Fair Use of the Week: “Peanutweeter” – by “Shirley B”

In this fourth installment of the YaleLawTech Fair Use of the Week series, we would like to wish the Digital Millennium Copyright Act (DMCA) a belated tenth birthday. However, our installment this week is about Peanutweeter, a microblog devoted to humorous mashups of tweets and Peanuts comic strips. Tumblr, which hosted Peanutweeter, removed the microblog on June 16, 2011, after a DMCA takedown notice.

T. Jason Agnello is the creator of Peanutweeter, which mashed together Peanuts and tweets to create humorous images.  In essence, Agnello inserted funny tweets that he found in his browsing of Twitter into the speech bubbles of Peanuts characters.  Despite, or perhaps because of, the site’s growing popularity, Iconix Brand Group (Iconix), who owns the copyrights to the Peanuts comic strips and characters, requested that Tumblr remove the blog. Although Agnello believes that he has a good claim to fair use of the Peanuts characters, he feels that he has neither the energy nor the revenue to fight the takedown.

In this post, we will look at the DMCA’s notice-takedown-putback provisions. We will also examine Agnello’s fair use claim, and, from this perspective, look back at how the DMCA has affected creativity over the last decade.

DMCA: Notice, Takedown, Counter-Notice, and Putback
Section 512(g) of the DMCA requires service providers, like Tumblr, who are engaged in webhosting to adopt, reasonably implement, and inform their users of a policy that provides for the removal of user content when users infringe on another’s copyright. Although a service provider does not need to comply, it would expose itself to liability for copyright infringement.

When a company like Tumblr does comply, here’s how the process works.  In our example, John represents a mashup artist, and Jane represents the owner of a copyrighted work that John is using in his mashup.

Notice and Takedown

  1. John posts a copy of Jane’s work on his Tumblr-hosted website.
  2. Jane finds John’s posted copy.
  3. Jane notifies Tumblr, via Tumblr’s designated agent, that her work is being infringed upon.
  4. Jane sends Tumblr’s agent a sworn and signed notice, which includes:
    1. an identification of Jane’s copyrighted material, including “information reasonably sufficient to permit the service provider to locate the material,” and
    2. a good faith belief that John is using Jane’s copyrighted material without permission; e.g., without fair use.
  5. Tumblr takes down John’s content and tells Jane that it did so.

Counter-Notice and Putback

  1. John has the option of sending a counter-notification to Tumblr to put back his removed content.
  2. John, in his counter-notification, must swear that he has a good faith belief that Tumblr removed or blocked his content by mistake or misidentification.
  3. Tumblr must provide the counter-notification to Jane and then wait 10-14 days.
  4. If Jane does not respond, Tumblr must put back or unblock John’s material.

The Missing Fair Use Analysis
The most substantial problem that we find is that Iconix’s notice is missing any fair use analysis!  A redacted version of Iconix’s notice is provided here.

Many courts require that copyright holders conduct a fair use analysis before sending a takedown notice. It is not surprising that Iconix omitted this analysis because, when we balance the fair use factors, we find that they favor Mr. Agnello rather than Iconix.

In determining whether or not an artist has a valid claim to fair use, there are four factors that one must balance.  If an artist’s particular use of a copyrighted work is fair under these four factors, then the law excuses the artist’s copyright infringement.  See a prior post for an explanation of these factors, or visit the U.S. Copyright Office’s website.

First Factor: The Purpose and Character of the Use. First we look at the character of the use.  In the case of Peanutweeter, we have two different copyrighted works that are mashed up together with comedic effect: Peanuts and tweets. One could argue that the comic mashups are derivative works because they derive from others’ copyrighted material, i.e. Peanuts and tweets. However, Peanutweeter is transformative because it is more than the sum of its copyrighted parts. It imparts new meaning onto both tweets and Peanuts by placing them into new and interesting contexts.

Although Peanutweeter is certainly hilarious, we would not call it a typical parody, which courts have regarded as explicitly fair use.  Peanutweeter is not mocking or criticizing Peanuts, but sometimes it did poke fun at the Twitter-ers.  The fact that Peanutweeter, as a comic mashup, does not fall into any of the common fair use categories, does not make its character less transformative.

