Copyright, Spring, 2008 Fair Use: Political Speech Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/[email protected] Copyright © 2005-08 Randal C. Picker. All
Jan 11, 2016
Class 14Copyright, Spring, 2008
Fair Use: Political Speech
Randal C. PickerLeffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/[email protected] © 2005-08 Randal C. Picker. All Rights Reserved.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 2
Talking at the White House
Hypo Ford and Kissinger have a conversation
What copyrights?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 4
Talking at the White House
Hypo Ford and Kissinger have a conversation The next day Ford writes down the
conversation Kissinger does the same
What copyrights? Would it matter if they each recorded their version of the conversation immediately afterwards?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 9
Talking at the White House
Hypo Ford and Kissinger have a conversation Twenty years later, Ford writes down the
conversation What copyrights?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 11
Talking at the White House
Hypo Ford and Kissinger have a conversation Ford secretly records the conversation
What copyrights?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 13
Talking at the White House
Hypo Ford and Kissinger have a conversation That night, Ford writes in his diary “Boy,
was Henry dumb today.” What copyrights?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 15
Talking at the White House
Hypo Ford and Kissinger have a conversation Twenty years later, Ford writes in his book
“Boy, was Henry dumb that day.” What copyrights?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 17
Talking at the White House
Hypo Ford and Kissinger have a conversation That night, Ford writes in his diary “Boy,
was Henry dumb today.” Reporter sees diary and publishes a news
story stating that “Ford didn’t think Kissinger was making much sense that day.”
What copyrights? Copyright violation?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 19
The Nation Article
TN: Ford also writes that, but for a misunderstanding, he might have selected Ronald Reagan as his 1976 running mate, that Washington lawyer Edward Bennett Williams, a Democrat, was his choice for head of the Central Intelligence Agency, that Nixon was the one who first proposed Rockefeller for Vice President, and that he regretted his “cowardice” in allowing Rockefeller to remove himself from Vice Presidential contention.
Ford: I was angry at myself for showing cowardice in not saying to the ultra-conservatives, “It’s going to be Ford and Rockefeller, whatever the consequences.”
April 21, 2023 Copyright © 2005-07 Randal C. Picker 20
The Nation Article
TN: Ford’s account of the Nixon pardon contains significant new detail on the negotiations and considerations that surrounded it. According to Ford’s version, the subject was first broached to him by General Haig on August 1, 1974, a week before Nixon resigned. General Haig revealed that the newly transcribed White House tapes were the equivalent of the “smoking gun” and that Ford should prepare himself to become President.
Ford: [I]t contained the so-called smoking gun.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 21
The Nation Article
TN: Ford was deeply hurt by Haig’s revelation: “Over the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view.” Ford had believed him, but he let Haig explain the President’s alternatives.
Ford: [O]ver the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view. p. 7.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 22
The Nation Article
TN: On Kissinger. Immediately after being informed by Nixon of his intention to resign, Ford returned to the Executive Office Building and phoned Henry Kissinger to let him know how he felt. “Henry,” he said, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you .”
Ford: “Henry,” I said when he came on the line, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you.” p. 46.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 23
The Nation Article
TN: “Sir,” Kissinger replied, “it is my job to get along with you and not yours to get along with me.” “We’ll get along,” Ford said. “I know we’ll get along.” Referring to Kissinger’s joint jobs as Secretary of State and National Security Adviser to the President, Ford said, “I don’t want to make any change. I think it’s worked out well, so let’s keep it that way.”
Ford: “We’ll get along,” I said. “I know we can get along.” We talked about the two hats he wore, as Secretary of State and National Security Adviser to the President. “I don’t want to make any change,” I said. “I think it’s worked out well, so let’s keep it that way.” p. 46.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 24
In the Supreme Court
Concession on Copyrightability of Some of the Expression
So What of Fair Use?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 25
Understanding Publication
101: Publication is the distribution of copies or phonorecords of a
work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 26
Understanding Publication
Key Questions Should the status of a work as published or
unpublished matter for fair use analysis? Is this just about the fourth factor, that is,
what the use means for the market for the work?
Or do we have a separate notion of authorial control, separate from market value?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 27
Says The Majority
As to the Unpublished Status We conclude that the unpublished nature of
a work is “[a] key, though not necessarily determinative, factor” tending to negate a defense of fair use. Senate Report, at 64. … Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 28
Fair Use Amendment
FN 38: In 1992, section 107 was also amended to add the last sentence. Pub L. No. 102-492, 106 Stat. 3145
April 21, 2023 Copyright © 2005-07 Randal C. Picker 29
Sec. 107
New Final Sentence The fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 30
Senate Version of Fair Use Amendment
S. 1035 The fact that a work is unpublished is an
important element which tends to weigh against a finding of fair use, but shall not diminish the importance traditionally accorded to any other consideration under this section, and shall not bar a finding of fair use, if such finding is made upon full consideration of all the above factors.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 31
House Report
102-386 First, the word "itself" is designed to ensure
that the courts do not erect a per se rule barring any fair use of unpublished works. Each claim of fair use of an unpublished work should involve a careful consideration of all four statutory factors as well as any other factors the court deems relevant. …
April 21, 2023 Copyright © 2005-07 Randal C. Picker 32
House Report
At the same time, it is not the Committee’s intention to alter the weight currently given by the courts to the unpublished nature of a work under the second fair use factor. The general principles regarding fair use of unpublished works set forth by the Supreme Court in Harper & Row v. Nation Enterprises still apply.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 33
Senate Statements
Senator Leahy (137 Cong Rec S 13923) The aim of this legislation, in brief, is to return
the fair use doctrine to the status quo of Harper & Row. In that case, the Supreme Court struck the proper balance between encouraging the broad dissemination of ideas and safeguarding the rights to first publication and privacy. Thus, we intend to roll back the virtual per se rule of Salinger and New Era, but we do not mean to depart from Harper & Row.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 34
The Amount Used
(3) The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole 300-400 words from a 450-page book Too much?
April 21, 2023 Copyright © 2005-07 Randal C. Picker 35
The Market for the Work
Slicing the Rights The market for the book The market for the first serial rights Time pays $12,500, not $25,000
April 21, 2023 Copyright © 2005-07 Randal C. Picker 36
Pre-Feist: Does That Matter?
The Majority “Where an author and publisher have
invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication.”
April 21, 2023 Copyright © 2005-07 Randal C. Picker 37
Pre-Feist: Does That Matter?
The Dissent “Protection against only substantial appropriation
of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like ‘A Time to Heal’ reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one.
April 21, 2023 Copyright © 2005-07 Randal C. Picker 38
Pre-Feist: Does That Matter?
“The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian’s labor may be used without compensation. This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imagination. Congress made the affirmative choice that the copyright laws should apply in this way … .”
April 21, 2023 Copyright © 2005-07 Randal C. Picker 39
The First Amendment
What independent role should the First Amendment play with regard to the distribution of the story in the Nation? The Nation claims Ford’s expressions were
themselves newsworthy Is that wrong? If Ford gave an
extemporaneous speech regarding Kissinger, would that be newsworthy?