C. Summaries of Fair Use Cases

The best method of understanding the flexible principle of fair use is to review actual cases decided by the courts. Below are summaries of a series of fair use cases.

1. Cases Involving Text

• Not a fair use. An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. Important factors: A substantial portion was taken (half of the work) and the work had not yet been published. (Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).)
• Fair use. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important factors: No more than 1% of Wright's unpublished letters were copied and the purpose was informational. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)
• Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important factors: The letters were unpublished and were the "backbone" of the biography--so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)
• Not a fair use. The Nation magazine published excerpts from ex-President Gerald Ford's unpublished memoirs. The publication in The Nation was made several weeks prior to the date of serialization of Mr. Ford's book in another magazine. Important factors: The Nation's copying seriously damaged the marketability of Mr. Ford 's serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)
• Not a fair use. A company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What, containing direct quotations and paraphrases from the television show "Twin Peaks" as well as detailed descriptions of plot, character and setting. Important factors: The amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program. (Twin Peaks v. Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993).)
• Not a fair use. A company published a book of trivia questions about the events and characters of the "Seinfeld" television series. The book included questions based upon events and characters in 84 "Seinfeld" episodes and used actual dialogue from the show in 41 of the book's questions. Important factors: As in the "Twin Peaks" case, the book affected the owner's right to make derivative "Seinfeld" works such as trivia books. ( Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)
• Fair use. Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Rev. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Important factors: Rev. Falwell's copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues. (Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal. 1985).)

2. Artwork and Audiovisual Cases

• Fair use. A Google search engine’s thumbnail display of photos from a subscription-only website (featuring nude models) was a fair use. Important factors: The Ninth Circuit considered Google’s use of thumbnails as “highly transformativeâ€� noting that a search engine transforms the image into a pointer directing a user to a source of information (versus the image’s original purpose: entertainment, aesthetics, or information). This transformative use outweighs any commercial factors regarding Google’s ability to earn money from placement of ads on the search results page. The court’s reasoning –that “a search engine provides an entirely new use for the original work,â€� — re-affirmed the principles established in the Ninth Circuits decision in Kelly v. Arriba Soft, see below (Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405 (9th Cir. 12/3/07).
• Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
• Fair use. The artist, Jeff  Koons, used portions of a fashion photo – a woman’s legs in Gucci sandals – in a painting, “Niagara.â€� The painting included a montage of popular culture images spread over a Dali-like landscape. Important factors: Unlike the “puppies caseâ€� (Rogers v. Koons, above) which was considered a slavish reproduction, the court viewed “Niagaraâ€� as a transformative use because it commented upon the use of fashion imagery in consumer culture. (Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).
• Not a fair use. The artist, Jeff Koons, created a series of porcelain sculptures based upon a photograph of a man and woman holding puppies. Although certain aspects were exaggerated, the photo was copied in detail. Koons earned several hundred thousand dollars from sales of the sculptures. Important factors: Although Koons claimed fair use under a parody theory—the sculptures were part of his ‘banality’ series—the court disagreed claiming that the sculptures did not parody the work. The court also noted that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)
• Not a fair use. A nonprofit foundation presented a program called “Classic Arts Showcase,â€� for broadcast principally to public television and cable channels. The foundation used an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall." Important factors: Although the court considered the use to be educational, noncommercial and to consist of an extremely small portion of the work, those factors were outweighed by the potential loss of licensing revenue. The copyright owners had previously licensed portions of the work for broadcast and the court determined that the foundation’s use affected the potential market. (Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005)).
• Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Important factors: The court felt that the portions taken were substantial and part of the "heart" of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)
• Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
• Not a fair use. A television station's news broadcast used 30 seconds from a fourminute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Important factors: The use was commercial, took the heart of the work and affected the copyright owner's ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)
• Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the "Kojak" television show) was accepted as a fair use. Evidence indicated that most viewers were "time-shifting" (taping in order to watch later) and not "library-building" (collecting the videos in order to build a video library). Important factors: The Supreme Court reasoned that the "delayed" system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)
• Not a fair use. A poster of a "church quilt" was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
• Fair Use. A search engine’s practice of creating small reproductions (“thumbnailsâ€�) of images and placing them on its own website (known as “inliningâ€�) did not undermine the potential market for the sale or licensing of those images. Important Factors. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003).
  

