[Ecommerce] bad decision on a very fair use

[Manon Ress]

Two fair use cases.  This one is opera performance (1947), for
students, 1 minute and 25 seconds (of a 136mn long film).

http://williampatry.blogspot.com/2005/11/two-fair-use-cases.html

[SNIP]
In the second case, Video-Cinema Films, Inc. v. Lloyd E. Rigler-
Lawrence E. Deutsch Foundation (Judge Buchwald), defendant was a
nonprofit company that prepared and distributed a program called
"Classic Arts Showcase," principally to public television and cable
channels. Plaintiff was a licensor of audiovisual works. The fair use
claim involved an excerpt of a performance by opera singer Lily Pons
of "The Bell Song" in an old movie, "Carnegie Hall." The movie is 136
minutes long. Ms. Pons' performance was 5 minutes and 8 seconds long.
Defendant used one minute and 25 seconds from Ms. Pons performance,
preceded by an interview with opera singer Marilyn Horne and a voice
over by her for the first 25 seconds of the performance.

In granting summary judgment to plaintiff, Judge Buchwald noted
defendant's status as nonprofit organization and that the use in
particular had an educational purpose. Factor one, defendant. The
nature of the work was fictional, the court rejecting defendant's
absurd argument that the performance was "factual" because Ms. Pons
actually performed. (What is with such stupid arguments lately in
fair use cases, in which obviously creative works are claimed to be
factual?). Factor two, plaintff. The amount taken was tiny. Factor
three, defendant. Defendant's use clearly did not supplant the market
for the movie, but because plaintiff licensed us of its clips, Judge
Buchwald held that defendant's unauthorized use would "erod the
market value" for the clip. Factor four, plaintiff.

A two-two tie, numerically, but the fourth factor tipped the scale to
plaintiff.

Koons, Classic Arts Showcase, Koons, Classic Arts Showcase, who would
have thought?

posted by William Patry at 7:17 AM
2 Comments:

Michael Eisenberg said...

     The Court's analysis of the fourth fair use factor in Video-
Cinema Films is flawed. The reasoning employed, "because plaintiff
licensed us of its clips, Judge Buchwald held that defendant's
unauthorized use would 'erode the market value' for the clip" will
almost always collapse this factor into a single question of whether
Plaintiff sells licenses. I think the correct analysis should look at
whether the defendant's use was supplanting the market for other
potential licenses. Clearly it was not because Defendant did not sell
its work and the Court should have found the Fourth factor in favor
of the defendant. Anytime someone tries to use a work without
permission as a fair use, they necessarily are not paying a license.
I don't understand how the Court's reasoning adds to anything not
already known in any fair use defense issue.


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Manon Anne Ress
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www.cptech.org

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