A Public Policy Report
By Marjorie Heins
and Tricia Beckles
WILL
FAIR USE
SURVIVE ?
Free Expression in the Age
of Copyright Control
D E M O C R A C Y P R O G R A M
Free Expression Policy Project
738148 Brennan.indd 1 11/16/05 9:38:35 AM
738148 Brennan.indd 2 11/16/05 9:38:36 AM
WILL
FAIR USE
SURVIVE?
Free Expression in the Age
of Copyright Control
A Public Policy Report
D E M O C R A C Y P R O G R A M
Free Expression Policy Project
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Michael Waldman
Executive Director
Deborah Goldberg
Director
Democracy Program
Marjorie Heins
Coordinator
Free Expression Policy Project
Legal research: Jesse Hofrichter, Aziz Huq, Adan Canizales
anks to Sam Howard-Spink for helping lead the focus groups, and to Larry Siems, Michelle Coe,
Eve Sinaiko, and Claire Montgomery for organizing them. anks to Wendy Seltzer and Diane Cabell
for assistance with the Chilling Effects analysis. anks to Carroll Seron and, Diane Zimmerman
for helpful advice. Finally, thanks to Pat Aufderheide, Barton Beebe, James Boyle, Bob Clarida,
Wendy Gordon, Justin Hughes, Brian Newman, Sam Howard-Spink, Peter Jaszi, David Nimmer,
Fred von Lohmann, Wendy Seltzer, and Eve Sinaiko for reviewing the manuscript and offering
valuable suggestions.
e Brennan Center is grateful to the Rockefeller Foundation, the Robert Sterling Clark
Foundation, the Nathan Cummings Foundation, and the Andy Warhol Foundation for the
Visual Arts for support of the Free Expression Policy Project.
© 2005. is report is covered by a Creative Commons “Attribution – No Derivs – NonCommercial” License
(see http://creativecommons.org). You may copy it in its entirety as long as you credit the Brennan Center for Justice,
Free Expression Policy Project. You may not edit or revise it, or copy portions, without permission (except, of course,
for fair use). Please let us know if you reprint.
Portions of this report were published in the Proceedings of the Conference on Free Culture & the Digital Library at
Emory University, October 14, 2005.
e Brennan Center for Justice, founded in 1995, unites thinkers
and advocates in pursuit of a vision of inclusive and effective
democracy. e Free Expression Policy Project founded in 2000,
provides research and advocacy on free speech, copyright, and media
democracy issues. FEPP joined the Brennan Center’s Democracy
Program in 2004.
FEPP’s previous
policy reports are all
available online:
www.fepproject.org
Internet Filters
(2001, second edition forthcoming 2006)
Media Literacy: An Alternative to Censorship (2002, 2003)
“e Progress of Science and Useful Arts”: Why Copyright Today
reatens Intellectual Freedom (2003)
Free Expression in Arts Funding (2003)
e Information Commons (2004)
738148 Brennan.indd 4 11/16/05 9:38:36 AM
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Free Expression and Fair Use: A (Very) Brief History
Practices at reaten Free Expression and Fair Use
Cease and Desist Letters
DMCA Take-Down Notices
e “Clearance Culture”
Negotiated Guidelines
Activism and Alternatives
Our Research
Chapter 1: e Legal Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
e Supreme Court and Fair Use
Fair Use and the Problem of Unpredictability
Free Expression, Fair Use, and Trademark Law
Chapter 2: Quoting Sartre, Using Prokofiev,
Painting “Molotov”: e Focus Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PEN American Center
Women Make Movies
e College Art Association
Location One Gallery
Chapter 3: e “Curse of Avatar” and Other Controversies
from the Chilling Effects Clearinghouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Analysis of the 2004 Letters in the Chilling Effects Clearinghouse
Examples of Weak IP Claims
Examples of Strong or Reasonable Fair Use Defenses
Summary and Conclusions
Chapter 4: Parodies, Critiques, and “Pet Friendly”
Web Sites: e Telephone Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Weak Copyright or Trademark Claims
Strong or Reasonable Defenses
Possible Defenses
A Technical Violation
Chapter 5: Internet Infidels And Homeland Security Blues:
e Online Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Gaelic Dreams and Closeted Gay Artists
Political Art and Private Censorship
e Copyright Owner’s Perspective
Comments on Fair Use
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Contents
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ii Will Fair Use Survive?
“F
air use” is a crucial part of our
copyright system. It allows any of us
to quote and reproduce parts – or
sometimes all – of copyrighted works, if the use
advances creativity and democratic discussion.
ere are similar free expression safeguards in
trademark law. Together, they assure that the
owners of “intellectual property” cannot close
down the free exchange of ideas.
ese safeguards in our copyright and trade-
mark systems are at risk today. reatening
“cease and desist” letters cause many people
to give up their fair use rights. Even more
troublesome are “take-down” notices sent by
copyright owners to Internet service providers,
which pressure them to remove online speech
without any court having ruled that it is ille-
gal. Additional hurdles to fair use come from
the “clearance culture” in many creative indus-
tries, which assumes that almost no quote can
be used without permission from the owner.
Meanwhile, educational “fair use guidelines,”
which are often narrower than fair use law, pre-
vent many teachers from copying material for
their classes.
In late 2004, the Brennan Center for Justice
began a research project to learn how well fair
use and free expression are faring among artists,
scholars, and others who make critical contribu-
tions to culture and democratic discourse. We
conducted focus group discussions, telephone
interviews, an online survey, and an analysis of
more than 300 cease and desist and take-down
letters that have been deposited with the “Chill-
ing Effects” Clearinghouse.
Our discussions with members of PEN
American Center, Women Make Movies, the
College Art Association, and the Location One
Gallery yielded two common themes. e first
was that artists and scholars have great interest
in, and confusion about, fair use. e second
was a need for community support and pro bono
legal assistance in their dealings with publishers,
distributors, and other cultural gatekeepers.
Our analysis of 320 cease and desist and
take-down letters from the Chilling Effects Web
site indicated that more than 20% either stated
weak copyright or trademark claims, or involved
speech with a strong or at least reasonable free
expression or fair use defense. Another 27%
attacked material with possible free expression
or fair use defenses. us, almost 50% of the
letters had the potential to chill protected
speech. e materials targeted by the letters
ranged from criticism of a Scientology-like
“planetary enlightenment” program to parodies
of American Express and Mastercard.
Our telephone interviewees included the
creator of a parody New York Times corrections
page, an editor at the Cape Cod Voice, and small
entrepreneurs using such terms as “Pet Friendly”
Travel or “Piggy Bank of America.” Five of them
had strong or at least reasonable fair use or First
Amendment defenses, and four had possible de-
fenses. Another seven received cease and desist or
take-down letters with weak copyright and trade-
mark claims. Yet nine of the 17 people we inter-
viewed acquiesced in the copyright or trademark
owners’ demands, or had their material removed
because of take-down letters.
290 people filled out the online survey, ex-
pressing opinions about, and experiences with,
copyright and fair use. eir stories ranged from
an artist who made “Homeland Security” blankets
to a fan fiction Web site that posted a story called
“Gaelic Dreams” and received a cease and desist
letter from the “Gaelic Dreams” import company.
Numerous teachers and scholars expressed frus-
tration with a clearance culture that locks images
out of public view whenever an owner refuses per-
mission or charges too high a price.
What can be done to bolster fair use and free
expression in the digital age? Our recommenda-
tions include creating a clearinghouse for infor-
mation, including sample replies to cease and de-
sist letters and take-down notices; a legal support
network; outreach to Internet service providers to
encourage help for those targeted by take-down
letters; and changes in the law to reduce the cost
of guessing wrong about fair use.
