By: Harshini Tippareddy
“Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” – Justice Story
As Justice Story said, it is sometimes necessary to use existing works to expand and create new works. However, this creates an inherent tension between the First Amendment and copyright law. The First Amendment protects people’s freedom of speech, while copyright law restricts it by prohibiting people from using certain works. The only commonality between the two is to promote the wide dissemination of expressions and ideas. The Framers of the Constitution intended for copyrights to incentivize people to create and share ideas. However, what happens when someone uses a copyrighted work in a new composition?
The doctrine of fair use acts as the First Amendment safeguard by allowing people to infringe a copyright in certain situations. Fair use is an affirmative defense that weighs the differences between the copyrighted material and copied material. This doctrine may apply if the copyrighted material is used for a limited and transformative purpose. In such uses, the material can be used without the copyright owner’s permission. What exactly constitutes a “transformative” purpose is not definitive and court decisions have only laid out some general guidelines.
Section 107 of the Copyright Act requires a case-by-case analysis to determine fair use. The four nonexclusive factors the courts use to analyze fair use include:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
In 1977, President Gerald Ford found himself in the midst of a fair use copyright case when parts of his unpublished manuscript were published in an article without authorization. President Ford contracted with Harper & Row Publishers to publish his unwritten memoirs. In addition to the right to publish the Ford memoirs in a book, the agreement gave the publishers the exclusive right to license prepublication excerpts. Harper & Row negotiated a prepublication license with Time magazine for the right to publish a 7,500-word excerpt from the memoir. The issue was scheduled to hit the stands one week before the full-length book version was published. In 1979, about two to three weeks before the Time excerpt was scheduled to release, an unidentified source secretly provided the Ford memoirs to The Nation magazine. The editor of The Nation, Mr. Navasky, knew the work was not authorized and ignored it by publishing the 2,250-word article. As a result of the article, Time cancelled the excerpt it was set to publish. The Court held that copyrights were intended to benefit the public and apply equally to works of fiction and nonfiction. In the book at issue, President Ford drafted essays and participated in hundreds of taped interviews to write his memories. The Nation published verbatim quotes of the original work totaling about 300 to 400 words. Even without the verbatim quotes, the Court held that The Nation’s article stripped the author of the right of first publication. Furthermore, the quoted portions that The Nation took were “essentially the heart of the book.” The Court found that The Nation’s actions went beyond simply publishing uncopyrightable information and exploited President Ford’s copyrighted expression from the unauthorized first publication. The Nation article superseded the copyright holder’s commercially valuable right of first publication. In regards to the nature of the work, the Court placed great weight on the fact that the work was unpublished and held that the scope of fair use should be narrower in such cases.
Parody or Not?
The fair use doctrine in routinely analyzed in parody cases. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a parody may qualify as a fair use. A parody is a work that uses some elements of the original author’s composition to create a new work that, at least in some part, comments on that composition. Acuff-Rose Music owned a copyright to Roy Orbinson’s “Oh, Pretty Woman.” Acuff-Rose sued 2 Live Crew claiming that 2 Live Crew’s song “Pretty Woman” infringed on their copyright. The case went to the Supreme Court when the commercial nature of the parody was disputed by the District Court and the Court of Appeals. The Supreme Court held that the commercial nature of a work is only one factor in the fair use analysis and it should not be presumed that if a work is commercial in nature, it is automatically unfair use. The Court held that 2 Live Crew only used what was necessary to conjure up the original song in order to parody it. Furthermore, the new work contained distinctive sounds compared to Orbison’s original. In regards to the market harm, the Court held that if the new work is transformative, market substitution is less certain and it cannot be readily inferred because the parody and the original serve different market functions. In this case, the Court found parodies to qualify for application of the fair use doctrine. What if the new work is not a parody?
In Dr. Seuss Enterprises v. Penguin Books USA, Inc., the Ninth Circuit held that the work, The Cat NOT in the Hat! A Parody by Dr. Juice, was indeed not a parody and did not qualify as fair use. The infringing work was a poetic account of the O.J. Simpson trial using elements from the original work, The Cat in the Hat. The plaintiff, Dr. Seuss Enterprises, owned copyrights for the books written by Theodor Geisel, including The Cat in the Hat. The defendants did not obtain permission from the plaintiff and were not authorized to use any elements from the original work. There were many similarities between the original book and the infringing work, including but not limited to, rhyme scheme, thematic elements, and certain character identifiers, like the iconic red and white striped hat. The Court found that the work was not a parody because it did not preserve Dr. Seuss’s original style. Furthermore, the defendant copied substantial portions of The Cat in the Hat and used the work for commercial purposes, harming the market for the original work.
Based on the available case law, it is extremely difficult to predict how a court will apply the fair use test, with different courts emphasizing certain factors over others. As the doctrine currently exists, there is no bright line rule to differentiate between a fair user and an infringer. The uncertainty of the fair use doctrine leaves authors unable to predict the outcome of their works if they use copyrighted material. Furthermore, the repercussions of losing a fair use argument can be monumental with damages and sanctions ranging from permanent injury to attorney’s fees. Authors agree that that free speech safeguards, like fair use, should be reevaluated or further analyzed for a better understanding of its effectiveness.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).
 Edmund T. Wang, The Line Between Copyright and the First Amendment and Why Its Vagueness May Further Free Speech Interests, 13 U. Pa. J. Const. L. 1471, http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1103&context=jcl.
 Id. at 1472.
 Id. at 1479.
 Rich Stim, What is Fair Use?, Copyright & Fair Use (April 4, 2013), http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/.
 17 U.S.C. §107.
 Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 542 (1985).
 Id. at 543.
 Id. at 546.
 Id. at 548.
 Id. at 549.
 Id. at 565.
 Id. at 561.
 Id. at 562.
 Id. at 564.
 Campbell, 510 U.S. at 594.
 Id. at 580.
 Id. at 572.
 Id. at 573.
 Id. at 574.
 Id. at 584.
 Id. at 588.
 Id. at 589.
 Id. at 591.
 Dr. Seuss Enters. L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir. 1997).
 Id. at 1396.
 Id. at 1401.
 Id. at 1402-1403.
 Wang, supra note 2, at 1485.
 Id. at 1486.
 Id. at 1488.
 Id. at 1498.