Yoko Ono/EMI Suit Exposes Fair Use Flaw 409
Ian Lamont writes "Yoko Ono and EMI Records have backed down from their suit against the makers of a documentary film who used a 15-second fragment of a John Lennon song — but only after a Stanford Law School group got involved. Even though the use of the clip was clearly Fair Use, the case exposed a huge problem with the doctrine: It's becoming too expensive for people to actually take advantage of what is supposed to be a guaranteed right. Ironically, the song in question was Imagine."
Imagine (Score:5, Informative)
Re:Use "Fair Use" for P2P hosting? (Score:4, Informative)
That's *exactly* how BitTorrent works. But the doctrine of fair use also implies the purpose for which the parts are used. You can quote parts of a work, for instance, to make a criticism, but not to create a full copy of the original work.
Re:Use "Fair Use" for P2P hosting? (Score:2, Informative)
Fair use is deliberately vaguely defined. Since this is a clear desire to do nothing except deprive the right holder of their exclusive rights, and not intended for criticism or other aspects of fair use, then it's illegal.
Your motivation has much more to do with whether it's fair use than the length.
Re:So sue to recover the losses (Score:1, Informative)
Re:Conservative Flim == SUE (Score:5, Informative)
Re:Fool as a client? (Score:4, Informative)
If only. The way it actually works is that long before a court date is set the judge says "send me a brief" and each party has to write up their case. If you hand in a homework assignment the judge won't even read it. If you hand in nothing, the judge will consider it a default and you immediately lose.
Re:Not your decision (Score:3, Informative)
The copyright to Happy Birthday is not owned by the original author ..not by the new words author ..but by Warner Music Group
due to expire in 2030 (US) 2016 (Europe) currently estimated to be worth US$5 million
and is a good example of copyright that is largely ignored by the general public ...
No such thing (Score:4, Informative)
There is no such thing as a use which is "clearly fair use."
Fair Use is not a right, it's a guiding principle used in courts (it's what is called an "equitable doctrine" and acts as an "affirmative defense" -- "equity" refers to rules which are not law but are designed to overcome unfairness in some applications of the law, and an "affirmative defense" is where you admit to breaking the law but claim that it shouldn't matter because of some extenuating circumstance). Courts weigh several different highly "fuzzy" factors in determining whether Fair Use should apply.
Some people might think this distinction is pedantic, but it's important for the following reason: people in the open-source/media-rights community need to understand that current law is not as much in their column as they'd like. This means two things:
1) You should not assume, just because some use seems fair, that you would win in a copyright infringement case based on Fair Use.
2) If you want to make Fair Use into a well-defined right, you'll need to write to your representatives in Congress.
People who submit summaries on Slashdot which mischaracterize Fair Use do injury to the political goals of the readership.
Re:Nothing new... (Score:3, Informative)
This is exactly what a lawyer would tell you--fair use is a defense and not a right. There's no mention of fair use in the Constitution, but rather the defense evolved in the courts over a number of years and was a part of the 1976 Copyright Act.
With that said, our common sense tells us it's a right. We hear about cases where fair use was successfully argued and we (I think rightly) feel that we can claim similar uses as fair.
The flaw in the system is really that that fair use defense might need to be re-argued in court, should the owner of a copyrighted work decide to be a "jerk" about it.
Re:So sue to recover the losses (Score:2, Informative)
Re:Margaret Sanger (Score:1, Informative)
*ludicrous attempt to portray evolution and atheism as causing eugenics and Nazism*
Margaret Sanger founder the Population Council, which formulated modern eugenics. She thought Hitler circa 1930 to 1940 was wonderful. She wanted to stop births of "Catholics, blacks, Jews, and other mental defectives" (her words).
Only after the evils of the Holocaust were publicized in photographs did she tone down and change the name to Planned Parenthood. You will notice most of her clinics are in black dominated neighborhoods, and blacks have abortions out of all proportion to their numbers in society.
Nothing ridiculous about the movie, bunkie.
How does this tie atheism and evolution to eugenics and Nazis?
The ideas behind eugenics, terrible as they are, came from animal husbandry, not evolution: You improve your herd by allowing the best animals to breed.
Furthermore, in the mid-19th to mid-20th centuries, eugenics was a popular idea among much more people than just Margaret Sanger. Both government and Christian church leaders supported it for a while. Ellen White, a leader of the Seventh-Day Adventist Christian denomination and formulator of the modern Biblical interpretation of young-Earth creationism, advocated eugenics. (For more information, read Ronald Numbers' book "The Creationists" and Christine Rosen's book "Preaching Eugenics.")
Finally, Nazism drew upon historic Christian anti-Semitism. For example, towards the end of his life Martin Luther wrote a horrible -- although popular -- book called "On the Jews and Their Lies," which heavily influenced Hitler.