Executive Summary
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Brennan Center for Justice 1
I
n 1997, the artist Tom Forsythe created
“Food Chain Barbie,” a series of photo-
graphs depicting the iconic Barbie doll in
conjunction with various kitchen appliances.
ese included “Malted Barbie,” “Fondue à la
Barbie,” and “Barbie Enchiladas,” four dolls
wrapped in tortillas and lying in a casserole
dish. Forsythe said his creations were designed
“to critique the objectification of women asso-
ciated with Barbie, and to lambaste the con-
ventional beauty myth and the societal accep-
tance of women as objects, because this is what
Barbie embodies.”
1
e Mattel Company, owner of Barbie,
sued Forsythe for violating its copyrights and
trademarks. After four years of hard-fought
litigation, a federal court ruled that “Food
Chain Barbie” was not illegal; instead, it was
protected as a fair use under both copyright
and trademark law. “e benefits to the public
in allowing such use – allowing artistic freedom
and expression and criticism of a cultural icon
– are great,” the court said. Allowing Forsythe
to use Barbie without permission “serves the
aims of the Copyright Act by encouraging
the very creativity and criticism that the Act
protects.”
2
Not all creative spirits are as fortunate
as Tom Forsythe. Most controversies over
parodies and other “transformative” uses of
copyright or trademark-protected materials
– and over simple copying for educational,
personal, or professional purposes – never get
to court. And if they do, the person charged
with infringement rarely has access to the
substantial pro bono legal resources that were
crucial to Forsythe’s success.
3
In the late 1990s, for example, Fox
Broadcasting succeeded in shutting down more
than half of e Simpsons fan sites that were
listed on one database.
4
Warner Brothers has
suppressed sites containing irreverent parodies
of such Looney Tunes favorites as Bugs Bunny,
Daffy Duck, and Tweety, claiming that these
“beloved characters” should not be maligned
by lascivious humor.
5
Yet irreverent and
unauthorized commentary is one of the central
purposes of fair use.
In 2004, the Brennan Center for Justice
began a research project to learn how well fair
use and other free expression safeguards in
intellectual property, or “IP,” law
6
are serving the
needs of artists, scholars, and the rest of us. is
report summarizes our findings, and ends with
six recommendations for strengthening free
expression and fair use in the digital age.
Free Expression and Fair Use:
A (Very) Brief History
Fair use is probably the best-known free
expression “safety valve” in our copyright
system. Copyright law gives authors, artists, and
musicians – or the companies they work for – the
“exclusive right” to reproduce, distribute, and
perform their works, or to allow others, usually
for a fee, to do so.
7
But fair use is an exception to
this monopoly control. It allows anyone to copy,
publish, or distribute parts – sometimes even all
– of a copyrighted work without permission, for
purposes such as commentary, news reporting,
education, or scholarship.
Fair use is critical to political and cultural
life. If permission were required every time a
document is copied for personal use, or a quote
or image is incorporated into a new work, the
costs and logistical difficulties of finding owners,
seeking licenses, and paying for them would
cripple our ability to share ideas. Education
would be severely hampered if teachers had to
get permission for every article or picture they
copy for classroom use. And copyright owners
could censor speech by denying permission to
anyone whose views they disliked.
As the Supreme Court has said, every work of
“‘literature, science and art borrows, and must
necessarily borrow, and use much which was well
known and used before.’”
8
From classical music
to jazz and rock ’n roll, Impressionist painting
to Pop art, “appropriation” is a building block
of creativity. e concept of fair use, and similar
Introduction
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2 Will Fair Use Survive?
First Amendment protections in trademark law,
guarantee breathing space for free expression.
Creative people, of course, are often copyright
owners as well as users. at is why IP law is all
about the proper balance between owners’ and
users’ rights. From the early days of copyright,
judges viewed the “exclusive right” as less than
absolute, and allowed quoting without the
owner’s consent. Supreme Court Justice Joseph
Story said in one early case: “no one can doubt
that a reviewer may fairly cite largely from the
original work, if his design be really and truly
to use the passages for the purposes of fair and
reasonable criticism.” Story said the factors
to consider are “the nature and objects of the
selections made, the quantity and value of the
materials used, and the degree in which the use
may prejudice the sale, or diminish the profits,
or supersede the objects, of the original work.”
9
ese are the same basic factors that govern fair
use today.
By the mid-20th century, there were many
court decisions on fair use. In one case, the
comedian Jack Benny was sued for a TV parody
of the film melodrama Gaslight.
10
Refusing to
accept parody as a potential fair use, the courts
rejected Benny’s defense.
But ten years later, a court held that pictures
in a book criticizing the Warren Commission’s
report on the assassination of President John
F. Kennedy were a fair use. e pictures were
charcoal sketches copied from amateur film
footage of the assassination that had been
bought by Life magazine and deposited in the
National Archives. e judge allowed the fair
use defense because of the newsworthiness and
public importance of the book.
11
Another fair use-friendly result came in a
lawsuit filed against Random House by a shell
corporation set up by the reclusive millionaire
Howard Hughes in order to stop publication of
an unauthorized biography that used material
from a series of articles in Look magazine. (e
shell company had purchased the rights from
Look.) Random House won on its fair use
defense – in part, as one judge pointed out,
because Hughes’s company came to court with
“unclean hands.”
12
Groucho Marx made a rhetorical contribution
to fair use in the 1940s, when he replied to a
cease and desist letter from Warner Brothers,
threatening to sue if he did not change the title
of his forthcoming movie, A Night in Casablanca
– a parody of the Humphrey Bogart/Ingrid
Bergman classic, Casablanca. “Up to the time
that we contemplated making this picture,”
Groucho began, “I had no idea that the city
of Casablanca belonged exclusively to Warner
Brothers.” He asked whether Warner Brothers
also claimed exclusive rights to the term
“brothers”: “Professionally, we were brothers
long before you were.” Groucho continued with
riffs on the Warner brothers’ first names, Jack and
Harry (Jack and the Beanstalk, Jack the Ripper,
Lighthouse Harry, etc.) A Night in Casablanca
was released; Warner Brothers did not sue.
But movie studios remained aggressive. In
the 1970s, the Walt Disney Company won a
judgment against irreverent cartoonists whose
“bawdy depiction” of Disney characters “as
active members of a free thinking, promiscuous,
drug-ingesting counterculture” contradicted
“the accepted Mickey Mouse world of scrubbed
faces, bright smiles, and happy endings.”
13
e
judges, although more open to parody as a form
of fair use than the court in the Jack Benny case
had been, said the cartoonists had copied too
much of the original images.
Another court unsympathetic to bawdy
parodies rejected a fair use defense when the owner
of the song “Boogie Woogie Bugle Boy” sued
participants in a theatrical revue called “Let My
People Come,” which included a raunchy takeoff
on the song, titled “Cunnilingus Champion of
Company C.” e judges were offended by the
sexual references, noting that “Bugle Boy” had
“its greatest popularity during the tragic and
“I had no idea that
the city of Casablanca
belonged exclusively to
Warner Brothers.”
738148 Brennan.indd 2 11/16/05 9:38:37 AM
Brennan Center for Justice 3
unhappy years of World War II.”
14
One judge
dissented, arguing that “we cannot, under the
guise of deciding a copyright issue, act as a board
of censors outlawing X-rated performances.”
15
By the time of this decision, Congress had
overhauled the copyright law. Section 107 of the
1976 Copyright Act officially incorporated the
judge-made doctrine of fair use, “for purposes
such as criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or research.” e
law enumerates four factors to be considered in
evaluating a fair use claim:
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; and
4. the effect of the use upon the potential
market for or value of the copyrighted
work.
