Court decisions
Though the law is defined in the U.S. Code, the law is shaped and interpreted in the courts. These cases represent some of the more important decisions for music libraries, especially with regard to fair use.
Folsom v. Marsh
9 F.Cas. 342 (C.C.D. Mass. 1841)
The opinion in this case established the precedent for what we now call fair use. In his opinion, Justice Story identified the four factors to a successful fair use defense. This four-part test, which has been used ever since, has had a profound effect on copyright jurisprudence, both in the United States and abroad. The four factors were formally codified in the Copyright revision of 1976.
Text of the opinion in PDF (Pierce Law Center)
Wihtol v. Crow
309 F.2d 777 (1962)
This case surrounded an arrangement made of a copyrighted song, allegedly without any intent to infringe on a copyright. The appeals court ruled that being innocent of intent was “of no help to [the defendant]...if the copying constituted an infringement.” In addition, the copying of an entire work could not be considered fair use simply for the defendant’s innocent intentions.
Text of the opinion (AltLaw)
Sony v. Universal City Studios
464 U.S. 417 (1984)
Universal Studios and others filed suit against Sony Corp. over the sale of its Video Tape Recorders (VTR), now known as Betamax. The court held that the sale of VTRs is not contributory copyright infringement. More importantly from a fair use perspective is the holding that anyone may make a reproduction under fair use—that the “copyright owner does not possess the exclusive right to such a use.” Prior to the VTR, motion picture studios enjoyed a functional technological monopoly over reproduction of their product. The court held that the introduction of equipment extending that technology to the masses is not an infringement of the studios’ rights. More importantly, the court ruled that fair use constitutes an “equitable rule of reason,” allowing courts to determine cases each according to its own facts.
Text of the opinion (LII)
Campbell v. Acuff-Rose Music
510 U.S. 569 (1994)
This is likely the most important recent case to address the notion of fair use and is especially useful to musicians in that the case directly addressed a musical question. The rap group 2 Live Crew recorded a parody of Roy Orbison’s “Oh Pretty Woman,” and released it commercially. Acuff-Rose Music, owners of the Orbison song, filed suit claiming that 2 Live Crew had exceeded fair use under the third and fourth factors. The Supreme Court held that the commercial nature of the use does not preclude a successful fair use defense; that the transformative nature of the use must be taken into consideration (i.e., to what extent has something new been created); and that parody may claim fair use.
Text of the opinion (LII)
A & M Records v. Napster.
239 F.3d. 1004 (2001)
Napster, an online music-sharing service, defended its practice in part by claiming its users’ actions constituted fair use of the material being shared. The court rejected this claim under all four factors. Most interestingly, the court noted that “wholesale copying does not preclude fair use per se,” and that under curtain circumstances, a court will conclude that a use is fair even when the protected work is copied in its entirety.” (citing Sony v. Universal City Studios)
Text of the opinion (LII)
Kelly v. Arriba Soft
280 F. 3d 934 (9th Cir. (2002)
Arriba Soft, now known as Ditto.com, is an Illinois-based company operating a web-based search engine (www.ditto.com) which indexes web pages, images, news and weather. The image search function retrieved images and displayed the results in a list of thumbnails. In addition, these images, when selected, were displayed in a framed setting within Arriba Soft’s web page. Leslie Kelly, known for his “Little House on the Prairie” photographs, sued for copyright infringement. A three-judge panel of the 9th circuit found that displaying the thumbnails was a fair use. The first (nature and character of the use) and fourth factor (market impact) weighed the most heavily on this decision. The use was of an entirely different nature (used for purposes of an index), and therefore transformative, and the display of the thumbnail images, if anything, helped Kelly. The public’s interest in having the search engine and the thumbnail display outweighed Kelly’s interests in having his work removed. The circuit court initially found that Arriba Soft's inline linking of images to be an infringement, but later revised their decision.
Text of the opinion in PDF (EFF)
MGM v. Grokster
545 U.S. 913 (2005)
This case primarily centers around contributory copyright infringement, but is significant in that in some cases it further clarifies the decisions made in Sony v. Universal City Studios. Grokster distributed and promoted software which allowed for peer-to-peer distribution of material—regardless of whether the material is infringing on a copyright—on the Internet. The Supreme Court held that Grokster and others are liable for contributory copyright infringement despite the legitimate uses for the software, on the grounds that their promotion of the software centered largely on infringing uses, and the primary use of the software is for infringement.
Text of the opinion (LII)
Blake A. Field v. Google, Inc.
412 F. Supp 2d. 1106 (D. Nev. 2006)
This case was a test of Google, Inc.’s practice of “caching” web-based material on their servers, by storing the coded information, indexing it, and then making it available to the public. Plaintiff Field discovered several of his copyrighted works on Google’s servers and brought suit for copyright infringement. Google’s claim of fair use (it offered several other defenses as well) was upheld primarily based on the first and fourth fair use factors, and especially the first. Among other things, the court found that because Google’s cached links are not direct substitutes for the original—they are instead useful only when the original is unavailable—and because they provide a significant, valuable service to the public without causing damage to the plaintiff’s market, that Google’s practice constitutes a fair use of the material.
Text of the opinion in PDF (Stanford University)
UMG Recordings v. Troy Augusto
No. CV 07-03106 SJO (AJWx)
This case concerns the applicability of the first sale doctrine to promotional materials distributed by publishers. The defendant, Augusto, obtained CDs from second-hand music shops and online auctions which contained warnings that the CDs were "licensed to the intended recipient for personal use only" and that resale was not permitted. When Augusto began selling these CDs on eBay, UMG sued. The court ruled that (a) the "license" printed on the CD was invalid, and (b) that the promo CDs were a gift under federal law (under 39 USC §3009), and therefore his actions were protected under 17 USC §109.
Text of the opinion in PDF (Electronic Frontier Foundation)