Nov. 3, 2005
Hypothetical Cases: Copyright
To begin with, we can recall that the fair-use doctrine says that courts should look at four factors when determining whether the use of a particular work is fair use. As stated on 514 of the text, these four factors are:
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;
The effect of the use on the potential market for or value of the copyrighted work.
The courts consider each of
the criteria, though (as stated on 526) the greatest emphasis tends to be given
to the fourth factor. The courts try to determine the most accurate ‘answer’ to
each criteria and which party, if either, was ‘favored’ by the in each factor.
The book cites the case of Los Angeles News Service v. CBS Broadcasting Inc.
on 525-6, in which the final decision was fair use, in favor of Court TV; the
court found that three of the four factors favored Court TV, which had used
footage from an incident of violence and rioting.
Jason Blair?! As in ‘the fraudulent journalism
of’ Jayson Blair? Well, if he’s a journalism student, that department must not
know much of his disgraceful behavior. Okay—anyway, it was established in
Chicago Record-Herald v. Tribune Association that a ‘quasi-copyright
protection’ exists for uncopyrighted news articles. (There’s no time for an
article to go through the normal copyright process, so some rights and
provisions of copyright are ‘automatically’ granted.)
I don’t know if this same quasi-protection would apply to a journalism student, especially if he was just writing as a freelancer or for a school paper. Anyway, though, style can be copyrighted, but news elements and facts themselves cannot. To get that copyright, he’d get the forms from the Library of Congress, send in two copies of his best edition and pay the $30 fee…then wait to hear.
Sure … if you happen to be in the mood for getting
slapped with a lawsuit! There is no fair use for unpublished works. The
magazine is likely going to lose a lot of money in sales if you run the
article ahead of them, and that may well add up to some hefty actual damages.
Well, not unless permission is granted to use
it. I’m not sure of the answer. In music, this sounds like sampling, and the
courts don’t recognize any ‘magic number’ or formula for what constitutes an
acceptably small portion of a work to use (though it may be around five to ten
percent). How long was the original special from which the six minutes are
intended to be taken? We’re not told, but it’ll comprise a fifth of the new
special’s time—20 percent is pretty hefty! Also, it sounds like there’s a
problem of misappropriation potentially going on here.
If I understand correctly, the Copyright Act of
1976 is retroactive, in that works from before 1978 are renewed for 67 years.
However, in 1913, only the Copyright Act of 1909 would have been around, which
provided for 28 + 28 years. That means 1913 plus 56 years equals 1969, and the
copyright and its renewal would have then expired. So my best guess is that
the work is in the public domain.
There’s enough potential here to write an entire paper, so I’ll just touch on
this topic for a moment. Yes, it is unfortunately true, and it may be always
true, to some extent. The easy part is passing laws; the tough part is
tracking down the violators and enforcing those laws. For every person who
figures out some way to sidestep laws—either on a technicality or because of
invisibility—there are a hundred more people who are actually honest, decent
citizens. We can hope that there will be a happy medium between identifying
lawbreakers and violating privacy. Gee, look at the time: 1984 already.
Marilyn vos Savant, a very popular columnist and former holder of the World’s Highest IQ title, was once asked what is “the essence of our America”—to which she replied that it was finding and maintaining that perfect, delicate balance between “freedom to” and “freedom from.” I can’t improve on that.