Copyright and Fair Use Generally
The Constitution authorizes Congress 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.” It is a matter of dispute whether copyright protection of the work of one artist, author, or composer restricts the freedom of expression of another who wishes to copy, criticize, or parody that work. The courts have tried to emphasize that copyright law is intended to complement rather than collide with the freedoms guaranteed by the First Amendment. Copyright law seeks to perpetuate freedom of expression and the exchange of ideas in many ways:
- Copyright law is designed to protect specific expression of ideas rather than the ideas themselves. Thus, nobody can have a monopoly on ideas under copyright law. This is called the idea/expression dichotomy.
- Fair use is a statutory exemption to the rights granted by copyright law. It is a defense to activity that would otherwise be considered infringement. The doctrine permits the use of copyrighted works for many purposes, including scholarship, journalism, criticism, commentary, or parody (if the parody specifically criticizes or comments on the copyrighted work itself and not just on society in general). The inquiry of whether a particular use is “fair” is determined largely by the particular facts of each case. Judges, therefore, are instructed to consider the following non-exhaustive set of factors in determining whether “fair use” applies:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the 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.
- The first sale doctrine is another limitation on the exclusive rights granted by copyright. The doctrine allows lawful owners of copies of a work to share, resell, give away, or otherwise distribute them.
- The public domain is our shared cultural heritage, comprised of works that are not protected by copyright. Works in it can be used or appropriated by anyone without liability for infringement. Works that are presently in the public domain include works published in the United States before 1923, federal government publications, and established facts.
Recently, Congress extended the United State’s copyright terms again, thereby keeping material out of the public domain for an even longer period of time. The Supreme Court upheld Congress’ power to do so in the 2003 case of Eldred v. Ashcroft. Today, the duration of copyright in the United States is as follows:
- Single authorship: author’s life plus 70 years.
- Joint authorship: last surviving author’s life plus 70 years.
- Works for hire (i.e. a work produced by an employee within the scope of his or her employment or by an independent contracts under a written agreement) and anonymous and pseudonymous works: 95 years from publication or 120 years from creation, whichever is shorter.
- Generally, works created after 1922 but before January 1, 1978, if their copyright registrations were properly renewed, are protected for 95 years, but not necessarily.
Go to http://www.copyright.gov for further information on what works are protected by copyright and how to secure a copyright.
Blanch v. Koons--A fashion photographer sued Jeff Koons over his use of her image.
Campbell v. Acuff-Rose Music, Inc.--2 Live Crew sampled Roy Orbison's "Pretty Woman." The owner of the copyright sued the band for copyright infringement.
Cariou v. Prince--Cariou sued Richard Prince for the use of his photographs in Prince's work.
Garcia v. Google--An actress has no copyright claim to a film clip of her performance that is later doctored and used in a longer movie.
Hoepker v. Kruger--Hoepker sued Kruger for copyright infringement and invasion of privacy for using some of Hoepker's photographs in her works.
Kienitz v. Sconnie Nation--In finding fair use of a photograph that was altered for an apparel image, the court criticized the “transformative use” analysis in Cariou v. Prince and instead applied the statutory four-factor test.
Leibovitz v. Paramount Pictures Corp--Leibovitz sued Paramount for using one of her photographs to promote the release of a movie.
Mattel Inc. v. Walking Mountain Productions--Mattel sued Tom Forsythe over his series of photographs "Food Chain Barbie" for copyright infringement of Barbies.
Rogers v. Koons--Rogers sued Koons over the appropriation of his "Puppies" photograph.
SunTrust Bank v. Houghton Mifflin Co--A copyright challenge to "The Wind Done Gone" by the holder of the copyright to "Gone With the Wind."
United Features Syndicate Inc. v. Koons--Koons produced sculptures using images from the Garfield comic strip, the owner of the copyright sued for a violation.
Wildmon v. Berwick Universal Pictures--Wildmon objected to the use of his image in a documentary, and hoped to stop distribution of the documentary on the terms of the contract.
Wojnarowicz v. American Family Association--Wojnarowicz sought to stop an American Family Association pamphlet which condemned the NEA's funding of Wojnarowicz's works. The pamphlet included images from the film.