Free Essay

The Fair Use Doctrine

In: Business and Management

Submitted By pisanoj86
Words 1026
Pages 5
The Fair Use Doctrine

In 2013 SOFA Entertainment sued Dodger Productions for its unlicensed use of a seven second clip of the “Ed Sullivan Show” during the stage musical “Jersey Boys”. Dodger Productions argued fair use to defend themselves in their use of the clip during the show. In the show shortly before the clip is played, one of the characters portraying a member of the Four Seasons’ band explains how important the performance on the “Ed Sullivan Show” was to the band. The band hoped that its performance on the show could help bring the music focus in America back to an American band rather than the British bands that had been hugely popular at the time. Then the controversial clip plays, while the actors warm up to get ready for their performance. (Larson, 2013) The court ruled in favor of Dodger Productions agreeing with its use of the Fair Use Doctrine as a defense. The court determined that it fit under the fair use exception for two major reasons. First, the use of the clip was transformative. This is the case because the way in which the clip is used in the show adds new historical meaning to the clip rather than simply rehashing the entertainment that was gleaned from the clip when it initially aired. Secondly, the court determined that the clip was not the “core” of the copyrighted show. Since the clip does not include the actual performance by the Jersey Boys nor does it include the entire episode then it does not pull from the core of what the material was copyrighted for. (Larson, 2013)
Defining Fair Use At its most basic, fair use is simply any “copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” (Stim, 2013) This can all be done without getting permission from the copyright owner to use their material. This is why fair use is used as a defense in cases of copyright infringement. There are four factors that judges must considered when taking on cases of fair use: “the purpose and character of your 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.” (Stim, 2013)
The first factor mentioned can also be called the transformative factor. What this factor is asking the judge to examine is whether the material is being used to create something new or if it is just a verbatim copy into another work. There are two important questions to consider: “Has the material you have taken from the original been transformed by adding new expression or meaning?” and “Was value added to the original by creating new information, new aesthetics, new insights, and understandings?” (Stim, 2013) The second factor is about the copyrighted work itself. Fair use is easier to apply if the copyrighted work is factual rather than being a work of fiction. It is also better to pull from published work rather than unpublished work. (Stim, 2013) The third factor is about how much of the work is being used. The less of the copyrighted material that is used, then the more likely fair use will be applicable. (Stim, 2013) Using a very small portion of the work that does not pull from the core of the material is the best practice. The last factor is how your use of the copyrighted material affects the market for the original material. If your use of the copyrighted material hurts is marketability (as an example, if you were to use portions of a book before it has been released, that is going to hurt the ability of the book to make sales). However this cannot be looked at by itself as all the factors tie together and change whether or not fair use is applicable. (Stim, 2013) In the case described above, fair use was successfully raised and I believe that this was the proper decision looking at the factors of fair use. It was a very short clip that added new meaning to the material used by giving the bands feelings going into the show. Since it was such a short clip it was not as if they were using the entire episode of the “Ed Sullivan Show” but rather they just used a small segment that did not pull from the core of the show. Lastly the show has long since ended, so the use of the clip does nothing to hurt its marketability. (Larson, 2013) While it is important to protect intellectual properties this does not mean that fair use cannot also be allowed. Protecting intellectual properties is important, because it protects the work of individuals without allowing others to just steal or copy their work without permission. If IPs were not protected, then no one would be able to make money from their creations because someone else could just make their own version that they sell, essentially stealing money from the original content creator. At the same time it is important for society to be able to take existing properties and use them in new ways, as long as that use does not hurt the original content creator. While something like a parody on SNL may not be critical to society, parodying existing work is allowed because it adds a new element to the original work rather than being just a straight copy of it. Due to the regulations of fair use put in place I do not believe it hurts the content producers because it is set up in such a way that if the unlicensed use of copyrighted material does hurt the creator then it does not qualify as fair use.

