So that is definitely one example of transformative fair use.
It's also important to note that the court didn't penalize-.
>> Mm, [INAUDIBLE].
>> The, [LAUGH] the publisher or the author for having asked permission-.
>> Mm. >> Even though they did not
end up paying that license fee to use these concert posters.
And as a matter of public policy, courts don't want to penalize someone for
asking permission.
>> Sure, makes sense.
>> Think of the impact of that if they had.
>> Yeah. >> You know,
then no one would ever ask for permission.
So it's just important to note, if you ask for permission, permission's denied or,
or a license fee that you think is, is much too high for, for your purposes or
your budget is levied, that doesn't mean you can't retrench,
as we've talked about before, and reconsider your use.
And reconsider maybe something else is, is more appropriate for your use.
So there's another more recent case, in 2013 that involved the musical,
Jersey Boys.
Which is a musical that I happen to have seen,
which was kind of interesting to then read a case about it.
But in that musical, they used a very short clip from the Ed Sullivan show.
>> Mm-hm. >> And the clip was really Ed Sullivan
introducing The Jersey Boys on the Ed Sullivan Show, so it was very small.
And when and obviously, commercial context,
they're selling tickets to The Jersey Boys.
So the owner of the rights in the Ed Sullivan Show,
SOFA Entertainment, sue Dodger Productions essentially saying you should have paid us
a license fee for use of this clip.
You know, we monetize clips from the Ed Sullivan Show regularly.
And the court found that, that short clip gave a biographical context, a historical
marker that it was a very short clip, and that it was a fair use in this case.
It did no harm to the original value of the Ed Sullivan TV Show,
and so this was another example of really the court finding fair use, and
another example where the context was commercial.
And, the most recent case worth noting is Prince v Cariou
which was a case of photography and photographs.
And so Richard Prince is an artist, he's a transformation artist,
he takes other people's works and makes them into, to new and different things.
And so he had taken some photographs by a photographer, Patrick Cariou,
who had spent time with the Rastafarians and had essentially published a book on,
on that experience with a number of photographs of Rastafarians.
Prince took those photographs, transformed them, made different
changes to them, and then was selling them as artworks.
And so, essentially, Patrick Cariou said you have,
you know, you've taken my art, you know and
used it without any, you know, monetary compensation to me for your own art.
And in that case the court found some of
the artworks that Prince had created were clearly transformative fair use, but
there were a few others that they were not certain about.
And so they remanded it,
sent it back down to the original trial court to kind of sort that out.
So I think it does show that sometimes how much transformation is enough
can be a hard thing to really determine.
>> Mm-hm.
>> And even judges have difficulty with that.
But since then the case has settled.
So they have, they have found a way forward between them and the,
the lower court will not actually be looking at those handful of photographs.
But it does show that, again, you know, transformative fair use can happen
even in cases where someone is taking someone else's creative work,
transforming it, and selling it, in this case-.
>> Mm-hm.
>> As art.
>> And that's really interesting, the decision that was made in that case,
because it shows us that the court is really digging into the details
of each individual illustration and each illu, individual photograph and
artwork to try and make a clean determination.
As I remember some people on the, there was a descent, I think,
one of the judges- >> Mm-hm.
>> Said, we should have decided all or none of them.
>> Yes.
>> But, in this case, the court said, no we're going to look at the details and
work this out.
And, of course, that's what we have to do when we're deciding what is or
is not a transformative fair use.
I always tell people that when they have to make that decision,
there are three key questions that they should ask themselves
in order to decide if my use is transformative.
That's not an end of a fair use analysis, but it's an important part of it.
And those questions are these.
Will the incorporation of the copyrighted material into my new work
help me make my new point?