Hello everyone. So right now we're going to look at how courts have analyzed fair use. This can be really helpful and instructive in determining whether your own use is fair use. So let's review some cases involving visual art and images. First case we're gonna talk about is Kelly versus Arriba Soft. This case involves a search engine which used the practice of in-lining, making thumbnails that a user who is searching could view in order to decide what webpage to visit. And the courts found that this did not undermine the potential market for the sale or licensing of the images. Some of the important factors in deciding that were that the thumbnails were smaller and much poorer quality than the original photos. One would not want to substitute one of those thumbnails for the original. And it also helped public access to the images as well. Another fair use case where it was found that a reproduction of images was not infringement is the Grateful Dead case, the Bill Graham Archives versus Dorling Kindersly. And in this case, the Dorling Kindersly Publishing Company reproduced Grateful Dead posters that had once advertised their concerts. They reproduced the posters in a book and used the posters to illustrate different milestones in the history of the band. This was found to be a fair use. The Second Circuit focused on the facts that the posters were thumbnail size, again very small, and reproduced within the context of a timeline. It was a new way of using the posters. They were no longer advertising the concerts for the Dead, like they had in their original lives, but now had a different purpose where it could be used without permission. >> And that's a great example of a transformative fair use that we've been talking about. Another example of transformative fair use is the case of Cariou v Prince, which involved appropriation art, which is a very hot topic in a lot of ways. In this case, the painter, Richard Prince, created a collage, he created a series of works of art that were mostly collages using photographs from a photographer's book, Patrick Cariou's book. He used about 28 of the photos in 29 paintings that he created. In some instances, he used the full photographs. When, in other cases, he used parts of them, and mixed them up so that only the main subject of the photo was used. This was found to be a fair use. The Second Circuit thought that the important factors were that in order to qualify as a fair use, Prince did not have to comment on the original. And this is interesting, because in the past we've usually seen parody cases where you're commenting on the original work. In this case, the Second Circuit said that it was so transformative that it really didn't matter whether Mr. Prince could articulate a kind of comment that he was making about the original work. He just liked the pictures and wanted to do something different with them. The court appeals concluded that 25 of his artworks qualified as fair use. And they remanded the case to determine the status of the remaining five, which is interesting because it does show that they were doing a careful analysis and that sometimes they thought, I think mostly they thought in a few cases the amount used was more than necessary. So it does show the court working through this transformative fair use analysis. >> And one thing that's really interesting about this case, I think, is that, many times, artists can't articulate their comments. If they could, they would have written something instead of using images. [LAUGH] >> That's a good point. >> And so that is one of the many fascinating things about this case. >> Yeah. >> Yeah. As you said, Kevin, appropriation art is a hot topic, and I think will continue to be a hot topic for a while. >> I think we're going to see more of these cases. >> I also think it's interesting to note that even the appeals court, which are seasoned federal judges, in five instances of 30, were not quite certain themselves, whether or not something transformative fair use, and remanded it back to the original court. >> I disagreed, actually, in the opinion about which- >> They struggled, yeah. >> They really struggled, that's right. >> So I'd like to show that this is an area that doesn't have hard, fast rules and that flexibility is a good thing but it can be difficult at times to really determine for yourself if a use is transformative. By using cases as guidelines can be very helpful. >> Right. >> So while transformative fair use is very powerful and has been found in a number of cases, there are some exceptions. One of those that's worth noting is Gaylord V The United States, a case from 2010 where the U.S. Postal Service made a stamp out of a picture of the Korean War Memorial, which is a sculpture created by a sculptor. They didn't get permission for that use of the sculpture, but they felt that their use was a fair use. And unfortunately the U.S. Court of Appeals for the Federal Circuit disagreed with them. And they found that simply taking a sculpture which is three dimensional, and making it two dimensional in the case of a stamp, was not enough transformation for that to really be considered a fair use. Even though that was creative, there was a photographer who basically set up the lighting, etc for taking their photo of the sculpture. They still needed the sculptor's permission to use the image of that sculpture in the postage stamp that they were selling. So- >> You know what else I think is interesting about this, is it's a reminder that the chances are it was the government itself that commissioned the sculpture for the Korean War Memorial. But simply paying for it, simply commissioning a work, and we know this from earlier cases, doesn't give the government the copyright in the sculpture. The sculptor still owned that right and should have been consulted, according to the federal circuit, for permission before the stamp was made. >> Yes. Well, with U.S. postal service, they, while affiliated with the government, are totally separate entities at this point. >> That's right. >> So that also complicates things as well somewhat. >> But these relationships are sometimes very important in figuring out the status of a work and of a secondary work. >> Right. >> And so we'll also talk in another lecture about the rights that artists have under specific exception and copyright law, or specific granting of rights in copyright law. And yes, very much coming in to play here as well. >> Right. >> So thank you for watching and listening.
