How Much Is Too Much?: Campbell and the Third Fair Use Factor
2015; University of Washington School of Law; Volume: 90; Issue: 2 Linguagem: Inglês
ISSN
1942-9983
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoINTRODUCTIONFair use limits rights of copyright owners. Someone who uses a copyrighted work without permission in a way that would ordinarily come within one of copyright owner's exclusive rights nevertheless does not infringe if use qualifies as fair use. Fair use originated as a judge-made doctrine, and was only codified in statute with passage of 1976 Copyright Act, which took effect on January 1, 1978. Section 107 of Act sets out a nonexhaustive list of four factors that courts are to consider in determining whether any particular use qualifies as a fair use.1The Supreme Court's most recent and sustained attention to copyright's fair use doctrine came in 1994 in Campbell v. Acuff-Rose Music, Inc.,2 a case in which owner of copyright in musical work Pretty Woman (made famous in Roy Orbison's recording) sued 2 Live Crew for creating a rap version of song. Academics and courts have paid substantial attention to way Supreme Court in Campbell developed analysis of first of four statutory fair use factors and gave a prominent role to question of whether a defendant's allegedly infringing use was transformative.3This Article explores an aspect of Campbell decision that has attracted less attention-the Court's articulation of how courts should analyze third fair use factor. That factor calls for considering the amount and substantiality of portion used [by defendant] in relation to [plaintiff's] copyrighted work as a whole.4 In other words, how much of plaintiff's copyrighted work did defendant use? And how substantial was portion that defendant used when compared to plaintiff's entire copyrighted work.Part I traces relatively short history of fair use in Supreme Court. Before Campbell, Supreme Court had provided little guidance on how to apply factor three in fair use analysis. Campbell filled that gap by announcing that third factor calls for considering whether defendant used a reasonable amount of plaintiff's copyrighted work. The remainder of Article looks at how this reasonableness analysis has fared in circuit courts in two decades since Campbell was decided. It studies sixty-one post-Campbell appellate decisions that have engaged in fair use analysis. Part II details methodology of study and describes a number of general characteristics of appellate fair use decisions since Campbell. Part III looks specifically at treatment of third factor in opinions in study-both at how appellate courts weight that factor, and to what extent those courts expressly articulate Campbell's reasonableness approach in their analysis. Finally, Part IV focuses on relatively large portion of appellate fair use decisions that involve a defendant's use of plaintiff's entire work. In particular, this Part argues that courts have used Campbell's reasonableness approach in finding fair use when a defendant's use of entire copyrighted works involves a relatively new technological use.I. FACTOR THREE IN THE SUPREME COURTA. Fair Use Cases Before CampbellBefore Campbell decision, only three Supreme Court opinions addressed application of Section 107's factors to a fair use claim. In Sony Corp. of America v. Universal City Studios, Inc., 5 owners of copyrights in movies and television shows charged makers and distributors of videocassette recorders (VCRs) with liability for copyright infringement allegedly committed when defendants' customers used their VCRs to record television programming broadcast over air. In deciding case, Court considered whether VCR users were engaged in noninfringing fair use.6 In Harper & Row, Publishers, Inc. v. Nation Enterprises,7 Court considered fair use in context of a claim that magazine The Nation infringed when, shortly before publication of former President Gerald R. …
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