Next, we look at the purpose of the use. Peanutweeter was not-for-profit. It had no ads on its website, and it did not sell any of the comic mashups.  The creator of the site, Jason Agnello has stated, “I made PT for laughs.”  Based on the transformative character and not-for-profit purpose of Peanutweeter, the first fair use factor weighs in Agnello’s favor.

Second Factor: The Nature of the Copyrighted Work. Agnello used Peanuts and tweets in Peanutweeter. Peanuts comics are copyrighted and for-profit works. Tweets, however, are a different story. People have argued back and forth over whether or not these 140 character blurbs are protected material.  In our opinion, tweets are protected under copyright law.  If a work is fixed, original, expressive, and non-factual, its length has no bearing on whether or not the work is copyrightable.  Tweets are generally brief expressions of literary authorship based on what people post on their blogs.  That makes them copyrightable and, in all likelihood, removes them from the public domain.  (On the other hand, we think that tweets about facts, ideas, and unoriginal authorship are not copyrightable.) Because Peanuts and tweets are published and, in all likelihood, not in the public domain, this second factor weighs against Peanutweeter.

Third Factor: The amount and substantiality of the portion used. Peanutweeter used portions of Peanuts comics and others’ tweets.  Regarding the tweets, they were sometimes reproduced in their entirety, which goes against the spirit of fair use.   However, these tweets have inherently low quality and convey very little information.  Because they are so short, a critic generally needs to reproduce the entirety of the tweet to make a point or produce a comedic effect.  Regarding the Peanuts comic strips – the reason why Agnello’s microblog was removed – Agnello used an insubstantial portion of the content. Although he used Peanuts images, which is an important and central aspect to the comics, he used only one panel of what are typically four panel comics.  He used none of the text associated with the comics, which gives them humor and context.  When taking all this into account, this third factor neither favors nor disfavors Peanutweeter.

Fourth Factor: The effect of the use upon the potential market. Peanutweeter was not taking any business away from Iconix Brand Group.  It did not create a rival product or a replacement for Peanuts, nor did it decrease the market demand for the tweets.  It is unlikely that a rational person would accept a quote from Peanutweeter at face value.  Viewed from this perspective, Peanutweeter increased the demand for reading the original tweets and imputed nostalgia for Peanuts.  This fourth factor weighs heavily in Peanutweeter’s favor.

When balancing all of these factors together, we think that Agnello’s use was fair and that Tumblr erred in taking down Agnello’s blog. However, it is understandable why Agnello does not wish to counter the takedown notice. It is likely that Iconix, a large media conglomerate, will respond by filing a complaint in federal court.  It is unlikely that Agnello has the necessary resources to litigate his fair use claim, which is a defense to copyright infringement. The expenses of a drawn-out trial would burden Agnello.

Evaluating the DMCA’s Effect on User-Generated Content
Looking back at the last ten years of the DMCA, we can get some perspective on how it has affected content, especially on the internet.   Despite that Agnello has a very strong case for fair use, in all likelihood, Peanutweeter will remain gone for good.   This result is far too typical.  All but the most famous artists are unable to stand against the legal might of the large corporations that own copyright portfolios.  Your average artist is unaware of how to deal with a takedown notice. In a case like this one, where an ISP has removed content in response to a DMCA takedown notice, the artist can request that the content be put back up.  An artist can even sue because of improper removal.   However, for many artists, these takedown notices are intimidating.   The DMCA has put too much of the power in copyright disputes into the hands of copyright holders, which has certainly diminished the amount of creative content on the web. One simply has to look at YouTomb to get a perspective on how much content has been removed.

On the other hand, the DMCA has allowed ISPs, like Youtube and Tumblr, to flourish. By immunizing them from  copyright infringement when they comply with the notice-takedown-putback regime, the DMCA has given these content providers a great deal of freedom.  These providers can allow users to post content without first inspecting and approving it.  This means that providers don’t need to expend constant resources scanning for potential infringement.

At the moment, the DMCA’s effect has been mostly negative.  When copyright holders exercise their rights under the DMCA, content providers have more incentive to remove potentially infringing content than determine the correctness of a takedown notice.  The net result is to quash creativity.  Perhaps in the next decade, we will find generative versions of the DMCA that better promote creativity while still protecting the rights of authors.

