Digging Deeper into U.S. Copyright Law for Genealogists --- Fair Use

It seems like I am always writing and talking at the introductory level. I finally got tired of that with one of my recently released webinars for the Brigham Young University Family History Library on Land and Property Ownership for Genealogists and decided to do a presentation at a more reasonable level, let's say upper division university rather than grammar school third grade. So I thought about my posts and presentations on copyright law and decided it was time to move on from the basics.

One of the most frustrating aspects of copyright law in the United States is the doctrine of Fair Use. A legal doctrine is a concept that is in the process of evolving based primarily on case law rather than any codified statutory provisions. The current statutory provisions pertaining to copyright are on the Copyright.gov website. Fair Use is defined in an article on the Copyright.gov website entitled "More Information on Fair Use." Quoting from the website,

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

If this sounds like a circular definition it is. It is essentially saying that fair use is anything that the courts want to make an exception to the statutory law. From this standpoint fair use is a very difficult topic for a non-lawyer. Even considering lawyers in general intellectual property law i.e. that part of the law that deals with copyrights, is a very narrow area of of the law and very few attorneys know much more than the general public about the subject.

Subsequent to the development of the doctrine of fair use by the courts, the statutes began to take account of the court decisions. Section 107 of the Copyright Act, Title 17 of United States Code, attempts to explain the application of the doctrine.

§ 107 . Limitations on exclusive rights: Fair use 

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. 

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Because of this reference to the commercial nature of the considerations for applying the fair use doctrine, there is a folklore definition that non-commercial uses fall with the definition. As the statute notes, this is just one of the considerations and there may still be a copyright violation even if the use is strictly for non-commercial purposes.

Speaking or writing generally about a concept such as "fair use" is never satisfactory. Each case or instance of disagreement over fair use is confined to the exact facts at issue. Any decision by any one of the Federal District Courts is going to depend on a consideration of all of the facts of the particular case before the court and the decision of all of the judges in all of the cases that have similar fact situations.

Probably one of the most interesting recent cases on the issue of fair use is the case of Authors Guild, Inc. v. Google Inc., No. 13-4829-cv (2d Cir. Oct. 16, 2015). Here is the summary of the case from the Copyright.gov website:

Defendant Google, Inc. collaborated with several major research libraries to digitize their collections for the Google Books project. Plaintiffs, the Authors Guild, Inc. and individual copyright owners, complained that Google scanned more than twenty-million books without permission or payment of license fees. Google made the digital copies available to its library partners. It also maintained copies on Google servers and on backup tapes, created an electronic index, and displayed “snippets” of text in search engine results. Plaintiffs alleged that Google infringed by using copyrighted books without permission. The United States District Court for the Southern District of New York held that Google’s digitization and subsequent use of the copyrighted works was fair use and granted summary judgment in Google’s favor. The Authors Guild appealed the district court’s ruling.

The issue to be decided was as follows:

Whether it was fair use to digitally copy entire books from library collections, without permission or payment, and to make the digital copies available for library collections and for the public to search electronically using a search engine.

The holding (ruling) of the United States Court of Appeals for the Second Circuit is summarized by the Copyright Office as follows:

The Second Circuit agreed with the district court’s ruling that Google’s digitization and subsequent use of the copyrighted works was fair use. In concluding that Google’s use was transformative, the circuit court found that “Google’s making of a digital copy to provide a search function . . . augments public knowledge by making available information about [p]laintiffs’ books without providing the public with a substantial substitute for matter protected by the [p]laintiffs’ copyright interests in the original works or derivatives of them.” The court likewise found that “Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is noninfringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer.” Regarding the “amount and substantiality” of the works used, the circuit court agreed with the district court’s finding that Google’s copying of entire texts to enable the Google Books “full-text search function” was not dispositive of a finding of fair use because Google limited the amount of text it displayed to users in search engine results. Regarding the Google Books project’s potential to impact the market for or value of the copyrighted works, the circuit court held that—despite the search function’s potential to cause “some loss of sales”—the brevity of the snippet search results and the “cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view” make it unlikely that Google’s use could “provide a significant substitute for the purchase of the author’s book.”

This ruling was subsequently appealed to the United States Supreme Court and the Supreme Court denied review letting the District Court decision stand as the law of the case. It is inevitable that this ruling will be cited as authority in many subsequent cases where the same or similar issues are raised.

So, essentially, the only way anyone can get an idea of the application of the fair use doctrine is to read and study fair use cases. To try and give general guidelines concerning what is and what is not fair use will always ultimately depend on the next ruling in the next court to consider similar issues.

Here is another case summarized from the Copyright Office website: TCA Television Corp. v. McCollum,No. 1:15-cv-04325-GBD (S.D.N.Y. Dec. 17, 2015). By the way, you can search for any of these cases online and find the entire court decision. The key facts;

Plaintiffs TCA Television Corp., Hi Neighbor, and Diana Abbott Colton, who are the heirs of Abbott and Costello, own the copyright in the infamous comedy routine Who’s On First? Defendants, Kevin McCollum and additional producers of the critically-acclaimed Broadway dark comedy Hand to God, used one minute and seven seconds of dialogue from Who’s On First? in a scene where the main character, Jason, tries to impress a girl by performing the routine with his hand sock-puppet. When Jason claims to have made up the routine, his sock-puppet calls him a liar and tells the girl that the sketch “is a ‘famous routine from the Fifties’”—creating a scene that sets the “starting point for the gradual exposure of the darker side of Jason’s personality.” Plaintiffs brought this copyright infringement claim against defendants for their unauthorized use of part of the comedy routine in Hand to God.

