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Transformative Fair Use, Part 2
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Из курса от партнера Duke University
Copyright for Educators & Librarians
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Understanding and Using Fair Use
Fair Use is one of the most powerful aspects of U.S. copyright law for educators and librarians. In this module, we help students define Fair Use and understand where and in what contexts the law applies. We also address international aspects of copyright.
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Kevin Smith, M.L.S., J.D.Former Director, Copyright and Scholarly Communication
Duke University Libraries
Lisa A. Macklin, J.D.,M.L.S.Director, Scholarly Communications Office
Robert W. Woodruff Library, Emory University
Anne Gilliland, JD, MLSScholarly Communications Officer
University Libraries, The University of North Carolina at Chapel Hill
So let's look at some additional court cases as you say Campbell was really
the cornerstone as a Supreme Court case in 94.
But we've had other cases since.
One is Bill Graham Archive v Dorling Kindersley.
A case from 2006 where the court found a transformative fair use for
the use of Grateful Dead posters in a coffee table book about the Grateful Dead.
And the posters were held in the Bill Graham archive and
the publisher had asked for permission to use those posters.
And I believe a license fee was, was going to be charged.
And the publisher and the author decided to go ahead,
use much smaller versions of those concert posters in
this book really as historical references for this history of the Grateful Dead.
And after the book was published, the archive sued, but
the court found that this really was a transformative fair use.
Again, these small renderings of these concert posters in this
coffee table book about the Grateful Dead in no way would substitute for
having those concert posters.
And the reason the concert posters were created was to advertise the concert.
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?
Will the incorporation of this copyrighted material help my readers or
viewers get that point?
And have I used no more than is necessary for me to make that point?
So it's very much about what I want to communicate in my new work, and
how the copyrighted work that I'm incorporating serves that purpose.
That's really, I think, the key to the transformation.
And then there's always that Goldilocks question, is the amount just right?
>> [LAUGH] That's very true.
>> I think when we look at those questions it's really clear why the transformative
analysis is so important for education.
Because, well if you think about,
I think I've talked about a quotation before is the paradigm of fair use.
That you know, taking that short text from somebody else's work and incorporating
into my article, my new book, is classic fair use and something we do every day.
But it really is sort of a paradigm of transformative fair use.
Because that other material is becoming a key component for my book.
And my book or my article is good
insofar as it really incorporates that and makes it part of a new argument.
I comment on it, I criticize it,
I use it as a building block- >> Mm-hm.
>> For something new that I'm saying.
And my work is less good if I just stick it in there and
don't say anything about it.
So the analysis of what is good transformative fair use practice,
is really an analysis of what is good teaching, good scholarly presentation.
How much do I need this thing, and why?
I sometimes say to people, you know,
they say I want to use some music as the background of a video.
>> Mm-hm. >> Or I want to use this picture as
an illustration.
And I say to them, do you need that particular picture?
Or is any particture, picture of a cat good enough?
Do you need that particular music, or
is any piece that has a nice beat good enough?
And if their answer is,
well, you know, I just need a picture of a cat, I just need some music, then I say,
let's go find something that's got a Creative Commons license.
>> Right.
>> But, if they can articulate why this particular thing is important for
my argument, then I say that's a transformative fair use.
>> Mm.
>> In fact, I had an example of this I was helping somebody prepare
an online course and they wanted to use an entire nine minute video clip,
it was a skit by Monty Python.
>> And of course, very funny and sort of lightened the mood of the class,
but did they need the whole nine minute clip?
And the answer really was they didn't.
>> Mm.
>> So actually, what we did in that case, it was an online course, we could link out
to the, the clip on an authorized site,
and we knew it was an authorized site, Monty Python has their own
video channel on YouTube, so we knew it was an authorized site.
We could have the students watch the entire video by linking out, which is
always legally safe, by linking out to this authorized copy, and then come back.
And in the lecture we incorporated four very short clips, about 20 seconds each,
of the specific points that the professor wanted to talk about.
And that, I think, made his lecture smoother.
>> Mm-hm.
>> And we had a much better argument because the specific amounts that we used
were necessary for his argument, we had a much better argument for
transformative fair use.
>> Well I think that's a great example,
Kevin, of kind of going into your bag of tricks, if you will.
>> Mm-hm.
>> To find a solution- >> Right.
>> To a problem, that it's always not, it's not always all or nothing.
>> That's right.
>> Sometimes it's some of this, linking, and sometimes it's some of
actually incorporating and, and relying on, on fair use.
>> On a general level that's something I often remind my colleagues and
the people that I work with.
My job as a lawyer working in the library is not to say no, and
it's usually not to say absolutely yes.
It's to say, let's find a way that we can do what you need to do
in the way that is most clearly legal or lowest risk.
>> Yeah.
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