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| DATE | 2020-04-24 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] fair use rules changes
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https://www.plagiarismtoday.com/2020/04/23/how-one-article-changed-fair-use/
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How One Article Changed Fair Use
By
Jonathan Bailey -
April 23, 2020
How One Article Changed Fair Use Image
In March 1994, the Supreme Court of the United States handed down one of
the most important decisions in modern copyright history: Campbell v.
Acuff-Rose Music
The case dealt with the band 2 Live Crew which, in January 1989, had
released the song Pretty Woman, a parody of the 1964 Roy Orbison song
Oh, Pretty Woman. Acuff-Rose Music, which held the rights to the
composition of the Orbison song, filed a lawsuit claiming that the 2
Live Crew version was an infringement.
Though the district court initially ruled in favor of 2 Live Crew, the
appeals court overturned that decision and said that the commercial
nature of the parody gave it a presumption of unfairness. That decision
was appealed to the Supreme Court, which was unanimous in ruling that
there was no such presumption and that the parody could be fair use.
The case was remanded to the lower court, where the case was settled and
the full terms were not disclosed.
The decision was a major turning point for copyright law, in particular
for fair use. The 1841 case Folsom v. Marsh is widely viewed as the
first fair use case and was the first decision to list the four factors
of fair use that we know today (though they wouldn’t be codified into
the law itself until 1976). The case put a heavy emphasis on the
commercialization or commercial harm of an alleged infringement, making
it the lead factor.
Campbell v. Acuff-Rose Music undid that or at least severely blunted it.
The commercial impact of alleged infringement was now just one of the
factors weighed and a new factor, transformativeness, was taking center
stage when determining fair use.
This shift has seen its share of both criticism and support, but one
element of the story that often gets lost (especially to those outside
of the legal field) is just how the decision was reached.
It’s very possible that the Campbell v. Acuff-Rose Music would have
turned out very differently if it had not been for one man who wrote one
very influential article on the subject of fair use. It’s an article so
prominent and important in fair use history that it was cited over a
dozen times in the Campbell decision.
That man is then-District Court Judge Pierre N. Leval and the article
was a 1990 piece in the Harvard Law Review entitled Toward a Fair Use
Standard.
One Article, One Big Impact
How One Article Changed Fair Use Image
As Terry Hart noted in his 2018 criticism of this article, the one thing
that has remained consistent about fair use is that it is extremely
inconsistent. It is a subject that is extremely divisive, even among the
greatest minds in copyright, and it’s a topic where the more one learns
and understands about it, the more difficult it becomes.
Leval, like many before and after him, was frustrated by fair use.
Having two of his decisions overturned by the Second Circuit, he wrote
the article in an attempt to create a new standard that he felt was more
just and could be applied with greater consistency. To that end, he
looked to the idea of transformativeness, saying quite bluntly that:
I believe the answer to the question of justification turns
primarily on whether, and to what extent, the challenged use is
transformative. The use must be productive and must employ the quoted
matter in a different manner or for a different purpose from the original.
Pierre N. Leval – Toward a Fair Use Standard
When he wrote the piece, he likely didn’t imagine that, just four years
later, the Supreme Court would pluck that idea out of his article and
apply it to what would become one of the most important fair use
decisions in U.S. copyright history.
Though we can’t know for certain if the Campbell case would have gone
differently without Leval’s article, the fact it was so heavily cited in
the court’s ruling indicates that it had a strong influence on the
justices and likely swayed the decision at least some.
And that influence would continue into the present day. Following the
Supreme Court’s decision, lower courts began to alter how they
approached fair use decisions. In 2011, law professor Neil Netanel
published an article in the Lewis & Clark Law Review entitled Making
Sense of Fair Use. That article presented data, captured since 2005,
that showed “the transformative use paradigm has come overwhelmingly to
dominate fair use doctrine, bringing to fruition a shift towards the
transformative use doctrine that began a decade earlier.”
Transformativeness, for better or worse, had become the dominant factor
in fair use discussions and that was owed largely to Leval’s article.
Criticisms of a Critical Shift
Leval’s intention with his article was to both bring greater certainty
to fair use and to create a more balanced fair use standard. To that
end, he was right to seek to improve the standard as fair use was not
only inconsistent, but the focus on commercial impacts made it so that
some parodies and commentaries, like the 2 Live Crew song, had little
chance of being even seriously examined as possible fair uses.
However, it’s up for debate as to whether Leval and the push to
transformativeness achieved that goal. Fair use is still wildly
inconsistent. For example, in July 2018, a Virginia district court ruled
that the permission-less use of images on a commercial website was a
fair use simply because the images were cropped slightly. That decision
was overturned by the Fourth Circuit but it still sent shockwaves
through the photography community and served as a reminder of how
unpredictable fair use cases can be.
Though the actual Campbell ruling doesn’t appear to be very
controversial, the transformative standard has been used tor each some
very divisive opinions. One of the prime examples is the 2013 case
Cariou v. Prince, in which an “appropriation artist” made use of images
taken by a photographer and minimally modified them. However, the Second
Circuit ruled that the modifications were adequate to be seen as
transformative and ruled the art to be fair use.
However, rulings such as Cariou can be blamed not on the
transformativeness standard itself, but rather, an overly broad
interpretation of it. Still, there’s not much doubt that a different
standard would have yielded a different result in the Cariou case.
Ultimately the strongest criticism likely comes from the Seventh
Circuit. There, in the 2014 case Kientiz v. Sconnie Nation LLC, a case
that dealt with the use of a photograph on a shirt, the court scolded
both sides for wasting so much time in debating how transformative the
use was noting that transformativeness is “not one of the statutory
factors.” Though the defendants ultimately won the case, it would not be
because the use was or was not transformative.
In short, despite the Supreme Court ruling, there is still significant
debate as to whether or not transformativeness is actually part of the
law or just a weird metric favored by some circuits. That alone shoots
down any of the consistency that one was hoping to get from this change
in direction.
Indeed, as time has gone on, frustration and confusion over the
transformativeness standard have only grown. As well-intentioned as it
might have been, it seems to be causing many of the same problems as the
previous standard.
Bottom Line
The story illustrates just how difficult fair use is. If any single
standard becomes too important, confusion and questionable rulings
become a serious problem. This harms everyone as creators are often
unsure what their rights are critics as well as others seeking to use
copyright-protected works can’t be certain what the boundaries are.
Fair use, works best when there’s a balance between all of the factors.
However, that creates its own problem as it’s easy for two reasonable
and intelligent people to look at the same set of facts and draw
different conclusions. A balance between the factors brings
inconsistency. However, focusing too heavily on one factor also brings
inconsistency as interpretations of that factor can also vary.
There’s simply no way to get consistency out of fair use without
bright-line rules. However, bright-line rules inevitably rob fair use of
the flexibility that’s one of its best traits. There’s simply no way to
have a fair use standard that is simple to understand, consistent in its
application and achieves the goals of fair use.
Fair use is hard. There’s no way around it.
As for Leval, I doubt that he was aware of the near-immediate impact his
article would have and how it would steer copyright moving forward. He
clearly had the best of intentions and the idea itself wasn’t a bad one.
Most of the problems with it are related to taking it too far and making
it too dominant, not necessarily giving transformativeness greater
consideration.
However, if you don’t like the current standard take some heart. It is
almost inevitable that fair use will shift again. After all, the only
thing consistent about fair use is its inconsistency. It is constantly
changing, even right now.
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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