Fair Use of the Week: “Kind of Bloop” – by “Max C.”

bloop

Jay Maisel took the iconic photo of Miles Davis on the cover of Kind of Blue (I’m listening to “So What” right now). Years later, Andy Baio used the same photo on the cover of Kind of Bloop, a remix of Kind of Blue into 8-bit sounds. To make a short story shorter (click through to read Andy’s full side of the story), Maisel thought Baio was infringing on his copyright, and Baio settled for paying $32,500. Andy Baio:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

Maisel goes through his post and does what we normally love to do here: analyze the four factors you know and love:

The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market

Baio and his legal gurus think that the first issue— the transformation— is the key one. It’s also the hardest to ascertain, so I’ll leave it alone for a second. In my entirely unqualified opinion, here’s the analysis on the second through fourth factors:

The nature of the copyrighted work
Is Maisel’s original photograph science? Fact? Biographical? Historical? It might be biographical and historical, but I’ve gotta side with Maisel on this one: it’s a creative work and thus falls squarely against a fair use finding.
No fair use: strike one.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
It used Maisel’s whole photograph. But it didn’t use the whole resolution. Baio points out the absurdity of this component of fair use: where do we draw the line on the resolution? resolution

Baio defends himself on the third factor by asserting,

With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements. Courts routinely find fair use even where the entirety of an image is used.

The reason why courts find fair use even where the entirety of an image is used is because fair use has more than just the third factor! I’m sure that were fair use only the third factor, it wouldn’t be fair use to use the whole image.

What are a photograph’s “protectable elements”? Some quick Lexis-Nexis arrives at an interesting holding from Metcalf v. Bochco, which states, “The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element.” Heck, “the arrangement of puppies in a photograph may constitute a protectable element.” (Corwin v. Walt Disney Co)

Big. Huge. (thanks for that one Tiger) Obviously, a pixel isn’t copyrightable. But a series of pixels, strung together, can be— and Baio’s string looks suspiciously like a sequence of unprotectable elements that end up being protected. No fair use: strike two.

The effect of the use on the potential market for, or value of, the copyrighted work.
Maisel claims that,

“[Maisel] is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”

OK, I get it— Maisel’s a purist. He felt violated. I feel violated every time I get touched in my naughty bits, but it still doesn’t lower the value of my goods. *rimshot*

(Jokes aside, there’s a worthy debate about artistic rights of control— we all are owners of copyrighted material, and I think most people feel that as owners we have the right to control our works. But that’s not the constitutional basis for copyright, nor can it possibly be comprehensively considered in this blog post. Suffice it to say despite making light of it, I care a lot about Maisel feeling violated, but have no final conclusion about artists’ rights.)

No one in their right mind was considering buying Maisel’s photo of Miles Davis, saw Baio’s album cover, and bought that instead, destroying the market value of Maisel’s photo. Or at least, no one would have prior to this lawsuit. But this whole press debacle probably cost Maisel’s work a lot of value. Fair use! Baio’s still alive!

The purpose and character of the use.
OK, so it all comes down to the transformation issue after all. Did Baio’s piece transform Maisel’s work into something new?

I really wish this one had been settled in court, by a judge, who would have had to write an opinion. This settlement denies us the richness of a judgment to refer to in future cases. Instead, I’ll just have to ask myself if there’s new expression or meaning in a pixelated photograph. In context, as an album cover to an 8-bit Kind of Blue, it adds meaning and transforms without stepping on Maisel’s toes. But on its own, I’m uncomfortable with a ruling that would lead to art that has merely had its resolution changed to leaping from the artist’s control into anyone with a copy of Photoshop.

Fair use, once and for all. But that unofficial-Max-Cho ruling has no standing anywhere except my own mind. And it doesn’t mean that resampling an image alone constitutes fair use: due consideration must be given to the transformation of the message— if something truly new is communicated.