16
ese four fair use factors are not exclusive
– courts will also look to such considerations as
bad behavior by one of the parties, the copyright
owner’s right to privacy, and whether the motive
of the lawsuit is to suppress unwelcome criticism.
Nor does a defendant have to win on every one
of the four factors: a finding of fair use may rest
upon just one, if it is sufficiently persuasive.
And despite the third factor – “amount and
substantiality of the portion used” – copying
an entire work is also sometimes fair, as the
language of §107 (“multiple copies for classroom
use”) makes clear. e Supreme Court ruled in
1984 that copying complete TV programs for
purposes of later home viewing is fair use.
17
As
one scholar has pointed out, copying complete
texts of articles or speeches, and sharing them as
a way of expressing either agreement or dissent,
is an essential part of democratic discourse.
18
e first fair use factor looks to how the
borrower or copier used the original work. Is the
new use creative or “transformative”; does it build
on the earlier work to forge something new? Does
it serve some other productive purpose such as
education or political discussion? Is the copying
for personal edification, commercial use, or the
public good?
e second factor asks whether the work that
was used is creative; that is, how strongly does
it need protection against infringement? Since
the purpose of copyright law is to promote “the
progress of science and useful arts,”
19
the more
the original work serves the creative process, the
stronger its claim to protection.
e third factor looks not only to how much
of the copyrighted work is used, but also to
how central that portion is to the original work.
Generally, the less of a work that is copied,
the better the chance of fair use; but wholesale
copying doesn’t negate fair use where the other
factors favor it. And there are no quantitative
rules: in a 1985 case, the Supreme Court ruled
that e Nation magazine’s copying just 300
words from a full-length book was not fair use;
yet the next year, a court found that taking as
much as 7,000 words from an out-of-print book
for purposes of commentary was fair use.
20
e fourth factor asks how much, if at all, the
new work will compete economically with the
one it borrowed from. It does not ask whether the
new work, through critique or parody, reduces
demand for the original. If that were the test,
then the criticism and commentary that is at
the heart of fair use would be suffocated. As the
Supreme Court put it, “when a lethal parody,
like a scathing theater review, kills demand
for the original,” this is not the kind of harm
recognized by copyright law.
21
“String of Puppies”’ 1988;Polychromed wood; 42x62x37
inches; © Jeff Koons
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4 Will Fair Use Survive?
ousands of fair use cases have been decided
since Congress listed the four factors in the 1976
Copyright Act. In 1980, a court found a Saturday
Night Live parody of the jingle “I Love New
York” in a comedy sketch called “I Love Sodom”
to be fair use.
22
ere was a similarly favorable
ruling six years later for a parody of the song
“When Sonny Gets Blue,” called “When Sonny
Sniffs Glue.”
23
But an appeals court in 1997
reversed a finding of fair use where a TV station
used a poster depicting a quilt by the artist Faith
Ringgold as part of a set decoration, and sent the
case back for more factfinding on the first and
fourth factors.
24
e artist Jeff Koons lost on his
fair use defense when he copied a commercial
photograph called “Puppies” in the course of
creating a three-dimensional sculpture, because,
the court said, his sculpture was a “satirical
critique of our materialistic society,” rather
than a specific parody of the “Puppies” photo.
25
And although a court in 1973 approved the
photocopying of journal articles by government
libraries for the purpose of advancing scientific
research, this fair use-friendly approach was
not extended to research scientists’ copying of
articles at a private company.
26
Practices at reaten Free
Expression and Fair Use
Taking advantage of fair use has always been
difficult because of its unpredictability, the high
cost of defending it in court, and the crushing
liability that may result if one guesses wrong. But
today, there are additional factors that create even
more serious threats to free expression and fair use.
Cease and Desist Letters
e first of these is the widespread practice
among IP owners of sending “cease and desist”
letters to threaten everyone from artists and
social critics to commercial competitors with
dire punishments for copyright or trademark
infringement. e practice is not new, but the
aggressiveness and volume of cease and desist
letters has increased with the coming of the
Internet, where copying is more visible and
reaches larger audiences than in the past. In
some cases, the recipients of cease and desist
letters would qualify for the fair use defense, or
First Amendment protection under trademark
law. e letters, needless to say, do not mention
these possibilities.
In the mid-1990s, for example, the Republican
National Committee sent a cease and desist
letter to a pair of artists who expressed their
opinion of the party’s “Contract With America”
by reproducing its text on a limited edition set
of underpants. A reply letter from a New York
law firm, defending the artists’ fair use and
First Amendment rights, ended that dispute.
27
But this did not dissuade the Office of Vice
President Dick Cheney in 2002 from sending a
letter to Chickenhead Productions, complaining
about a parody biography of Cheney’s wife
Lynne along with photos on Chickenhead’s
whitehouse.org satire site.
28
e tenor of the
Cheney page could be gleaned from its heading:
“e Bush Administration: Courage. Passion.
Faith. Petroleum. Xenophobia.”
29
In response to
the letter, the site adorned the photos of Mrs.
Cheney with a red clown nose and labels reading
“Censored.” e New York Civil Liberties Union
announced that it would go to court if necessary
to defend Chickenhead.
30
In these extreme examples, the recipients of
cease and desist letters were not intimidated.
But as our research showed, threats of litigation
carrying potentially massive costs do cause many
people to relinquish their rights.
31
If the IP
owner sues, even a weak copyright or trademark
claim can cost a defendant many thousands
(potentially hundreds of thousands) of dollars.
e pressure to settle is intense. us, many
recipients compromise their rights in order to
end the controversy before huge costs ensue, and
often before any lawsuit is filed.
DMCA Take-Down Notices
e Digital Millennium Copyright Act or
“DMCA,” passed by Congress in 1998, is a far-
reaching law that controls the public’s ability to
access and copy materials in digital form. Section
512 of the law provides a “safe harbor” from
possible copyright liability for Internet service
providers (ISPs) – including search engines
– that “expeditiously” remove any material on
their servers that a copyright owner tells them in
“good faith” is infringing. No legal proceedings
are needed.
32
738148 Brennan.indd 4 11/16/05 9:38:38 AM
Brennan Center for Justice 5
Although §512 does allow an ISP “subscriber”
to send a counter-notice contesting the allegation
of infringement, the requirements of the counter-
notice are detailed and technical, and not every
Web speaker is a “subscriber” who can make
use of the procedure.
33
ose contributing to
ongoing discussions in newsgroups, for example,
may not even be aware that their words, images,
or links have been removed.
Section 512 is misguided because ISPs
should not be liable for copyright infringement
in the first place, simply because someone is
using their servers to infringe. ISPs are akin to
telephone companies or highways: they provide
a means of transport. Wrongs committed by
users of telephones or drivers on highways are
not attributed to those providing the conduits.
Section 512 ignores this principle in the
interests of helping copyright owners protect
their rights, but it provides an insufficient check
on overreaching, and creates an unacceptable
shortcut around the procedures that are needed
to decide whether speech is actually infringing.
Just as with cease and desist letters, so with
§512 take-down notices, some of the targeted
material has a strong or at least reasonable
likelihood of being fair use. Yet copyright
holders can churn out take-down letters with
little effort, and cause the suppression of speech
they don’t like without ever going to court.
In one egregious example, Diebold, Inc., a
manufacturer of voting machines, sent take-
down letters to Swarthmore University and
other ISPs demanding the removal of student
Web postings containing internal emails of
Diebold employees that discussed defects in the
company’s machines. e students sued; the
company backed off; and the court ruled that
the postings were fair use, noting: “It is hard to
imagine a subject the discussion of which could
be more in the public interest.”
