 Well, good afternoon everybody to this session on the latest decisions on fair use that we're presenting here at the UCLA library as print part of 2023 is fair use week. My name is Marty Brennan and let me go ahead. I'm the Scholar Communication Education Librarian here at the UCLA library. It's a pleasure to have everybody here today. Can everybody see the screen slide that says latest decisions on fair use. Good, that's good. I say welcome to everybody that's in the room. I don't see a slide I just see your handsome face. Oh, okay. And let me see if I can escape out of this. Are you guys getting snow? I'm in upstate New York. Yes, we're getting snow up here. Well, So okay, you can all still see my face. Let me try to share the screen again. Can you now see. Now we're seeing the slides. Okay, great. So welcome to the session. And let me say today, again, we're going to talk about latest decisions on fair use in particular the Google versus Oracle decision from a few years back, and the Princeton Andy Warhol decision that's now being considered by the Supremes. Let me, let's see. Now, can you all see that on your full screen. Yes, okay. So first of all, I'm not an attorney and I'm not offering legal advice the following information is presented to educate about copyright law and institutional policy in general terms. You're unclear about your options when confronted with the specific legal issue related to copyright you are urged to consult with an attorney with a background in copyright law. So today's objective is to review the rights of copyright owners talk about the evolution of fair use and the four factor tests that's used to determine fair use. A little bit about university policy around that and codes of best practices, and then talk about actual fair use cases for discussion. I'm going to move through things pretty quickly. Be free to post a question into chat. If you have any questions. But to start off, the exclusive right of copyright owners as laid out in section 106 of the copyright law says copyright owners have the exclusive right to reproduce or to make copies of works to create adaptations or derivative works to distribute copies to the public. To perform the work publicly and to display the work publicly. Now the owner of a copyright may license or grant each of these rights to others. But these are the general rules or the general ways in which copyright can be applied to copyrighted works. And so there is exceptions to the copyright law. And one of the most often used is fair use. So fair use is an affirmative defense, which allows the use of a work protected by copyright without obtaining permission from the copyright owner. So how this works it's an equitable rule of reason it's a judge made a test that's derived and grown through common law role rulings over the years. It's enforced by the 1976 copyright act in section 107, though not strictly limited by the factors enumerated in the law and in fact it has evolved a bit since the 76 ruling and continues to evolve in judicial rulings to the state. Some early cases it goes back to 1841 justice story defined a nice balance to be struck. And whether the secret use of original is justified is tested by a balance and the same factors we use today. The term fair use was first used in Lawrence v Dana in 1869. And there are many cases throughout the following 100 years that shape how we come to understand and use fair use. But in a 68 decision that spurred some legislative action. A federal court found the drawings based on frames from the Zapruder film of JFK assassination. That were published in a book were included under fair use. I cannot enumerate the four factors in the decision and considered other relevant context so this was a bit of a out of context decision that I had a big part in the legislative effort over the following eight years to get to the 1976 copyright act. And then they put these four factors of fair use into the law they were endorsing the purpose and general scopus scope of the judicial doctrine of fair use, but they weren't freezing it. So courts must be free to adapt the doctrine to particular situations on a case by case basis. They said clearly to that section 107 is intended to restate the present judicial doctrine not to change narrow or enlarge it in any way. So it's really future decisional rulings that have come out since that have had some additional shaping of how fair use looks and is applied. And, as a result possible employment for lawyers, various is more flexible than any other copyright exception. It can provide an exception to any and all of the bundle of rights as we call those those five different rights, as described at the start, and it adapts to new uses and new technologies all the time. Fair use is impossible to define apart from the specific circumstances of a case. It's a balancing test that's used within judicial discretion. And there is debate of whether it's an affirmative defense which I call that at the start of the session, or is it the boundary of a right. In any case, there's always an assessment of risk. When you're looking at something and trying to decide whether fair use applies to it. So, there's always going to be some ambiguity when you are making a fair use decision. And so it can be really a tough thing to do in certain situations and you may find your decisions challenged. So let's talk about the four factors of fair use. There's the purpose and character of the use the nature of the copyrighted work, the amount and substantiality