References
Stim, R. (2013). Fair Use. Retrieved November 16, 2014, from http://fairuse.stanford.edu/overview/fair-use/
Larson, E. (2013). Jersey Boys' Use of Ed Sullivan Show Clip Is Fair Use, Ninth Circuit Affirms | JOLT Digest. Retrieved November 16, 2014, from http://jolt.law.harvard.edu/digest/jurisdiction/9th-circuit/jersey-boys-use-of-ed-sullivan-show-clip-is-fair-use-ninth-circuit-affirms

Similar Documents

Free Essay

The Google Books Settlement

...analysis. This case analysis will discuss Google US Corporation: good or bad, fair use doctrine, and Libraries that back project the Google Books Project. This case analysis will conclude with a recommendation and a conclusion that will recap the major points of this analysis. Overview People do not read as much anymore. There are other options. YouTube streams videos on every topic imaginable. “Steve Jobs noted people don’t read anymore” (Laudon & Traver, 2012). “Forty percent of the people in the U.S. read one book or less last year” (Laudon & Traver, 2012). This is due to the numerous options of acquiring data and information. People are still being educated so what is being used in lieu of books? “e-book sales exploded in 2010, growing from 0.6% of book sales in the United States in 2009 to 6.4%” (Laudon & Traver, 2012). In 2002 Google began a digital library. The same way Pandora and The Pirate Bay benefited from advertising, Google did also. Problems arose when Google sought go put information on their servers that did not belong to them which brings up copyrighted issues. No royalties or fees were paid and this started Googles problems. Lawsuits were filed. This week’s case titled The Google Books Settlement will be the subject of this case analysis. This case analysis will discuss Google US Corporation: good or bad, fair use doctrine, and Libraries that back project the Google Books Project. This case analysis will...

Words: 1457 - Pages: 6

Free Essay

Employment at Will Doctrine

...Employment-At-Will Doctrine Employment-at-will doctrine Summary The employment-at-will doctrine is a legal doctrine that gives employers the ability to fire employees “for a good reason, a bad reason, or no reason at all” (Halbert & Ingulli, 2012, p.46). This doctrine was developed in the 19th century under the theory that it would be just as fair for an employer to terminate an employee for any reason, as it would be for an employee to resign from employment at any time. There have been a few exceptions to this doctrine, but because they are so broad, the conditions under which an employee can claim their termination is unlawful is difficult to prove. According to the Bureau of Labor Statistics, there are three exceptions to the employment-at-will doctrine. These address terminations that do not seem just although they technically comply with the doctrine requirements (Muhl, 2001). The first exception is a termination that undermines an action that would be beneficial for society, or is a violation of a State’s public policies. The next exception prohibits employee termination after an implied contract has been established from written assurances, a company handbook, policies or behavior. Finally, an implied covenant of “good faith and fair dealings” between employer and employee is an exception that is the least used among the 50 states. In certain cases, such as those protecting financial service sectors and federal employees, whistleblowing is not a legal ground...

Words: 1578 - Pages: 7

Free Essay

Affordable Housing in Nj

...an increase in community housing costs, and thus drive away lower-income individuals. In the past few decades however, states’ tolerance for exclusionary zoning have dissipated, and new zoning requirements to enforce realistic housing opportunities have been enacted. Particularly, the state of New Jersey has chosen to tackle affordable housing through the judicially enforced Mount Laurel Doctrine. Yet even under its establishment, the doctrine’s history and evolvement has proven that “opening up the suburbs” follows with the opening of controversy. Since the doctrine’s creation, courts have been confronted with hundreds of litigations from developers and municipalities stemming from Mount Laurel’s questionable creditability and changing demands. The Mount Laurel Doctrine was originally created off the court decision made in Southern Burlington County NAACP v. Mount Laurel Township now known as Mount Laurel I. This court decision however, only sparked the path for many more litigations and legislative decisions to come. Specifically Mount Laurel I was followed by Mount Laurel II, The Fair Housing Act of 1985, the Council of Affordable Housing and Mount Laurel III, all aimed at improving the credibility and mechanisms behind New Jersey’s...

Words: 3358 - Pages: 14

Premium Essay

Globalization

...Drake Gutierrez 04/04/2012 Professor Hallsted English 1A A Global Market: Corporation Domination Globalization will indubitably strain the process of development of third world countries and would in fact deteriorate already developed countries. With the implementation of fair trade policies and the straining policies that the WTO (World Trade Organization) initiates, globalization will become a threat to the current status of power around the world. Globalization is the process by which regional economies, societies, and cultures have become integrated through a global network of politics through communication, transportation, and trade. Globalization will create a one world economy, where big global corporations make a fortune exploiting slave labor on the other side of the world. With the treat of these global corporations taking control of the world economy because of fair trade policies, Naomi Klein’s argument about disaster capitalism that is discussed in her book The Shock Doctrine, can be directly related. Globalization helps develop third world countries in response to the outsourcing of jobs that multinational corporations carry out. As more capital is poured in to developing countries, those countries will acquire economic stability and increase their standard of living. In return the economy that those individuals belong to will also begin to grow. As stated in Forbes Magazine, “Per-person income in China has climbed from $16 a year in 1978 to $2,000 now...

