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It’s Fair To Say Fair Use Is Complicated


June 11, 2017

While the framers of the Constitution had no way of predicting the kinds of technology we enjoy today, they did have the foresight to understand the necessity of intellectual property rights. That is why the Constitution gives artists and inventors an exclusive right to their work under Article I, Section 8, Clause 8:

Small Chalkboard with Intellectual Property. 3D.

Intellectual Property – Text on Small Chalkboard.Intellectual Property Concept on Small Chalkboard. 3d Rendering.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Out of that Constitutional clause, American copyright law was born, and with it, a qualified exception to the same exclusive rights it guarantees called fair use. 

Fair use balances the exclusive rights granted to authors by the Constitution and the Copyright Act and gives others an opportunity to use works without infringing on someone’s copyright. Some examples of fair use include:

  • Teaching

  • Research

  • Criticism

  • News

When trying to determine if a work is not fair use, there are additional elements that courts employ in order to make their determinations:

  • Character of the use

  • Nature of the copyrighted work

  • Amount and specialty of the use

  • Second potential market

If a rightsholder decides to commence a lawsuit, all copyright disputes begin in Federal District Court. However, the Appellate Circuit Courts often have the final say, either reversing or upholding the District Courts. No two Circuit Courts are the same, but one of the most active is New York’s Second Circuit.

Many interesting developments emerge from the Second Circuit. This Court decided on two cases that examined transformative use of copyrighted material. Transformative use is an example where the type of character of use element was determinative of whether something is fair use.

One Artist, Two Decisions

Jeff Koons is a New York-based visual artist and sculptor who draws inspiration from the work of others. One such work involved transforming a photograph (of puppies!) into a 3D statue. The photographer, Art Rogers, saw what Koons had done with his photo and became indignant because he felt that Koons stole his theme and his work. In Rogers v. Koons, the court agreed with Rogers, stating that Koons’s use, even though it was in a different medium, was not transformative enough to be a fair use. Rogers v. Koons, 960 F.2d 301, 309 (2d Cir. 1992).

Another example, this time in which Koons was victorious, can be found in Blanch v. Koons. In this case, Koons put together a picture involving different clippings of feet. Even though Koons literally lifted one of these images from a Gucci spread in a magazine, the courts said that the way in which he put it together, and used it in the larger piece, was so transformative it was considered as a fair use. Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006).

The takeaway is that the line between fair use and infringement is subjective and takes nuance to discern. The owners of intellectual property owe it to themselves to make the investment of qualified counsel before they find themselves in court. As the saying goes: an ounce of prevention is worth a pound of cure.

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