Promoting Science and Useful Arts

Sorry Andy Baio, and sorry Jay Maisel for this rough legal ride. I doubt it was a pleasure for either of you, and am saddened and irritated by a legal process that leaves both parties upset, society pissed off, and the world less one fine album cover. I’d like to remind everyone that copyright doesn’t exist in a vaccum: copyright is granted to “promote the progress of science and useful arts.” Any fair use issue whose decision fails to promote the progress of science or useful art is a bad fair use outcome, and I think this is a prime example. It cost both Maisel and Baio a lot of money, harmed two artists, and left the spectators dissatisfied and concerned, and angry. There’s gotta be a better way.

Fair Use of the Week: “Bowling With My Beak” by Key of Awesome – by “chrisnofal”

Welcome to our second Fair Use of the Week, the YaleLawTech series where we analyze popular examples of fair use on the internet.  This week we examine Bowling With My Beak, a musical comedy sketch by Key of Awesome.

Key of Awesome is an online comedy show that spoofs celebrities, pop-culture, and the latest internet memes.  It satirizes pop icons such as Glee, Sarah Palin, and Justin Bieber.  This comedy show came onto the YouTube scene in October 2009.  Check out Bowling With My Beak here:

This mashup combines aspects of Adele’s music video Rolling in the Deep with characters and sound effects from the popular game Angry Birds.  Even though Key of Awesome labels their sketch as a parody, it is more than a parody because it mashes-up multiple copyrighted works: the music and video from Adele’s Rolling in the Deep and the characters and sound effects from Angry Birds.  It is the combining of multiple copyrighted works that makes this sketch a mashup rather than just a parody.

As an interesting side note, if Bowling With My Beak were a true parody, then it would be protected automatically by the preamble to § 107 of the Copyright Act, which lists “criticism” as a sanctioned fair use.  (Read our introductory post for more information about the Copyright Act.) Because we are dealing with a mashup, rather than a parody, we need to conduct a more extensive fair use analysis.

Fair Use Analysis
Courts balance four factors when determining whether it is fair to mash together multiple copyrighted works.  These factors are (1) the purpose and character of the use, (2) the nature of the copyrighted works, (3) the amount and substantiality of the portions used, and (4) the effect of the use on the potential market for, or value of, the copyrighted works.  If the factors weigh in favor of fair use, then a mashup artist is not liable for copyright infringement. (Check out last week’s posting about the song Mash it Up by artist Norwegian Recycling to see how we balanced these factors.)

Factor 1: The purpose and character of the use. A good question to ask when examining this first factor is whether the mashup transforms the copyrighted works by adding new expression or meaning.  A transformative work is protected by fair use, whereas a derivative work is not.  A second question to ask is whether the mashup is commercial or non-commercial.

Like a derivative work, Bowling With My Beak is based on one or more underlying copyrighted works.  Unlike a derivative work, this mashup adds new expression and meaning to the underlying works. Rachel McPhee, who plays Adele, adds new expression to Rolling in the Deep because she lip-syncs to vocals by Anastasia Douglas and lyrics by Mark Douglas with Michael Reisman.  Key of Awesome brings new meaning to both Angry Birds and Rolling in the Deep because the mashup likens Adele, someone in the physical world, to an Angry Bird, something in the virtual world.  These transformative aspects favor fair use.

Although Bowling With My Beak is more than a parody, it would be wrong to say that elements of parody are absent.  Having Rachel McPhee, an Adele look-alike, play Angry Birds while sitting in a chair is clear parody because it exposes the mediocrity and pretentiousness of Adele’s serious music video.  McPhee lip-syncs, “Water glasses are strewn about the room / Got to make a plan to do the dishes soon / This cocaine ninja is smashing dishes / My drummer was naughty so I made him face the wall.”  The lyrics also expose the addictive hold that Angry Birds has over gamers, such as in the lines “I have to get three star-ee—ars / And I’m playing it in my sleep / This 99-cent app purchase is destroying my life.”  Like a parody, this mashup forces us to examine serious issues from a comic standpoint, which makes the use of the underlying works seem fair.

Lastly, we must examine whether the use is commercial or non-commercial.  A commercial use is one that earns a profit.  In short, fair use is not a license for corporate theft. Here, Key of Awesome distributes their mashup for free on YouTube, but charges $1.29 for their music-only version of Bowling With My Beak on Apple’s iTunes. Because the use is not exclusively commercial, it splits our analysis.  When taking all of this into consideration, this first factor favors fair use for the YouTube video but against fair use for the iTunes version.