Words: 1225 - Pages: 5

Free Essay

Google Books Settlement

...Google Library project Khaled Deyab Cal University DBA in Health Care Management and Leadership Introduction Google Library Project's transforms the text into a comprehensive word index to facilitate searching and data mining in new areas. The use does not supersede or replace reading of books; it adds something new to the original work by using words to facilitate searching. It aim to make it easier for people to find relevant books specifically, books they wouldn't find any other way such as those that are out of print. At the same time will carefully respecting authors' and publishers' copyrights. The goal is to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers. Users simply search for a book or topic using keywords and Google lists books from its database containing the search terms. Users can then click a book title to view “snippets” of books containing the term(s) searched. We are going to talk about Google Library Project and a history for their straggle in court. We are also going to talk about is it good or bad that Google is a United State corporation bound by U.S. laws., what is the “fair use” doctrine and if we think that Google defines it correctly in this controversy. We are also going to explain why some libraries are backers of the project, while others vehemently oppose it. Discussion Google Library Project's aim to make it easier for people...

Words: 1190 - Pages: 5

Free Essay

After Campbell: Parody

...words NOTE: Copyright: Same Song, Different Verse: Parody as Fair Use After Campbell v. Acuff-Rose Music, Inc. * * This note won the first place prize in the 1995 ASCAP Nathan Burken Memorial Competition. NAME: L. David McBride LEXISNEXIS SUMMARY: ... First, this note discusses the Copyright Act of 1976 and the fair use doctrine. ... Further, this note evaluates how the defendant used the fair use doctrine as an exception to copyright in Campbell v. Acuff-Rose Music, Inc. ... The district court recognized that courts have included parody under the fair use doctrine. ... The district court found that the second factor, the nature of the copyrighted work, weighed against fair use and in favor of Acuff-Rose. ... Judge Joiner, writing for the majority, considered each of the factors in section 107 in determining that the derivative work was not fair use. ... The Supreme Court's Application of the Fair Use Doctrine in Acuff-Rose Music, Inc. v. Campbell ... He observed that the application of the fair use doctrine requires a case-by-case analysis, as opposed to "bright-line rules." Such an approach is necessary because section 107 does not define every type of creative work that a court may exempt under the fair use doctrine. ... However, the Court of Appeals read Sony as presuming unfair use when a derivative work is used for commercial purposes and found that the fourth factor weighed against fair use. ... HIGHLIGHT: Satire is the sort of glass, wherein beholders...

Words: 11940 - Pages: 48

Premium Essay

Employment at Will Doctrine

...Employment-At-Will Doctrine | | | Alishia Bush | | Kimberly Ford, Esq. LEG 500 10/23/2013 | | Employeement-at-will Doctrine/Evaluation The employment-at-will doctrine was established giving employers autonomous power to terminate employment at will for no reason, a good reason or for being found morally wrong, even if they aren’t wrong in the eyes of the law. Within this doctrine the employer or employee, without a written employment contract, can terminate the employment relationship without warning at any time and with or without cause. There are exceptions to this rule. One being that the employer cannot use this doctrine to intimidate or coerce their employees. Employer initiated termination must not be discriminatory or violate specific state or federal laws. This exception is known as the public policy exception. Under this exception, an employee is unjustly discharged when the termination is in contradiction of public policy of the State. Public policy can be determined either by a State constitution, statute, or administrative rule. The second exception of the employment-at-will doctrine is when an implied contract is formed between the employee and employer. The last exception focuses on that in which is an implied promise of “good faith and fair dealing” or implication of contract terms from the employer’s handbook, policy statement or behavior (Halbert, 2012). This exception is the covenant of good faith and fair dealing which represents...

Words: 1640 - Pages: 7

Premium Essay

Buslaw

...policy or breach of a covenant of good faith and fair dealing, and see what the outcome would be. * a. An employee was suspended pending discharge for sleeping and “loafing” on the job. The employer offered to change the penalty to suspension without pay if the plaintiff would sign a “last-chance agreement” under which he waived and released “any claims, suits, or causes of action” against the defendant. The employee refused to sign because he was unwilling to waive his rights to state unemployment benefits or workers' compensation. Under state statute, agreements to waive such rights are invalid. The employee is discharged. [Edelberg v. Leco Corp., 236 Mich. App. 177 (1999).] * b. A nurse is asked by her employer to sign a backdated Medicare form. She refuses and is terminated that day. As a healthcare provider, she is required to complete that particular form. [Callantine v. Staff Builders, Inc., 271 F.3d 1124 (8th Cir. 2001).] Exceptions to the Doctrine of Employment-at-Will States vary in terms of their recognition of the following exceptions to the doctrine of employment-at-will. Some states recognize one or more exceptions while others might recognize none at all. In addition, the definition of these exceptions also may vary from state to state. * • Bad faith, malicious, or retaliatory termination in violation of public policy. * • Termination in breach of the implied covenant of good faith and fair dealing. * • Termination in breach of some other...