34
e “Clearance Culture”
e notion that every quotation except the
most minimal must be licensed and paid for
is pervasive in the commercial world of arts
and culture. Many publishers expect their
authors to obtain permission for all quotes and
illustrations. In the music industry, the practice
of requiring a license for even the smallest sample
is entrenched.
35
As the author and activist David
Bollier writes, the free borrowing that was critical
to rap music innovation, just as it was to blues and
soul music, soon became a threat to the clearance
culture, and performers began to pay for licenses,
“largely to placate their record labels.”
36
Filmmaking is where the clearance culture has
most effectively eviscerated fair use. Researchers
at American University have reported on the
problems of filmmakers in finding rights-
holders, being forced by exorbitant license fees
to drop valuable material, and being unable to
take advantage of fair use because of the rigid
requirements of the “errors and omissions” (or
“E&O”) insurance policies that are needed for
commercial distribution.
37
ese policies require
permission for every snippet of film, photographs,
music, or text that is used, in addition to shots
of distinctive buildings or products.
38
e form
makes no mention of fair use.
When we interviewed a leading broker,
Dennis Reiff, about practices in the industry,
he told us that a good attorney can occasionally
negotiate riders to E&O policies for fair use.
is is difficult, though, if the film “might have
an impact.” at is, if “it’s really controversial
material,” “if it’s really blasting something – like
investigative reporting – then that could be a
problem, because the person in question may
not want to be investigated. And they may want
to sue you to stop you from doing it. Which is
the most common form of censorship.”
Reiff said that the terms of E&O policies have
not changed much in the past 30 years, but the
insurance itself was less prevalent then. “Right
now you cannot put anything on the air without
E&O insurance. ere is no cable station,
broadcast station, or distribution company that
will release anything without E&O insurance.”
Why the change? Reiff attributes it to two
factors. e first is the experience of media
companies with big defamation cases, such as
those brought in the 1980s against CBS by
General William Westmoreland, and against Time
magazine by former Israeli Defense Minister Ariel
Sharon.
39
Even though these cases had nothing to
do with copyright, E&O policies are a package,
and if media companies decide to require them
for film distribution, then demands for copyright
clearance become part of the bargain.
738148 Brennan.indd 5 11/16/05 9:38:39 AM
6 Will Fair Use Survive?
e second reason is increased aggressiveness
on the part of copyright owners. “People who
owned a library of films from the ’30s, ’40s
and ’50s didn’t think it was worth anything,”
says Reiff. “en they discovered in the
’70s, ’80s and ’90s that they are sitting on a
gold mine and that people were using their
material. And they would aggressively go after
those people.”
Similarly with recognizable trademarks or
buildings: “if you are filming a commercial in
front of the Disney concert hall in Los Angeles,
you better get a release from Disney.” If you
don’t, “Disney would sue your tushy off.”
Even if they don’t win, “it’s very expensive.”
40
Music is one of the biggest problems in
E&O insurance, Reiff says. “Music people tend
to be very litigious, and you may think you’ve
got a fair use and you can still get sued. Music
is a snake pit; in fact, a lot of underwriting
companies won’t even go near it.” Sometimes
the copyright owner cannot be found, and the
filmmaker is forced to eliminate the music she
has chosen. “It does stifle creativity when you
stop people from doing that. I think that you
should be allowed to take a work and do riffs
on it, and music is a perfect example.”
Reiff said that 80-90% of filmmakers today
get permission for everything. is means that
a lot of footage is cut because permissions are
unavailable or too expensive, or copyright
owners can’t be found. Few films made without
permissions can get commercial distribution.
As an example, he mentions LA Plays Itself –
“a wonderful documentary done by a college
professor, about how LA is perceived in the
movies. It was just wonderfully put together.
And dozens of film clips. Didn’t get permission
from anybody. It showed at the Film Forum
[an independent theater in New York City]
for a couple of weeks and then it went away.
ey couldn’t get E&O insurance.
“I also had a client once do the history of
the commercial in America. ey had these
wonderful old commercials from the ’40s, ’50s
and ’60s that were woven into the documentary.
He couldn’t get insurance because the people
who own the products are still around and they
said no. And that was that.”
Negotiated Guidelines
Owners’ and users’ organizations have
sometimes negotiated guidelines with specific
limits on copying. Frequently used in education,
these guidelines offer security to teachers, and
near-immunity from suit to the universities that
follow them. But they are ringed with arbitrary
restrictions. And they ignore the flexibility and
equitable nature of fair use.
For example, classroom-use guidelines that
were referenced in the legislative history of the
1976 Copyright Act set a series of numerical
limits, combined with requirements of
“spontaneity” and lack of “cumulative effect,”
that do not accurately reflect the flexibility of
fair use law. ey limit copying to a maximum
of 250 words from a poem or 2,500 words
from a story or article, if the duplication is
for only one course, uses not more than one
story, poem, or article, or two excerpts, by the
same author, and is done at the inspiration of
the teacher and so spontaneously that it would
be unreasonable to expect a timely request for
permission.
41
Although these guidelines say that
they represent only agreed-upon minimums and
do not define the legal limits on fair use, this
caveat is often forgotten. Certainly, they create
strong incentives not to go beyond them.
Worse, some courts have cited the Classroom
Guidelines as legal authority.
42
And several
lawsuits have been settled when copy shops, and
in one case a major university, agreed to follow
them, thus essentially transforming their floors
into ceilings.
43
In the 1990s, the government convened a
Conference on Fair Use (CONFU) in order to
come up with guidelines for educational fair use
of digital images and other material affected by
new technology. CONFU met for years, but
failed to reach consensus on any of its proposed
guidelines. Organizations of scholars and libraries
found them too confining.
44
Nevertheless, they
have been adopted by some universities, and are
available online for anyone seeking answers on
fair use. Unfortunately, their answers in many
cases shrink fair use.
In all, there are seven sets of educational fair
use guidelines, covering classroom copying,
738148 Brennan.indd 6 11/16/05 9:38:39 AM
Brennan Center for Justice 7
music, distance learning, interlibrary loans, off-
air recordings of broadcast programs, digital
images, and educational multimedia.
45
eir
appeal – in the face of an urgent need for
guidance on fair use – is understandable. But
in the interests of security and uniformity, they
relinquish the breadth and flexibility of fair use,
and undermine the educational process.
Activism and Alternatives
Activists have begun to defend fair use
in inventive ways. One of the most creative
initiatives came from the music group
Negativland, which in 1990
produced a parody that mixed
about 30 seconds from a song
by the rock band U2 with
outtakes from a radio show and
its own vocals and lyrics. e
cover art for this album included
a U-2 spy plane along with the
letter U, the number 2, and
“Negativland.” In the course of
the lawsuit that followed,
Negativland persuaded U2,
but not the radio host, of
its right to appropriate their
work for transformative
purposes. Negativland continues
to produce musical parodies without seeking
copyright permission.
46
Other activists have created Web sites such
as “DownhillBattle.org,” “Rhizome,” and
the “Barbie Liberation Organization,” which
encourage creative appropriation, provide
community support, and organize fair use
protests, such as Downhill Battle’s February
2004 posting of “DJ Danger Mouse”’s Grey
Album,
47
or a similar one-day download in
2005 of Eyes on the Prize, a powerful 14-part
documentary of the civil rights movement,
which has been out of circulation because its
time-limited copyright licenses have expired.