of the use and the impact on the market. Those are the four factors that a judge must go through. When determining whether something was properly shared through the fair use exception. So in terms of purpose and character of the use, if something is educational in nature, then that's going to be viewed as a fair use as opposed to something that's entertainment or commerce would be more likely to be determined not for fair use something that's not for profit is fair use something that's for profit is not fair use and pretty decisively transformative versus iterative so things that are produced for a different audience and for a different purpose than the original. That's really taking something and transforming it into use in a different context and scope. That kind of use is heavily favored so parodies and collages of things on particular the Campbell be a cuff rose case was a transformative use that was a parody and educational reaches educational and research uses are often iterative and can still be fair use so even though iterative uses in general are more likely not going to be fair use in educational research context. We find that it can be. So the purpose and character of the uses pretty important that's one factor. A second factor is the nature of the copyrighted work is it published. If it's published it's more available and more available under the fair use statute then if it's unpublished if it's something that's factual just facts and figures then it's more available to be reused, but something that's highly creative is less available to be available through fair use. So that's number two the nature of the copyrighted work. Third factor is the amount and substantiality of the use less is always better at a fair use analysis. And so, you know, there are lots of debates about the amounts of use that can be used of a particular work before you get into something that's not fair use. There's lots of debate there's, you know, a 10 to 20% threshold on a lot of printed works. But of course when you're reusing an image you have to use 100% of it. So the amount of work is really depends on the kind of work that you're handling in its analysis. And it's better if you don't use the heart of the work. But this is an unresolved conflict for me don't the best academic expert excerpts pinpoint the heart of the work to include as part of critical analysis so it that can be very tricky that hasn't come into a lot of judicial around fair use though, to be honest. Number four impact on the market. And this can be very mechanical how many copies are made how widely are they distributed is the use spontaneous or repeated is the original available for sale or license. And a transformative use changes this market analysis to a degree in that parody can't be seen to harm the market for the original. So, basically, when you look at how these four factors really work. What is meant is that the judge must look at each of the four factors individually. And there's also the fifth factor of looking at all four factors put together on the whole. And then how it really works is that very use has become a fairly mechanical test. And in practice, the first factor the purpose and character of the use and the fourth factor the market effect are usually given the most weight in judicial opinions. And though the Supreme Court has clearly stated that the four factors may not be treated in isolation. What I'm saying here is in this study that was done of fair use decisions they looked at how the first factors are all four factors were looked at and discussed. And if the first factor and the fourth factor seem to point towards fair use then the results will be fair use. So it comes down to what is the purpose of the use and what is the effect on the market for the most part. It's very important and it's been reiterated by the Supremes but you must look at all four factors, but this is something that's really dispositive in an analysis of fair use decisions. So, one of the things that's come up over the last 20 years is the Center for media and social impact has put out these codes of best practices for fair use in X. There's one for academic libraries there's one for documentaries. There's at least a dozen, if not more of these codes of best practices now. So one of the things that it comes out of these codes a very bit of interesting writing that says from the code four factors are boiled down to did the use transform the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, not repeating the work for the same intent and value as the original. You can say yes, it was something that was transformed then was the material taken appropriate in kind and amount, considering the nature of the copyrighted work, and of the use. It does make it a bit simpler that a great deal of the copyright or the, the various decisions that we base our decisions on. And the last 1520 30 years boil down to this issue of transformative use. So, you take it, you take a copyrighted work and you work it into something that has a broadly beneficial purpose different from that of the original. And you take an amount that is appropriate for the purposes that you have in mind. So I wanted to say that there's a UC policy on copyright and fair use to, and the summary of the policy says to fulfill its teaching research and public service mission. It is the policy of the University of California to encourage the broad dissemination and use of information, accordance with the copyright law. The university will defend its