Words: 2299 - Pages: 10

Free Essay

A Pattern-Oriented Approach to Fair Use

...4 Article 5 A Pattern-Oriented Approach to Fair Use Michael J. Madison Repository Citation Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 Wm. & Mary L. Rev. 1525 (2004), http://scholarship.law.wm.edu/wmlr/vol45/iss4/5 Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. http://scholarship.law.wm.edu/wmlr A PATTERN-ORIENTED APPROACH TO FAIR USE MICHAEL J. MADISON* ABSTRACT More than 150 years into development of the doctrineof "fairuse" in American copyright law, there is no end to legislative,judicial, and academic efforts to rationalizethe doctrine. Its codification in the 1976 CopyrightAct appearsto have contributedto its fragmentation, rather than to its coherence. As did much of copyright law, fair use originated as a judicially unacknowledged effort via the law to validate certain favored practicesand patterns.In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "caseby-case" application of the statutoryfair use "factors"to the defendant's use of the copyrighted work in question. A more explicit acknowledgment of the role of these patterns in fair use analysis would be consistent with fair use, copyright policy, and tradition. Importantly, such an acknowledgment would help to bridge the often difficult conceptual gap between fair use claims asserted by individual defendants and...

Words: 74799 - Pages: 300

Free Essay

Research Guide

...I. Statement of Purpose The Copyright Act of 1976 amended the Copyright Act of 1909 and serves as the primary basis of copyright law in the United States[1]. The Act spells out the basic rights of copyright holders, codifies the previously patchwork doctrine of fair use and adopted a unitary term of copyright exclusivity based on the date of the author’s death instead of using a fixed number of years and renewal terms as was previously spelled out in the 1909 Act. The 1909 Act was the last major piece of copyright legislation, and Congress recognized that technology had changed to the point where several pieces of the Act were no longer fit to serve as the basis for interpretation. The 1976 Act was designed to address intellectual property issues raised by new innovations in technology that were previously unforeseen. The Act addresses to the legal practitioners and non-lawyers what kinds of rights they have based on the medium in which they have chosen to communicate an idea as what as what constitutes a copyrightable idea. The sine qua non of copyright is originality, however, the Copyright Act sets the standard for creativity extremely low. Rather than the completely novel ideas protected by the patent laws, copyright laws dictate that an idea only needs a minimal degree of creativity to be protected. The Copyright Act is seen as a compromise between the rights of the publishers and the rights of the authors. The extension protects the rights of the authors with respect...

Words: 5094 - Pages: 21

Free Essay

Trial Brief

...Washburne, Defendant. | )))))))))))) | Civil No. 13-037 P-H | PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS RULE 56 MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ISAAC Slade, JOE King, DAVE Welsh, and BEN Wysocki, individuals d/b/a The Fray, and Epic RECORDS, Plaintiffs, and move for summary judgment against Defendant Charles Washburne, and in support thereof show the following: INTRODUCTION 1. Plaintiffs are ISAAC Slade, JOE King, DAVE Welsh, and BEN Wysocki, individuals d/b/a The Fray, and Epic RECORDS; defendant is CHARLES WASHBURNE. 2. Plaintiffs sued defendant for copyright infringement. 3. Defendant answered asserting a general denial and the affirmative defense of fair use. 4. Discovery in this suit ends April 30, 2014; trial is scheduled for July 1, 2014. 5. Plaintiffs respectfully request that the court grant their motion for summary judgment and deny the Defendant’s motion. summary judgment standard 6. Motions for summary judgment are governed by Fed. R. Civ. P. 56 which provides that a summary judgment shall be rendered if the evidence properly before the court indicates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." STATEMENT OF THE CASE Plaintiffs, Issac Slade (“Slade”), Joe King (“King”), Dave Welsh (“Welsh”), and Ben Wysocki (“Wysocki”) collectively known as The Fray, are all apart of an alternative rock music...