48
Another group, which publishes the feisty
Stay Free! magazine, organized an “Illegal
Art” exhibition in 2002, which contained
many inventive works of parody and critique
– including Ashley Holt’s “Notmickey” (a
reproduction of the famous Disney-owned
mouse with the words “Don’t sue!”) and Wally
Wood’s “Disney Memorial Orgy,” showing
some of the cartoon characters in compromising
positions.
49
Many of the works in the show were
probably not illegal at all, but would qualify as
fair use.
One featured work in “Illegal Art,” a parody
of the green circular Starbucks logo that changed
the coffee company’s attractive siren into a
greedy “Consumer Whore,” became the subject
of a lawsuit in 2000. e case settled when the
artist agreed not to display, reproduce, publish,
distribute, or sell his design, except on his Web
site, and only if unaccompanied by advertising
or the sale of any product such
as a comic book or T-shirt.
50
e
settlement of course did not bind
the organizers of “Illegal Art,”
and despite some cease and desist
letters, no suits were filed to stop
the show.
51
Other activists such as Public
Knowledge, a Washington DC-
based policy center, provide
information and legal advocacy
on major IP issues including
fair use. e media democracy
group FreePress.org reproduces
news articles on the assumption
that its nonprofit, educational
purpose qualifies the reproductions as fair use.
52
And the Chilling Effects Web site, begun in
2002, invites members of the public and ISPs
to deposit cease and desist and take-down letters
in order to spread awareness of the problem; law
students post explanations of the relevant law.
Legal activists and student law clinics have also
helped counteract IP owners. When attorneys
for the Lyons Partnership, owners of Barney, the
purple dinosaur, wrote to the Electronic Frontier
Foundation complaining about a Web page that
describes “threats of violence toward Barney,”
and “unsavory and unwholesome content that
you have associated with its trademark and
service mark,”
53
they received a spirited response.
EFF’s lawyers expressed alarm at the number of
“baseless threat letters that have been sent by your
firm and others under the guise of trademark
and copyright protection,” and explained that
“the article to which you object is a blatant,
Kieron Dwyer,
“Starbuck’s Consumer Whore”
738148 Brennan.indd 7 11/16/05 9:38:40 AM
8 Will Fair Use Survive?
unvarnished parody of Barney” and “presents
no likelihood that anyone would confuse it
with the original character or song lyrics.” EFF
noted: “your distaste for the material, even when
strangely phrased as a ‘threat of violence’ against
an imaginary character, is plainly not the correct
standard for legal liability under copyright or
trademark law.” e letter closed by reminding
Lyons’s lawyers of federal court rules punishing
frivolous litigation.
54
Despite the effectiveness of groups like EFF,
some activists feel that the uncertainty of the
law, and the high cost of guessing wrong about
fair use, reduce its usefulness, and have chosen
to focus on other ways of reining in overzealous
copyright control. Creative Commons, for
example, provides sample licenses that copyright
owners can adopt to permit freer use of their
works.
55
It shows that alternatives to heavy
copyright control are possible, but it depends on
the willingness of the owner. Likewise, legislation
requiring compulsory licenses for reasonable
fees would be a way to prevent copyright owners
from refusing permission because they don’t like
the content of the borrower’s speech; but they
assume the need for a license. Fair use works
on the opposite principle – that it should not
cost money or require compliance with any
procedures to make reasonable use of words and
images that are part of our culture. Fair use is
irreplaceable precisely because it does not depend
on payment, procedures, or permission.
Our Research
Our study was designed to find out how well
fair use and similar free expression safeguards
in IP law are working. How do artists, scholars,
and political commentators react to cease and
desist letters and other threats? And what might
be done to secure fair use and free expression in
our increasingly “pay per view” culture?
We used a variety of research methods. First,
we conducted four focus groups, moderated
discussions in which 7-12 individuals talked
about their attempts to grapple with fair use,
their experiences with cease and desist letters and
permissions, and their needs as both copyright
owners and users. Many fascinating stories
emerged from these discussions. We summarize
them in chapter 2.
Next, we examined all the cease and desist and
take-down letters that had been deposited with
the Chilling Effects Web site for one full year,
2004. We analyzed the letters to see what kind
of infringement claims were made; to assess, to
the extent possible, how many of them targeted
expression that might qualify for a fair use or First
Amendment defense; and to learn how many of
the recipients acquiesced in the letters’ demands.
We summarize the results, along with many of
the more interesting cases, in chapter 3.
We followed up on our analysis of the cease
and desist and take-down letters by asking
the ChillingEffects.org administrators to
contact those depositors who had left contact
information, to see if they would be willing
to be interviewed by telephone. We wanted to
learn about their reactions to the letters, their
knowledge of fair use, their feelings about the
incident, and the outcome of the controversy.
Seventeen people volunteered to be interviewed.
We recount their stories and analyze their legal
situations in chapter 4.
Finally, we posted an online survey and
asked arts organizations to publicize it. In all,
we received and analyzed 290 completed surveys
describing attitudes about, and experiences with,
copyright and fair use from both the owners’ and
users’ perspectives. We report and analyze these
stories in chapter 5.
Our research was not strictly “scientific.” It
would have been a daunting – perhaps impossible
– task to create a truly random sample of artists
or others affected by fair use, and then to design
a survey methodology yielding statistical results
that accurately reflected the percentages of
individuals who received cease and desist letters,
acquiesced in their demands, and had reasonable
fair use defenses. Nevertheless, we collected
and analyzed a great deal of information. We
hope that the results will illuminate the fair use
problem and contribute to effective solutions.
738148 Brennan.indd 8 11/16/05 9:38:40 AM
Brennan Center for Justice 9
T
his chapter gives an overview of fair
use and free expression under IP law.
56
Readers who aren’t familiar with the legal
principles will find it useful, even though it’s too
brief to be considered definitive. ose who are
already familiar with the law might want to skip
to chapter 2.
e Supreme Court and Fair Use
In 1984, eight years after Congress overhauled
the copyright law, the Supreme Court first
weighed in on fair use. e entertainment
industry had sued Sony in an attempt to stop
distribution of video cassette recorders because
they could be used for unlawful copying. But
they could also be used to copy TV shows for
later home viewing, which the Court said was
a fair use – fortunately for all concerned, since
the industry was to earn huge profits on the sale
and rental of home videos in the decade that
followed. In the course of defending personal,
noncommercial copying of TV programs as fair
use, the Court made a broad statement which it
later repudiated: that “every commercial use of
copyrighted material” is presumptively unfair.
57
e next fair use case came a year later.
e Nation magazine had “scooped” former
President Gerald Ford’s not-yet published
memoirs in an article that focused on Ford’s
pardon of his predecessor, Richard Nixon, who
had resigned the presidency in 1974, under
threat of indictment for his involvement in the
Watergate burglary. e Nation’s scoop caused
Time magazine to renege on a contract for “first
serial rights” with the publisher of the memoirs,
Harper & Row.
Even though e Nation had reported news
of great political interest, and took only 300
words from Ford’s book, the Supreme Court
rejected its fair use defense. e Court said those
300 words were the heart of the memoirs, that
e Nation’s scoop interfered with the market
for the Ford memoirs, which “is undoubtedly
the single most important element of fair use,”
and that an author’s “right to control the first
public appearance of his expression” is a “key”
factor weighing against quoting a work before it
is published.
58
Seven years later, Congress amended §107 of
the copyright law to make clear that “the fact that
a work is unpublished” shall not “bar a finding
of fair use.”
