Copyright questions about different formats (data, images, music and video) can be especially difficult. Sometimes the law specifically distinguishes between these different formats, and in most cases there are media-specific considerations that impact a copyright analysis. In this course we will look at four different media, paying special attention to the unique issues for each one and the kinds of information that is important when making copyright decisions for each type of material. We will work through fair use issues for each multimedia format, look at format-specific exceptions in the law, and consider unique issues for seeking permission for film, music, images and data. At the end of this course, participants will have a deeper understanding of how to apply our framework for making copyright decisions, and will be more comfortable with assessing multimedia issues. They will have gained more and more diverse experience for considering fair use.
Fair Use Examples and Disputes
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Copyright for Multimedia
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Film and Video
Copyright issues for film tend to be complicated because of the number of creators and creative works that come together to make them. In this module, students will learn to apply the fundamentals of copyright with regard to film. Topics covered include identification of the various rights and rights holders involved in many films, the role of copyright exceptions when creating or using film in educational settings, and when and how to seek permission to make use of copyrighted material in films.
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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 now we're going to talk about some examples of disputes around fair
use in film, using some court cases that we hope will help you
understand the fair use parameters, and
also understand how fair use jurisprudence has developed and changed over time.
So the first case we'll talk about a bit is Universal
versus Sony Corp, AKA the Betamax Case.
>> [LAUGH] >> And for
those of you who are too young to remember, at one point there
was a video disc format called Betamax, that was very popular.
It didn't end up being a technology that lasted in the end.
But it was, at one point, the very popular technology, and
looked like it might be the one that would carry the market.
Sony Corp was the maker of the Betamax discs, and
Universal Studios sued them for copyright infringement.
They had noticed that the public was using them, the Betamax technology,
to record TV shows and then fast forward through the commercials.
Would you do that?
>> Horrors, never, never.
>> Oh, no, love those commercials.
>> And also using that technology to copy illegally obtained movies.
The Supreme Court held that time shifting was fair use.
That what the public was doing was a fair use, and
that the Betamax also had substantial non-infringing uses.
So maybe somebody copied a movie illegally here and there, but that the substantial
uses that were not illegal kind of allowed the technology to continue.
And what happened at that point, is that the movie studios adjusted to the video
market, and it actually became very important to them.
>> It became a big part of their revenue [CROSSTALK] once they decided it was going
to be around and they couldn't sue it out of existence.
>> Another interesting case is Monster Communications versus Turner Broadcasting.
This was a 1996 case where 41 seconds of a boxing film match was used in
a movie biography of Muhammad Ali, and this was held to be fair use.
The amount taken was small, and it was for
informational purposes in describing Muhammad Ali's life.
Similarly, the National Center for Jewish Film versus Riverside Films,
in 2012, was found to be a fair use for the defendant.
The documentary used clips that belonged to the Center
in a film about the author Sholem Aleichem, and
the amount taken from each film was less than 2%, very small amount.
The Court held this was a fair use, small amount was taken.
The purpose was transformative and frankly,
there may have been little or no harm to the market.
Plus, it turns out, it wasn't 100% clear that the films were still in copyright.
So that framework comes back to haunt you again and again.
That's an early step you should take.
>> And it's surprising how often, in infringement cases,
it turns out the plaintiff can't show that they actually hold the valid copyright, so
yeah.
>> So in another 2012 case, Northland Family Planning versus Center for
Bioethical Reform, at dispute were two organizations,
one pro-life, one pro-choice, and they prepared opposing films.
The defendants, the Center for Bioethical Reform, actually used footage
from the Northland Family Planning film to make the opposite point,
as you can imagine they would want to make.
The Court found that this was a fair use,
even though a large amount of the film was used, unlike some of our other examples,
where there's been only really small amount, and that's because that larger
amount was necessary for criticism of the other work and the other position.
So that criticism and commentary comes into play.
Also they found that it was transformative.
So we start to see kind of this emergence and theme of transformative fair use.
Another case, more recent, 2013 was Faulkner Literary Rights versus Sony.
