fair use denied — part V

The conclusion to fair use denied (otherwise known as when wildest dreams collide with the creative process). For earlier installments see Part I, Part II,  Part III, and Part IV.

V. factor four and some last words

(4) The effect of the use upon the potential market for or value of the copyrighted work.

In the later twentieth century, this factor was deemed the most important element of a fairness analysis, with the peculiar logic that if a work could have been licensed, then it should have been licensed. A case which facilitated this avenue of thought is American Geophysical v. Texaco, whereby copying journal articles for the purpose of research was deemed infringement.[1] At appeal, the Court of Appeals for the Second Circuit affirmed the district court decision and emphasized that the presence of a means of licensing was reason to deny fair use.[2] As the Second Circuit represents the geographic region of New York, which is home to the core of American publishing, the decision carried further weight.

It is fitting then, that for nearly ten years, the Second Circuit has been instrumental in supporting a more nuanced interpretation of fair use. For instance, in Bill Graham Archives v. Dorling-Kindersley (2006) the Court showed a conspicuous disinterest in adding to licensing revenue even when mechanisms of licensing existed:

“It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, and that the impact on potential licensing revenues is a proper subject for consideration in assessing the fourth factor.” (citations omitted). We have noted, however, that “were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder,” (citations omitted). …  Accordingly, we do not find a harm to BGA’s license market merely because DK did not pay a fee for BGA’s copyrighted images. [3]

In Authors Guild, Inc. v. HathiTrust (2013), the Court was emphatic that market impact was very precisely defined: “…  it is important to recall that the Factor Four analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work….”[4]  More recently in Author’s Guild v. Google, Inc. (2015) which entailed unauthorized displays of snippets of copyrighted works, the Court sought to evaluate market harm by asking if the copying is: “done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute (p.34).”[5]

Returning to the current situation, the excerpt used in this instance of play could not serve as a meaningful substitute for the song as a whole. If a complainant was to take the view that sanctioning the reproduction of snippets of works creates the conditions whereby an entire song could be assembled, I am happy to concede this point. Yes, it is theoretically possible. However, it would require a fair amount of serendipity—that a sufficient number of creators all favoured Wildest Dreams and have managed, between the group, to capture the entire 235 seconds of the song through independently chosen snippets. Yet even if such an extraordinary accumulation of creative instinct bore this fruit, it remains that the song as a whole is already sanctioned for enjoyment through vevo.com, making the assembly from snippets wholly unnecessary.

To be clear, using this snippet of Wildest Dreams, has no effect upon the market for Wildest Dreams. And having carried out the four-factor analysis, as required by American statutory law, the use of the snippet of Wildest Dreams in the playful manner described is consistent with fair use.

Last words

While the historical foundation and current structure of American copyright aims to secure the right to copy, neither constitutional imperative nor statutory language has deemed copyright a means of absolute control. It seems fitting then, to return to a cogent reminder offered by Fred von Lohmann in 2008: “Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works.”[6]

As stated at the outset, the degree to which Taylor Swift may, or may not, have any influence over the management of copyright in the production of songs that she performs, is unknown. But as a performer that prizes dialogue with her fans, perhaps Swift might consider using her influence to modify enforcement of copyright, to at least comply with the directive of the Ninth Circuit that fair use must be given consideration before the issuance of a takedown/strike notice.

Quite apart from observing the law, such consideration would help safeguard a realm of play that is necessary to bring forth future generations of song writers, musicians, artists, directors and performers. Something that, we can only hope, Swift would support.

 

Notes

[1] In 1978, publishers in the United States formed the Copyright Clearance Center and began marketing licenses for photocopy reproduction in workplace settings. Lawsuits followed shortly thereafter; “Regular reward notices began appearing in periodicals, offering monetary compensation to those who could furnish conclusive evidence of unauthorized copying. In 1985, numerous CCC-member scientific and technical journal publishers sued Texaco, a company that purchased a CCC photocopy license but, according to the CCC, had failed to accurately report the extent of its photocopying.” See Nicole B. Cásarez, Deconstructing the Fair Use Doctrine: The Cost of Personal and Workplace Copying after American Geophysical Union v. Texaco, Inc. (1996) 6 (2) Fordham Intell. Prop. Media & Ent. L.J. 640 at 644.

[2] “Despite Texaco’s claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier;” see American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) at 931-32.  Rather than attempt further appeal, Texaco opted to settle; as a consequence, the licensing regime instituted by the Copyright Clearance Center of the United States was aggressively promoted; see Cásarez above note 1, at 649.

[3] Bill Graham Archives v. Dorling-Kindersley (2006), 448 F.3d 605 (2d Circ.2006),

[4] Authors Guild, Inc. v. HathiTrust 755 F.3d at 97.

[5] Author’s Guild v. Google, Inc., No. 13-4829 (2d Cir. 2015)

[6] Fred von Lohmann, “Fair Use as Innovation Policy,” 2008 Berkeley Technology Law Journal 23 (2) 1 at 10.