Fair Use Protection Limits Common Law Copyright Claims Over Sound Recordings in New York

Author: Robert Orlando Lopez

This was a case of first impression for fair use as a defense against common law copyright infringement of a sound recording. For the first time, the court defined the doctrine of fair use in New York and applied it to sound recordings. Fair use applied to the sound recording regardless of its publication since the song was subject to ‘de facto publication’ and dissemination. The court then looked to both the history of common law copyright in New York and the current federal statute for guidance about fair use. The court applied the federal fair use factors: the purpose and character of use, the nature of the copyrighted work, the amount and substantially of use, and the effect on the market.

The balance of the factors favored Premise. The central factor in this determination was the purpose of the use. Premise used the sound clip to parody the original message and craft a new message. This made the work ‘transformative’. The court held that protecting transformative works is an essential part of the fair use doctrine. Neither the commercial nature of the work, nor the presence of other methods altered the purpose of the use because the work was transformative. The purpose of the use influenced the other two factors that supported fair use. This use was insubstantial. Defendants only criticized a specific viewpoint with Imagine; it did relate the central original message of EXPELLED. Likewise the court held that because the work was a parody and transformative, no market existed for the licensing rights. The purpose of the work also diminished the only factor favoring EMI, the nature of the copyrighted work. The court found Imagine to be an artistic creation close to the core of copyright protection. However, the court noted that when the work is parodied expressive and popular works tend to be targeted, even in cases of fair use. Therefore this factor was uninformative in evaluating fair use. The transformative nature of Imagine in EXPELLED formed the basis of the court’s finding that the fair use defense applied.

With the fair use analysis in mind, the court weighed the harms to the parties of issuing – or declining to issue - an injunction. The harm to the Plaintiffs from the unlicensed use of the sound recording may have been ‘irreparable’ but the harm for denial of First Amendment rights to the plaintiff was at least equally onerous. Based upon this balance of harms, Plaintiffs' motion to enjoin Defendants’ use of the copyrighted sound was denied.

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