Center for Internet Law – Portland

Recent Legal Developments

Fair Use of Copyrighted Material

Katz v. Google v. Chevaldina, U.S. Second Circuit, 802 F.3d 1178 (2015).
Second Circuit finds display of photo online “transformative” because purpose to “ridicule and satirize” and thus fair use.

Court finds use of photo online as “transformative”, contributing to holding of “fair use” because purpose of use was to ridicule and satirize. Court finds there was “altered purpose or context” of the work and thus fair use. Affirms fair use can be found even if no alteration whatsoever of original work used in its entirety. Continues broadening of fair use exception to rights of copyright holders.

Author’s Guild v. Google. U.S. Second Circuit, 2015 WL 6079426 (2015).
Creates exception to copyright protection on basis of contractual agreement by alleged infringer limiting future use of copied works.

Court upholds fair use rights of Google to create digital copies of Plaintiffs’ books, for library scanning purposes, which will reveal “snippets” of authors’ books relevant to  online searchs. Court bases decision, in part, on that contract between Google and libraries imposes restrictions on nature of uses by libraries. Extends fair use rights due to contractual provisions regarding use of copies made. Shifts focus from right to make copies to legal arrangement regarding future use of such copies, creating expansion of potential fair use rights.

Cariou vs. Prince. U.S. Second Circuit, 714 F.3d 694 (2013)
Foundational Second Circuit case affirming expanding “transformative use” exception to exclusive rights of copyright holders.

Court holds several of series of photographs altered by additions made by Defendant are transformative works, thus allowing fair use. Court employs test of whether “the original work is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings”. If so, the Court concludes, fair use rights will be deemed to exist.

Focuses on purpose and context of use and “message conveyed” by new use, rather than on extent of changes to work itself. Court additionally holds, however, that for several other photos in the same series questions still exist as to whether alterations made by defendant are sufficient to render new work “transformative.” Court holds also second relevant test is whether new secondary use “usurps the market”, or significant part of the market, for the original work. This can be a difficult test for plaintiffs to meet. Another step in expansion of fair use rights vs. rights of copyright holders.

Sofa Entertainment v. Dodger Productions. U.S. Ninth Circuit, 709 F. 3d 1273 (2013).
Ninth Circuit continues chipping away at copyright protections if new use deemed “transformative” and/or historical.

Court holds use of seven-second clip of Ed Sullivan television show introducing the Four Seasons in Jersey Boys Broadway musical is fair use because new context of use “ imbued the clip with a new meaning”, thus rendering it “transformative use” and because said use did not “usurp whatever demand there is for the original clip.” Court finds clip was used as “historical reference point” rather than for own entertainment value and fair use established on this basis as well. Court chooses not to address that Sullivan, the star of the clip, was himself an important entertainment celebrity and   footage of him may therefore have entertainment and commercial value and not merely historical reference value.

Seltzen v. Green Day. U.S. Ninth Circuit. 725 F.3d 1170 (2013)
Ninth Circuit foundational case in recent scaling back of copyright protection if new use is “transformative.”

Musical group Green Day used video containing image of drawing “Screaming Icon” as backdrop for Green Day performances. Court holds Green Day’s use of Screaming Icon is “transformative” because drawing used in different context as mere “raw material” for video and “message and meaning” of drawing itself is different than that of video, despite that drawing is on-screen for entire duration of video. Court finds video conveys “new information, new aesthetics, new insights, and understandings” that are “plainly distinct from those of the original piece” despite that video-makers have made no actual changes to the original work itself.

Court holds, in addition, Green Day’s use of Screaming Icon was only “incidentally commercial” despite that drawing used as central part of video background for seventy live Green Day shows as well as shown throughout Green Day’s performance on televised awards show. Court maintains that drawing’s use in video did not impact the primary market for the drawing or its value in that market. Another step in expansion of fair use rights at expense of copyright holders.

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