employees who use copyrighted materials in an informed reasonable and good faith manner, and within the scope of their university employment. So generally when you know university educators, whether they are working within their courses and sharing materials with their students that they try to employ fair use in a reasonable way, and make reasonable decisions then the university will stand behind them in a court of law. So I just thought that's important to bring up in a session like this. So many important fair use cases are summarized here in this. Hold on. Let me get out of this and copy that website. And I'm going to paste it into the chat for you all. I really recommend that you jump into this page to see the different kinds of fair use cases that have risen to the top in terms of what people consider. Are we back at full screen again, can everybody see that somebody let me know in chat if we are. Yes, okay. So when you go to this site at Stanford. And look at the fair use cases. You can see the many different cases that have been included on different topics. It can be pretty interesting to go through them because there are some cases that are really directly in contrast with each other or so it would seem. And it certainly is dispositive that if you are using something from a different context. You know when you're talking about things in the copying of computers and sharing things on a system wide basis to a great degree. Fair use can be incredibly important. Some of the decisions that have come down. involve Google and some of the biggest players in the internet world, and going up against each other on different things can have huge impacts upon how the internet works in general, and has been pretty freeing. And that are the way that fair use has been allowed. On the other hand, you can look at certain cases that are related to one image or one piece of music being reused, and they can seem to be really restrictive and not allowing nearly the same amount of freedom. Fair use is something that really does rely upon a judge and a judge's take on things. There is a general sense of things are determined by this transformative use paradigm that has come into a dominant frame. But for the most part, it can be really fascinating to do a dive down into these cases and see what kinds of things are out there. There's you know from the beta max case in the early 80s, you know whether using video tape to record something was a copyright violation. That was a pretty big determinative case. There's the pretty woman case that's in there. That's the cover of Pretty Woman or at least the song of Pretty Woman. You know there's the Roy Orbison song that came out in the 70s or I guess maybe the 60s. Then there was a version put out by two live crew in the 80s that was a lot more crude and had elements of the first Pretty Woman but it was very much a version of its own. They asked for permission before they put out the the version were denied permission by the Orbison copyright denied permission to two live crew. They went ahead and released it anyway. In that case it was decided that it was a parody version of the original Pretty Woman and it was had a huge impact on the whole idea of looking at something as a transformative use. And a lot of cases have pointed back to Pretty Woman since then. Also the Let's Go Crazy case that was actually deemed to be a fair use. And it pointed to people to be very careful before implementing a DMCA takedown on anything to consider whether fair use was at play to do so without, you know, to put through a DMCA takedown request without deciding or, you know, giving some consideration to the fact that fair use could be at play is bad acting in and of itself. So there are many important cases like that that have led up to our full understanding today. But I wanted to talk about a couple in particular. Google versus Oracle had a decision come down through the Supreme Court after years working its way through the courts that centered on Google's use of the API and about 11,000 lines of source code that were owned by Oracle. Oracle argued that the APIs are copyrightable. And in April 2021, the Supreme Court ruled six to two that Google's use of the Java APIs fell within the four factors of fair use. And it also at the same time bypassed the question on the copyright ability of the APIs. So it was a pretty impactful decision. It's amazing how many friend of the court filings were included in these in this case all the way up to the Supremes of whether APIs in an essence, whether APIs in general could be copyrightable and whether the use of them could be viewed as an infringement upon the original. So that was a huge impactful case. And another case that happened is still in front of the Supreme Court today is the Andy Warhol Foundation versus Goldsmith. So in this case, if you look at this image here on the screen and I should probably go back to slide presentation. This middle image, the black and white image is the original, right? And on the right, you have a sampling of the Andy Warhol images that were used, I'm sorry, used that original black and white as its basis. There was a $400 fee paid to the photographer Goldsmith to use those images in the Warhol images on the right. So this all happened in the 80s, the use of these images. In 2016, Vanity Fair in the cover on the left paid $10,000 to Andy Warhol's foundation in order to use that image as the cover of this issue. So Goldsmith, the original photographer sued saying they never got