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Cases and examples of transformative work and ‘fair and unfair use’

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Fair Use

Fair use. A Google search engine’s thumbnail display of photos from a subscription-only website (featuring nude models) was a fair use.
Important factors: The Ninth Circuit considered Google’s use of thumbnails as “highly transformative” noting that a search engine transforms the image into a pointer directing a user to a source of information (versus the image’s original purpose: entertainment, aesthetics, or information). This transformative use outweighs any commercial factors regarding Google’s ability to earn money from placement of ads on the search results page. The court’s reasoning – that “a search engine provides an entirely new use for the original work,” – re-affirmed the principles established in the Ninth Circuit’s decision in Kelly v. Arriba Soft, see below (Perfect 10, Inc. v., Inc., No. 06-55405 (9th Cir. 12/3/07).)

Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book.
Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).)

Fair use. The artist, Jeff Koons, used portions of a fashion photo – a woman’s legs in Gucci sandals – in a painting, “Niagara.” The painting included a montage of popular culture images spread over a Dali-like landscape.
Important factors: Unlike the “puppies case” (Rogers v. Koons, below) which was considered a slavish reproduction, the court viewed “Niagara” as a transformative use because it commented upon the use of fashion imagery in consumer culture. (Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).)

Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography.
Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)

Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the “Kojak” television show) was accepted as a fair use. Evidence indicated that most viewers were “time-shifting” (taping in order to watch later) and not “library-building” (collecting the videos in order to build a video library).
Important factors: The Supreme Court reasoned that the “delayed” system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)

Fair Use. A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images.
Important Factors. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003).


Not a Fair Use

Not a fair use. The artist, Jeff Koons, created a series of porcelain sculptures based upon a photograph of a man and woman holding puppies. Although certain aspects were exaggerated, the photo was copied in detail. Koons earned several hundred thousand dollars from sales of the sculptures.
Important factors: Although Koons claimed fair use under a parody theory – the sculptures were part of his ‘banality’ series – the court disagreed, claiming that the sculptures did not parody the work. The court also noted that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

Not a fair use. A nonprofit foundation presented a program called “Classic Arts Showcase,” for broadcast principally to public television and cable channels. The foundation used an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, “Carnegie Hall.”
Important factors: Although the court considered the use to be educational, noncommercial and to consist of an extremely small portion of the work, those factors were outweighed by the potential loss of licensing revenue. The copyright owners had previously licensed portions of the work for broadcast and the court determined that the foundation’s use affected the potential market. (Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005).)

Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death.
Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)

Not a fair use. A television station’s news broadcast used 30 seconds from a fourminute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny.
Important factors: The use was commercial, took the heart of the work and affected the copyright owner’s ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)

Not a fair use. A poster of a “church quilt” was used in the background of a television series for 27 seconds.
Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

Not a fair use. An author mimicked the style of a Dr. Seuss book while re-telling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder.
Important factors: The author’s work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)

Case summaries from under Creative Commons License

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