What Is Fair Work?

The first supreme court case that impacted fair use was Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). In Sony Corp. of America, owners of copyrights on television programs brought infringement actions against manufacturers of home videotape recorders. The Court argued that the situations in which fair use most commonly recognized are found in the statute itself; when a work is used “for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research.” These uses reflect a common theme of work that was productive, which resulted in an added benefit to the public beyond the first author’s original work. The court argued that in order to find fair use one must depend upon the facts of
the individual case, and whether it is reasonable to anticipate the user to make a deal with the copyright owner for the use if the work. If a user reproduced the entire work and used it for its original purpose, with no added benefit to the public, the court determined that the doctrine typically did not apply. Further, the court argues that “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”
In Harper & Row Publisher Inc., v. Nation Enterprise., 471 U.S. 539 (1985), a copyright holder of a memoir contested the fair use of excerpts of the unpublished manuscript. This case delves further into the profit/ nonprofit argument of the first factor. Unlike Sony, which argued that every commercial use of a copyright is unfair, Harper & Row claimed that the core of the profit/nonprofit difference “is not whether the sole motive of the use is monetary gain but whether the user stood to profit from exploitation of the copyrighted material without paying the customary price.” The defendant had a right to publish information, for the betterment of the public, but they went beyond just reporting uncopyrightable information. They sought to exploit the unauthorized publication of the excerpt of a copyrighted expression by making a “new event” out of it. Fair use assumes good faith and fair dealing. Fair use “distinguishes between ‘a true scholar and a chiseler who infringes a work for personal profit.’”
In Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569 (1994)., a registered song protected by copyright challenged the argument of fair use when an artist created a parody of the original song. The court in Campbell added the element of a work being “transformative” when evaluating the first factor. The examination of the first factor emphases whether the new work only supersedes the matters of the original work, “…or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message.” The court set out that the more transformative the new work, the less significant the other factors will be in finding of fair use. Though transformative use is not essential for a finding of fair use, the goal of copyright, to promote science and the arts, is generally promoted by the formation of transformative
works.
The court further examined the language of the statute, which they argued made clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor question of its purpose and character. The court explained that factor one “used the term “including” to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into purpose and character.” As the court highlighted in Harper & Row, Congress resisted attempts to narrow the sphere of this customary investigation by ratifying categories of presumptively fair use, and it urged courts to preserve the span of their usually view of relevant evidence. Therefore, the mere fact that a use is educational and not for profit did not seclude it from a result of infringement, any more than the commercial character of a use prevent a finding of fairness. If commerciality truly carried presumptive power against a finding of fairness, the presumption would envelope nearly all of the illustrative uses listed in the preamble paragraph of the fair use doctrine, including news reporting, comment, criticism, teaching, scholarship, and research, since those activities “are generally conducted for profit in this country”. Congress could not have intended such a rule, which surely is not inferable from the common- law cases, which arose the world of letters in which Samuel Johnson could articulate that “[n]o man but a blockhead ever wrote, except for money.”
The court explained that if the commentary had no critical bearing on the substance or style of the original work, which the alleged infringer merely used to get attention or to avoid the toil to work something new up, the claim to fairness in borrowing from another's work diminishes, if not completely vanished, and other factors, like the extent of its commerciality, emerged superior.
B. Court of Appeals
The first Court of Appeals case evaluating the first factor of fair use is Blanch v. Koons., 467 F.3d 244 (2d Cir. 2006). A fashion photographer brought copyright infringement action against a visual artist and institutions that commissioned and exhibited his paintings after the artist used her copyrighted photograph in a collage painting. The court contended that if the secondary work added value to the original —“if [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” —this was precisely the type of activity that the fair use doctrine intended to protect for the enhancement of society.
The courts determined that they will not tolerate a claimed defense of fair use when the secondary work can fairly be characterized as a form of commercial exploitation, such as when the secondary user directly copies and exclusively acquires obvious financial rewards from the use of the copyrighted material. However, courts indicated they are more willing to find a secondary work fair when it produced a value that benefited the broader public interest. When the secondary user had a greater private economic reward than broader public benefit, the courts argued t the first factor will more likely favor the copyright holder and would less likely be considered fair. Blanch followed that of Campbell and found that when the works are transformative the significance of other factors like commercialism, are less significant. Thus, the court reduced the secondary commercial nature of the use.
Further, the Court of Appeals case Cariou v.
Prince., 714 F.3d 694 (2d Cir. 2013). evaluated fair use. A photographer brought copyright infringement action against an artist, gallery, and gallery owner based on the artist's use of photographer's copyrighted photographs of in paintings that were marketed and sold by the gallery and owner. The courts were aware that the more transformative the secondary work, the less likely the secondary work would substitute the original, even though the fair use, being transformative, might have harmed, or even destroyed, the market for the original. The commercial/nonprofit difference concerned the unfairness that arises when a secondary user made an unauthorized use of copyrighted material to capture significant revenue as a direct consequence of copying the original work.” The court concluded that when an accused infringing use had taken the place in the market of the copyrighted works, including the derivative market, where the infringer's target audience and the content was the same as the original, that was not fair
use. Additionally, the Court of Appeals case that furthered Campbell’s argument in evaluating fair use is Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). Authors of published copyrighted books brought infringement claims against an internet search engine, asserting that the search engine’s project, which made digital copies of the books submitted by major libraries, and allowed the public to search the digitally copied books and see snippets of text, infringed on authors’ copyrights. The courts maintained that transformative uses tend to favor fair use because the secondary work conveyed something new and different from the original or expanded its value, therefore serving copyright's overall objective of contributing to public knowledge. The courts stated that the word “transformative” cannot be taken too literally as it is key to understanding the elements of fair use. The word was a suggestive symbol for a intricate thought, and does not mean that any and all changes made to an author's original use will automatically support a finding of fair use. Specifically, the would-be fair user of another's work must have justification taking their work. A secondary user is not necessarily at liberty to take an extensive amount of original users expression just because of how well the original users expression would convey the secondary author’s different message.
To further complicate the matter, the court cannot oversimplify dependence on whether the copying involved transformation that the word “transform” also plays a role in defining “derivative works,” which the original rights holder retains exclusive control over. The court extended Campbell’s argument to §106 of the Act, which specified the exclusive rights of the copyright owner to prepare derivative works based upon the copyrighted work.” Rather than explain the statute, we are only given examples of what a derivative work is. The examples included “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation,” to which the statute added “any other form in which a work may be ... transformed.”
However, the Court of Appeals case that challenged Campbell’s fair use was Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014). A photographer brought action against companies that developed and sold t-shirts that allegedly violated the copyright of his photograph. The Second Circuit had an approach which suggested and concluded that “transformative use” was enough to bring a modified copy within the scope of the fair use doctrine. The court was unconvinced of Cariou's approach, because questioning exclusively whether something is “transformative” not only replaces the list of the fair use doctrine but also could override protected derivative works. If the court said that the new use transformed the work is to say that it is derivative and thus, could be protected under § 106(2). Cariou and its predecessors in the Second Circuit did not explain how all “transformative use” could be “fair use” without extinguishing the author's rights under § 106(2).