her permission in order to use this image, which was, you know, already a derivative of her works. So that is a case that has been argued. They had oral arguments in October. And of course, if you know how the Supreme Court works, we'll see some kind of decision on this before the end of term at the end of June of this year. This is a pretty impactful case as well. In terms of, you know, something on the issue of fair use hasn't been looked at all too often at the Supreme Court level. And here's something that's about to come on to the Supreme Court and we'll get a decision on it. So it'll be interesting to see how this new court makeup looks at this and says, is it enough that the Warhol people gave permission to use this or do you need to go all the way back to the original owner of the image to get permission to use those images as well. So again, in 2016 Vanity Fair published one of Warhol's images from this print series. The foundation charged Condé Nast a 10,000 licensee fee to publish the image. And the question is, does that second use for which the magazine did not pay Goldsmith infringes Goldsmith's copyright in the photograph on which Warhol based all his images. This was again argued in October in front of the Supremes and a decision is coming this term. Anyway, if you'll forgive me, that's the abrupt ending to this, but I really did want to go back. Let me get out of this and go back to the fair use cases here. Let me get out of sharing screen. Okay. Finally stop sharing. So I did want to get to that fair use page. If I could. And review some of the fair use decisions there that are particularly important and used on a regular basis. Just a second. So I will share again. To see as I was saying, you know, there's cases involving text and there's lots of decisions on that because, you know, that's the way that copyright covers text a lot further back then some of the other things that were brought into copyright sense. And when you look at particularly when you look at cases involving text, it can really get down to a fine tooth comb of exactly how much was used. Sometimes more than 20% seems like beyond fair use. Sometimes it can be quite a lot less than that. Sometimes it can get down to proportions sometimes. And there can be a lot of variance in how it's approached when you're looking at amounts of text from a work. Then when you go to arts and visual arts and audio visual aspects of themes, things it can be a lot more flexible there. You look for specific numbers that you might be able to find in arts and visual arts and visual arts. And I can say that a lot of things, I can say that, you know, 100% of images can be used. And pieces of artwork, 100% of things can be used in particular some circumstances. And it can be a fair use in order to effectively reference the original image. You know, you can talk about, you can only use 10 to 20% of images. And that can be applied to when you're talking about images or pieces of video. Some people would love to see a specific amount of time or amount of, or percentage of a work that you can use. But there is an intentional vagueness and variance built into the law. So that, you know, you can apply it across different kinds of types of things. Then when you get to internet cases, it gets, you know, even crazier in terms of what it is applied to. You can talk about different amounts of text and images and other kinds of things that are included in big databases of materials and when fair use applies. And they can be very important to consider. I would point to this. Let's see, are you all seeing on screen? Let me share again, because I'm not sure it was showing correctly. You should all be seeing, yeah, this bit that I'm showing on the screen here. The copyright owner must consider the likelihood of a claim of fair use in that case. The owner of the video claimed that since Universal didn't consider the issue of fair use, Universal could not have a good faith belief that they were entitled to this takedown. So there is a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. So this lens issue is a big impact. Music cases can have a lot of interesting impacts as well. Parity cases are certainly some of the most important, like the one from Two Life Crew here had a big defining aspect when it comes to transformative use. And there's other image related things there as well. But I really think this can be, you know, you can go down a rabbit hole here, or at least I have, and really just go into these different cases and see the kinds of materials that are available in there. And how they impact our ability to do these kinds of things. So anyway, I really wanted to get across those two really recent cases, the Prince case and Andy Warhol, which is actually getting a lot of attention because it's at Supremes and because of the big names involved, Andy Warhol versus Prince it seems. But neither of them are alive to argue about any of it. It's really just who's got the money hooks into their estates. So, and Prince really isn't involved anyway. He's just the subject of a photograph. So anyway, it's interesting to see how the Supremes could rule on that and certainly the Google versus Oracle case is a big deal in terms of how things are handled in terms of APIs and the interconnectivity among interfaces that is really hugely dependent upon the ability to borrow code from one place into another. So the ability to employ fair use in that realm has been vital and if it had not gone that way, I think you could have