What is Fair Use?

tag:blogger.com,1999:blog-51382467419785333162026-02-14T03:53:01.728-05:00What is Fair Use?"The principle of collage is the central principle of all art in the twentieth century." -- Donald Barthelme (1931-1989)Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.comBlogger145125tag:blogger.com,1999:blog-5138246741978533316.post-20457598474535803382008-09-09T09:39:00.007-04:002009-06-16T08:46:24.256-04:00I will be writing on fair use and copyright at Ruling Imagination

This blog (as explained in greater detail below in the right-hand column) constitutes an exploration of issues related to copyright and fair use in our contemporary digital culture. The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester.Now, however, I

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com2tag:blogger.com,1999:blog-5138246741978533316.post-26588568899303032902008-09-09T08:36:00.001-04:002008-09-09T09:07:23.674-04:00Court rules Harry Potter Lexicon infringed J.K. Rowling's copyright

I've been vindicated. I wrote on April 14 that I thought J.K. Rowling's claim for copyright infringement against the author of a lexicon would prevail because the case seemed materially indistinguishable from Castle Rock Entertainment Group v. Carol Publishing, Inc., in which the 2d Circuit Court of Appeals held that the compilation of a trivia book basead on the characters and events of the

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-4587049254993469892008-09-05T13:55:00.005-04:002008-09-05T15:08:21.287-04:00Sarah Barracuda

From TMZ (h/t Snapped Shot): "Ann and Nancy Wilson are pissed at the Republican Party and have fired off a cease and desist letter to the McCain/Palin campaign. Specifically, the Heart women are upset that the GOP has used their classic "Barracuda" as a theme song for Sarah Palin."I wonder, though, whether the Repubican Party's use of the song isn't fair use. It's political, non-profit speech.

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-44479814963881121972008-08-28T17:26:00.002-04:002008-08-28T18:41:41.919-04:00The first authoritative survey of the history of collage

Collage: Assembling Contemporary Art is the first authoritative survey of the history of collage from its origins through to the latest work being produced by artists today. From the traditional ‘cut and paste’ method through to digital, three-dimensional and installation work, and in the incorporation of contemporary concerns such as environment and commercialism, collage is experiencing an

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-3164528585946441962008-08-24T08:36:00.002-04:002008-08-25T21:49:53.613-04:00An Educational Campaign?

From Techdirt:It's no secret that both the MPAA and the RIAA have created so-called "educational campaigns" for students about copyright. These educational programs are incredibly one-sided, of course, and it's amazing that many schools actually allow this sort of corporate propaganda to masquerade as educational material. Even more problematic is when an entirely separate organization,

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-3654055187840981982008-08-22T15:32:00.001-04:002008-08-22T17:04:10.680-04:00Before sending a DMCA takedown notice, one must consider whether the objectionable material constitutes fair use

I wrote recently that Universal was resting its case on a "weak reed" in arguing that it need not consider whether the use of its copyrighted materials is fair use before sending a DMCA takedown notice. The case, of course, involves the YouTube video of a baby dancing for 29 seconds to Prince's "Let's Go Crazy." US Judge Jeremy Fogel agrees: he ruled 2 days ago that content holders must consider

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-55797979248428176212008-08-20T11:05:00.002-04:002008-08-22T15:28:21.172-04:00Lawyers' work needs to be effective, not necessarily original

I wrote recently that legal writing is a quintessentially collaborative enterprise. That in part is why I think copyright is not an issue with respect to legal documents. A more important reason legal documents are not accorded copyright protection is that what matters with respect to a legal document is its effectiveness, not its originality. If a lawyer could copy an existing document that

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-66496415748502364562008-08-14T17:54:00.000-04:002008-08-14T18:04:46.434-04:00appropriation can be original

I disagree with the first part of this quote, from Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. I agree with the second:(1) "Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work."(2) "What you can't do is substitute someone else's

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-2275355977793545322008-08-14T17:29:00.000-04:002008-08-14T17:40:41.377-04:00Universal Goes Crazy

"Universal Music told a federal judge . . . Friday that takedown notices requiring online video-sharing sites to automatically remove content need not consider whether videos are protected by the 'fair use' doctrine." The case involves Stephanie Lenz's 29 second video of her son dancing to Prince's "Let's Go Crazy," which Universal sought to remove via a DMCA takedown notice at Prince's

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com3tag:blogger.com,1999:blog-5138246741978533316.post-21947942346147735362008-08-04T10:07:00.000-04:002008-08-04T10:10:21.523-04:00The Red Army Choir strikes again

The world is a very strange place. If you know the origins of this blog (see sidebar), you might laugh as hard as I did at this (and wonder even more about Kid Rock):

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-59390345337252293362008-07-31T15:53:00.000-04:002008-07-31T15:57:07.356-04:00R.I.P. Scrabulous. Long live Wordscraper!

Today @ PC World:The death of Scrabulous on Facebook may have been a sad event for many, but at least it was a short-lived one. Scrabulous is back, but under a new name and with some minor tweaks to avoid any copyright issues. And thus Wordscraper was born.