3. Internet and Software Cases

• Not a fair use. The Los Angeles County Sheriff’s Department purchased 3,663 licenses to use a software program, but installed the software onto 6,007 computers. Although the software was installed onto 6,007 computers, the computers were configured such that the total number of workstations able to access the installed software did not exceed the total number of licenses the Sheriff’s Department purchased. Important factors. The installation of the software onto nearly all of the Sheriff’s office computers was not transformative, did not promote an advancement of the arts, and was commercial in nature. Wall Data Inc. v. Los Angeles County Sheriff’s Department __ F.3d __ (9th Cir. 2006). 
• Fair use. Displaying a cached website in search engine results is a fair use and not an infringement. A “cacheâ€� refers to the temporary storage of an archival copy—often a copy of an image of part or all of a website. With cached technology it is possible to search web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company’s cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. Important factors: Google was considered passive in the activity—users chose whether to view the cached link. In addition, Google had an implied license to cache web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)  
• Not a fair use. Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)
• Fair use. The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet (see previous case). Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary. ( Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).)

4. Music Cases

• Not a fair use. A karaoke manufacturer paid a compulsory license fee for the right to reproduce musical compositions on its machines. The music publisher requested an additional fee for the right to reproduce the lyrics on the karaoke video monitor. The manufacturer refused to pay additional fees and claimed that it had a fair use right to reproduce the lyrics. Important Factors. Display of the lyrics was not a fair use because: singing along to lyrics was not a transformative use; the karaoke company used all of the lyrics; and the manufacturer's use was for profit. This ruling harmonizes the Ninth Circuit with the Second Circuit's ruling in ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, (2d Cir. 1996). (Leadsinger, Inc. v BMG Music Publishing, CV-04-08099-VAP (9th Cir. January 2, 2008).
• Not a fair use. Downloading songs is not a fair use. A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Important factors: Since numerous sites, such as iTunes permit listeners to sample and examine portions of songs without downloading. the court rejected this “samplingâ€� defense. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).
• Fair use. A person running for political office used 15 seconds of his opponent's campaign song in a political ad. Important factors: A small portion of the song was used and the purpose was for purposes of political debate. (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).)
• Fair use. A television film crew, covering an Italian festival in Manhattan, recorded a band playing a portion of a copyrighted song "Dove sta Zaza." The music was replayed during a news broadcast. Important factors: Only a portion of the song was used, it was incidental to the news event and did not result in any actual damage to the composer or to the market for the work. ( Italian Book Corp, v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978).)

5. Summaries of Parody Cases

• Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street "). The rest of the lyrics and the music were different. Important factors: The group's use was transformative and borrowed only a small portion of the "Pretty Woman" song. The 2 Live Crew version was essentially a different piece of music and the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher who did not want "Pretty Woman" used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)
• Fair use. The composers of the song, "When Sunny Gets Blue," claimed that their song was infringed by "When Sonny Sniffs Glue, " a 29second parody that altered the original lyric line and borrowed six bars of the song. A court determined this parody was excused as a fair use. Important factors: Only 29 seconds of music were borrowed (not the complete song ). (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) (Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies.)
• Fair use. Comedians on the late-night television show "Saturday Night Live" parodied the song "I Love New York" using the words "I Love Sodom." Only the words "I Love" and four musical notes were taken from the original work. Important factors: The "Saturday Night Live" version of the jingle did not compete with or detract from the original song. (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff'd 632 F.2d 252 (2d Cir. 1980).)
• Not a fair use. An author mimicked the style of a Dr. Seuss book while re-telling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author's work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)
• Fair use. A movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important factors: The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
• Not a fair use. An artist created a cover for a New Yorker magazine that presented a humorous view of geography through the eyes of a New York City resident. A movie company later advertised their film Moscow on the Hudson using a similar piece of artwork with similar elements. The artist sued and a court ruled that the movie company 's poster was not a fair use. Important factors: Why is this case different than the previous case involving the Leslie Nielsen/Annie Leibovitz parody? In the Leibovitz case, the use was a true parody, characterized by a juxtaposition of imagery that actually commented on or criticized the original. The Moscow on the Hudson movie poster did not create a parody; it simply borrowed the New Yorker's parody (the typical New York City resident's geographical viewpoint that New York City is the center of the world). ( Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y. 1987).)

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