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Tag: fair use

  • Gingrich and Romney’s Copyright Troubles

    I have previously blogged about How Copyright Blunders Push Political Campaigns Off-Course. The election cycle is providing new – but not necessarily fresh – examples of those blunders.

    Newt Gingrich’s Use of “Eye of the Tiger”

    Frank Sullivan, a founding member of the Survivor, has sued Gingrich for use of one of the musical group’s signature songs, “Eye of the Tiger”. Sullivan complains that “Gingrich took the stage at political conferences and similar public events as a recording of ‘Eye of the Tiger’ was played over the public address system”. Sullivan’s complaint is legally weak. As long as the campaign or the venue for the rallies had a public performance license, performing "Eye of the Tiger" at a public rally is just fine. In the United States, ASCAP, BMI, and SESAC issue most public performance licenses in the form of blanket l icenses covering all the songs in the organization’s catalog.

    Sullivan also complains that a political group working with Gingrich posted online video recordings of the rallies with “Eye of the Tiger” playing in the background. The rules for using music at a political rally do differ from the rules for using music in a political ad or video. While one does need a synchronization license to use a song in a video, the circumstances described in Sullivan’s complaint sound more like the song was captured on video as background during the recording of a newsworthy event. Whether licenses are required for such incidental use of music is a question that often tortures documentary filmmakers. Many media industry professionals argue that such an incidental use is a fair use. However, the few court opinions indirectly addressing the question do not provide a clear, universal answer.

    Mitt Romney’s Ad Featuring Tom Brokaw

    A recent anti-Gingrich 30-second political ad posted by Mitt Romney consists only of a 1997 clip from NBC’s “Nightly News”. In the clip, Tom Brokaw reports that Congressional members have found Gingrich guilty of ethics violations. NBC has already sent a cease and desist letter asking that Romney stop using the ad. Romney’s campaign characterizes the use as a fair use. Even though Romney uses the clip within the context of political commentary, fair use may be difficult to show since the ad includes no added voice-over or other original material. I’m surprised that Romney’s campaign learned no lessons from Robin Carnahan, the 2010 unsuccessful Missouri candidate for the U.S. Senate. Fox News sued Carnahan after she released a political ad containing 30 seconds of Fox News Network footage.

  • Gaylord v. US, Part One, Korean War Veterans Memorial on Stamp Is Not Fair Use

    On February 25, 2010, the United States Court of Appeals for the Federal Circuit, made a decision in the case of Gaylord v. United States. While many reports of the opinion focus on the copyright fair use determination, the court opinion also provides instructive analysis on what it takes to qualify as a co-owner of a copyright and potential pitfalls in the copyright provisions of government contracts.

    This is the first of a three-part blog posting. In this first part, I discuss the Gaylord fair use analysis. In Parts Two and Three, I’ll discuss the copyright co-ownership and government contracting portions of Gaylord v. United States.

    Background of the Dispute

    In 1986, Congress enacted legislation to build the Korean War Veterans Memorial in Washington, D.C. Cooper-Lecky Architects, P.C. (Cooper-Lecky) was selected as the primary contractor for the Memorial. Cooper-Lecky selected Frank Gaylord, a nationally recognized sculptor, as the sculptor for the Memorial. Gaylord sculpted nineteen stainless steel statues representing a platoon of nineteen foot soldiers in formation referred to as The Column.

    After completion of the Memorial, Photographer John Alli took several photographs of the Memorial including a photograph taken in January 1996 after a snowstorm that left the statues in the column covered with snow. In 2002, the U.S. Postal Service issued the stamp, titled “Korean War Veterans Memorial.” which features one of Mr. Alli’s photo and depicts fourteen of Gaylord’s nineteen soldier sculptures.

    The Postal Service received over $17 million from the sale of nearly 48 million of the Korean War Veterans Memorial stamps. In addition, the Postal Service sold retail goods such as commemorative panels and framed art featuring images of the stamp. The Postal Service had the permission of Mr. Alli and Cooper-Lecky to use the image on the stamp. The Postal Service did not have the permission of Mr. Gaylord. Mr. Gaylord sued the Postal Service for copyright infringement.

    Fair Use Analysis

    One of the United States’ defenses to Mr. Gaylord’s lawsuit was fair use. The United States Court of Appeals for the Federal Circuit did not agree. Here is the court’s analysis when applying the copyright fair use four factor test:

    Factor One. What are the purpose and character of the Postal Service’s use of Gaylord’s work? The Postal Service received millions of dollars from the sale of the stamp. The court classified the use as commercial. The court did not find the use of the Column to be transformative. Factor One weighs against fair use.