seen a huge disruption in how the internet works. So those two cases in particular are having a big impact. But I will say, you know, there hasn't been any cases of giant upheaval in terms of fair use in the last five, 10 years that I have seen. For the most part, fair use continues to be a very useful and very flexible exception to copyright law that's employed in all kinds of ways. So I'm debating with people this week, you know, it's a certain amount of how fair use applies to a couple of decisions. And people sometimes go ahead with something that's squiffy and not really clear and maybe challenged and then nothing ever happens. So it's constantly something that people have the ability to make their own decisions on and be assertive and as long as you make informed decisions based on, you know, your understanding of copyright and fair use, then the university will back you up as a university employee if you're acting within the scope of your employment. So I'm always available to help people with any kinds of fair use decisions that I can explain the law and exceptions, I can do some research and see, you know, if I can find other cases that are relevant to what you're doing. But in the end, it's always up to university folks to make their own decisions on fair use. And, you know, when things come down to the line, the university will stand behind you as long as you're acting in good faith. So that's all I want to say for now. I would guess, does anybody have any questions about the content or some of the cases that I've discussed up to this point? And Laura is correct. We are lucky to have general counsel say that they will step forth and defend you. Do I have a bet in about how the prince case will come out? Not really. It's a matter of there are too many new voices on the court. The only thing I would say, it was surprising that it was 6-2 in Google Oracle. The court balance hasn't changed that much since then. But with the new voices on the court, I really don't have... I don't think that the newly conservative court has any particular reason to disrupt fair use in such a significant way. But we will see. What about you, Laura? Laura is a great expert on this. Laura, do you want to unmute and say what you think is going to happen? Actually, I'm kind of with you on this. It's a little hard to predict. I don't want to see it disrupted significantly. I wonder why they took it. Are they looking for a vehicle to shape the law in different directions? That's my main thinking. What's the thinking here? Why would they take it? We'll see what comes of it. As usual, these things come out very late. I don't know. I don't know if I can do it early in the term. It could come out any minute, but it's most likely to come out towards the end of term. When it does come out, like Marty and I will be like, visually reading and writing. Trying to assess it. Like what? It's out. And then, you know, drop everything and turn it right. There goes the afternoon. Who knows? I don't know. I'm a couple of days away in terms of house. The supreme's approach for use. Who knows? Will I do the game show next year? I haven't been talking to anybody else involved in the game show. If, if you all don't know what she's talking about. Who is that anyway, C and C. Are. Max and. Scott Dix. Okay. High Scott. So, I haven't talked to any of the other people involved in it since we last did it, which is before the pandemic. So, my God, I don't know. I think somebody approached me to possibly do it at Baltimore, but I wasn't going to be at Baltimore, so I had to pass. So, perhaps Kyle at Harvard, Kyle Courtney is still going ahead and doing game show stuff at the ALA and ACRL meetings. He loves a chance to wear his shiny jackets though. So, I'll just step back from being the leader in this game show that we do about fair use to let Kyle do it because he's such a natural and then said I was the person like the emcee or the session, you know, and that was a lot of fun. So, perhaps I can share video of those things too so any other questions from anybody. In the Prince case, do you think there would have been a difference had the Warhol Foundation not charged money for the image? I don't know. And it comes down to what motivates the copyright owner to push so hard go so hard on these things. I think you know that it's just the fact that it was the cover. You know, I think was pretty an egregious use of the image without getting the permission. And for them to get $10,000 based on a $400 permission that they paid years prior, you know, it's a matter of an ego said you know what I'm not going to stand for this and decided to push it in court. I don't know those though. I, you know, there could be other things behind the scenes that have even greater impact on why this was pushed as hard as it was. But there you have it. I mean, I, I don't know. Did I answer your question? Now I went off on a little tangent so I'm not sure. No, that was fine. It's all about money when it comes down to it. And yes, with Prince's death, I'm sure there's money to be made. And lots of crazy people around Prince, you know, to keep the crazy going. Let's let's go crazy. Any other questions. Yes, Barbara. Prince was so very protective of his rights, but ironically died without a will. So, yes, ironic. That's a comment from Barbara. Thank you, Barbara. It's true. Very strange. No will from Prince. Okay, well, given no extra questions, I want to thank everybody for showing. I'm going to stop the recording now. And thank you all.