COPYRIGHT II
SECTION 107--FAIR USE
NOTWITHSTANDING THE PROVISION OF SECTION 106, THE FAIR USE OF THE COPYRIGHTED WORK, INCLUDING SUCH USE BY REPRODUCTION IN COPIES OR PHONORECORDS OR ANY OTHER MEANS SPECIFIED BY THAT SECTION, FOR PURPOSES SUCH AS CRITICISM, COMMENT, NEWS REPORTING, TEACHING (INCLUDING MULTIPLE COPIES FOR CLASSROOM USE), SCHOLARSHIP, OR RESEARCH, IS NOT AN INFRINGEMENT OF COPYRIGHT. IN DETERMINING WHETHER THE USE MADE OF A WORK IN ANY PARTICULAR CASE IS A FAIR USE THE FACTORS TO BE CONSIDERED SHALL INCLUDE--
1. THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER SUCH USE IS OF A COMMERCIAL NATURE OR IS FOR NONPROFIT EDUCATIONAL PURPOSES;
2. THE NATURE OF THE COPYRIGHTED WORK [1992 AMENDMENT]: "THE FACT THAT A WORK IS UNPUBLISHED SHALL NOT ITSELF BAR A FINDING OF FAIR USE"];
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.
Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc.(D. Nev. 1999)
Plaintiff and defendant are competitors in the souvenir business in Nevada. Plaintiff hired a photographer to take aerial photographs of "the strip" in LV as well as a graphic artist to use Photoshop to alter the photos and create "the 1998 Image." Plaintiff owns the copyright in the Image.
Defendant also has a digitally altered photographic image of the strip. Most of it was done independently, but defendant's artist SCANNED 6 architectural works from the 1998 Image and modified them before inserting them into defendant's image.
Issues:
1. Does temporary storage of an image in a computer's RAM constitute copying?
2. Does the use of altered scanned images constitute an infringement of copyright?
3. Does the doctrine of "unclean hands" protect the defendant?
4. Is the use of the 1998 Image fair?
Rogers v. Koons (2d Cir. 1992)
Plaintiff was commissioned by a friend to photograph 8 German Shepherd puppies. He owns the copyright in the photo. It has been exhibited. He has licenses the photo for use in an anthology, Dog Days, and to Museum Graphics for notecards and postcards.
Defendant saw the notecard, tore of the copyright notice and sent it to artisans in Italy, telling them to copy it in a large sculpture. See p. 305.
Issues:
1. Can Koons use a "parody" defense?
*imitates in order to ridicule
*is a comment on the earlier work
2. What are the actual damages?
3. What are the statutory damages?
4. The turn over order.
DERIVATIVE WORKS
Greenwich Workshop v. Timber Creations (S.D. Cal. 1996)
Greenwich Workshop publishes/distributes works of art by artist, Bev Doolittle and owns the copyright
*for the original watercolor paintings
*for the limited edition photolithographic prints made from the watercolors
*for the book, The Art of Bev Doolittle, which contains bookplates (small scale reproductions) of the original works.
Timber Creations has purchased the book, cut out each bookplate, mounted and framed them, and sold them individually.
Issue:
Are defendant's works infringing derivative works or merely a new method of display?
Lee v. Deck the Walls, Inc. (N.D. Ill. 1996)
Annie Lee is an artist. She holds the copyright in her works. She has licensed her works to be copied in notecards.
Deck the Walls (DTW) is a franchiser for retail art stores. It sells art to the public in its individual stores. DTW purchased 430 notecards and sent them to A.R.T. to be mounted on a ceramic tile, sealed with clear epoxy resin. DTW sold the individual tiles to the public.
Issues:
1. Are the tiles infringing derivative works?
Derivative works
*must "transform, adopt or recast" the original work into "a new and different work"
*must be "independently copyrightable," therefore must "demonstrate originality"
2. Does the "first sale doctrine" protect the defendant?--Section 109 of the Copyright Act:
"The owner of a particular [authorized] copy. . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy."
Lee v. A.R.T. Company (7th Cir. 1997)
http://laws.findlaw.com/7th/962522.html
UTILITARIAN OBJECTS
Just as ideas cannot be copyrighted, nor can useful or utilitarian objects unless there are "pictorial, graphic or sculptural features that can be identified separately from and are capable of existing independently of, the utilitarian aspects" of the article.
Belt buckles:
Kieselstein-Cord v. Accessories by Pearl
Halloween and masquerade costumes:
National Theme Productions v. Beck
Nose masks:
Masquerade Novelty v. Unique Industries
1991 Copyright Office Policy Decision: "The Copyright Office of the Library of Congress issues this Policy Decision clarifying its practices regarding the registrability of masks and costume designs. Under the adopted practices, masks will be registrable on the basis of pictorial and/or sculptural authorship. Costumes will be treated as useful articles, and will be registrable only upon a finding of separable artistic authorship."