Invoking IP: Fair Use & Parody

On today's Invoking IP section, we are going to discuss two very important and related copyright concepts: fair use and parody.  We are going to do it with two of the most fun subjects I can think of: early 1990s hip-hop/rap music and (because this blog is focused on gaming topics) the Ponyfinder expansion to the Pathfinder™ RPG rules. 

Because, you see, there are times that you can copy a copyrighted work without the copyright holder's permission at all!  Best of all for us, Congress has actually spelled out what those times are.  So, it's perfectly permissible to just blatantly copy—but only certain circumstances.  We call these circumstances “fair use.”  What are those fair use circumstances?

·      Criticism;

·      Comment;

·      News reporting;

·      Teaching (including multiple copies for classroom use);

·      Scholarship; or

·      Research[1]

Fair use is one of the ways that I’m planning on getting away with the postings on this blog, should they ever be challenged.  My product reviews fall pretty squarely into the criticism column (though we could discuss that in greater depth), though they could also be considered news reporting (and we will discuss that).  But, since all of this is for an eventual law review paper, I think that the teaching, scholarship, and research prongs hold particularly well.

Surprisingly helpful fair use flowchart for teachers.

But there have to be limits even to how far you can go in fair use.  Obviously, I couldn’t just jump in, drop a copy of a copyrighted RPG rulebook onto the blog wholesale, and call it fair use.  There must be some sort of limits there.  What are those limits?  Well, Congress has established those as well!  When weighing whether or not something qualifies as fair use, we consider four factors:

·      “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” [2] – This one is pretty obvious.  Why are you using the copyrighted work and what is your reason for using it?  In my example above, when I posted an entire RPG rulebook for “educational purposes,” I’d likely fail this prong.  Why?  Because I don’t need to post the entire rulebook to get my educational points across (which blends into element three, infra[3]);

·      “The nature of the copyrighted work”[4] – This factor considers whether or not the protected work is of the type that we expect to grant copyright protected to.  It makes less consideration of the copy.  There are some obvious natures of works that we expect to see protected like novels, paintings, songs, etc.  In one case, a publisher did publish an entire copy of a copyrighted work and (sort of) got away with it under this prong: Feist Publications v. Rural Telephone Service.[5]  Why only sort of?  In Feist, one telephone directory publishing company copied another phonebook and published their own.[6]  We get several great nuggets out of Feist (facts are not copyrightable[7], compilations of facts generally are copyrightable[8], some (albeit quite low) level of creativity is required for a copyright[9]; the discoverer of a fact cannot copyright it[10]; the arrangement of a compilation of facts can have the necessary creativity to take copyright protection[11]; there is no reward for the sweat of the brow of compiling facts[12]). 
The Feist Court ruled that the telephone directory was so devoid of creativity in setting out a compilation of names, addresses, and telephone numbers that no valid copyright could be issued.[13] A phone director falls within a “narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”[14]  But, the Court also noted that, “The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book.”[15]
So, the phone directory in Feist wasn’t protected because it wasn’t subject to copyright at all.  But, if it had been, a phone directory is exactly the sort of document that wouldn’t be subject to copyright protection.  As we continue down this road, we will see another type of document that is “factual” and generally considered unable to be copyrighted: a document listing the rules of a game;

·      “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”[16] – This one is easy.  How much of the original work did the copier use and how much of the copier’s work is used from the original?  While this might seem like an easy consideration, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”[17]  What we are really concerned with is whether or not the passages that “qualitatively embodied [the author’s] distinctive expression”[18] were taken, or the “heart of the work.”[19]; and

·      “The effect of the use upon the potential market for or value of the copyrighted work.”[20] – This one is also pretty easy.  Does publishing the copy (for free or for a price) impair the author of the original work’s ability to get paid for her authorship?  If so, you are done.

These four factors are weighed against each other, but with no factor having a controlling role.[21]  If a copier can prove that, on balance, the factors weigh more in favor of the copy’s equities than in favor of the copyright holder’s equities, then the copy is a fair use and will be protected.  Educational copies are almost always acceptable.  Commercial copies, unsurprisingly, generally are not.

So, I think I am sitting pretty in writing this blog.  Most of the publisher’s whose material I cite to have given some sort of license for using their material.  Additionally, my uses fall pretty well within the fair use categories.  This blog is for educational, scholarly, and research purposes.  It also encompasses portions of commentary, criticism, and (when I’m really on the ball) news reporting. 

Without going into the case law about how I fare on the four fair use factors, I think I come out pretty well.  The purpose and character of my use is not for profit and it’s educational (see above).  The nature of the copyrighted works I cite to is something that we’re going to be debating for some time.  While some of them are going to be clearly subject to copyright, other’s may or may not be.  Those that are merely expressions of facts or rules may or may not have a substantial level of originality in their arrangement—or they may not!  I don’t use much copyrighted material in my blog posts and what little I use is not the majority of what I’m writing.  Additionally, it is not the “heart” of the material I’m quoting.  Finally, you know I’m not getting paid for this thing, so that works for me.

I know I promised you Ponyfinder and hip-hop, but this post is getting long.  We will do the analysis on Ponyfinder as fair use parody another time.  But, just so you have something to sink your teeth into, check out:

This original song
This parody of the song

This original work
This "parody" of it.

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[1] 17 U.S.C. § 107 (2012).

[2] 17 U.S.C. § 107(1) (2012).

[3] Infra is lawyer-speak for below.

[4] 17 U.S.C. § 107(2) (2012).

[5] 499 U.S. 340 (1991)

[6] Id. at 343-44.

[7] Id. at 344.

[8] Id.

[9] Id. at 345.

[10] Id. at 347.

[11] Id. at 349.

[12] Id.

[13] Id. at 362.

[14] Id. at 359.

[15] Id. at 350 (quoting Baker v. Selden, 101 U.S. 99, 103 (1880).

[16] 17 U.S.C. § 107(3) (2012).

[17] Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (CA2), cert. denied, 298 U.S. 669 (1936).

[18] Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 565 (1985).

[19] Id.

[20] 17 U.S.C. § 107(4) (2012).

[21] Though there is some scholarly research out there that argues that the nature/purpose and the economic disenfranchisement prongs are, in fact, controlling.  See Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549 (2008).