Factor 2: The nature of the copyrighted work. The second factor favors scientific, factual, biographical, or historical works more than works of entertainment.  This factor weighs against fair use when the underlying copyrighted works are published and sold.  Here, both Rolling in the Deep and Angry Birds are published, sold in the marketplace, and created for entertainment purposes.  This means that this second factor weighs against fair use.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The third factor focuses on whether the mashup artist has taken more than is necessary to make a transformative work.  A mashup artist must take something from a copyrighted work to make a mashup, but not so much as to copy the original work verbatim.  The artist may appropriate only enough to remind the public about what he or she is commenting on.

Here, Key of Awesome takes very little from Rolling in the Deep and Angry Birds.  They imitate the likeness of the Adele’s music video, rather than copying it, and they depart from the video near the end of their mashup.  Key of Awesome uses stuffed animals, rather than computer graphics, to parody Angry Birds.  Bowling With My Beak has a novel melody that combines the tune of Rolling in the Deep with sound effects from Angry Birds.  Anastasia Douglas uses her own voice to sing new lyrics to this creative melody.  Because Key of Awesome takes no more than is necessary to create a successful mashup, this third factor favors fair use for both their iTunes (paid) and YouTube (free) version.

Factor 4: The effect of the use on the potential market for, or value of, the copyrighted work. The fourth factor focuses on whether the use of a work threatens the incentives for creativity that copyright law tries to protect.  If a use is complementary to, rather than a substitute for, the copyrighted work, then the use does not harm the market for the copyrighted work and the use is regarded as fair.

It is clear that the use of Angry Birds does not harm the potential market for the Angry Birds application.  Quite the opposite, Bowling With My Beak can remind gamers to buy the latest version of the application, Angry Birds Rio. For similar reasons, Bowling With My Beak is not a substitute for Rolling in the Deep.  The mashup has entirely different lyrics and vocals, departs from Adele’s music video, and intertwines sound effects from Angry Birds with music from Adele’s song. Bowling With My Beak does not fulfill the demand for Rolling in the Deep or Angry Birds.  Because there is little harm to the potential market for the underlying works, this fourth factor favors fair use for both their iTunes (paid) version and YouTube (free) version.

When weighing all of the above four factors together, we think that both versions of Bowling With My Beak are protected by fair use.  The interest in dissemination of this mashup outweighs the possible harm to incentives for producing creative works.  The mashup comments on some serious social issues through parody.  Adele and the developers of Angry Birds might be less than eager to license their works for ridicule, which is why protecting Bowling With My Beak through fair use is very important.

Fair Use of the Week: “Mash It Up” by Norwegian Recycling – by “Aditya K”

Welcome to our first Fair Use of the Week, a new YaleLawTech series where we analyze new, exciting examples of fair use on the internet. For a little more background on the project and what fair use is, be sure to read our introductory blog post.

This week’s fair use example is a mashup, appropriately called “Mash It Up”, by artist Norwegian Recycling. Norwegian Recycling, whose real name is Frans Peter Bull Enger, has been on the remix scene since 2006. He has produced three mashup albums, and his publishing style is fairly unique in that he pieces music videos together to go along with his tunes. Check out “Mash It Up” here:

 

 

A mashup, as you could probably tell from the video, is the combination of clips from other works of art in order to create a new piece. Most popularly done with music, mashups can comprise of videos, books, collages—really, almost anything. These remixes can feature two songs (e.g. tracks from DJ Danger Mouse’s The Grey Album) or hundreds (e.g. Girl Talk’s Night Ripper). Wikipedia has a great article covering the history and types of mashups.

Norwegian Recycling’s “Mash It Up” combines twelve different songs and music videos to create a new piece with a different meaning. The artist has carefully placed lyrics from all twelve songs to describe—wait for it—the nature of creating a mashup. Very meta, I know.

Fair Use Analysis

Fair use is normally a legal defense against a claim of copyright infringement. For the purposes of this series, however, we’re going to forget that fact and run through a fair use analysis anyway. When courts examine fair use, they look to (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for, or value of, the copyrighted work. If the factors weigh in favor of fair use, there is no copyright liability.