Words: 5092 - Pages: 21

Premium Essay

At-Will Employment

...many risks in running their businesses.  Whether they are large or small employers, hiring and firing personnel is a fact of business.  Termination (and therefore hiring) is increasingly viewed with caution, in part, because of the uncertainty regarding the law surrounding termination of employment.  We will examine the law pertaining to employment relationships by exploring the employment-at-will doctrine.  We will show how the at-will doctrine has evolved since its inception; then we will discuss whether the United States is generally moving toward just-cause employment.   History and Explanation of the At-will Employment Doctrine Horace Wood is attributed with the creation of the at-will doctrine in 1877 in a legal treatise called Master and Servant where he described at-will employment.  Some scholars say the United States had no such doctrine in the common law before this time and the use of Wood’s treatise in case law allowed a large step to be taken away from the English idea of employment rights.  One oft quoted, early decision describing and favoring the at-will doctrine is in a Tennessee case, Payne v. Western & Atlantic Railroad Co. in which the judge declares “All may dismiss their employees at will, be they many or few, for good cause, for no cause[,] or even for cause morally wrong, without being thereby guilty of legal wrong” (Standler, 2000). At-will employment in Wood’s sense combines two important concepts of employment:  When an employee can leave or...

Words: 4012 - Pages: 17

Premium Essay

Travolta

...ESSAY 2 The issues to be identified in this case are whether or not the use of the photo of John Travolta described in the magazine is considered a parody, whether or not this photo in question violates the libel defamation and/or copyright laws for use of Travolta’s image, and finally, whether or not Rolling Stones Magazine is protected under their First Amendment rights. The rules of law the court will use to decide this case are listed below. Parody: is defined as a literary or musical work in which the style of an author or work is closely imitated for comic effect or ridiculed a feeble or ridiculous imitation. In other words, a parody is a form of speech protected by the First Amendment as a "distorted imitation" of an original work for the purpose of commenting on it. The subject matter is usually a political or entertainment figure or situation and it is often used in a comedic way to bring up a point or exaggerate the situation. Some forms of parody and satire are difficult to distinguish from truthful publications. Moreover, many forms of parody and satire can be particularly offensive to the subject of the parody. As a result, publication of various types of parody often involves litigation over libel, slander, and other types of Defamation. Fair Use Doctrine Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research....

Words: 835 - Pages: 4

Premium Essay

Employment-at-Will Doctorine

...Running Head: EMPLOYMENT-AT-WILL DOCTRINE 1. When hiring someone for a position, one of the most significant qualification the employer looks at is his or her skills, competence, and abilities to do the job. The employer mainly relies on the information provided by the potential employee to determine if the employee is qualified for the job. In this situation, where Jennifer has led the employer to believe that she is qualified while not being able to fulfill the simple requirements of the job, negatively affects the employer who could hire a more efficient and better employee. Also given this is an accounting firm, the firm has responsibilities to the customer and if Jennifer is doing tax papers for a customer who may now be affected by her lack of abilities, the firm may get into legal dilemmas. The first step is always to train the employee. In this case, where she was given training and support, I will first make sure the training and support is documented. Then I will provide her with an official document stating my concerns of her inability to do the job and a warning of termination if she is not able to improve within a given period of time. These preventive measures would reduce any risk or liability to the company and help us avoid any legal implications. If Jennifer does not show improvement in the allotted time and assuming she is not able to perform any other non-computer related tasks in the office, I will have to terminate her based on the...

Words: 1540 - Pages: 7

Free Essay

Employment at Will

...Employment-at-will Doctrine Whistleblower Strategy Yasser Benadada Strayer University Professor Holeman Table of Contents Employment at will Doctrine 2 Public-policy exception 2 Implied-contract exception 3 Covenant-of-good-faith and Tort based exceptions 3 Evaluation each of the eight (8) scenarios: 4 Recommend whistleblower policy 7 Fundamental Items to Whistleblower policy 8 References 10 Employment at will Doctrine According to Clarkson, Miller, Jentz & Cross (2004, p.235), employment at will is a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise. Today this common law doctrine is widely used and applies in every state except Montana. However, state and federal statutes that govern employment relationships prevent the doctrine from being applied under certain circumstances. As such, employees who are wrongfully discharged may bring legal action against their employer based on violations of employment contract or statutory law. These state and federal statutes collectively are known as the exceptions to the employment at will doctrine that the courts adopted because of the harsh effects on employees. Public-policy exception According to Sentell & Robbins (2008), under the public-policy exception to employment at will, an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of...

Words: 2826 - Pages: 12