

OR We need to eliminate the polarizing terms in the fair use doctrine and develop a system that allows for a spectrum of cases to be considered on an individual circumstantial basis.

Wait . . . isn’t this what we’ve attempted to do? Although in the end of each case, one person “wins” and the other “loses,” and polarizing terms have certainly not been eliminated from fair use case law, each case is evaluated in light of its own circumstances and impacts. Is it possible that fair use would be more effective if we made it more subjective? If we completely eliminated “winners” and “losers,” perhaps we would make compilation and collaboration more appetitive, and perhaps more creations would arise. This would certainly benefit the public, but then the problem once again becomes: how do we protect the original creator of the work?