59
And the Supreme Court itself soon
abandoned the idea that the fourth factor – the
market for the original work – is necessarily the
most important. e case involved the rap music
group 2 Live Crew, which had requested and
been denied permission to use music from the
Roy Orbison song, “Oh, Pretty Woman,” in a
raunchy parody. An appeals court, following the
statement in the Sony case that every commercial
use is presumptively unfair, had ruled against
2 Live Crew without much consideration of
the other fair use factors. e Supreme Court
reversed.
e Court noted that 2 Live Crew’s creation,
although not great art, was a genuine parody of
the Orbison song that commented on “the naiveté
of the original” by rejecting “its sentiment that
ignores the ugliness of street life.”
60
By its nature,
the Court said, parody must “conjure up at least
enough” of the original “to make the object of
its critical wit recognizable.” To the extent that a
parody, or any other new work commenting on
an earlier one, is transformative, superseding the
original creation with something new, it has a
strong claim to fair use.
61
As for the commercialism of 2 Live Crew’s
recording, the Court said that just as “the
mere fact that a use is educational and not for
profit does not insulate it from a finding of
infringement,” neither does “the commercial
character of a use” bar a finding of fairness. If it
did, then “nearly all of the illustrative examples”
in the fair use statute would be meaningless,
for news reporting, comment, scholarship, and
research are usually done for pay, and as Samuel
CHAPTER 1
e Legal Landscape
738148 Brennan.indd 9 11/16/05 9:38:40 AM
10 Will Fair Use Survive?
Johnson said: “No man but a blockhead ever
wrote except for money.”
62
Finally, in contrast to its earlier overemphasis
on the fourth fair use factor – the effect of the
copying on the market for the original work –
the Court now gave it no more weight than any
of the others.
63
It sent the case back to the lower
courts to make the final decision on fair use.
Fair Use and the Problem
of Unpredictability
Asserting fair use has always been difficult
because of its unpredictability. Each case turns
on its particular facts. Since the four factors are
malleable and partly subjective, even a rigorous
analysis of each of them doesn’t necessarily
predict the result.
For example, even though the Supreme Court
recognized 2 Live Crew’s parody of “Oh, Pretty
Woman” as a probable fair use, other rap music
borrowings have not fared as well. One of the
early court decisions on sampling, in fact, did
not even mention fair use – the court simply
quoted the Old Testament (“thou shalt not
steal”) and left it at that.
64
Some later decisions
recognized the importance of borrowing to
musical creation,
65
but the legal uncertainty
surrounding sampling, along with the clearance
culture, has greatly undermined the creativity of
hip hop artists.
Fan sites and fan fiction also exist in legal
limbo. Fan sites’ musings, gossip, photos,
reviews, plot summaries, transcripts, and use of
copyrighted characters in new (and sometimes
risqué) fictions mix original commentary with
borrowed material in a way that should have
a strong claim to fair use. Yet entertainment
companies generally view any copying – and
sometimes even paraphrases – as infringement.
e decided cases aren’t typical of fandom be-
cause they tend to involve highly commercial ef-
forts to exploit copyrighted works. A court ruled
in 1993, for example, that a book consisting
largely of detailed summaries of episodes from
the Twin Peaks TV show did not qualify for fair
use. A book of “Seinfeld” trivia met the same
fate; in both cases, the courts found much more
direct copying than transformative use, and a
for-profit motive that interfered with the copy-
right owners’ potential market for “derivative
works.”
66
But when novelist Alice Randall cop-
ied plot elements and characters from Gone With
the Wind for purposes of parody and critique, an
appeals court found that the fair use defense was
available, and reversed an injunction that had
suppressed the book.
67
Political commentary also has a strong claim
to fair use. One court accepted the defense where
a cult de-programmer got hold of a private
seminar’s course manual, hired two experts to
critique it, and then posted their reports, which
quoted the manual, on his Web site.
68
But a
newspaper that published six standardized tests
in their entirety in order to stir public debate
about their educational value lost on fair use; the
judge thought that the paper could have made
its point by quoting only parts of the tests.
69
And a satirical look at the O.J. Simpson case,
rendered in the doggerel rhyme scheme of the
Dr. Seuss books and borrowing some of their
signature images, was ruled ineligible for fair
use largely because it wasn’t a true parody – it
did not ridicule Dr. Seuss but simply copied his
style and characters to tell a version of the Nicole
Simpson murder story.
70
Similarly with news reporting, even though
it is specifically mentioned in the fair use law,
judges’ conclusions are hard to predict. When a
TV station broadcast 30 seconds of video footage
documenting the Los Angeles police beating of
a civilian, an appeals court said this took the
heart of the video and affected owner’s ability to
market it; it reversed a lower court ruling in favor
of fair use.
71
When Reuters distributed the same
tapes to its subscribers without authorization,
the courts balanced the factors and again found
no fair use.
72
But when Court TV used parts of
the footage to promote its coverage of a trial of
some of the officers involved in the beating, the
court found fair use.
73
And a newspaper that
published a nude photo of Miss Universe Puerto
Rico without authorization was engaged in fair
use because, according to the court, the photo
was “particularly newsworthy.”
74
In 2000, copyright expert David Nimmer
independently analyzed the four factors in every
federal court case on fair use since the Supreme
738148 Brennan.indd 10 11/16/05 9:38:40 AM
Brennan Center for Justice 11
Court’s “Oh, Pretty Woman” decision in 1994,
and came to a sobering conclusion. Nimmer
found virtually no correlation between his
objective four-factor inquiry and the courts’
ultimate rulings on fair use, or on any of the
factors. at is, he found that judges tend to
“align the four factors” to fit the result that
they think best, rather than evaluating them
objectively. Nimmer concluded that “had
Congress legislated a dartboard rather than the
particular four fair use factors embodied in the
Copyright Act, it appears that the upshot would
be the same. … It is largely a fairy tale to think
that the four factors determine resolution of
concrete fair use cases.”
75
Other scholars have been equally vocal about
the unpredictability of fair use. Michael Madison
describes the doctrine as “so fragmented as
to make it useless as a predictive device,” and
abstract “to the point of incoherence.”
76
Kenneth
Crews says: fair use “has been derided as among
the most hopelessly vague of legal standards”;
it causes “ample confusion among lawyers and
laypersons alike, who often need to understand
its nuances and live by its tenuous and fragile
principles.”
77
Nevertheless, Crews adds, fair use “is an
essential element of effective communication
and education,” and “a crucial bridge for the
widespread sharing of ideas.”
78
Although
the bottom-line issue is always whether an
unauthorized use is basically fair, the four factors,
and the examples listed in the statute, are still the
best guide to how that fairness question should
be resolved.
Free Expression, Fair Use, and
Trademark Law
Trademarks and “service marks” – those
ubiquitous slogans, signs, and symbols that
pervade our culture – are governed by a separate
legal doctrine from copyright. Yet the free
expression problems that arise with overly zealous
attempts to enforce trademark rights are similar
to the fair use dilemmas in copyright law; and
often, companies make both types of claims.
Trademark is governed by state law and the
federal Lanham Act, whose basic purpose is to
protect consumers by enabling them to rely on
well-known marks to identify quality goods
and services. e law prohibits businesses from
trying to pass off shoddy products using the
good names of established brands.
e first requirement for a federal trademark
suit, therefore, is that someone has improperly
used, “in commerce,” a logo, set of words, or
other “registered mark” in connection with the
“sale, offering for sale, distribution, or advertising
of any goods or services.”
79
“Commerce” has
a broad meaning, but sometimes a court will
find that a borrowing doesn’t pass this minimal
threshold. For example, an advocacy group’s use
of the term “Star Wars” to oppose the Reagan
Administration’s military defense plans was held
not to be “in commerce.”
