Post on 17-Aug-2020
transcript
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Obtaining Fair Use Clearance for Copyrights Making Tough Calls on Fair Use, Deciding Whether/When to Exclude Content,
Weighing Licensing Options, and Leveraging E&O Coverage
Today’s faculty features:
WEDNESDAY, SEPTEMBER 9, 2015
Jennifer L. Elgin, Of Counsel, Wiley Rein, Washington, D.C.
Joshua I. Schiller, Partner, Boies Schiller & Flexner, New York
Jon Tandler, Member, Sherman & Howard, Denver
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Tips for Optimal Quality
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-570-7602 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail sound@straffordpub.com immediately so we can
address the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
In order for us to process your continuing education credit, you must confirm your
participation in this webinar by completing and submitting the Attendance
Affirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you email
that you will receive immediately following the program.
For additional information about CLE credit processing call us at 1-800-926-7926
ext. 35.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
5
Fair Use and Clearances
Stafford Publishing Webinar
September 9, 2015
Jon R. Tandler
Sherman & Howard L.L.C.
jtandler@shermanhoward.com
6
Exclusive Rights of Copyright
Exclusive Rights of Copyright – Section 106 of Copyright Act
“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”
7
• Copyright Clause of the U.S. Constitution
–Congress has the power “. . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (U.S. Const., Art. 1, §8, c. 8).
• First Amendment of the U.S. Constitution
–“Congress shall make no law . . . abridging the freedom of speech, or of the press.” (U.S. Const. Amend. I)
Exclusive Rights vs. Freedom of Speech
8
• Balance Between Exclusive Rights and Free Speech
− There must be a constitutional balance between the
Copyright Clause and First Amendment interests, in
order for the two to co-exist:
• Copyright interest
- Necessary to promote the interests of
creators for the common good
• Free speech interest
- Necessary to democracy
Exclusive Rights vs. Freedom of Speech
9
Balance Between Exclusive Rights and Free Speech
The balance is based upon the distinction between an idea, and the expression of that idea.
• Idea = free speech (ideas are not protectable under copyright law)
• Original work of = copyrightable expression authorship fixed in (protectable under copyright law) a tangible medium
Fair use attempts to balance one’s use of another’s protected copyrighted expression in order to advance one’s ideas.
The balance is difficult—so is fair use!
Exclusive Rights vs. Freedom of Speech
10
Fair Use – Affirmative Defense to Copyright Infringement
10
Under Section 107 of the Copyright Act, the fair use of a copyrighted work,
for "purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include—
(i) The purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
(ii) The nature of the copyrighted work;
(iii) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(iv) the effect of the use upon the potential market for or value of the
copyrighted work.”
These factors are non-exclusive and illustrative.
11
Fair Use - The Four Factors
1. Purpose and Character of the Use, Including Whether Commercial or Non-Profit.
The primary focus of a court’s inquiry is the extent to which the new work is transformative, in that it adds something new or synergistic to the original work; does the new work alter the first with “new expression, meaning, or message…”; the more transformative, the less significant other factors like commercialism. Campbell v. Acuff-Rose Music, Inc.
12
Fair Use - The Four Factors
2. The Nature of the Copyrighted Work.
- More creative the work = more copyright protection/less susceptible to fair use treatment,
- More factual, informational or functional the work = less copyright protection/more susceptible to fair use treatment.
12
13
3. The amount and substantially used in relation to the copyrighted work as a whole.
- Proper analysis here includes qualitative and quantitative
determinations, including whether material taken is the “heart of the work.” Harper & Row Publishers v. Nations Enterprises.
- Debunk the myths (there may be more):
Anything less than _______ words is fair use
Anything less than _______ seconds of a sound clip is fair use.
Fair Use - The Four Factors
14
14
4. Effect of Use Upon the Potential Market For or
Value Of the Copyrighted Work.
Effect on market (including potential market) for
copyrighted work, is “undoubtedly the single most
important element of fair use.” Castle Rock
Entertainment v. Carol Publishing Group.
Fair Use - The Four Factors
15
• The copyright owner owns the exclusive rights of copyright, and thus has the sole legal ability to grant third parties permission to exercise one or more of these exclusive and divisible rights.
• In counseling clients, the first questions are: Does the proposed use infringe upon or violate one of the exclusive rights of a copyright owner and, if so, will the use be eligible for fair use treatment under Section 107?
Copyright and Fair Use
16
A permission or clearance is the instrument or agreement by which the owner of a copyrighted work expressly grants permission to a third party to exercise one or more of the owner’s exclusive rights under Section 106 of the Copyright Act.
Permissions and Clearances
17
Permissions and clearances
• Provide protection against intellectual property infringement
claims;
• Facilitate learning about the origin of content and proper and
accurate attribution;
• Enable the grantee (the party obtaining the clearance) to use
third party content aligned with the grantee’s intended scope
of usage;
• Provide a legal record; and
• Satisfy media perils insurance underwriters’ requirements.
