The Fair Use Blues

By Roger Rapoport
Juliet Weybret, a 16-year-old Lodi student, didn’t think she was breaking the law when she performed Winter Wonderland on a December 2008 video that was removed from YouTube soon after she posted it. Reposting the video would have forced her to hire an attorney and possibly go to federal court against Warner Music Group.

Ms. Weybret’s difficulties are part of the complex and fascinating battle over “fair use,” a long-established English common law concept that predates our First Amendment. Traditionally, the fair use doctrine has allowed creative artists to use portions of a copyrighted work without permission for such purposes as criticism, comment, news reporting, teaching, scholarship or research.

In 1976, thanks to the successful lobbying of big entertainment companies, a new copyright act recognized for the first time the property right of copyright holders in “derivative works” such as translations, reference books, musical arrangements and dramatization based on a copyrighted work.

This provision has emboldened wealthy copyright holders, including media companies and the estates of luminaries like James Joyce, J.R.R. Tolkien and John Lennon to launch a broad attack on the right of fair use. Today a new wave of suits threatens to strip writers and artists of their traditional right to create reference books, documentaries, parodies, drama and other creative works. The attack hits hardest at the new media and younger people beginning their careers.

Courts are now forced to interpret the functionally obsolete 1976 Copyright Act, which is comparable to maritime laws written for sailing vessels before the advent of steam power.

Since the passage of the Copyright Act of 1976, media conglomerates such as NBC and Viacom and authors like J.D. Salinger have urged an ever-widening definition of what “derivative works” they can claim the right to own, market and license.

Copyright owners have used the 1976 act to assert broader rights that go far beyond the original work. Cease-and-desist letters warn recipients that losing is a foregone conclusion and will inevitably lead to multimillion dollar judgments against them. And thanks to the miracle of digital fingerprints strategically placed on their music and videos, big companies like NBC instantly filter out allegedly infringing material to stop it from going up on major websites.

This approach means the creator gets a Digital Millennium Copyright Act takedown notice from a host like YouTube and eventually a copyright owner such as NBC.

Less sophisticated companies can quickly email webhosts who obligingly remove disputed content immediately. Entire ebooks can disappear instantly from sites like Amazon.com thanks to the guilty-until-proven-innocent approach of the Digitial Millennium Copyright Act.

In 2006 Stanford Law School’s Larry Lessig (who has since moved back to Harvard) hired attorneys Anthony Falzone and Julie Ahrens to run the Fair Use Project. Like the San Francisco-based Electronic Freedom Foundation, the Fair Use Project litigates high profile fair use cases that have helped level the playing field.

“I think a lot of what happened with the copyright act in 1976 was a bad idea with respect to the technology that existed then and has gotten worse,” says Stanford’s Falzone.

Advocates for copyright interests work hard to find a balance. Patrick Ross, head of the Washington based copyright alliance, makes the distinction between someone who wants to use a short clip from a Universal film in a web mashup and another user who is presenting an entire Saturday Night Live skit.

“The SNL skit is automatically blocked by YouTube because it is recognized (through fingerprinting technology) and Universal is notified.”

The problem with the SNL skit, explains Ross, is that airing it outside the NBC web site diminishes the size of a large potential audience. But running a short movie clip only helps stimulate the market for watching the longer film, perhaps on pay per view or a DVD.”

Jennifer Urban, co-director of UC Berkeley’s Samuelson Law, Technology and Public Policy Clinic, points out that “at least in a YouTube case the user is notified. A worse problem takes place when content is removed by a web host without the user even being told who was responsible.”

Focusing on cases that will make a difference over the long term with help from a group of 4,000 cooperating attorneys, the Electronic Freedom Foundation will arrange pro bono help. When the Council on Islamic-American Relations criticized Michael Savage on its website, the radio host sued for copyright infringement. EFF and lawyers from Davis Wright and Tremaine argued that playing excerpts from Savage’s show was fair use and prevailed in court.

As this case shows, pro bono assistance can make a big difference. David Ardia, director of the Citizen Media Law Project at Harvard Law School’s Berkman Center says:

“The evidence to date has shown the vast majority of takedown notices result in the removal of material because the artists don't understand or are not in a position to defend their rights.”

“You have a great deal of uncertainty when litigation is filed,” explains Ardia. “Most copyright holders are very cognizant of the business realities of what it is they are doing. If they can get material taken down through a simple cease-and-desist letter, they are quick to do so. However, if they believe they are going to have a fight on their hands, their cost calculus changes. And often we see settlements in those situations where a creative user stands up for their rights—which is unfortunately quite rare.”

A notable example, says copyright scholar Robert O'Neil, is the “Pretty Woman” parody by the hip hop group 2 Live Crew. Plaintiff Acuff-Rose, holder of rights to the Roy Orbison song, suffered a stunning 1994 defeat at the U.S. Supreme Court.

Reversing an appellate court ruling, a unanimous decision held that the commercial nature of a parody does not automatically defeat a fair use defense. After the case was remanded to district court, Acuff-Rose agreed to sell 2 Live Crew a license to the song, which they had previously refused.

This case is relevant to the 2009 J.D. Salinger suit that blocked publication of the American edition of 60 Years Later: Coming Through The Rye by Swedish author Frederick Colting. Salinger's attorney argues that this look at a Holden Caulfield doppelganger's life at age 76 is not a protected parody under the fair use doctrine. An injunction in New York Federal District Court is now being appealed.

Today, says O'Neil, the 2 Live Crew decision is frequently cited as a defense in cases like Colting's because it holds that copyright infringement can be fair use even when profit is the artist's goal.

More creative artists facing threats to their First Amendment rights are finding ways to fight back. Successful negotiations by the pro bono legal groups suggest that fair use cases are often best settled privately, allowing both sides ample room for a constructive settlement.

The largest literary estates have learned this lesson in court. For example, the James Joyce estate lost a major battle with Stanford Professor Carol Shloss over her book suggesting James Joyce's novel Finnegan's Wake was inspired by his daughter Lucia's schizophrenia. The Joyce estate refused to let Dr. Shloss quote any unpublished writing of the novelist or his daughter. After a cease-and-desist campaign that lasted years, Dr. Shloss removed the disputed passages.

But then, with the help of her Stanford Fair Use Project pro bono legal team, she went to federal court arguing a fair use defense. Not only did a pretrial settlement allow publication of a supplement restoring her original work, the court also awarded her $240,000 in attorneys fees.

Cases like these suggest more writers and artists will pursue fair use defenses. In the process, it's likely that litigation avoidance and settlement discussions will become more common as both sides realize that there are creative ways to settle their differences in the spirit of the fair use doctrine.

Roger Rapoport is president of the Right to Write Fund, dedicated to protecting the First Amendment rights of creative artists.