Fair blurring

This semester I gave the 33 students in my legal research and writing course (1Ls at Golden Gate U.) a fair use questions for their main project. They needed to learn the basics of copyright law, understand Section 107, and apply the rules to a fact pattern involving an unpublished work. They did remarkably well in getting to the core of the issues, applying the facts to the cases (like Harper, Salinger, Wright, and others), and writing their first legal briefs. I am proud of them. As a result of their papers, I feel especially up to date on the latest and greatest fair use opinions out there.

Now, I've just read this new fair use opinion from the Second Circuit, that Professor Lessig recently pointed to. It upholds the fair use rights of a biographer who included seven unlicensed images of the Grateful Dead in their book "Grateful Dead: The Illustrated Trip". The copyright in each of the images is owned by the Bill Graham Archives. The opinion is fair use friendly and lays some important groundwork for what might have previously been considered (at least superficially) a "commercial use" of a copyrighted work, and thus outside the realm of fair use (or at least very questionably within the realm of fair use). I am personally pleased with the results, as the use made by the defendants seems to fall squarely into to the types of uses that the fair use provisions of the copyright act were intended to cover.

One thing that I find noteworthy about the opinion, however, is how the Court seems to blur the four (non-exclusive) fair use "factors" (17 USC § 107(1)-(4)) together throughout its analysis. It seems that once the Court decided factor one (purpose and character of the use) the other factors (nature of the copyrighted work, amount/substantiality of the copying, and market effects) followed suit. I think this demonstrates a problem with trying to analyze fair use as a game of 4 points where one party needs to win 3:1 or 4:0 in order to win the case. Instead, at least in the Second Circuit, the analysis is much more holistic, a "totality of the circumstances"-type analysis. Indeed other courts have pointed this out (including the Supreme Court in the Campbell v. Acuff and the Harper v. Nation cases). So it’s interesting to me to see the application in a recent fact pattern. In any event, even with this case on the books, fair use remains a difficult battle to wage, esp. if you're a defendant facing a plaintiff with seemingly unlimited resources.

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