Filed May 15, 2012
Some courts have analyzed this factor from an economic viewpoint, tipping the scale in favor of fair use when to do otherwise would result in a market failure. See Harper & Row, 471 U.S. at 568 n. 9 (1985); 4 Nimmer at § 13.05[A][4].
Filed December 19, 2012
“[A] use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement.” Harper, 471 U.S. at 568.20 In sum, Meltwater tells its prospective customers in bold letters that its service features “No copyright fees.”
Filed September 1, 2006
Without the Act’s protection of author’s rights, however, the First Amendment would be counterproductive for there would be no incentive to create expressions if they were free for all to use. Hence, the two entities work together to promote the free communication of facts while protecting an author’s expression (Harper & Row, 471 U.S. at 556): “where the First Amendment removes obstacles to the free flow of ideas, copyright law adds positive incentives to encourage the flow.” (Pacific & Southern, Inc. v Duncan, 744 F.2d 1490, 1499, (Ga. 1984)).
Filed January 7, 2009
At bottom, the fair use doctrine is an “equitable rule of reason” not amenable to a “rigid, bright-line approach.” Harper & Row, 471 U.S. at 588. What Defendants claim, however, is that the fair use doctrine grants politicians and political advocacy groups blanket immunity from suit for infringement where the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11166.
Filed June 19, 2006
The fair use doctrine has always precluded a use that “supersedes the use of the original.” Harper, 471 U.S. at 5509, citing Folsom, 9 F. Cas. at 344-345. That is precisely what the AP did.
Filed October 1, 2014
Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003) (“[p]ublished works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred”); New Era Publications International v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir. 1990), cert. denied, 498 U.S. 921 (1990) (“even substantial quotations might qualify as fair use in a review of a published work” [citing Harper & Row, 471 U.S. at 564]). Hustlin’ is a published work and the sound recording was released almost five years before the release of PRA. SUF 2, 16. In addition, evaluation of this factor is impacted in this case by the fact the Plaintiffs claim, and can only claim, that the very short lyric/melody “everyday I’m hustlin’” has been wrongfully copied in PRA and not the entirety or even a substantial portion of Hustlin’.
Filed July 20, 2012
With respect to the first factor, Defendants’ uses for the blind admittedly serve a purpose that benefits society, but because they exceed the allowances of Section 121, Defendants are seeking to avoid paying the customary fee. See Harper & Row, 471 U.S. at 562 (“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”).
Filed May 23, 2008
In performing this analysis, the focus is not limited to Defendants’ use alone, but also inquires whether that type of use, if it should become widespread, would negatively affect the potential market for Star, including potential markets not only for Star itself, but also markets for the licensing of derivative works based upon Star. Campbell, 510 U.S. at 592-93; Harper & Row 471 U.S. at 568. Effect on derivative work licensing revenues should be considered not only for established licensing markets, but also potential markets that music publishers might generally develop or license others to develop.
Filed September 16, 2013
Absent a legal obligation, these actors are unlikely to implement the security measures necessary to safeguard intellectual property that does not belong to them, especially when armed with a decision that the public interest in disseminating information easily trumps the interests of copyright holders. See Harper, 471 U.S. at 559 (“[T]o propose that fair use be imposed whenever the social value [of dissemination] . . . outweighs any detriment to the artist, would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.”) 9 Piracy is not the only threat posed by digitizing the works without the consent of the authors.
Filed June 13, 2013
“If the defendant’s work adversely affects the value of any of the rights in the copyrighted work … the use is not fair.” Harper & Row, 471 U.S. at 568. Because of the demonstrable destruction of Perfect 10’s business, this most important factor swings dramatically in Perfect 10’s favor.