The first factor regards the purpose and character of using the copyrighted material. For this factor, I must determine how “transformative” the new work is. One helpful question to ask, suggested by Stanford’s Fair Use & Copyright Center, is, “Has the material you have taken from the original work been transformed by adding new expression or meaning?” In the case of “Mash It Up,” Norwegian Recycling pieced together multiple copyrighted works to create a new song with an entirely different meaning from the original works. The artist used copyrighted lyrics, often out of context, in order to express his own idea. This is a clear transformation, rather than a derivation, of the copyrighted works. The first factor test also takes into account the commercial nature of the use; in this case, Norwegian Recycling is giving away his mashup for free on his website. His intent, it appears, is noncommercial. It seems that this factor falls in fair use’s favor.

It can be further argued that “Mash It Up” falls under one of fair use law’s sanctioned purposes: commentary. Because of the “meta” nature of the lyrics, including lines like “Now I know that I had to borrow / And try something new / Without being disrespectful,” Norwegian Recycling was commenting on the nature of mashups. He goes on to note, “Ain’t no wonder there’s panic in the industry,” and, “Cuz you’re a criminal / And it’s alright with me.” His lyrics are a clear commentary on the tensions between the music industry, intellectual property, and the remix community. This point of view bolsters the song’s fair use argument.

Norwegian Recycling

The second factor is about the nature of the copyrighted work. The works that “Mash It Up” features, including Cee Lo Green’s “Fuck You,” Lady Gaga’s “Bad Romance,” and Sean Kingston’s “Beautiful Girl,” are all popular, published, and heavily sold songs. Because these are not in the public domain, the factor seems to weigh in their favor.

The third factor covers the amount and substantiality of the portion of copyrighted material used. In “Mash It Up,” Norwegian Recycling uses short lyrical clips—all of which are no more than a few seconds long. Because of this minimal and insubstantial quantity, use of these clips should be fair. That being said, the entire song’s background music is a looped section of Cee Lo Green’s “Fuck You.” Cee Lo’s clip—especially the opening chords—are pretty recognizable, and a rational observer would associate those notes with his song. The “heart” of the work, generally the most memorable part of the tune, often gets more protections than other, more minor portions. This is where things get a little tricky: yes, Cee Lo’s track makes up the background of the entire Norwegian Recycling tune, but do the short cuts of the other songs trump this use? If I had to judge this, I would say yes; the lyrical portions are clearly the more important parts of the mashup, and the combination of lyrical cuts over an edited background seems transformative enough to still render this clip fair use.

The fourth and final factor is the effect of the use on the copyrighted material’s market or value. Norwegian Recycling’s mashups are seemingly noncommercial, as I determined above. I don’t think the song “Mash It Up” serves as a market substitute for the original songs; “Mash It Up” is no replacement for Lady Gaga’s “Bad Romance.” In fact, as has been claimed by other remix artists, mashups encourage listeners to seek out and buy the original tunes. It helps that Norwegian Recycling has listed all twelve sampled works on his song’s YouTube page. This factor weighs in favor of Norwegian Recycling.

As Justice Souter notes in Campbell v. Acuff-Rose Music, fair use doctrine purposely contains vague language so issues would be addressed on a case-by-case basis. He states, “All [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.” Mashups—and other digital-era forms of creativity—force us to consider the nature of copyright, industries, and social norms very carefully. Using my analysis, it seems clear that “Mash It Up” is protected by fair use.

As an interesting side note, Norwegian Recycling may be worried about remixing “without being disrespectful” for good reason. Although being respectful has no place in U.S. copyright law—in fact, potentially harsh criticism is strongly protected by fair use—the issue of respecting the integrity of a copyrighted work is very real in other parts of the world. European law, including Norwegian copyright law, contains a set of rights known as “moral rights.” Criticism, commentary, and parody can offend or detract from a work, thus potentially violating the creator’s moral rights. In this case, cutting songs and mashing them into a new context could raise some alarms. However, since the commentary in “Mash It Up” is directed at a greater industry and culture, rather than directly at the artists themselves, it doesn’t seem like he is violating any of their moral rights.

Fair Use of the Week – by “Aditya K”

FUOTW

Hello YaleLawTech audience! I hope you’re enjoying your June, wherever you may be. I’m happy to announce a new feature on the YLT blog: Fair Use of the Week.