Permissions and Clearances - Functions and Project Planning
18
If a required clearance is not obtained, the infringer can be sued in a state or jurisdiction where the infringer does not reside or do regular business. Adverse consequences include:
• Violation of the law
• Publication ceased
• Distraction of management time
• Defense fees and costs
• Financial liability for actual damages, statutory damages and attorneys' fees
• Embarrassment and frustration
• Increased cost of or difficulty in obtaining insurance
Permissions and Clearances – Functions and Project Planning
19
Parties prepare permissions with various degrees of complexity and thoroughness. They should be customized to fit the facts of a particular situation, satisfy parties’ legal and business requirements, and reflect industry custom and practice. They should be tailor made.
Permissions and Clearances – Functions and Project Planning
20
Potential Rights Holders
It will likely require diligence to ascertain from whom a permission or clearance must be obtained. Potential rights holders:
• an author, lyricist or composer;
• a publisher or exclusive licensee;
• an artist;
• a musician or lyricist;
• a photographer or stock photo agency;
• a website proprietor;
Permissions and Clearances – Rights Holders
21
Potential Rights Holders
• a newspaper or magazine;
• a software publisher or developer;
• a music studio or record company;
• a music publisher;
• an estate, heir, or descendant of a copyright owner who was a person;
• an assignee or licensee of any of the foregoing; or
• a collective rights organization .
Permissions and Clearances – Rights Holders
22
Examples of items to specify in a grant of rights include whether the grant:
• is worldwide or has territorial restrictions;
• is exclusive or not;
• is perpetual or has limitations on term;
• what media it is for - print, electronic (all forms of media, whether now known or hereafter devised);
• is for audiovisual, dramatic or entertainment;
• includes the right to slice and dice content, and/or to use it in a
database or other compilation;
• includes the right to use content for promotional purposes; and
• includes the right to assign or sublicense rights granted.
Permissions and Clearances – Grant of Rights
23
Properly obtaining necessary permissions can become a pacing item, which, if not timely completed, can delay project completion and publication or release. Evaluate early on:
• components of a project and what third-party content will be utilized;
• what content will need to be cleared or licensed;
• how difficult or not it will be to obtain the permission at issue – what you want to use may be too expensive or subject to unworkable restrictions.
Get started early!
Permissions and Clearances – Final Note
24
Your Presenter
Jon Tandler is a Member of Sherman & Howard L.L.C., a
super-regional law firm headquartered in Denver,
Colorado, and practices intellectual property, publishing,
information technology and business law.
Jon has been privileged to work on the legal aspects of
publishing and information technology for twenty-eight
years, and regularly teaches legal and other professionals
about these unique disciplines.
© 2015 Jon R. Tandler.
Fair Use in a New Media World
Stafford Publishing Webinar
September 9, 2015
Jennifer L. Elgin
Wiley Rein LLP
Fair Use – A Reminder
The purpose and character of the use, including
whether such use is of commercial nature or is for
nonprofit educational purposes;
The nature of the copyrighted work;
Amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
The effect of the use upon the potential market for
or value of the copyrighted work.
Defense to BOTH Direct and Secondary Liability
26
Shifting of Content in Time: Sony
Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. 417 (1984) 27
Accepting Space Shifting: Diamond Multimedia
RIAA v. Diamond Multimedia Systems,
180 F.3d 1072 (9th Cir. 1999)
• Personal copying of MP3 files
directly from a computer by Rio’s
device is “paradigmatic non-
commercial personal use entirely
consistent with the purposes of
the Act.”
• Under Sony, the “space-shifting”
of sound recordings is acceptable
and protected under the fair use
doctrine.
28
Rejecting Space Shifting: Napster
A&M Records, Inc. v. Napster, Inc.,
239 F.3d (9th Cir. 2001)
• Shift to a digital format may have
been a personal storage use BUT
• Accompanied by making the file
available to the rest of the
system’s users.
29
Rejecting Space Shifting: MP3.com
UMG v. MP3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000)
“This is simply another way of
saying that the unauthorized copies
are being retransmitted in another
medium – an insufficient basis for
any legitimate claim of
transformation. . . . Here, defendant
adds no new ‘new aesthetics, new
insights and understandings’ to the
original music recordings it copies,
but simply repackages those
recordings to facilitate their
transmission through another
medium. While such services may
be innovative, they are not
transformative….”
