Fair Use, "The Frankenstein," and the Mixed Up Files of Mrs. Basil E. Frankweiler; Lexology, August 9, 2020

Frankfurt Kurnit Klein & Selz PC - Brian Murphy, Lexology; Fair Use, "The Frankenstein," and the Mixed Up Files of Mrs. Basil E. Frankweiler

"Larry Marano is the professional photographer (and self-described dedicated fan of hard rock and heavy metal music) who snapped the above photo of Van Halen. Marano sued the Met in the Southern District of New York, alleging that the use of his photograph was unauthorized and infringed upon his copyright. Two days after Marano filed, Judge Valerie Caproni ordered him and his attorney (Richard Leibowitz - see this post) to show cause why the complaint shouldn't be dismissed on fair use grounds.

As a preliminary matter, the court noted that even though the case was at the pleading stage, dismissal on fair use grounds would be appropriate if "transformativeness [could] be determined by doing a side-by-side comparison of the original work and the secondary use." After the matter was briefed, the court concluded that such a determination was indeed possible in this case and that the complaint should be dismissed.

Here's a rundown of the court's analysis of the statutory factors:

Marano v. Metropolitan Museum of Art, 19-CV-8606 (VEC), 2020 WL 3962009 (S.D.N.Y. July 13, 2020)."

Film and music festival celebrates student creatives and public domain; The Daily Universe, February 6, 2020

Whitney Bigelow, The Daily Universe; Film and music festival celebrates student creatives and public domain

"Student filmmakers and musicians walked away from Wednesday night’s Public Domain Film and Music Festival with over $3000 in cash prizes. 

The festival was put on by the BYU Copyright Licensing Office. Students had 48 hours to create a film based on one of ten pieces of literature from 1924 that entered the public domain at the start of this year. Entries in the music category were given audio recordings from that same year to incorporate into their compositions.

The winner of the evening’s prestigious Best Picture award and $1,000 was a group of students called RHEEL Productions, including Heather Moser, Avery Marshall, Laura Marshall and Emma Spears. Their entry was a dramatic short film entitled “What’ll I Do,” based on the 1924 novel “Some Do Not” by Ford Madox Ford."

How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet; Los Angeles Times, June 1, 2017

Art Neill, Los Angeles Times; How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet

"In a recent Times op-ed article, Jonathan Taplin of the USC Annenberg Innovation Lab claimed that an “ambiguous“ fair use definition is emboldening users of new technologies to challenge copyright infringement allegations, including takedown notices. He proposes rewriting fair use to limit reuses of audio or video clips to 30 seconds or less, a standard he mysteriously claims is “widely accepted.”

In fact, this is not a widely accepted standard, and weakening fair use in this way will not address copyright infringement concerns on the Internet. It would hurt the music, film and TV industries as much as it would hurt individual creators...

Fair use is inextricably linked to our 1st Amendment right to free speech. We are careful with fair use because it’s the primary way consumers, creators and innovators share new ideas. It’s a good thing, and it is worth protecting."

U.S. judge boosts Google 'fair use' defense of digital books; Reuters, 9/23/13

Reuters; U.S. judge boosts Google 'fair use' defense of digital books: "Google, based in Mountain View, California, has scanned more than 20 million books since its 2004 agreement with libraries worldwide to digitize books. The Authors Guild and groups representing photographers and graphic artists say the project amounts to massive copyright infringement. Google argues the practice constitutes fair use, an exception under U.S. copyright law, because it only provides portions of the works online. At a hearing in U.S. district court in New York on Monday, Judge Denny Chin said the question of fair use relies in part on whether the project "is a benefit to society." Chin then rattled off several examples of how Google's project has helped people find information, including his own law clerks. "Aren't these transformative uses, and don't they benefit society?" asked Chin."fair use,

Why you won’t see or hear the ‘I have a dream’ speech; Washington Post, 8/27/13

Josh Schiller, Washington Post; Why you won’t see or hear the ‘I have a dream’ speech: "Although it has been the subject of at least two lawsuits — the King estate sued CBS and USA Today for their use of the speech, reaching undisclosed settlements — a court has never examined whether and under what circumstances the “I have a dream” speech may be used without authorization in what’s considered a “fair use” exception... As an attorney, I believe in respect for the law and observing copyright restrictions. But when it comes to observing the anniversary of such a public moment, one hopes that fair use will allow current generations to appreciate what happened 50 years ago this week and why it was such a moment in American history. The public benefit of access to historical artifacts such as King’s speech is undeniable. Any restriction on public access to the content of such a historical artifact should be enforced with caution."

‘U’ wins copyright lawsuit against Hathitrust digitalization project; Michigan Daily, 10/11/12

Austen Hufford, Michigan Daily; ‘U’ wins copyright lawsuit against Hathitrust digitalization project: "The judge wrote that the case may set an important precedent for future digital copyright laws, noting there are comparatively few prior standards regarding digitization and its fair use. “I cannot imagine a definition of fair use that would not encompass the transformative uses made by (the Hathitrust program) and would require that I terminate this invaluable contribution to the progress of science … ” Baer wrote. When someone uses the database to search a word in a copyrighted book, the full text is not available; only the page number and number of occurrences in the book is shown. The defendants claimed this does not infringe on copyright law because copyrighted books cannot be read in their entirety through the Hathitrust system. The system is also used for preserving physical texts in case the originals are somehow lost or destroyed. It already contains nearly 10 million volumes and about 73 percent of those are copyrighted, the ruling stated."