Home » Legislation » Digital Millennium Copyright Act (DMCA) » “Fly the W” for Fair Use

“Fly the W” for Fair Use

Baseball season officially ended this week with the conclusion of the World Series, and Cubs fans are still basking in the fading glow of what almost was. This season, the the “W” flew more often than not for the Chicago Cubs — the “W” referring to the flag flown at Wrigley Field whenever the Cubs scored a win. Well, this season, fair use “flew the W” in a few significant cases that I would like to take a moment to highlight.

Katz. v. Chevaldina
In this rather bizarre case, Florida real estate mogul and NBA team ownwer Raanan Katz filed a copyright infringement action against a former shopping center tenant who used a photo of Katz in a blog post she wrote criticizing Katz for his business practices. The photo (the copyright of which was transferred to Katz by the original photographer) is an up-close photo of Katz with his  eyebrows raised and his tongue sticking out. Chevaldina was granted summary judgment at trial on the issue of fair use. Katz appealed, and the court affirmed. The court agreed that Chevaldina’s use of the photo on her blog constituted fair use.

In analyzing the first factor of fair use, the court found that the inclusion of the photo on the blog was a transformative use because the photo, which had been characterized as unflattering, ugly, and compromising. She used the photo for the noncommercial purpose of satire and criticism, as allowed under the fair use statute, and to warn others about Katz’s documented business practices. Further, the photo, which had been previously published, was primarily factual in nature (factor two) and was more a fortuitous shot than a work of creativity.  As to factor three, the amount of the work used, the court concluded that this factor was neutral with respect to fair use analysis. Finally, the court found no harm to any potential market (factor four) for the photo as the only purported reason for estopping use of the photo was censorship.

Lenz v. Universal Music
Popularly known as the “Dancing Baby” case, Lenz v. Universal Studios concluded this summer with another win for fair use. In this case, Lenz had posted a very short video on YouTube documenting her toddler’s adorable dance moves. During the less than 30 second grainy video clip, the sounds of Prince’s “Let’s Go Crazy” can be heard in the background. Universal Music issued a take down notice pursuant to the DMCA, and Lenz filed suit against Universal contending that it should have considered fair use before availing itself of the DMCA procedure. On appeal from a trial court judgment dismissing the parties’ cross-motions for summary judgment, the Ninth Circuit Court of Appeals ruled not only that fair use is a legal right and not an affirmative defense, but also that copyright holders must consider fair use before issuing DMCA take down notices. Now, Universal must prove at trial that it did in fact consider fair use before issuing its take down notice

Author’s Guild v. Google
In perhaps fair use’s biggest win of the season, the Second Circuit Court of Appeals ruled in this decade long lawsuit that Google’s book scanning project is fair use. Judge Leval, author of not only the court’s opinion but also of a seminal scholarly work on “transformative” fair use, concluded that Google’s scanning of books held in the collections of its library partners and displaying of snippets of those books online for the purpose of allowing searchers to identify relevant works was a transformative use. Leval summarized the court’s opinion as such:

Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copyright is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

I will refrain from recounting the court’s full analysis of the four factors of fair use here. Several authors have already done a superb job of summarizing Leval’s fantastic opinion, which overwhelmingly stresses the purpose of copyright as benefiting the public and the importance of transformative uses of copyrighted works to realizing those benefits. I direct you to the following for thorough and accessible recaps of the opinion:

Techdirt – “Appeals Court Gives Google a Clear and Total Fair Use Win on Book Scanning
EFF – “Big Win for Fair Use in Google Books Lawsuit
ARL – “Issue Brief: Second Circuit Court of Appeals Affirms Fair Use in Google Books Case


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,183 other subscribers

Licensed by Creative Commons

%d bloggers like this: