{"id":376,"date":"2020-02-23T22:51:25","date_gmt":"2020-02-23T22:51:25","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=376"},"modified":"2020-02-23T22:51:25","modified_gmt":"2020-02-23T22:51:25","slug":"fair-use-week-2020-day-one-with-guest-expert-kenneth-d-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2020\/02\/23\/fair-use-week-2020-day-one-with-guest-expert-kenneth-d-crews\/","title":{"rendered":"Fair Use Week 2020: Day One With Guest Expert Kenneth D. Crews"},"content":{"rendered":"

\"\"<\/h2>\n

Presidents, Politics, and Fair Use<\/h2>\n

by\u00a0Kenneth D. Crews<\/h4>\n

It\u2019s February in an election year, and that can only mean that fair use is everywhere.\u00a0 It is on the television, in the political rallies, and in the leaks and machinations of governmental grinding.\u00a0 We might often think of fair use as the basis for quotations in books, classroom materials for students, and innovative art and music built on generations of creativity that came before.\u00a0 But fair use is an inherently political creature.<\/p>\n

Fair use originated in United States court cases from nineteenth century<\/a>, and it was enacted by Congress as Section 107 of the Copyright Act of 1976<\/a>.\u00a0 Getting anything through Congress is of course a political challenge, and every bit of the 1976 law was a belabored exercise that required almost two decades of hearing and compromises<\/a> before Congress was ready to make the political decision affirming fair use into American copyright law.<\/p>\n

Fair use is also political because it represents a policy choice by lawmakers in courts and Congress to allow limited uses of other people\u2019s<\/em> copyrighted works, taking into consideration variables of fairness, now known as the four factors of fair use.\u00a0 Congress at the same time made the political decision to empower individuals to engage in fair use \u2013 to determine what is good and proper as the law directly affects the copyright owners and users \u2013 and to evaluate how uses might affect broader public interests and promote the mission of copyright to encourage creativity.<\/p>\n

The politics of fair use also has a much more earthy manifestation.\u00a0 As the campaign season becomes more heated, fair use becomes more prevalent.\u00a0 Some uses are surely accomplished by license while other works may not be protectable under copyright at all.<\/p>\n

Consider the campaign ad that includes a clip of a presidential candidate speaking pointedly on a CNN program.\u00a0 Depending on the candidate’s exact statements and your point of view, you might want to use that clip in a short TV spot to support or attack this candidate. It matters not whether the speaker is Biden, Buttigieg, Bloomberg, Klobuchar, Sanders, Trump, Warren, or any other election prospect.<\/p>\n

Imagine you are the campaign manager for a candidate trying to launch your latest ads, and those several seconds from CNN are perfect.\u00a0 You could get permission, but unless you have a prior arrangement to expedite the process, permission can be fatal. \u00a0It might never come; it might be burdened with conditions; it might have a hefty fee. \u00a0Permission can stall the moment, and you are going to miss your constant rolling deadline.<\/p>\n

Further, suppose you still want permission; you have to wonder, “Who can grant this permission?” The candidate is speaking her own words; the candidate likely owns the copyright in those words.\u00a0 The CNN crew members are choosing camera angles and developing the layout and imagery on the screen; CNN surely holds those copyrights.\u00a0 Other copyrights might creep into the clip, including quotations, signs, and background music.\u00a0 Theoretically, multiple permissions might<\/em> be needed for just the momentary passage.<\/p>\n

Fair use fills the voids and paves over the uncertainties.\u00a0 Based on the four factors, this campaign use of the clip is highly likely to be within fair use.\u00a0 The election purpose advances the social policy of copyright<\/em>; the work is fact-based news of great public interest; the amount is minuscule; and the use may well promote CNN and not harm it.<\/p>\n

Realistically, this kind of use is also a classic calculated risk.\u00a0 The campaign is in full tilt.\u00a0 The election is on Tuesday.\u00a0 The polling is grim.\u00a0 You\u2019re are holding a prime-time ad slot on the networks tonight.\u00a0 You have to get this great commercial shot, cut, and launched.\u00a0 The risk calculation is more than just wishing for the best or hoping no one notices.\u00a0 The risk is in large part your own determination that a judge will agree that you are within fair use.<\/p>\n

