Fair Use

Highlights from the Legal Guide: An Overview of Copyright

Posted May 9th, 2008 by CMLP Staff

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.

Copyright Overview

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.   read more »

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Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Posted May 7th, 2008 by Sam Bayard

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.   read more »

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Last updated on May 7th, 2008

The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

Section 107 of the Copyright Act defines fair use as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 --   read more »


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Last updated on May 8th, 2008

Rowling v. RDR Books: Harry Potter Lexicon Trial Starts Today

Posted April 14th, 2008 by Sam Bayard

The trial in Rowling v. RDR Books starts today in the United States District Court for the Southern District of New York. The New York Times reports that Rowling herself will take the witness stand. At issue, of course, is whether Steven Vander Ark's print version of the Harry Potter Lexicon website infringes Rowling's copyrights in her enormously popular books. Rowling contends that Mr. Vander Ark's book merely repackages her fictional content, while RDR Books, Mr. Vander Ark's publisher, maintains that his work "provides a significant amount of original analysis and commentary concerning everything from insights into the personality of key characters, relationships among them, the meaning of various historical and literary allusions, as well as internal inconsistencies and mistakes in the novels."   read more »

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Last updated on April 18th, 2008

Rowling v. RDR Books: Fair Use Is Like Gumbo

Posted March 17th, 2008 by Sam Bayard

Derek Bambauer at Info/Law has an excellent post on the Harry Potter Lexicon lawsuit, Rowling v. RDR Books. Bambauer analyzes Rowling's copyright claim and RDR Book's fair use defense and concludes that the celebrity author will likely prevail. While reasonable minds differ on this point (see, e.g., Tim Wu's article in Slate), everyone should be able to appreciate Bambauer's use of figurative language:

Fair use is like gumbo: you dump everything in together, mix it, simmer, and see how it tastes in the end.

An apt description -- it captures colorfully the inherent difficulty in predicting the outcome of a court's fair use analysis. The district judge handling the case has decided to combine the previously scheduled preliminary injunction hearing with a trial on the merits, which is set to begin April 14. We're looking forward to a good meal.

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YouTube Removes “Shred” Parody Videos; WIRED Puts Them Back Up

Posted February 29th, 2008 by Matt C. Sanchez

Earlier this month, some of the most creative and entertaining parody videos on the Web were pulled from YouTube over dubious copyright claims. The disputed works, known as the “shred” videos, are a series of parodies in which Finnish media artist Santeri Ojala overdubs performances of legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. Ojala replaces the audio tracks of the guitarists' performances with his own (intentionally) bad guitar playing.

Because Ojala is a skilled guitar player himself, the horrific sounds match closely with the guitar hero's hand and finger movements, which makes the videos that much more surreal. Other rock stars unwary enough to enter the screen during the guitarists' performances get similar treatment – in one notable clip, Ozzy Osbourne's clapping to the beat is reduced to a rhythmless patter that wouldn't have cut it in a backyard birthday celebration, much less a rock show.   read more »

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Last updated on April 23rd, 2008

Last updated on April 15th, 2008

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