I suggest, bunkie, you learn more about history and science so that next time you won't be so easily swayed by blatant propaganda pieces like "Expelled" that profess to be unbiased documentaries.
Re:So sue to recover the losses (Score:3, Informative)
From the Copyright Act of 1976, 17 USC #107:
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.
I think that the film infringes substantially on point 2 - Lennon himself would have been deeply opposed to the use of his music to promote ID, and Ono, though not a person I personally admire, has a right to preserve his wishes.
You're right, in a way - people who don't agree with John Lennon's world view have no business using his copyrighted material in a way of which he would disapprove.
Re:So sue to recover the losses (Score:3, Informative)
Yaaaay! The long debate is settled! We have a yardstick in measuring reasonable limits to the 1st Amendment!
If "aproposofwhat" thinks it's propaganda, it's not protected speech!!
Listen 'tard, the most important property of the 1st Amendment is that it specifically shields speech that pisses you off. You are the self-important flamer the Founding Fathers were thinking of.
Oh, yeah, this is a Fair Use discussion. So it's not really about the First Amendment at all. Then let's focus on fair use.
"fair use" is intended to protect scholarly works
"scholarly works", lol. Such works of great academic value as "Amish Paradise"?
There is a standard "four factors" test of fair use. Your venom seems to have rendered you ignorant of them, so let's review these:
All information drawn from http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html [stanford.edu] and http://www.publaw.com/parody.html [publaw.com].
Notice that there is no fifth test, "Degree to which the use offends strongly-held opinions." So citing that as why you think fair use is inapplicable is flatly asinine, as well as a dishonest and weaselly way to try to interfere with someone else's First Amendment rights.
Now, I'm not a lawyer, and I've never seen the work in question, but the commentary in TFS (You did read TFS, didn'y you? No, I didn't think so. Ignorant and angry; that's a great combination you've got going for you) tells me that the use in the offending movie was specifically criticising the content and assertions of the lyrics of the song, not just as light background music. There's your scholary usage, you twit. (It also tells me the submitter is a twit, because it's not ironic if it's intentional and to the point. Irony is "wow, he accidentally shot himself". Irony is not "wow, he intentionally shot himself.")
After many preview submissions, I can see that the mods have rightly submarined your clueless post into "-1 Troll"dom. I'm glad, even if this means my response to you is also invisible.
Re:So sue to recover the losses (Score:4, Informative)
Another phrase I saw was "intentionally ambiguous". It kind of sounds like it's supposed to be vague and left up to the courts to decide in each case, which doesn't sound like good law to me but then IANAL.
Some laws are written intentionally such that the standards of society can be applied through case law. There are times when congress doesn't intend to write a blanket law expressly forbidding or permitting something, but instead wants to allow for an organic definition of the law to form over time. There are pros and cons to that approach.
A lot of case law on fair use does exist, and based on what I know of it, I don't see how this case was "clearly" fair use as described in the article summary. The courts themselves have noted that each case has to be considered individually - there is no singular guiding principle to define what "fair" means in every context. Judgments in some cases seem to contradict judgments in other cases, although it usually comes down to some minor detail or just a question of degree. (For example, when 2 Live Crew was at one point found guilty of infringing for their use of "Pretty Woman", the problem was just the amount of the song that they used.)
One thing is for sure - the position of the copyright owners doesn't matter at all. The copyright owner doesn't get to decide what's fair use and what isn't. Otherwise the copyright owners would win every single lawsuit, and they don't. The law is what it is; it's a specific exception to copyright law. The only question is how to actually define that exception.
There are four criteria that are specifically mentioned in the law that courts use in deciding these cases, although the wording of the law makes it clear that those are not the *only* criteria to be used. Still, they are always the starting point. Generally, they will try to look at the balance of how the work in question fits in with those criteria. In other words, use of a copyrighted work can be fair use even if it's *not* parody (one of the four criteria), provided it's just a short excerpt and is used for criticism. It's not that all four criteria need to be satisfied for something to be fair use. Any one or all can be, plus more criteria not mentioned in the law specifically, and the courts have to decide all this on a case by case basis.
I would think this would be a tricky case. It's only 15 seconds, and you could argue it's being used for criticism and comment, but on the other hand it is a for-profit work (nothing about it being a documentary changes that) and it doesn't sound like the song had much to do with the theme of the film itself - an argument could be made that using this song in a documentary on creationism would harm the song's reputation and hurt its future commercial prospects. (ie. it'd be hard for an ad agency to use a song in a Nike ad that's closely associated with creationism). All that and more would be considered by the courts.
It's certainly not "clearly" a case of fair use. It may or may not be.