This might sometimes known as The Midnight In Paris case.
In that film, the main character paraphrases Faulkner, and
says the past is not dead, actually it's not even passed.
So Faulkner's estate sued Sony, and the judge found that this was transformative
fair use, and that there was no market harm to Faulkner's work for that quote.
>> Nobody is not going to buy Requiem For
a Nun simply because they've heard that quote in a Woody Allen movie.
>> Exactly, exactly.
So again, we see transformative fair use coming into play.
Now Sophia Entertainment verses Dodger is an interesting case, also from 2013.
It involves the play The Jersey Boys, which I have happened to have seen,
and there is a seven second clip, kind of in the middle of that play,
where literally they show Ed Sullivan introducing the Jersey Boys, and
it is clipped from the original Ed Sullivan show,
and the Court found that this was transformative.
That it was really used to mark a moment in time.
So it had a biographical component, and it wasn't just for entertainment.
Also, the amount used was very small.
It was Ed Sullivan introducing the Jersey Boys.
And so it didn't harm the market for the Ed Sullivan show, as a whole.
>> So now let's take a look at a couple of cases where fair use was not found,
and one that's just kind of unusual.
>> Yes. [LAUGH]
>> Yes, we're talking about in this
theater context we can do thumbs up and thumbs down like the movie review shows.
>> [LAUGH] >> But we're not going to do that, are we?
>> Well we haven't yet.
>> So far.
So anyway the first case is a rather old one,
it's Roy Export Company versus Columbia Broadcast System from 1982,
and in this case, a TV program used less than a minute and
a half from a 72 minute Charlie Chaplin film.
The program was used to comment on Chaplin's death.
The Court found that because the TV program used the heart of the work,
the heart of this 72 minute Charlie Chaplin film, it was still infringing.
Even though the amount was small, the Court felt that it was so
substantial that they've refused to find fair use.
Now it's interesting to think how that case might be different
after the Supreme Court decided the Pretty Woman case and
the transformative fair use analysis has come into play.
It's very similar in a lot of ways to the Jersey Boys case that you mentioned, Lisa.
And I think maybe, it would come out differently today.
But still, it's important ro remember that heart of the work analysis.
Another one that may seem a little bit unusual is
Los Angeles News Service versus KCAL-TV, from 1997.
And some people will remember the riots in 1997 in Los Angeles.
And the truck driver, Reginald Denny, who was beaten by the police, and
the beating was filmed by a bystander.
In that case, a TV station used 30 seconds of the 4-minute video,
and the bystander who took the film sued for copyright infringement, and won.
The Court ruled that this was not fair use.
And again, the point seemed to have been that the defendant took the heart of
the work, the central part of the work that was interesting and distressing.
But also I think it was important that there was a non-professional filmmaker
who made this film because he happened to be at the right place, at the right time.
And the use by CNN, or by, I'm sorry, by
KCAL really undermined his ability to get a licensing fee, and
the Court seemed to feel that he deserved to get some kind of licensing fee, and for
that reason, declined to find fair use.
Now, the anomalous case, it's neither thumbs up,
nor thumbs down, is Aim versus UCLA, and we bring it up here,
because it involves film in an educational context, so it's pretty important.
In this case, a media distributor sued UCLA for digitizing and
streaming educational films without permission.
They were streamed into closed course management systems for
students in a particular class to watch.
So you can see that the educational exceptions take us some ways, but
not far enough.
And so UCLA defended on the basis of fair use.
Ultimately the case was dismissed, because the plaintiffs didn't have standing.
They were one of those plaintiffs who didn't actually own the copyrights.
The copyrights were owned by the film companies, not the distributor.
But in the dismissal,
the judge discusses the fair use analysis and says that she finds it arguable.
She did point out that the market harm was no greater with streamed video
than it was if you were showing a movie face to face in a classroom,
which we know is permitted.
So this case has provided an interesting footnote on fair use in higher
education for film, but not a decisive ruling.
>> Correct.
>> Thanks for watching.