Fair Use of the Week, as the name implies, will be a weekly blog post exploring some current example of fair use. These examples run the gamut of anything on the internet—a mashup, a parody, a compilation, a remix, or a collage. These works might take many forms—digital videos, songs, computer code, or the latest meme. We plan to explore how and why each week’s example embodies the idea of fair use by looking to the text of the Copyright Act, examining judicial precedent, drawing on the historical purposes of copyright, and evaluating the transformative nature of the work.

Fair use is a limitation on copyright infringement. It has often been said that culture builds on the past; this concept is sometimes taken more literally, with works drawing from and incorporating previous works. When this “remix” occurs in a limited amount, in a transformative manner, or for a legally defined purpose (such as commentary, criticism, or parody), it is considered an example of fair use.

In the United States, fair use is defined in Title 17, Section 107, of the United States Code:

    [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means [such as selling, renting, leasing, publicly performing, displaying, or digitally transmitting] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

      (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

      (2) the nature of the copyrighted work;

      (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

      (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This language sets out a broad balancing test and does not draw a “bright line” or mark a clear limit on the quantity or quality of a work that someone can use in order for that use to be “fair.” In fact, only a court can definitively say whether or not a work falls under the protection of fair use, and courts make this determination on a case-by-case basis. (Check out Folsom v. Marsh, which first recognized the court-made doctrine of fair use.) Because of this, there is an unresolved tension between protecting and promoting works experienced by both content owners and remixers. In this blog series, we will show you how the above factors can apply in a variety of ways.

The ability to appropriate material into new pieces is easier than ever. In our digital ecosystem, fair use plays an increasing role as it embodies heartfelt criticism, creation of homage, or affectionate (or not so affectionate) parody. Taking full creative advantage of the internet and new technologies thus relies on the concept of fair use—and a strong commitment to upholding it. Without fair use, much of the novel productions we are used to in this day and age would not exist, putting a cork on these newly explored media. Through this series of blog posts, we hope to show not just the prevalence of fair use, but also its potential, its power, and its importance.

New Privacy Hypotheticals – by “Bobby D”

Technology is eroding individual privacy more rapidly than either the judiciary or the general population realize. Our project, through a series of hypothetical situations, seeks to (1) provide a clearer look at how today’s technologies put individual privacy at risk, and (2) draw attention to the judiciary’s current understanding of certain issues these developments have created.

Today’s judges do not entirely understand the ubiquity of new technologies in modern America, or the staggering amount of data these technologies (such as smartphones or laptops) contain. Scalia’s public embarrassment at the hands of a Fordham Law class indicates that he does not quite grasp the nature of privacy in today’s Internet age, and judicial opinions in a variety of cases (People v. Diaz, US v. Moreno) reveal that judges do not comprehend the scope with which new technologies affect personal privacy or control. Our Legal Background section describes these matters in more depth, and the Memorandum to the Judiciary enumerates specific proposals to improve judges’ understanding of these issues.

To gauge the public’s opinion, we surveyed Yale students. The survey enforced the notion of a gap in understanding modern privacy: it showed that information or data students hold “somewhat” to “very” private is often data they do not have control over. Students held the content of emails and text messages more private than almost every other piece of data, yet these data are archived by corporations in full. Internet searches and web browsing were considered rather confidential, but Google has no qualms about gathering and using these data. The survey also highlighted areas where law lags behind contemporary expectations. Every piece of data considered substantially private on the survey is collected by web-based corporations, but most Internet users do not realize. Income / Financial Aid Status was considered as private as Medical History, yet nothing like HIPPA exists to protect financial information. What students deem most private is not necessarily well-protected; these students should be aware of that fact, and the judiciary ought to take into account these new societal expectations in determining privacy law.

The privacy hyoptheticals deserve attention from both the judiciary and the broader public. We aim to educate both parties about the countless new ways an individual can lose their right to privacy in today’s world.

To see the project in its entirety please visit our website

Frances Douglas TC ’11 / Bobby Dresser PC ’14 / Stephanie Rivkin PC ’13 / Emily Rosenberg PC ’11 / Joel Sircus TC ’14