You might begin to get the idea that copyright litigation is for the "big guys" meaning the economics of bringing an infringement suit practically limit the cases to those with the resources to finance these very expensive lawsuits. Here is the issue highlighted by the Copyright Office.

Whether defendants’ unauthorized use of part of plaintiffs’ recorded comedy routine in a Broadway comedy qualifies as fair use.

These summaries by the Copyright Office are similar to the same thing a lawyer would do in "briefing the case" as we were taught in law school. After a few years of trail practice, I would use parts of a case almost automatically to support my arguments to the court. I would only brief the case for the court if I was writing a formal brief or motion that required the facts, issue and decision in support of my client's position. Here is the holding or decision of the Southern District of New York.

Under its four-factor analysis, the court found defendants’ use of a recognizable portion of the copyrighted comedy routine to be a fair use. The court held that the first factor, purpose and character of the use, weighed “strongly in favor” of defendants because the performance of the routine “result[ed] in comic relief for the audience . . . for reasons different from why audiences found the original sketch humorous.” Given the “new and different function” of the routine in the play, the court viewed the use as transformative. Next, the court held that the second statutory factor, the nature of the work, weighed in the plaintiffs’ favor because Who’s On First? is “clearly creative” as opposed to factual. The court also found that the third factor, the amount of work used, tipped “slightly in favor” of plaintiffs because defendants used “what amount[ed] to ‘the heart’” of the original work given that “even only one line” of the routine was “instantly recognizable.” Lastly, the court found that the fourth statutory factor, the effect of the use on the potential market for the work, weighed in favor of defendants because it was “unlikely that . . . Jason and his puppet’s reenactment of the [r]outine could usurp the market for the original Abbott and Costello performance.” The court also noted that defendants’ “transformative use” of the routine could “broaden the market for the original” by “expos[ing] a new audience of viewers to the work.”

So once again, like the Google case, this court found in favor of fair use. But what if the court did not find in favor of fair use?

Here is a Third Circuit case where fair use was not found. TD Bank, N.A. v. HillNo. 1.12-cv-07188-RBK-JS (D. N.J. July 27, 2015). Once again the key facts:

Defendant Hill was a founder and former Chairman, President, and Chief Executive Officer of Commerce Bancorp, LLC (“Commerce Bank”). While employed at Commerce Bank, he co-authored an unpublished manuscript entitled “Fans, Not Customers: Creating Super Growth in a No-Growth Industry” (the “2007 Manuscript”). Defendant separated from Commerce Bank in 2007. In 2012 he published a book entitled “Fans! Not Customers: How to Create Growth Companies in a No Growth World” (the “2012 Book”). Plaintiff TD Bank, N.A. (“TD Bank”) was the successor by merger to Commerce Bank. Shortly after defendant published the 2012 Book, plaintiff initiated a lawsuit against defendant claiming it owned the copyright in the unpublished 2007 Manuscript—which it considered a work made for hire. In district court, plaintiff filed a motion for summary judgment asking the court to find that it was the exclusive owner of the copyright in the 2007 Manuscript and that 16% of the material in the 2012 Book was copied from the 2007 Manuscript. Defendant filed a cross-motion asking the court to find that he owned the copyright in the 2007 Manuscript and that, even if the court were to determine plaintiff owned the copyright, reproduction of portions of the 2007 Manuscript in the 2012 Book was non-infringing fair use.

 The fair use issue in this case was as follows:

Whether plaintiff or defendant owned the copyright in the 2007 Manuscript. Whether defendant’s copying of portions of the 2007 Manuscript for use in the 2012 Book constituted fair use.

The Court held as follows:

The court determined that the 2007 Manuscript was created as a work made for hire and that plaintiff was the exclusive owner of the copyright in the work. Regarding fair use, the court found that defendant’s copying of portions of the 2007 Manuscript was not fair use. In reaching its conclusion, the court found that “at least three of the four” statutory fair use factors favored plaintiff. Specifically, the court found that the purpose and character of defendant’s use was commercial in nature, that defendant’s verbatim copying of portions of the 2007 Manuscript included more than mere unprotectable facts and ideas, and that the publishing of the 2012 Book would likely cause “some impairment” to the market for the unpublished 2007 Manuscript. In weighing the “amount and substantiality of the portion used in relation to the work,” the court assessed the quantitative aspects of the work (it found that 16% of the material in the 2012 Book was copied from the 2007 Manuscript) as well as the qualitative aspects of the work (it found that the portion of the 2007 Manuscript copied was “central to the telling of the Commerce Bank story”) and determined that this factor “at best” favored “each party equally.”

Now I could go on indefinitely citing cases. If I had a client with either a claim or a defense against a claim, I would be reading all of these cases, in the original, for their applicability to my client's factual issues. I would then determine whether I thought my client would win or lose and then advise the client of my opinion. The client would then have to decide whether or not they wanted to pay me to take the case. If they did, we would enter into a fee agreement and I would take the case and we would go to court. As the case proceeded, I would come back to the case law to form or respond to arguments made by the opposing party or parties.

If you ask me if such and such a situation constitutes fair use, I would really have to go through this whole procedure to answer your question. So if some one gives you a "one page or paragraph" summary of what is fair use, do not believe it. It is probably either misleading or entirely false depending on your question.