Blog post: Fair use myth vs. reality
23 February 2023
By Tomas Lipinski
This blog post celebrates Fair Use / Fair Dealing Week.
As more countries adopt versions of Fair Use (Nigeria’s Parliament recently voted to adopt Fair Dealing using the US’ four factors test, and adoption is pending in South Africa), naysayers have claimed that Fair Use is carte blanch for infringers to run wild. Considering how core information, IP and fair use are to the US economy, such claims are ludicrous – as demonstrated in these recent court cases defining what uses are and aren’t ‘fair’.
Fair Use has an important role to play in copyright, ensuring the balance between rights holders and users. The US Supreme Court expressed this vision of co-existing rights in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), where it observed that “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Likewise in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), the Court commented that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Considering the transformative nature of the use of a work protected by copyright is an element of the first factor in Fair Use analysis.
As recently as Oracle America, Inc. v. Google LLC, 141 S.Ct. 1183 (2021) (6-2 decision), Justice Breyer observed that exclusive rights are granted “not as a special reward, but in order to encourage the production of works… the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers.” Id. at 1195. This emphasis on the function of fair use to unleash the creative powers of others, while honoring the rightsholders’ commercial domains, were paramount in the Court’s ruling that Google’s use of Sun’s Java code was fair: “To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.” Id. at 1202.
Let’s examine how these concepts have been applied in several cases involving the book publishing industry. In Mastone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied 481 U.S. 1059 (1987), the Second Circuit concluded that the reuse of interviews taken from Pregnant by Mistake in a new work, Rachel Weeping, was a fair use. There was no market harm as the former work took a pro-choice stance while the latter work presented the opposite position. Similarly, in Lombardo v. Dr. Seuss Enterprises, L.P., 279 F.Supp.3d 497 (S.D.N.Y. 2017), a bawdy spoof of How the Grinch Stole Christmas did not compete in the marketplace for the original storyline; folks that want to consume the idyllic version are unlikely to substitute an interpretation made for adult audiences.
This is not to say that every use is fair. For example, in Dr. Seuss Enterprises, L.P., v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997), the use of iconic elements of Dr. Seuss stories in the Cat Not in the Hat to comment on the O.J. Simpson murder trial was not a fair use, as the work was not a comment on Seuss’ stories but a satire on another topic. Using “[t]he narrator (‘Dr.Juice’), and the title (The Cat NOT in the Hat! ) ‘to get attention’ or maybe even ‘to avoid the drudgery in working up something fresh’” was not fair. Id. at 1401.
Likewise, in Dr. Seuss Enterprises, LP v. ComixMix, LLC, 983 F.3d 443, 448 (9th Cir. 2020), the placement of Star Trek characters in the storyline of Oh the Places You’ll Go! was not a fair use as the market for recent graduates is likely one Dr. Seuess’ work would naturally target: “ComicMix sidesteps the fact that it intentionally targeted and aimed to capitalize on the same graduation market as Go!.” Id. at 460. If others were allowed to engage in the same practices, the court hypothesized endless spin-offs that clearly would impede the market demand for the original Seuss work: “Oh the Places Yoda’ll Go!, Oh the Places You’ll Pokemon Go!, Oh the Places You’ll Yada Yada Yada!, and countless other mash-ups.” Id. at 461.).
Other cases involving derivative markets (including sequels or adaptation for a younger audience) also met with challenges. For example, in J.D. Salinger v. Colting, 641 F.Supp.2d 250 (2009 S.D.N.Y.), vacated and remanded on other grounds 607 F.3d 68 (2d Cir. 2010) the use of character named ‘Mr. C’ in 60 Years was not a fair use of the Holden Caulfield character from Catcher in the Rye. In Penguin Random House LLC v. Colting, 270 F.Supp.3d 736, 748 (S.D.N.Y. 2017), adapting modern literary standards for a grade school audience was not a fair use. The court did not believe the addition of several additional elements transformed the stories in any meaningful way, but simply retold the plotlines using simpler language and structure: “Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories… in another medium (in this case illustrated children’s books).” Id. at 748.
However, in Sofa Entertainment, Inc. v. Dodger Productions, Inc., 709 F.3d 1273 (9th Cir. 2013), the use of a seven-second clip from the Ed Sullivan Show with the host introducing the first national television appearance of musical group the Four Seasons in Broadway play Jersey Boys was a fair use as use of the clip as it “serve[d] as a historical reference point.” Likewise in Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the court concluded that use of several promotional concert posters was fair use in the biographical book Grateful Dead: The Illustrated Trip as the purpose was different (transformative) and did not usurp the market for the original posters: “DK used each of BGA’s images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip’s timeline.” Id. at 609.
In summary, courts do no invade the natural market for authors and book publishers – which include sequels, prequels, adaptations, and translations – but apply Fair Use to allow different, new, or alternative uses such as parody, reinterpretation, illustration, and historical refernece. This preserves the author’s and publisher’s space while allowing new, creative uses of their work.
Tomas Lipinski is an IFLA CLM committee member and Professor at the School of Information Studies, University of Wisconsin—Milwaukee