80
e second requirement is that the borrowing
create a “likelihood of confusion” with the
trademark owner. If consumers will probably not
be confused about the source of the product or
service, there is no trademark infringement. In
many cases, the courts don’t need to address fair
use or other possible defenses because there is
no real likelihood of confusion. A good example
comes from a suit brought by Hormel Foods,
makers of Spam, against the producers of a film
comedy with a porcine Muppet character called
“Spa’am.”
81
Likewise, when Fox Broadcasting
sued Al Franken for borrowing its slogan, “fair
and balanced” in his book Lies and the Lying
Liars Who Tell em: A Fair and Balanced Look at
the Right, a federal judge found the suit “wholly
without merit,” because “there is no likelihood
of confusion as to the origin and sponsorship of
the book.”
82
But confusion is a malleable concept, which
means that courts may overlook free expression
“It is largely a fairy tale to
think that the four factors
determine resolution of
concrete fair use cases.”
738148 Brennan.indd 11 11/16/05 9:38:41 AM
12 Will Fair Use Survive?
concerns when a defendant lacks the charm
of a Muppet. e pornographic movie Debbie
Does Dallas was found to cause confusion
because it used the trademarked costumes of the
Dallas Cowboys cheerleaders. (e court’s bias
was apparent in its description of the movie’s
“gross and revolting” content.
83
) On the other
hand, New York magazine’s use of trademarked
elements of the Old Farmers Almanac in a
sexually tinged Christmas issue was held not to
create any serious confusion. e court found
not only that the magazine “made it sufficiently
clear” that the reference to the Almanac was a
joke, but that New York’s First Amendment
right “of commentary and artistic expression”
outweighed any harm to the Almanac that might
arise “even if there was some confusion as to
source or origin.”
84
Trademark law also has two fair use defenses,
but they are narrower and more specific than
the freewheeling fair use factors of copyright.
e first, “classic” or “descriptive” fair use,
occurs when a phrase or image is used simply
to describe, rather than to identify, a product
– for example, describing a cereal other than
“Kellogg’s All Bran” as consisting of “all bran,”
or describing a fish batter with words similar to
the trademarked “Fish-Fri.”
85
e second, or “nominative fair use” defense,
arises when a trademark is used to identify a
product or service, but not to deceive the public
or sow confusion. One way to understand
the difference is that classic fair use occurs
when somebody uses the contested trademark
to describe his own goods or services, and
nominative fair use occurs where the mark is
used to refer to the goods or services of its owner,
as in comparative advertising or appropriationist
art.
us, Tom Forsythe’s “Food Chain Barbies”
were nominative fair use.
86
When a former
Playboy model used the Playboy trademark in
promotional material describing her career,
she also qualified for nominative fair use.
87
And when New Kids on the Block sued USA
Today for using their name in connection with
a telephone poll asking readers to identify their
favorite member of the group, the court said it
was nominative fair use because the paper used
only as much of the mark as was necessary to
identify the group, and there was no suggestion
of sponsorship or endorsement.
88
Because these fair use defenses are narrower
than their copyright law cousin, the First
Amendment also comes into play in trademark
cases. (In copyright cases, the Supreme Court
has said, no First Amendment scrutiny is
needed unless Congress changes the “traditional
contours” of the law, which already includes
fair use and other free expression safeguards.
89
)
Courts confronting First Amendment-
trademark dilemmas usually balance the owner’s
(and public’s) interest in avoiding confusion
against the rights of artists, satirists, or other
commenters to use the trademarks in making
their point. Or, in a variation on this theme,
courts apply the “likelihood of confusion” test
stringently, in deference to the free speech rights
at stake.
So, for example, in two of the many lawsuits
brought by Mattel to try to stop unauthorized
uses of Barbie – one involving Forsythe’s
culinary parodies; the other a rock ’n roll song
that mocked the pulchritudinous doll – the
artists’ First Amendment rights weighed heavily
in the balance.
90
Another court found that a
comic book parody of bodybuilding ads had
First Amendment protection that outweighed
the slim likelihood of confusion with an actual
bodybuilding company.
91
And when the actress Ginger Rogers sued
distributors of Federico Fellini’s Ginger and
Fred – a movie about two itinerant cabaret
performers – the court found little likelihood that
Trademark law also has
two fair use defenses, but
they are narrower and
more specific than the
freewheeling fair use factors
of copyright.
738148 Brennan.indd 12 11/16/05 9:38:41 AM
Brennan Center for Justice 13
the public would be confused about whether
Ms. Rogers sponsored the film, and added that,
in any event, whatever confusion there might
be was outweighed by the First Amendment
right to choose the title for a creative work.
e Lanham Act, the court
said, should apply to artistic
works “only where the public
interest in avoiding confusion
outweighs the public interest
in free expression.”
92
Quoting
a Vietnam War era Supreme
Court case, the judges added:
“we cannot indulge the
facile assumption that one
can forbid particular words
without running a substantial
risk of suppressing ideas in the
process.”
93
Not all First Amendment
defenses fare so well. In 1994,
Anheuser-Busch won a suit
against political parodists who
attacked its environmental
record with mock advertise-
ments featuring “Michelob
Oily.” e phony ads con-
cluded with the remark: “at
the rate it’s being dumped
into our oceans, lakes and riv-
ers, you’ll drink it oily sooner
or later.” Taking a tone-deaf
approach to the parody, the
judges emphasized that the de-
fendants “possessed no knowl-
edge that any Anheuser-Busch product actually
contained oil.” ey dismissed the parodists’ free
expression defense; then decided there was a se-
rious likelihood of confusion based on a survey
conducted in St. Louis shopping malls.
94
In 1995, Congress added a new prohibition
to the law: “trademark dilution.” Its purpose
is to prevent the weakening of a mark by
blurring its “distinctive quality,” or the
“tarnishment” of a mark by disparaging it or
associating it with shoddy or unsavory goods.
No likelihood of confusion is required.
95
As
applied to such misleading labels as “Tylenol
snowboards” or “Harry Potter dry cleaners,”
96
the ban on trademark dilution presents few free
expression problems. But applied to political
critiques that necessarily “tarnish” a company’s
identifying signs and symbols, it threatens First
Amendment rights.
e dilution law does have free expression
safeguards: allowances for comparative advertis-
ing, news reporting and com-
mentary, and any “noncom-
mercial” use of a mark. But
courts have sometimes been
slippery about the noncom-
mercial use exception; one
judge stretched to find that
a Web site critical of Jews for
Jesus was commercial because
it had impact on the group’s
commercial activities.
97
On the other hand, the court
in one Barbie Doll case, citing
First Amendment concerns,
read the “noncommercial use”
exemption to protect parodies
and other critiques.
98
Another
court dismissed a suit by Rev.
Jerry Falwell against a critic
using the URL www.fallwell.
com, noting that Congress
“did not intend for trademark
laws to impinge the First
Amendment rights of critics
and commentators.”
99
One further amendment to
the trademark law goes by
the cumbersome name of
the Anticybersquatting Consumer Protection
Act,
100
and prohibits Internet domain names
that are “identical or confusingly similar”
to each other, but only where there is a “bad
faith intent to profit” from the confusingly
similar name. is limitation gives free
speech protection to dissidents who register
“thiscompanysucks.com” or similar monikers
without a profit motive, but simply to criticize
corporate malfeasance. us, both dissatisfied
customers and social critics have been allowed
to use URLs very similar to the companies they
critique. As one judge noted, Internet surfers
are by now “inured to false starts,” and they
will keep searching if they come upon a “.sucks”
or similar gripe site when they are looking for
something else.
101
Tom Forsythe, “Every Barbie
for Herself ”
738148 Brennan.indd 13 11/16/05 9:38:43 AM
14 Will Fair Use Survive?
But a different judge found sufficient hostility
and bad faith to prove a cybersquatting violation
when critics of the animal rights group PETA
registered the domain name “peta.org” (for
“People Eating Tasty Animals”).
