Slideshow to accompany lecture and class discussion on copyright and fair use.

1. Intellectual property
Copyright law and what it
means to a working journalist

2. Constitutional considerations
• Copyright is included in Article I, Section 8
– “To promote the progress of science and
useful arts, by securing for limited times to
authors and inventors the exclusive right to
their respective writings and discoveries”

3. Constitutional considerations
• Copyright is included in Article I, Section 8
– “To promote the progress of science and
useful arts, by securing for limited times to
authors and inventors the exclusive right to
their respective writings and discoveries”
• Where have we heard this before?

4. Constitutional considerations
• Copyright is included in Article I, Section 8
– “To promote the progress of science and
useful arts, by securing for limited times to
authors and inventors the exclusive right to
their respective writings and discoveries”
• Where have we heard this before?
• Article 6: Free press versus fair trial

5. Purpose of copyright
• Encourage creativity
for the benefit of all

6. Purpose of copyright
• Encourage creativity
for the benefit of all
• Purpose is lost when
copyright term is
extended too far

7. Purpose of copyright
• Encourage creativity
for the benefit of all
• Purpose is lost when
copyright term is
extended too far
• Elred v. Ashcroft
upheld decades-long
terms

8. What can’t be copyrighted?
• Information and ideas, as opposed to a
specific expression of those ideas

9. What can’t be copyrighted?
• Information and ideas, as opposed to a
specific expression of those ideas
• Titles

10. What can’t be copyrighted?
• Information and ideas, as opposed to a
specific expression of those ideas
• Titles
• Compilations of works with no creative
value
– Feist Publications v. Rural Telephone Service
Co. (1991)

11. Who holds copyright?
• Individual creator when he or she is self-
employed

12. Who holds copyright?
• Individual creator when he or she is self-
employed
• Client when relationship is “work for hire”

13. Who holds copyright?
• Individual creator when he or she is self-
employed
• Client when relationship is “work for hire”
• Visions of online profits have tilted the
balance against freelancers’ rights

14. Fair use
• Allows you to use a small part of a
copyrighted work without getting
permission or paying compensation

15. Fair use
• Allows you to use a small part of a
copyrighted work without getting
permission or paying compensation
• Especially valuable in criticism
– Text excerpts
– Sound clips
– Song lyrics
– Art shows

16. Four elements
• Purpose and character of use
– Nonprofit, educational, and “transformative”
uses (such as parody) are more likely to be
protected by fair use than commercial uses

17. Four elements
• Purpose and character of use
• Nature of the copyrighted work
– “Expressive” works such as fiction, poetry and
music are less likely to be covered by fair use
– Unpublished works are less likely to be covered
by fair use
– Out-of-print works are more likely to be
covered by fair use

18. Four elements
• Purpose and character of use
• Nature of the copyrighted work
• Amount and “substantiality”
– Not done by word count; based more on
whether the heart of the work was taken
– Gerald Ford’s memoirs a good example
– Boston.com’s copying of GateHouse headlines
and ledes

19. Four elements
• Purpose and character of use
• Nature of the copyrighted work
• Amount and “substantiality”
• Effect on market
– Most important factor
– If copyright holder can be shown to have lost
money, fair use is less likely to be recognized

20. Harper & Row v. Nation
• All four factors cut
against The Nation

21. Harper & Row v. Nation
• All four factors cut
against The Nation
• Economic effect was
especially clear

22. Harper & Row v. Nation
• All four factors cut
against The Nation
• Economic effect was
especially clear
• A good decision? Or
was journalism about
a former president
being punished?

23. The “Pretty Woman” case
Roy Orbison 2 Live Crew

24. Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment
protection

25. Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment
protection
• Is 2 Live Crew’s remake of “Oh, Pretty
Woman” “transformative”?

26. Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment
protection
• Is 2 Live Crew’s remake of “Oh, Pretty
Woman” “transformative”?
• Justice Souter says yes

27. MGM v. Grokster
• In Sony v. Universal, the Court ruled that
the VCR was legal

28. MGM v. Grokster
• In Sony v. Universal, the Court ruled that
the VCR was legal
• Napster and similar services were shut
down because of massive copyright
violations

29. MGM v. Grokster
• In Sony v. Universal, the Court ruled that
the VCR was legal
• Napster and similar services were shut
down because of massive copyright
violations
• Grokster survived for a time because it
lacked a central server

30. MGM v. Grokster
• In Sony v. Universal, the Court ruled that
the VCR was legal
• Napster and similar services were shut
down because of massive copyright
violations
• Grokster survived for a time because it
lacked a central server
• Lost because of “inducement theory”