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Court decisions

Copyright law is defined in the U.S. Code, but is shaped and interpreted in the courts. Many of the law's most important doctrines, notably those of first sale and fair use, trace their origins to judicial opinions. These cases represent some of the more important decisions for music libraries, especially with regard to fair use.


Folsom v. Marsh
9 F.Cas. 342 (C.C.D. Mass. 1841)
The opinion in this case established the precedent for what we now call fair use. In his opinion, Justice Story identified the four factors to a successful fair use defense. This four-part test, which has been used ever since, has had a profound effect on copyright jurisprudence, both in the United States and abroad. The four factors were formally codified in the Copyright revision of 1976.
Text of the opinion in PDF (Pierce Law Center)


Wihtol v. Crow
309 F.2d 777 (1962)
This case surrounded an arrangement made of a copyrighted song, allegedly without any intent to infringe on a copyright. The appeals court ruled that being innocent of intent was “of no help to [the defendant]...if the copying constituted an infringement.” In addition, the copying of an entire work could not be considered fair use simply for the defendant’s innocent intentions.
Text of the opinion (AltLaw)


Sony v. Universal City Studios
464 U.S. 417 (1984)
Universal Studios and others filed suit against Sony Corp. over the sale of its Video Tape Recorders (VTR), now known as Betamax. The court held that the sale of VTRs is not contributory copyright infringement. More importantly from a fair use perspective is the holding that anyone may make a reproduction under fair use—that the “copyright owner does not possess the exclusive right to such a use.” Prior to the VTR, motion picture studios enjoyed a functional technological monopoly over reproduction of their product. The court held that the introduction of equipment extending that technology to the masses is not an infringement of the studios’ rights. More importantly, the court ruled that fair use constitutes an “equitable rule of reason,” allowing courts to determine cases each according to its own facts.
Text of the opinion (LII)


Campbell v. Acuff-Rose Music
510 U.S. 569 (1994)
This is an important recent fair use case. The rap group 2 Live Crew recorded a song entitled "Pretty Woman," which incorporated the famous opening guitar passage from Roy Orbison’s “Oh Pretty Woman.” 2 Live Crew released the song commercially, over the objections of Acuff-Rose Music, owners of the Orbison song. In their complaint, Acuff-Rose argued that, in releasing the song commercially, 2 Live Crew had exceeded the boundaries of fair use. The Supreme Court unanimously held that the 2 Live Crew song, a parody, made a fair use of the original. Importantly, the Court ruled that the commercial nature of a use does not necessarily preclude a successful fair use defense, and that the transformative nature of the use (i.e., to what extent has something new been created) must be taken into consideration.
Text of the opinion (LII)


Bridgeman Art Library, Ltd. v. Corel Corp.
36 F. Supp. 2d 191 (S.D.N.Y. 1999)
Bridgeman Art Library, a British company that deals in reproductions of famous artworks, sued the Canadian Corel Corporation for distributing 120 digital art images on CD-ROM in the United States. Bridgeman claimed that Corel had directly duplicated its images from Bridgeman's copies of the same artworks, which Bridgeman held as photographic transparencies and digital images. The artworks themselves were in the public domain. Since Bridgeman's copies were exact photographic reproductions of works already in the public domain, Judge Lewis A. Kaplan decided that those copies--even though they were captured in a different medium from the original artworks--were not copyrightable. There was also no persuasive evidence that Corel had copied their images from Bridgeman's collection in the first place. Kaplan dismissed Bridgeman's suit in summary judgment in 1998, and did so again in 1999. His ruling regarding the copyrightability of exact reproductions has been influential in subsequent copyright litigation.
Text of the opinion (LII)
Contributed by Yi Hong Sim


A & M Records v. Napster.
239 F.3d. 1004 (2001)
Napster, an online music-sharing service, defended its practice in part by claiming its users’ actions constituted fair use of the material being shared. The court rejected this claim under all four factors. Importantly, the court noted that “wholesale copying does not preclude fair use per se,” and that under curtain circumstances, a court will conclude that a use is fair even when the protected work is copied in its entirety.” (citing Sony v. Universal City Studios)
Text of the opinion (LII)


Kelly v. Arriba Soft
280 F. 3d 934 (9th Cir. (2002)
Arriba Soft, now known as Ditto.com, is an Illinois-based company operating a web-based search engine (www.ditto.com) which indexes web pages, images, news and weather. The image search function retrieved images and displayed the results in a list of thumbnails. In addition, these images, when selected, were displayed in a framed setting within Arriba Soft’s web page. Leslie Kelly, known for his “Little House on the Prairie” photographs, sued for copyright infringement. A three-judge panel of the 9th circuit found that displaying the thumbnails was a fair use. The first (nature and character of the use) and fourth factor (market impact) weighed the most heavily on this decision. The use was of an entirely different nature (used for purposes of an index), and therefore transformative, and the display of the thumbnail images, if anything, helped Kelly. The public’s interest in having the search engine and the thumbnail display outweighed Kelly’s interests in having his work removed. The circuit court initially found that Arriba Soft's inline linking of images to be an infringement, but later revised their decision.
Text of the opinion in PDF (EFF)