30
The First DVR: ReplayTV
Paramount Pictures, Corp. v. Replay TV, Inc.,
No. 2:01-CV-09358 (C.D. Cal. Oct. 31, 2001)
31
Network (Remote Storage) DVRs: Cablevision I
Distinguished Sony
• Not a single piece of equipment
• “Under the hood" the two types of
DVRs are vastly different
• Ownership of the RS-DVR STB
remains with Cablevision and
requires a continuing relationship
• More participation in copying by
Cablevision
• More like a VOD service than a
VCR
• Cablevision has more control over
content
• Conclude: copying done by
Cablevision not customer
Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 478 F.
Supp. 2d 607 (S.D.N.Y. 2007) (Chin, J.), rev’d on other grounds sub nom., Cartoon
Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). 32
Skipping Forward: Fox v. DiSH
Fox Broad. Co., Inc. v. Dish Network LLC, 723 F.3d 1067 (9th Cir.
2013) (“Fox I”)
In re Autohop Litigation, No. 12 Civ. 4155 (S.D.N.Y. Oct. 1, 2013)
• Time-shifting is fair use under
Sony
• Fox did not show that if the
use became widespread, it
would adversely affect
the potential market for the
copyrighted work, although
9th Circuit found that a
secondary market did exist.
33
Skipping Forward: Aereo
American Broadcasting v. Aereo, Inc.,
134 S. Ct. 2498 (S. Ct. 2014)
• Supreme Court did not address
any defenses, including a fair use
claim - “the doctrine of ‘fair use’
can help to prevent inappropriate
or inequitable applications of the
Clause” – citing Sony
• Decision covered only near-live
transmission
• Dissent: Time-shifting not
be subject to court’s analysis
• Remand: Aereo argued
injunction should not cover
time shifting
34
Skipping Forward: Fox v. DiSH II
Fox Broad. Co., Inc. v. Dish Network LLC,
Case 2:12-cv-04529 (C.D. Cal. Jan. 20, 2015)
• Both time-shifting AND
space-shifting of the copies
that were legally created as a
result of Dish’s licensed
public performances are a fair
use
• QA copies not fair use
35
Where Does That Leave Us?
36
Fair Use in a New Media World
Jennifer L. Elgin
202-719-7453
jelgin@wileyrein.com
www.linkedin.com/in/jenniferelgin
@jenelgin
Obtaining Fair Use Clearance for Copyrights
September 9, 2015 Joshua I. Schiller
Partner Boies Schiller & Flexner
jischiller@bsfllp.com
38
Fair Use Defined
Factors from 17 U.S.C. § 107 • (1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• (4) the effect of the use upon the potential market for or value of the copyrighted work.
39
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)
• Case centered on 2 Live Crew’s parody of “Oh, Pretty Woman” by Roy Orbison & William Dees
• The Supreme Court considered how transformative the work should be to qualify as fair use and whether parody could be fair use even if it did not comment on the copyright work itself
40
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)
The Supreme Court held:
• Commercial nature of a parody is not dispositive in finding fair use.
• Parody must be able to “conjure up” at least enough of the original to make the object of its critical wit recognizable.
The Campbell decision set the stage for modern fair use analysis.
41
Seltzer v. Green Day, Inc. 725 F.3d 1170 (9th Cir. 2013)
Case concerned Green Days’ use of the “Scream Icon” during concert performances as part of the stage design.
Scream Icon Green Day Stage
42
Seltzer v. Green Day, Inc. 725 F.3d 1170 (9th Cir. 2013)
The Ninth Circuit held that Green Day’s use of the “Scream Icon” was fair use, adding that the four factors must be applied holistically, “in light of the purpose of copyright.” • Factor 1 (Purpose): Green Day used “Scream Icon” as “raw material” in its
own original, expressive work.
• Factor 2 (Nature): “Scream Icon” is a creative work, weighing in favor of infringement.
• Factor 3 (Amount): “Scream Icon” was used in its entirety, but also wasn’t “meaningfully divisible.”
• Factor 4 (Effect): “Scream Icon” was publicly available street art whereas
Green Day used it as stage dressing for one song.
43
Cariou v. Prince 714 F.3d 694 (2d Cir. 2013)
Case concerned appropriation artist Richard Prince’s use of photographs from Yes Rasta (by Patrick Cariou) in a series of collage paintings that Prince called “Canal Zone”
(Examples on following slides)
44
Cariou v. Prince 714 F.3d 694 (2d Cir. 2013)
Cariou’s Photographs Prince’s Art
45
Cariou v. Prince 714 F.3d 694 (2d Cir. 2013)
Cariou’s Photograph s Prince’s Art
46
Cariou v. Prince 714 F.3d 694 (2d Cir. 2013)
• The Second Circuit found that 25 of the 30 “Canal Zone” works at issue were fair use as a matter of law.
• The Court remanded for further proceedings as to the other five works.
• “The ultimate test of fair use is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” (internal quotation marks omitted)
47
Cariou v. Prince 714 F.3d 694 (2d Cir. 2013)
As with Cambell and Seltzer, the Second Circuit applied the Fair Use factors in a holistic manner:
• Factor 1 (Purpose): The “Canal Zone” transformed Cariou’s photos because “the
reasonable observer” would perceive them as adding new and original meaning to the Yes Rasta photos.
