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2013 in Fair Use

By any account, 2013 was a big year for the doctrine of fair use in copyright law. It was a big year for other copyright things, too; “copies” and “performances” were much in the news. More on those later, perhaps.

I had it in mind to actually write up synopses and critiques of the principal fair use opinions, but there has been no time. To borrow a phrase from Inigo Montoya, there is too much. Instead: Let me sum up.

I haven’t included cases in which fair use was argued but not relied on as a basis for decision. I haven’t included cases in which fair use was not argued but could have been — or should have been. And I haven’t included cases where fair use played an important role but wasn’t itself a litigated issue (see, for example, the continuing Lenz v. Universal Music litigation).

I have included cases that struck me, and no doubt struck many observers, as important markers on the journey toward understanding what roles (plural) fair use is playing in copyright policy today.

In reverse chronological order, with appellate cases first:

Bouchat v. Baltimore Ravens Ltd. Partnership, __ F.3d __ (4th Cir. 2013).

The creator of the original “Flying B” logo for the Baltimore Ravens professional football team has pursued infringement litigation relentlessly against the team and others in connection with various uses of the logo. In this chapter, the court of appeals affirmed the district court’s grant of summary judgment to the defendants in connection with the logo’s appearance in three videos produced by the National Football League for the NFL Network. The uses were “fleeting and transformative use of the Flying B logo in the videos”; (the court also wrote that they were — also — take your pick — “fleeting, incidental, de minimis, innocuous”). The court analogized the videos to historical documentaries. For similar reasons the court concluded that the appearance of the logo in certain historical displays in the Ravens’ stadium constituted fair use.

Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013).

The image created by the plaintiff, widely distributed online and as street art (graffiti) was appropriated by the designer of a video backdrop to Green Day concerts. The video added a variety of new elements, re-contextualizing the image and changing its meaning in ways that the plaintiff acknowledged (and objected to), but the original image was, beneath it all, unchanged. The court of appeals affirmed the district court’s grant of summary judgment to the defendants, despite it being what the court called a “close and difficult case,” relying heavily on the notions of transformativeness and the lack of market harm.

Fox Broadcasting Co., Inc. v. Dish Network L.L.C., 723 F.3d 1067 (9th Cir. 2013).

The court of appeals affirmed the denial of the broadcaster’s request for a preliminary injunction against Dish Network in connect with its distribution of the Dish’s “PrimeTime Anytime” service and its “AutoHop” commercial-skipping feature, both offered with the Hopper, a device used to watch copyrighted broadcast content. The court’s fair use analysis was directed to consumer use of the device, in the context of claims against Dish Network for secondary liability, and in that context relied heavily on the “time-shifting” analysis of Sony Corp. v. Universal City Studios, the Supreme Court’s 1984 “Betamax” case. The Ninth Circuit gave no indication that Sony should be limited in any sense either to the technological conditions of the early 1980s (videotape recorders, consumer demand directed largely to broadcast content) or to the market conditions of the 1980s (copyrighted content supported economically by commercials that even time-shifting consumers likely would watch). In fact, the Ninth Circuit explicitly excluded both ownership and the economic implications of commercials from its analysis, on the ground that Fox, the owner of copyrights in the broadcast content, had no ownership stake in the commercials. (Related litigation is pending in New York, and the district court there came to a similar conclusion. In re AutoHop Litigation, 2013 WL 5477495 (S.D.N.Y. Oct. 1, 2013).)

Authors Guild, Inc. v. Google Inc., 721 F.3d 132 (2d Cir. 2013).

This case is something of a teaser for the later district court opinion. Here, the court of appeals held that certification of a class of authors suing Google over its “Book Search” program was premature, in light of the possibility that a fair use determination might moot the class certification question. The district court’s earlier certification of a class of authors was vacated.

Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

Photographer Patrick Cariou sued appropriation artist Richard Prince and his representatives for incorporating elements of Cariou’s photographs into Prince’s paintings. The district court granted Cariou’s motion for summary judgment, but the court of appeals reversed, holding that 25 of the 30 paintings in question amounted to fair use as a matter of law. The court relied heavily on its own side-by-side examination of the works and its determination that Prince’s use was transformative.

SOFA Entertainment, Inc. v. Dodger Productions, Inc., 709 F.3d 1273 (9th Cir. 2013).

The court of appeals affirmed a grant of summary judgment to the defendant based on fair use. The plaintiff owns copyrights in the entire library of the run of The Ed Sullivan Show, the legendary variety television show of the 1950s and 1960s. The defendant, producer of the Broadway show “Jersey Boys,” about the band the Four Seasons, used a seven-second clip from one episode of the Ed Sullivan Show (in which Ed Sullivan introduced the Four Seasons) in a historical montage as part of Jersey Boys. The court concluded that the use was transformative, in that the clip was use as a “biographical anchor” for the story of the band, rather than for its own entertainment value.

The district courts were busy with important and interesting fair use questions. Among the biggest were:

American Institute of Physics v. Winstead PC, 2013 WL 6242843 (N.D. Tex. Dec. 3, 2013) (in parallel with American Institute of Physics, John Wiley & Sons, Inc. and Wiley Periodicals, Inc. v. Schwegman, Lundberg & Woessner, P.A., 2013 WL 4666330 (D. Minn. Aug. 30, 2013)).

The plaintiff challenged reproduction of scientific articles in connection with prosecuting patent applications. The district courts in both cases held that the reproduction constitutes fair use. A third case is pending in the Northern District of Illinois, John Wiley & Sons, Ltd. v. McDonnell Boehnen Hulbert & Berghoff LLP.

Authors Guild, Inc. v. Google Inc., __ F. Supp. 2d __ (S.D.N.Y. 2013).

The district court held, on cross-motions for summary judgment, that copies of copyrighted books produced and displayed as part of Google’s “Google Books” program are covered by fair use. The court emphasized the transformative character of the use by Google and its substantial public benefit; it discounted the fact that Google is an enormously wealthy commercial enterprise.

Energy Intelligence Group, Inc. v. United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Service Workers Intern. Union, AFL-CIO/CLC, 2013 WL 4648333 (W.D. Pa. August 29, 2013).

The district court denied the plaintiff’s motion for summary judgment on defendant’s fair use defense in a case that raised the question of liability for making unauthorized electronic (forwarded) copies of an electronic newsletter to which the defendant subscribed. The case later settled.

Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., __ F. Supp. 2d __ (N.D. Miss. 2013).

The estate of William Faulkner objected to the use of one line from Faulkner’s “Requiem for a Nun” in Woody Allen’s motion picture, “Midnight in Paris.” (The line was not used verbatim.) The court dismissed the claim, finding that the use was de minimis or fair use or both.

Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013).

The district court shot down the argument that ReDigi, which tried to create a “re-sale” market for digital music files, was engaged in fair use of the relevant copyrighted works.

Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537 (S.D.N.Y. 2013).

On cross-motions for summary judgment, the district court rejected the argument that Meltwater, which “scraped” (copied) the copyrighted contents of the Associated Press’s news service (among other things) in order to produce analytic and monitoring information for its customers, was engaged in fair use.

Morris v. Guetta, 2013 WL 440127 (C.D. Cal. Feb. 04, 2013).

On cross-motions for summary judgment, the district court found that works by appropriation artist Thierry Guetta (aka Mr. Brainwash, or MBW), which borrowed and modified photographs by the plaintiff, constituted copyright infringement rather than fair use. Morris v. Young, 925 F. Supp. 2d 1078 (C.D. Cal. 2013), a related case brought by the same plaintiff, reached mostly the same result.