MGM v. Grokster
545 U.S. 913 (2005)
This case primarily centers around contributory copyright infringement, but is significant in that in some cases it further clarifies the decisions made in Sony v. Universal City Studios. Grokster distributed and promoted software which allowed for peer-to-peer distribution of material—regardless of whether the material is infringing on a copyright—on the Internet. The Supreme Court held that Grokster and others are liable for contributory copyright infringement despite the legitimate uses for the software, on the grounds that their promotion of the software centered largely on infringing uses, and the primary use of the software is for infringement.
Text of the opinion (LII)


Bill Graham Archives v. Dorling Kindersley Ltd.
No. 05-2514-cv United States Court of Appeals (2nd Circuit, 2006)
This case was fought over the reproduction of 7 concert posters in Grateful Dead: The Illustrated Trip, a coffee table book biography of the Grateful Dead. The Bill Graham Archives owned the copyrights to the posters, and brought suit against the book's publisher, Dorling Kindersley, after the latter proceeded with the publication even though the two parties had failed to come to a licensing agreement. The judges ultimately found Dorling Kindersley's use of the images to be fair on all four factors of fair use. Persuasive evidence for their finding of transformative use, even though the posters were presented in their entirety, were that the reproductions were significantly reduced in size from the original, and were arranged chronologically on a timeline accompanied by captions and "original graphical artwork" to create a "collage effect." The judges also cited multiple precedents to conclude that the Bill Graham Archives had not suffered any market harm from Dorling Kindersley's reproduction of the posters.
Text of the opinion in PDF (Stanford Copyright & Fair Use Center)
Contributed by Yi Hong Sim


Blake A. Field v. Google, Inc.
412 F. Supp 2d. 1106 (D. Nev. 2006)
This case was a test of Google, Inc.’s practice of “caching” web-based material on their servers, by storing the coded information, indexing it, and then making it available to the public. Plaintiff Field discovered several of his copyrighted works on Google’s servers and brought suit for copyright infringement. Google’s claim of fair use (it offered several other defenses as well) was upheld primarily based on the first and fourth fair use factors, and especially the first. Among other things, the court found that because Google’s cached links are not direct substitutes for the original—they are instead useful only when the original is unavailable—and because they provide a significant, valuable service to the public without causing damage to the plaintiff’s market, that Google’s practice constitutes a fair use of the material.
Text of the opinion in PDF (Stanford University)


UMG Recordings v. Troy Augusto
No. CV 07-03106 SJO (AJWx)
This case concerns the applicability of the first sale doctrine to promotional materials distributed by publishers. The defendant, Augusto, obtained CDs from second-hand music shops and online auctions which contained warnings that the CDs were "licensed to the intended recipient for personal use only" and that resale was not permitted. When Augusto began selling these CDs on eBay, UMG sued. The court ruled that (a) the "license" printed on the CD was invalid, and (b) that the promo CDs were a gift under federal law (under 39 USC §3009), and therefore his actions were protected under 17 USC §109.
Text of the opinion in PDF (Electronic Frontier Foundation)


EMI/Capitol v. Premise Media Corp.
Index No. 601209/08 (Supreme Court of the State of New York 2008)
EMI/Capitol sought a preliminary injunction against Premise Media for using 15 seconds of John Lennon's "Imagine" in the soundtrack of EXPELLED: No Intelligence Allowed, a 90-minute documentary that defended creationism and proponents of intelligent design. Prominently featured from "Imagine" were the lyrics "Nothing to kill or die for, / And no religion too." Premise Media moved to dismiss the case under protection of fair use, claiming that their film incorporated the excerpt in a way that clearly criticized the song's anti-religious stance, and thus used the song for the purpose of commentary. Of greatest significance in this case was the question of whether fair use, a federal copyright exemption, applied to a work protected under New York state common law. Prior courts had acknowledged the possibility of exempting a use as fair under state copyright, but had never found reason to do so. Judge Richard B. Lowe III thus set a national precedent in this case by actively applying fair use to state common law copyright. He ruled that Premise Media's use of the song was transformative, therefore qualifying as fair use. However, he ultimately denied both parties' motions for other reasons. Text of the opinion in PDF (Stanford Law School)
Contributed by Yi Hong Sim

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