• Factor 2 (Nature): Cariou’s photos were creative works, weighing in favor of infringement.
• Factor 3 (Amount): Differed from painting to painting, but secondary/fair use is allowed to “conjure up at least enough of the original to fulfill its transformative purpose.”
• Factor 4 (Effect): Consider whether the work at issue “usurped” the market for the original (i.e., whether “target audience and the nature of the infringing content is the same as the original”).
48
Authors Guild, Inc. v. Google Inc. 954 F. Supp. 2d 282 (S.D.N.Y. 2013)
The case concerned the digital reproduction of copyright books (i.e., the “Google Books” case).
The Court ultimately decided that Google’s actions were fair use.
49
Authors Guild, Inc. v. Google Inc. 954 F. Supp. 2d 282 (S.D.N.Y. 2013)
The S.D.N.Y. applied the fair use factors holistically: • Factor 1 (Purpose): Google Books is “highly transformative” since it not only digitizes
the books, but presents them to users so that they may search through them, mine data from them, and otherwise analyze the books in ways that hard-copy tomes are not usually analyzed.
• Factor 2 (Nature): Since the “vast majority” of books in Google Books are non-fiction, published, and available to the public, this factor weighs in favor of fair use.
• Factor 3 (Amount): Google Books uses as much of the books as necessary to achieve its intended purposes (i.e., to provide full-text books for searching and analysis).
• Factor 4 (Effect): Google Books does not usurp the market for the hard-copy books themselves; if anything, it can bolster readers’ awareness of the works, thereby encouraging them to make a purchase. “Google does not sell its scans, and the scans do not replace the books.”
50
Kienitz v. Sconnie Nation LLC 766 F.3d 756 (7th Cir. 2014)
The case concerned a poster incorporating a photo of a politician (taken by Michael Kienitz) into a graphic for t-shirts sold by Sconnie Nation.
51
Kienitz v. Sconnie Nation LLC 766 F.3d 756 (7th Cir. 2014)
The Seventh Circuit held that Sconnie Nation made fair use of the photograph, applying the four factors holistically:
• Factor 1 (Purpose): Sconnie Nation used the photograph for commercial purposes.
• Factor 2 (Nature): The photographer did not argue that the t-shirts devalued the work, since it was licensed for free for public display.
• Factor 3 (Amount): Defendants used only the bare minimum of the photograph (i.e., stripping the background, recoloring it, and essentially evoking only the monotone visage of the politician).
• Factor 4 (Effect): There was very little effect since a “t-shirt or tank top is no substitute for the original photograph” and the photographer had no plan to license his work for apparel.
Significantly, the Seventh Circuit disagreed with the Prince decision’s approach to Fair Use, suggesting that the Second Circuit relied too heavily on whether a use was “transformative,” which (according to the Kienitz court) was not a factor in the Fair Use analysis.
52
North Jersey Media Group Inc. v. Pirro 74 F. Supp. 3d 605 (S.D.N.Y. 2015)
Case concerned a facebook post for a Fox News show commemorating 9/11 with a combined photograph of first-responders raising a flag at ground zero and the photo of the flag-raising at Iwo Jima.
53
North Jersey Media Group Inc. v. Pirro 74 F. Supp. 3d 605 (S.D.N.Y. 2015)
Court held that work was not fair use; factual questions persisted. • Factor 1 (Purpose): There was only a minimal alteration to the original
photograph, and inclusion of “#neverforget” beside the image in the facebook post was insufficient to add any additional meaning.
• Factor 2 (Nature): The photograph was taken and published for news-gathering purposes, therefore weighing in favor of fair use.
• Factor 3 (Amount): Fox News used as much of the photo as they
needed to in order to comment on 9/11.
• Factor 4 (Effect): Fox News’ use of the photograph poses a risk that others may just seek to use the combined 9/11 & Iwo Jima images instead of paying to license the photograph.
54
North Jersey Media Group Inc. v. Pirro 74 F. Supp. 3d 605 (S.D.N.Y. 2015)
Court held that work was not fair use; factual questions persisted. • Factor 1 (Purpose): There was only a minimal alteration to the original
photograph, and inclusion of “#neverforget” beside the image in the facebook post was insufficient to add any additional meaning.
• Factor 2 (Nature): The photograph was taken and published for news-gathering purposes, therefore weighing in favor of fair use.
• Factor 3 (Amount): Fox News used as much of the photo as they
needed to in order to comment on 9/11.
• Factor 4 (Effect): Fox News’ use of the photograph poses a risk that others may just seek to use the combined 9/11 & Iwo Jima images instead of paying to license the photograph.
55