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-13574365123813997732008-07-30T14:04:00.002-04:002008-07-30T15:13:57.854-04:00Appropriation

Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com2tag:blogger.com,1999:blog-5138246741978533316.post-16003234156074754692008-07-30T13:38:00.000-04:002008-07-30T14:03:05.616-04:00Announcing a new endeavor

The new endeavor referred to in the title of this post will be a blog named Ruling Imagination, which I will begin writing on August 4, 2008 and in which I will address broadly speaking, both the law as it affects creative endeavors and creativity within law itself. While Ruling Imagination will, quite plainly, overlap in subject-matter with What is Fair Use?, I will continue to maintain this

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-47737719978061559672008-07-29T19:02:00.002-04:002008-07-29T19:21:02.672-04:00Scrabble v. Scrabulous

There is, on the one hand, having a legal right to one's intellectual property. On the other, there is the question: does it make business sense to assert that right to shut down an infringer?Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro has sued the two Indian brothers behind the popular Web game Scrabulous, which has more

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com3tag:blogger.com,1999:blog-5138246741978533316.post-51810970415415030392008-07-25T12:55:00.003-04:002008-07-25T13:55:35.144-04:00Redlasso's clipping service is shut down

Hulu partners NBC and Fox have sued Redlasso, alleging that Redlasso's service that provided clips of copyrighted network programs to blogs violates the plaintiffs' copyrights in those programs. As a result, Redlasso "announced today that it has no alternative but to suspend blogger access to its video search and clipping Beta site for the immediate future." Redlasso argues that its search and

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com3tag:blogger.com,1999:blog-5138246741978533316.post-32851040712599373022008-07-22T12:10:00.003-04:002008-07-23T10:05:22.918-04:00When is a takedown notice based on a misrepresentation, and when does taking material down constitute a breach of YouTube's duties?

In 2007, YouTube informed Stephanie Lenz of Pennsylvania that it had removed a video she had posted after YouTube had received a takedown notice from Universal Music Publishing Group ("UMPG"). The video, 29 seconds long, showed Lenz's 13 month old son dancing to Prince's Let's Go Crazy. Ms. Lenz sent a counter-notification to YouTube requesting that YouTube re-post the video, but YouTube did

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com1tag:blogger.com,1999:blog-5138246741978533316.post-4626856876446329752008-07-15T11:47:00.003-04:002008-07-15T12:15:21.770-04:00Code of Best Practices for using copyrighted materials in online video

American University's Center for Social Media "a code of best practices" that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use."The authors make clear that "this code of best practices does not tell you the limits of fair use rights. . . . It’s not a guide to using material people give permission

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-52239937367705321622008-07-07T14:11:00.002-04:002008-07-07T14:20:57.300-04:00Good Copy, Bad Copy (embedded with permission)

A documentary from Denmark on Girl Talk, Bridgeport Music, sampling, and copyright:

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com1tag:blogger.com,1999:blog-5138246741978533316.post-61304822555982292302008-07-03T10:29:00.004-04:002008-07-03T10:54:42.069-04:00Who's the author?

From Scoodleyweb:I don’t think I have any words for this. Star Trek the Animated Series mashed up with William Shatner singing Pulp’s common people, as Kirk/Spock slash fiction. So many memes tied up in a nice bow. Exquisite. Simply Exquisite.And if you wonder where the title of the post, "In that case, I'll have a Rum and Coke," comes from, you should look here andask yourself, who wrote "Rum

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-90632578921798572522008-07-02T13:27:00.003-04:002008-07-02T23:28:44.167-04:00Course packs in the internet age.

Oxford University Press, Cambridge University Press, and Sage Publications sued the Georgia State University in federal court in April, arguing that course readings that professors and librarians disseminated online infringed publishers' copyrights." The complaint is here (pdf).I am sympathetic to the view of the that the posting of copyrighted materials without permission for educational

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-39200523915418449572008-07-01T13:45:00.002-04:002008-07-01T13:56:36.912-04:00What can you do? Well, you don't have to send a takedown notice or sue.

From Techdirt, a question -- who will be the first to sue Girl Talk? I don't think it will be LL Cool J -- and mention of a small industry of "sample trolls":[W]ith over 300 samples used on the album, there's almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-3679059134737276202008-06-30T15:15:00.005-04:002008-07-02T11:07:49.309-04:00Is Coldplay original?

This whole question of originality can make one's head spin. It may not help Coldplay's situation that Chris Martin has been quoted in the past as saying "We're definitely good, but I don't think you can say we're that original," he notes. "I regard us as being incredibly good plagiarists." Addendum, from Techdirt:[T]he guy from Creaky Boards later not only retracted his accusation, but suggested

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-55866241316023277242008-06-27T09:39:00.010-04:002008-06-27T11:53:49.585-04:00Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though,

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-43236762221570762102008-06-26T21:46:00.000-04:002008-06-26T21:51:39.191-04:00Kid Rock says he was kidding about saying it's okay to download his songs for free.

Kid Rock, "who has resisted selling his music on iTunes and other online stores, tells The Associated Press he was just kidding." (Hope AP doesn't send me a takedown notice!)

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com0tag:blogger.com,1999:blog-5138246741978533316.post-30728061648519607172008-06-25T13:46:00.002-04:002008-06-25T21:59:43.332-04:00Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama

Peter Friedmanhttp://www.blogger.com/profile/16104358431718439299noreply@blogger.com1