Entertainment Law in a Nutshell by Sherri L. Burr

Author:Sherri L. Burr
Language: eng
Format: epub
ISBN: 9781636590837
Publisher: West Academic Publishing
Published: 2021-01-15T00:00:00+00:00

a.Fair Use

Once the plaintiff has put forth his prima facie case of copyright infringement, the burden then shifts to the defendant to refute the evidence that he stole the plaintiff’s work. The defendant can offer proof of independent creation (he or she created his or her own work), that he only took non-copyrightable items from the plaintiff, or that the use was somehow authorized, such as making a fair use of the plaintiff’s work.

Section 107 of the U.S. Copyright Act requires courts to balance the following four factors to determine whether a defendant has made a fair use of the plaintiff’s work:

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

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(2)the nature of the copyrighted work;

(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)the effect of the use upon the potential market for or value of the copyrighted work.

The fair use statute seems uncomplicated on its face, yet it has generated considerable litigation. The statute does not tell how to weigh the factors, although courts consider some factors more important than others. Through judicial decisions, the fourth factor has become the most important.

Because of the balancing requirement, no one can ever be absolutely certain whether he or she has used a work fairly until the use has been litigated and decided by a court. Unfortunately, what the District Court may consider fair, the Court of Appeals may find unfair, and the Supreme Court may ultimately decide it fair. This split happened when music publisher Acuff Rose decided to sue the 2 Live Crew over its rap version of “Pretty Woman.” The Supreme Court held that because it was a parody, it might be considered fair so long as the parodist took no more than necessary to conjure up and critique the original. [Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)]

In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), the Supreme Court wrote the golden rule of copyright as “take not from others to such an extent and in such a manner that you would be resentful if they so took from you.” It also indicated 213

that fair use is predicated on the author’s implied consent to “reasonable and customary” use. Harper & Row sued Nation Enterprises for leaking an excerpt of A Time to Heal: The Autobiography of Gerald Ford in the Nation magazine before the autobiography was published. The Nation received the manuscript from an undisclosed source. The Court ruled that such use was not covered by the doctrine of fair use.

In Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001), the trustee of the Mitchell Trust sued the publisher of the fictional work The Wind Done Gone for copyright infringement of Gone With the Wind. The author claimed fair use. The Eleventh Circuit determined that The Wind Done Gone was a parody of Gone With the Wind, and did not infringe upon the copyright in Gone With the Wind held by the Mitchell Trust.

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