    Factor Two. What is the nature of the copyrighted work? The nature of the Column is expressive and creative. Factor Two weighs against fair use.

    Factor Three. How much of the copyrighted work is used? The stamp depicted fourteen of the nineteen soldier sculptures in the Column. Factor Three weighs against fair use.

    Factor Four. Does the use harm the copyright owner’s ability to market the work? The court ruled that the stamp has not and will not adversely impact Mr. Gaylord’s efforts to market derivative works of the Column. Someone seeking to take a photograph of the Column or otherwise create a derivative work would not find the stamp to be a suitable substitute for the Column itself. Factor Four favors fair use.

  • Fairey and the Associated Press and the Obama Poster

    Visual artist, Shepard Fairey, created several posters to support the candidacy of President Barack Obama.  One of Fairey’s posters now hangs in the Smithsonian Institution’s National Portrait Gallery in Washington, DC.

     

    Fairey admits that he used a photograph taken by Mannie Garcia as a visual point of reference to create his posters.  The Garcia photograph, taken by Garcia while on assignment to the Associated Press, depicts then Senator Obama at an April 2006 panel discussion at the National Press Club.  

     

    After this revelation, the Associated Press contacted Fairey to demand a license fee for the use of the Garcia photograph.  The AP said it would contribute any proceeds to a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts. In a preemptive strike, Fairey filed his own lawsuit asking a New York federal court for a declaratory ruling that his posters do not infringe any copyrights held by the Associated Press. 

    The case raises some interesting issues.

     

     

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  • Prince and the Dancing Baby

    Background

    Many of you have heard about the dancing baby and have probably seen the video on YouTube.

    Stephanie Lenz made a home video of her young children dancing to “Let’s Go Crazy”, a song written and recorded by the artist formally known as Prince. Lenz then posted the thirty-second video on YouTube. In response to a Digital Millennium Copyright Act take-down notice from Universal Music indicating that the video infringed the copyright in “Let’s Go Crazy”, YouTube removed the video. Lenz got the video re-posted by sending YouTube a counter notice. Then, with the help of the Electronic Frontier Foundation (EFF), she launched a lawsuit against Universal Music. Lenz and EFF argue that the video usage of “Let’s Go Crazy” is a fair use and that Universal Music’s issuance of the takedown notice was bad faith and constitutes misrepresentation under the DMCA.

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  • Giving Credit for Public Domain and Fair Use Materials

    Some producers using public domain and fair use materials
    wonder what attribution they are required to give to the creators of those
    works, whether they must identify the works as being public domain or fair use,
    and what other rules they must follow when using such works. 

    If the material is in the public domain (meaning the
    copyright in the work has expired or never existed), copyright law places no
    obligation on you to refer to the work as public domain, to cite the source,
    or to provide any other type of credit.  Likewise,
    if your use of the material qualifies as a fair use (here I’m referring to fair
    use as defined under Section 107 of the Copyright Act), copyright law places no
    obligation on you to indicate that you’re relying on fair use, to cite the
    source, or to provide any other type of credit.

    Nevertheless, it is “courteous” to cite the source
    and/or provide a credit.  Also, depending
    on your professional field, your colleagues may take a dim view of your quoting
    sources and using materials without providing an appropriate credit. 

    There is
    at least one caveat to providing credit when you are relying on fair use.  Y    our claim that your use is protected by
    copyright fair use is not a guarantee that the rights
    owner will agree with you.  There is no
    bright line in determining what qualifies as a fair use and what doesn’t.  That’s why the decision of whether to use a
    particular copyrighted work without permission often revolves around a risk
    assessment    .  One of the risk factors to consider is the
    likelihood of the use coming to the attention of the rights owner.  Putting in a credit increases the likelihood
    that the rights owner will become aware of your use.

     

    Because fair use is
    uncertain, it’s typically my preference to have permission rather than rely on
    fair use.  If you have permission from
    the rights owner, you have a license from the rights owner to use the work in a
    particular manner.  If the rights owner
    dictates a specific form of credit, I would characterize that specification as
    a term of the license agreement and I would do my best to comply.  

  • Free Samples! It’ll Cost You!

    A Guide Through the
    Legal Jungle Trivia Question


    Who is the musical artist who released the album “All Samples Cleared” as  a humorous response to a landmark decision forbidding unauthorized sampling?

    1. Beastie Boys
    2. DJ Jazzy Jeff and the Fresh Prince
    3. Biz Markie
    4. Grandmaster Flash
    5. Boogie Down Productions

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