Just Because Something Is Used For Profit, It Can Still Be Fair Use

from the so-the-court-says dept

When it comes to copyright, content owners all too often believe it gives them a lot more control than it really does. For example, there's a belief that no one can ever use the content under "fair use" rules if it's for a commercial for-profit venture. One of the issues with fair use (which some in the entertainment industry continue to pretend doesn't exist) is that people often misread the four tests of fair use to believe that any commercial usage is not covered by fair use. Larry Lessig is pointing to an Appeals Court ruling highlighting why this isn't always the case. In the specific case, the Bill Graham Archives sued a book publisher for publishing a book about the Grateful Dead, using images of concert posters that were owned by the Archives. While the pictures are clearly being used for a commercial work, the court found that it was fair use. Specifically, they note that since the images are small and used within the context of descriptions about the history of the band, it's fine for fair use. It seems like a reasonable decision -- but could worry some copyright holders who freak out any time anyone uses their works in any way.

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  1. identicon
    Nick, 19 May 2006 @ 3:40pm

    Re: Why is this issue even remarkable?

    I wonder how many people have actually read the case.

    It's remarkable because this case says that a copyright owner is not necessarily entitled to license fees in every "potential market." This is huge. Rather than having rights in all derivative markets, the court said copyright owners have claims only to "traditional, reasonable, or likely to be developed markets." The court reasoned that the use was transformative, thus the market for licensing the use was a "transformative market," and thus the copyright owner's rights are less.

    It's remarkable because another court found otherwise in a similar situation in Perfect 10 v Google. The problem there was that Perfect 10's images were turned into thumbnails and made available through a Google search. That court said Google's use was not fair because P10 had a derivative market to sell thumbnails for cell phones, so Google's use was not fair because it usurped P10's ability to make money in this new market. The same issue is central to the Authors' Guild lawsuit against Google. AG says there is a market in licensing the use of digital copies of their books and is suing Google because it won't pay. Applying Graham, Book Search has created a "transformative market" and thus the AG has less of a claim to demand Google pay if Google can show that it's use is fair (which it is because it falls under the explicit exception for scholarship).

    Yes, it's important that this court found that the commercial element of the book did not defeat the fair use claim. More important is the shift in the potential market prong of fair use (the fourth factor). It's remarkable because it clears up the scope of what a potential market is and it is not infinite as other cases have hinted. It's remarkable in that it shifts the balance more towards creativity and fair use, and away from the content owner. It's remarkable because it gives some bite back to fair use.

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