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COURTROOM CASES OF "FAIR USE"
(excerpts from web site references)


HUSTLER MAGAZINE, INC. V. MORAL MAJORITY, INC., 769 F.2d 12148 (9th Circuit 1986). http://www.bc.edu/bc_org/avp/cas/comm/free_speech/hustler.html See NAACP v. Claiborne Hardware Co., 458 U. S. 886, 910 (1982) ("Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action"). And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978): "[T]he fact that society may find speech offensive is not a sufficient reason for sup pressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. [56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Id., at 745-746. See also Street v. New York, 394 U. S. 576, 592 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers").... At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "The [51] freedom to speak one's mind is not only an aspect of individual liberty--and thus a good unto itself--but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503-504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea.
CAMPBELL V. ACUFF-ROSE MUSIC, INC., 114 S. Ct. 1164, 510 U.S. 569, 127 L. Ed. 2d 500 (1994) - United States Supreme Court http://supct.law.cornell.edu/supct/html/92-1292.ZS.html Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. (a) Section 107, which provides that "the fair use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement . . . ," continues the common law tradition of fair use adjudication and requires case by case analysis rather than bright line rules. The statutory examples of permissible uses provide only general guidance.... (b) Parody, like other comment and criticism, may claim fair use. Under the first of the four §107 factors, "the purpose andcharacter of the use, including whether such use is of a commercial nature . . . ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message.... (d) The second §107 factor, "the nature of the copyrighted work," is not much help in resolving this and other parody cases, since parodies almost invariably copy publicly known, expressive works... As to parody pure and simple, it is unlikely that the work will act as a substitute for the original, since the two works usually serve different market functions.
WORKS OF PARODY: WALKING THE FINE LINE by Leonard M. Marks and Robert P. Mulvey, The New York Law Journal March 10, 1997: http://www.ljx.com/copyright/0310parody.html Fair Use Factors When a fair use defense is raised, the district court will not be faced with the issues paramount in most copyright infringement actions -- access, substantial similarity and copying. Rather, fair use presupposes that the defendant used copyrighted material but that the use falls within one of the recognized exceptions to infringement, including parody. The judge-made fair use doctrine is now codified in §107 of the Copyright Act of 1976. In determining fair use, the district courts are required, at a minimum, to consider the statutorily itemized factors, including: (a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work. The list is not intended to be exhaustive, and the courts have considered other factors including the good or bad faith of the parodists. While works of parody are clearly within the fair use doctrine, the analysis is further complicated by the absence of a legal definition of parody and by the need for the courts to determine if the work is a parody without making subjective judgments about artistic worth.... [A]ny work of sufficient notoriety to be the object of parody has already secured for its proprietor considerable financial benefit. According that proprietor further protection against parody does little to promote creativity, but it places a substantial inhibition upon the creativity of authors adept at using parody to entertain, inform, or stir public consciousness.... The third fair use factor analyzes the qualitative and quantitative portion of the copyrighted material used, to determine whether the parody has taken more than necessary to conjure up the original such that it has supplanted or superseded demand for the original.... Provided the transformative effect is realized, parodies should be, and have been, given wide latitude to use substantial portions of the original.
Parody/Commentary/Humor http://www.cni.org/Hforums/cni-copyright/1996-04/0603.html On Fri, 15 Nov 1996, Spectrum Press wrote: > > Parody is "critical comment" only secondarily. Primarily, > parody is close derivative work, and usually for commercial > gain. I understand the arguments of the courts; my point is > the arguments are unintelligent. > [snip] > > Why is the line drawn more strictly? Because the court favors > amusing derivative work, so Carter says above. All else being > equal, a serious close derivative can be infringing where an > amusing close derivative of the same material would be fair > use. Again, shades of George Orwell. > [snip] > > So the basis for the parody rulings is amusement, not > "critical comment". I disagree. Parody is a form of critical comment. True, not all parodies are amusing. But the amusement attribute is one that ought to help with the finding of fair use. Certainly if the parody compels one to laugh at or about the original, then the parody use is clearly not going to be confused with the original, thus helping to minimize any "competitive" aspect of the parody--which will help prevent the fourth factor of fair use from being construed in favor of the plaintiff. The concepts of parody and critical comment also help bolster the First Amendment implications of fair use, but that is another discussion. Kenny Crews Indiana University
Excerpt from Negativeland's current embroilment with "fair use" of musical parody http://www.negativland.com/riaa/dowesue.html ---begin excerpt When Mark tried to explain that he felt that his transformative re-use of copyrighted material for parody, critical or other creative purposes was a fair use, the conversation took a nose dive. The idea that anyone could suggest that there was any possible conceivable instance in which re-using a fragment of someone else's material could be done WITHOUT getting permission and WITHOUT paying sampling clearance fees was obviously totally insane to Mr. Oppenheim. "Are you a lawyer?!", he demanded to know. "Because fair use is not a right, it's a defense!" Clearly, the RIAA believes that their interpretation of copyright and fair use is the ONLY interpretation, and are not interested in any other point of view. Fair use IS raised as a defense when one is involved in a lawsuit for copyright infringement, but it is also one of the MAJOR EXCEPTIONS to a copyright owners exclusive monopoly of a copyrighted work....and if fair use is seen ONLY as an affirmative defense, then this interpretation of fair use creates a situation in which prior restraint and self-censorship is inevitable. When Mark suggested that what the RIAA was engaged in DID amount to an act of censorship, Mr. Oppenheim became furious. "You are making this into a political issue and accusing us of being censors!" When Mark suggested that if the RIAA could not be reasoned with, then perhaps the only thing to do was to sue the RIAA, Mr. Oppenheim hung up the phone. ---end excerpt Negativland's issue is quite similar to mine, in that they like to parody other artists by incorporating bits and pieces of other works into their own original and parodic renderings. Collages, as visual art, are perfectly legal, even when incorporating many samples of other artists' works. Negativland's style would be considered "audio collage". For a capsule description of what they're about, go to: http://www.negativland.com/riaa/npr.html.
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