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17.18 Copyright—Affirmative Defense—Fair Use (17 U.S.C. § 107)

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17.18 COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE (17 U.S.C. § 107)

One who is not the owner of the copyright may use the copyrighted work in a reasonable way under the circumstances without the consent of the copyright owner if it would advance the public interest. Such use of a copyrighted work is called a fair use. The owner of a copyright cannot prevent others from making a fair use of the owner’s copyrighted work.

Defendant contends that defendant made fair use of the copyrighted work for the purpose of [criticism] [comment] [news reporting] [teaching] [scholarship] [research] [other purpose alleged]. The defendant has the burden of proving this defense by a preponderance of the evidence.

In determining whether the use made of the work was fair, you should consider the following factors:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. the effect of the use upon the potential market for or value of the copyrighted work; and

[5.] [insert any other factor that bears on the issue of fair use].

If you find that the defendant proved by a preponderance of the evidence that the defendant made a fair use of the plaintiff’s work, your verdict should be for the defendant.

Comment

Fair use is an affirmative defense. Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997); Supermarket of Homes v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1408–09 (9th Cir.1986). Application of the fair use factors to the facts of a case is not subject to "bright-line" rules. The factors should "be considered together in light of the purposes of copyright, not in isolation." Sony Computer Entertainment America, Inc. v. Bleem, 214 F.3d 1022, 1026 (9th Cir.2000). See also Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir.2003) ("Contrary to the divide and conquer approach taken by the dissent, we may not treat the factors in isolation from one another.").

The first paragraph of this instruction describing the effect of a fair use finding is drawn from Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1336 (9th Cir.1995) (fair use permits use of copyrighted material in a reasonable manner without the consent of the copyright owner). The fifth numbered paragraph of the instruction reflects that the elements set forth in the statutory test of fair use in 17 U.S.C. § 107 are by no means exhaustive or exclusive. See Dr. Seuss Enters., 109 F.3d at 1399 (Congress considered the factors as guidelines, not definitive or determinative tests). In appropriate circumstances, the court may enumerate additional factors. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (defendant’s good faith as factor).

For an analysis of the fair use factors, see Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 540–41 (1985). The instruction provided here is a basic instruction that could be supplemented by the court to suggest how the presence or absence of any particular factor may tend to support or detract from a finding of fair use. Similarly, the court may find it appropriate to supplement this instruction to suggest to the jury how to weigh the factors. See Dr. Seuss Enters., 109 F.3d at 1399 (Congress viewed criteria as guidelines for "balancing the equities" but not as definitive or determinative test).

The Ninth Circuit has considered numerous cases involving application of the fair use factors. The following citations identify cases that might be consulted concerning facts helpful to assessing whether a particular fair use factor exists:

1. Purpose and Character of the Defendant’s Use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Campbell, 510 U.S. at 579–80 (assessing commercial nature of use, whether the use was transformative, whether the use tended to supplant or supersede infringed work, and whether the use parodied or "conjure[d] up" the infringed work); Monge v. Maya Magazines, Inc., 688 F.3d. 1164, 1176–77 (9th Cir. 2012) (concluding publisher’s use of newsworthy wedding photographs of celebrities not fair use because such use was, among other things, minimally transformative and undisputably commercial in nature); Elvis Presley Enters., 349 F.3d at 629 ("Courts have described new works as ‘transformative’ when the works use copyrighted material for purposes distinct from the purpose of the original material."); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir.2001) (assess whether infringing use is commercial or noncommercial, with commercial use weighing against a finding of fair use, but not conclusive); Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 606–07 (9th Cir.2000) (assessing if use was derivative of other work); Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1121 (9th Cir.1997) (examining whether use competes with infringed work); Triad Systems Corp., 64 F.3d at 1337 (noting whether there is an "appreciable public benefit" arising from the defendant’s use).

2. Nature of Copyrighted Work: Campbell, 510 U.S. at 579–80 (considers whether work is factual or creative in nature and whether work was published and notes this factor of little value in parody cases); Napster, 239 F.3d at 1016 (if copyrighted work is creative in nature, this cuts against fair use finding on second factor); Bleem, 214 F.3d at 1027 (nature of copyrighted work most relevant when "the original material and the copy are of a different nature" for instance, copyrighted work is out of print it is more likely a fair use); Los Angeles News Service, 108 F.3d at 1122 (that infringed work was "informational and factual and news … each characteristic strongly favors" fair use finding); Sega Enters. Ltd. v. Accolade, Inc. 977 F.2d 1510, 1524 (9th Cir.1992) (examines fictitious or functional nature of work and utilitarian aspects); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 970 (9th Cir.1992) (derivative nature); 17 U.S.C. § 107 ("The fact that a work is unpublished shall not itself bar a finding of fair use …").

3. Amount and Substantiality of Portion of Infringed Work Used by Infringing Work in Relation to the Copyrighted Work as a Whole: Campbell, 510 U.S. at 579–80 (in assessing whether substantial part or "heart" of plaintiff’s work was taken, consider justification for the copying, whether use transformed the work taken, e.g., used fairly as news reporting, parody,etc.); Bleem, 214 F.3d at 1028 (greater the degree of copying involved and the closer those copies are to the essence of the copyrighted work, the less likely the copying is a fair use); Connectix Corp., 203 F.3d at 606–07 (considering whether use occurs in reverse engineering of copyrighted work to gain access to unprotected functional elements of software); Dr. Seuss Enters., 109 F.3d at 1402 (question is whether use was "reasonable in relation to the purpose of the copying").

4. Effect of Use of Infringing Work on the Potential Market for or Value of the Copyrighted Work: Campbell, 510 U.S. at 590–91 (assessing harm use can cause to plaintiff’s market and market effect if others also infringe through such use; consider if use displaces or substitutes for original work; examine effect of use on derivative market for protected work; "[T]he importance of this [fourth] factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors."); see also Monge, 688 F.3d at 1181 (emphasizing that potential market exists independent of copyright owner’s present intent not to publish copyrighted work); Harper & Row, Publishers, 471 U.S. at 566 (the effect of the defendant’s infringing work on the market for the plaintiff’s work is the most important of the fair use factors); Bleem, 214 F.3d at 1027 (noting that effect on market "factor may be the most important, [but] all factors must be considered, and the commercial nature of the copies is just one element"; use for competitive advertising can support first fair use factor but negate fourth fair use factor); Dr. Seuss Enters., 109 F.3d at 1403 (balance defendant’s public interest as compared with personal gain from the use); Triad Systems Corp., 64 F.3d at 1336–37 (noting that when defendant’s work competes in same market it is less likely a fair use).

5. Additional Factors: Campbell, 510 U.S. at 585 n.18 (defendant’s good faith as factor) (citing Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 562 (1985) (fair use presupposes good faith and fair dealing)); Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.1986) ("courts may weigh ‘the propriety of the defendant’s conduct’ in the equitable balance of a fair use determination") (citation omitted).

The Ninth Circuit has considered a number of cases involving copying of computer software. In all cases, the trial courts appropriately made use of the four-factor test for fair use. See, e.g., Connectix Corp., 203 F.3d at 608; Triad Systems Corp., 64 F.3d at 1336–37.

Parody often presents difficulties because the success of its imitative character depends upon its ability to "conjure up" the original work that it parodies. This may create an issue of fair use. See, e.g., Campbell, 510 U.S. at 582–88; Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799 (9th Cir.2003); Dr. Seuss Enters., 109 F.3d at 1399–1401.

Approved 10/2013