Realistically, these things rarely if ever go to court. \u00a0In Kienitz v. Sconnie Nation LLC<\/em>, 766 F.3d 756 (7th Cir. 2014)<\/a>, the court ruled that the makers of t-shirts criticizing the mayor of Madison, Wisconsin acted within fair use when they made transformative use of a photograph of the mayor.\u00a0 Perhaps most important, the use encompassed only a portion of the photograph for a transformative purpose, and the use did not substitute for objectives of the original work.\u00a0 Add the pressured production deadline for a campaign ad and that the candidate\u2019s statements are customary political fodder, and the likely result is a stronger case for the copyright exception.<\/p>\n

\"\"<\/p>\n

Instead of going to court, political fair use is usually fought in the trenches among well-meaning and stressed professionals.\u00a0 At the least, they (i.e., their lawyers) should know the fundamentals of copyright and fair use and be ready to assert or respond to an infringement claim.\u00a0 They should also know that sometimes presidential politics is breeding ground of fair use.\u00a0 When Justice Joseph Story developed the concept in an 1841 court ruling<\/a>, he was deciding a case that involved the published papers of George Washington<\/a>.<\/p>\n

Which takes us to Trump and Watergate.\u00a0 In the thick of the latest impeachment proceedings, John Dean of Watergate fame, was a guest on CNN when the topic turned to leaked excerpts from the forthcoming book by former National Security Advisor, John Bolton.\u00a0 While other guests that day honed in on the formidable political threat, John Dean chimed, \u201cYou also have copyright issues here. \u00a0Start releasing books that are not published.”<\/a>\u00a0 The rest of the panel hit the boring button and moved on.\u00a0 But Dean was onto something \u2013 a fair use lesson from his past life in Watergate.<\/p>\n

\"\"<\/p>\n

Dean went to jail in the 1970s.\u00a0 President Nixon resigned.\u00a0 Gerald Ford gave a pardon, and he wrote a memoir.\u00a0 The Nation<\/em> magazine quoted about 300 words from the then-unpublished Ford manuscript.\u00a0 The U.S. Supreme Court ruled in 1985 that The Nation<\/em> magazine was not<\/em> within fair use in reprinting those selected words, from a vastly longer book manuscript, into a critical news report (Harper & Row v. Nation Enterprises<\/em>, 471 U.S. 539 (1985)<\/a>).\u00a0 Because the work was yet unpublished, the Supreme Court found that the amount was excessive and interfered with potential sales of the book.<\/p>\n

Yes, John Dean, there are “copyright issues” surrounding the Bolton book and the Trump impeachment, especially while the book remains unpublished.\u00a0 However, copyright also offers some solutions.\u00a0 The press can write about<\/em> the book, without necessarily using Bolton\u2019s expression.\u00a0 Moreover, if publication is stalled or if the public interest escalates, the opportunities for fair use may well expand.<\/p>\n

Welcome to the season of fair use.\u00a0 This is the time when fair use fuels elections and news reporting.\u00a0 This is the season which begins to define the perimeter between the public interest and the economic marketplace.\u00a0 This is the quadrennial interlude when fair use blossoms in full and is plainly visible for all to see on the daily news and the pressured campaigns.<\/p>\n

Kenneth D. Crews is an attorney in Los Angeles and was formerly a professor of law at Columbia University and Indiana University.\u00a0 He is the author of the book <\/em>Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions<\/a>, available in a new fourth edition launched at the end of February 2020. \u00a0<\/em>Download a sample of the new edition\u00a0and order online<\/em><\/a>.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Presidents, Politics, and Fair Use by\u00a0Kenneth D. Crews It\u2019s February in an election year, and that can only mean that fair use is everywhere.\u00a0 It is on the television, in the political rallies, and in the leaks and machinations of governmental grinding.\u00a0 We might often think of fair use as the basis for quotations in […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[257,690],"tags":[138869,138870,138871],"class_list":["post-376","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","tag-copyright","tag-fair-use","tag-fair-use-week"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-64","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/376","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=376"}],"version-history":[{"count":8,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/376\/revisions"}],"predecessor-version":[{"id":386,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/376\/revisions\/386"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=376"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=376"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=376"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}