fair use: cases and problems - harvard university use... · 2010-01-23 · supreme court fair-use...
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January 23, 2010
© 2008, William Fisher. This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.
Fair Use:
Cases and Problems
William Fisher
Cases and Problems • Sony • Harper & Row • Campbell • Wind Done Gone • Food Chain Barbie • Seinfeld
• Air Pirates • Kelly
January 23, 2010
© 2008, William Fisher. This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.
Supreme Court Fair-Use Cases
• Sony • Harper & Row • Campbell
Figure 2.5: Compensation System for Network Broadcasts of Films
Studio
Figure 2.5: Compensation System for Network Broadcasts of Films
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Viewers
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
product purchases
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
advertising fees
product purchases
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
advertising fees
product purchases
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
Sony
advertising fees
product purchases
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
Sony
advertising fees
product purchases
VCRs
free programming (with embedded ads)
Studio
TV Networks
Figure 2.5: Compensation System for Network Broadcasts of Films
Advertisers
Viewers
Sony
cost of VCRs
advertising fees
product purchases
VCRs
free programming (with embedded ads)
Harper & Row Ford & ghost writer
Harper & Row Ford & ghost writer
Harper & Row
copyright payment
Harper & Row Ford & ghost writer
Harper & Row
Time Magazine
copyright payment
license part payment
Harper & Row Ford & ghost writer
Harper & Row
Time Magazine
The Nation
copyright payment
license part payment
“purloined” copy
Harper & Row Ford & ghost writer
Harper & Row
Time Magazine
The Nation
copyright payment
license part payment
“purloined” copy
Public
Article with 300-400 copied words
$
Harper & Row Ford & ghost writer
Harper & Row
Time Magazine
The Nation
copyright payment
license part payment
“purloined” copy
Public
Article with 300-400 copied words
$
Cancel contract
Harper & Row Ford & ghost writer
Harper & Row
Time Magazine
The Nation
copyright payment
license part payment
“purloined” copy
Public
Article with 300-400 copied words
$
Cancel contract
Infringement suit
Facts of Campbell
• Identical tunes • Different Orchestration • Overlapping Lyrics
Wind Done Gone
Gone With the Wind / Wind Done Gone
Gone With the Wind / Wind Done Gone
• GWTW: – 1936 – Over 10 million copies – Licensed movie – 2 licensed sequel novels, each for more than
$1 M
Gone With the Wind / Wind Done Gone
• GWTW: – 1936 – Over 10 million copies – Licensed movie – 2 licensed sequel novels, each for more than
$1 M • WDG:
– 2001 – #9 on NY Times Bestseller List – Self-description: “unauthorized parody of
GWTW”
Gone With the Wind / Wind Done Gone
• Characters: – 15 of the characters in GWTW are included
in WDG • Renamed • Scarlett becomes “Other” • Rhett becomes “R”
– Several new characters are added • Cynara – half-sister of Scarlett, daughter of
Planter and Mammy
Gone With the Wind / Wind Done Gone
• Plot: – First half of WDG retraces plot of GWTW
• Abbreviated • Seen through eyes of Cynara
– Second half of WDG extends the story • Scarlett dies
Gone With the Wind / Wind Done Gone
• Language: – Short passages from GWTW reappear,
verbatim or abridged, in WDG – e.g., • GWTW: “Scarlett O’Hara was not beautiful, but
men seldom realized it when caught by her charm”
• WDG: “She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved”
Gone With the Wind / Wind Done Gone
• Language: – Short passages from GWTW reappear,
verbatim or abridged, in WDG – e.g., • GWTW: “Scarlett O’Hara was not beautiful, but
men seldom realized it when caught by her charm”
• WDG: “She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved”
For full development of the record, see http://www.thewinddonegone.com/courtpapers.html
Tom Forsythe’s “Food Chain Barbie”
http://www.ncac.org/store/forsythephotos.htm
“Fondue for Three”
“Lan
d of
Milk
and
Bar
bie
II”
“Margarita Barbie”
“Last Call”
“Mellow Yellow”
“Mix
er F
un”
“Sep
arat
ion
Anx
iety
”
“Skillet Barbie”
“Sunbeam Smiles”
“Trip
le B
arbi
e Sm
ooth
ie”
Seinfeld Problems 1. Cousin Jeffrey 2. Uncle Leo 3. Manya 4. Isaac 5. Mr. Seinfeld 6. Mrs. Seinfeld 7. Mr. Benes 8. Mr. Constanza 9. Mrs. Costanza 10. Mrs. Kramer
Seinfeld Problems 1. Cousin Jeffrey 2. Uncle Leo 3. Manya 4. Isaac 5. Mr. Seinfeld 6. Mrs. Seinfeld 7. Mr. Benes 8. Mr. Constanza 9. Mrs. Costanza 10. Mrs. Kramer
A. Former condo assoc. president B. Drinks Colt 45 in the nude C. Arm-grabbing, loquacious garbage-
can picker D. Leaves NY apartment for sunny
Phoenix E. Gruff well-known novelist F. NYC employee who watches Nature
Channel G. Wears sneakers in swimming pool
and needs “good spot” H. Enjoys heats and avoids AC I. Elderly immigrant with pony, “the
pride of Krakow” J. Nagging, shrill Glamour reader with
back trouble