102
is decision
has been criticized for its overly broad reading of
the Lanham Act’s “in commerce” requirement,
103
but there was certainly evidence of bad faith,
because peta.org’s operators had registered more
than 50 domain names and evidenced a clear
intent to sell this one to PETA.
104
Many accusations of cybersquatting are not
resolved in court but through a Uniform Domain
Name Dispute Resolution Policy, or “UDRP,”
established by the Internet Corporation for
Assigned Names and Numbers (“ICANN”).
One advocate says that although the UDRP
is much cheaper than litigation, it is a risky
alternative for cybercritics, because it is “run
by organizations biased in favor of trademark
holders.” Nevertheless, he notes there are many
UDRP decisions that favor the “gripe site”
owner.
105
For example, UDRP arbitrators ruled in
favor of fan sites using the name of the deceased
rap star Tupac Shakur, and the Nintendo game
“Legend of Zelda.” In the first case, the UDRP
allowed the fan site to keep its domain name
because it contained legitimate commentary,
was noncommercial, was established in good
faith, and included a statement disclaiming
any relationship with the official site. In the
“Legend of Zelda” case, the arbitrator found
no legitimate purpose and a confusingly similar
domain name, but no bad faith, so the 15 year-
old fan site owner prevailed.
106
738148 Brennan.indd 14 11/16/05 9:38:43 AM
Brennan Center for Justice 15
T
o learn how artists, writers, and scholars
experience the tension between IP
ownership and free expression, we
conducted four focus group discussions, with
members of PEN American Center, Women
Make Movies, the College Art Association, and
Location One Gallery in New York City. Each
discussion reflected different concerns, but there
were also common themes – in particular, the
difficulty of getting accurate information about
fair use, and adequate help in protecting free
expression and fair use rights. e participants
expressed differing opinions about what
constitutes fair use, not all of them accurate.
ey also described confusing, frustrating, and
sometimes exhilarating experiences.
107
PEN American Center
Seven writers participated in the focus
group, which met on February 28, 2005.
Roxana Robinson writes short stories, novels,
and biography. Andrew Hultkrans writes on
music and is interested in sampling. Daniel
Meltzer writes fiction, drama, and newspaper
columns, and is planning a book about
broadcast journalism. Betty Fussell writes
nonfiction, including “a lot on the history of
food, cookbooks, and recipes.” Hannah Pakula
writes historical biographies. Hazel Rowley is
also a biographer; her subjects have included the
writers Christina Stead, Richard Wright, and
most recently, Simone de Beauvoir and Jean-
Paul Sartre. e seventh participant, who writes
fiction, nonfiction, and poetry, asked to remain
anonymous.
Roxana Robinson encountered a fair use
problem with her first book, the novel Summer
Light. She quoted two lines of the popular
song “Don’t Stand So Close to Me,” by e
Police – “and my editor said, ‘you have to get
permission.’ So I have to call Hollywood. I don’t
know how I got the number, but I get this man
who’s audibly tan and I say, ‘I’m hoping that
you’ll give me permission.’ He said, ‘yeah, you
can have permission and it’ll be $5,000.’ I said,
‘that’s double my advance. is is a small literary
novel.’ I said, ‘I can’t pay that.’ He said, ‘it’s a
very popular song.’ I said, ‘I know, but the book
doesn’t depend on including these words, so if
you make it $5,000, I’m not going to include
them.’ ere was a long pause, and he said,
‘would my mother like this book?’ I said, ‘yes;
I absolutely guarantee it.’ He said, ‘okay. Send
a copy to me and a copy to my mother and you
can have it.’”
is experience was lucky for Robinson, but
was the publisher correct that her brief quotation
required permission? Industry practice may
dictate permission for just two lines, but there is
no such firm rule in the law.
Our anonymous participant had a different
approach, at least at the start of his career:
“Since I have a doctorate in English and I began
writing in the golden age of deconstruction, my
intellectual life had at its foundation the notion
that I could steal creatively. In my first book,
it didn’t even occur to me that you have to ask
permission to quote poetry when you were doing
a service to make commentary on it.
108
at was
naïve. And I realized that you can’t even quote
a popular song without getting permission. I’ve
paid a lot of fees. But there are many things I
haven’t published because I haven’t had the heart
to bother asking permission.”
Betty Fussell added: “I grit my teeth – it is
simply insane, and every book I have done, of
the ten, I have come across fair use issues. Once
I quoted two lines from A. A. Milne, “What can
be the matter with Mary Jane?/It must be we’re
having rice pudding again.”
109
is was a little
cookbook, and to my astonishment, I had to pay
$250. at opened my eyes. It also infuriated
me on principle.”
CHAPTER 2
Quoting Sartre, Using Prokofiev,
Painting “Molotov”: e Focus Groups
738148 Brennan.indd 15 11/16/05 9:38:43 AM
16 Will Fair Use Survive?
Roxana Robinson described her second book,
a biography of Georgia O’Keeffe. “She had just
died; there were three lawsuits going on [battling
over her estate]. Everyone was at each other’s
throats. So I was incredibly careful. I had to type
out every single quote I wanted to use of her
letters, and send those to the Georgia O’Keeffe
Foundation. One member of the Foundation
was completely opposed to my writing the book,
and he would not give me any permissions at all
that he was responsible for.
“I was told by my publisher that fair use was
15% of whatever the text was. ose numbers
are branded in my brain. 15% of the letter,
or perhaps 15% in the page of the book I was
quoting from, called Georgia O’Keeffe by Georgia
O’Keeffe. So I had to go through that book and
practically count the words on every page and
allow myself 15% of that. I felt that I was skating
on the edge of this dangerous chasm and if I fell,
I could be sued.
“At one point, late in the process, I discovered
a trove of letters that no one had ever seen,
between O’Keeffe and, probably, her first
romantic lead. I wasn’t going to have time to
clear them through the O’Keeffe Foundation.
But I thought it would be too much for the man
who owned them to suddenly see them spread
out in this biography. So I was very careful
about those, just because of internal conscience.
Which I think now was foolish. I think I should
have used them just as much as I wanted to. But
as a biographer, I was very conscious of the other
side. You are using other people’s lives, or other
people’s works or thoughts, and so it is a really
difficult question to balance.”
Hazel Rowley described a different experience
with her Richard Wright biography. “I took an
immense risk because Ellen Wright, his widow,
had sued a previous biographer, Margaret
Walker. I had been warned that Ellen Wright
was very difficult. I knew I would get nowhere
by fronting up to her at the beginning, saying
‘Will you sign this form giving me permission to
quote from unpublished letters?’ So I wrote the
whole biography, four years of work, taking the
risk that she might not give me permission to
quote from unpublished material. I spent three
months in the Beinecke Library at Yale, which has
a massive amount of exciting material. It would
have killed the book if she’d refused. If there’s
one thing worse than being a white Australian
woman writing about a black American man, it
would have been not to be able to bring his voice
in. So the risk I took, when I look back, was
enormous.
“Ellen Wright was savage about Margaret
Walker, who had quoted letters from Wright
to Walker. Of course, Walker, the recipient of
the letters, did not own the copyright. So Ellen
Wright sued her, but she lost.
110
I came along a
few years later with my biography. I wrote the
book the way I wanted to write it, just as if she’d
given me permission to quote from unpublished
letters. I sent her some articles I published along
the way, which she liked. When I’d finished, I
went to Paris to see Ellen, and had lunch with
her. Halfway through the lunch, I casually said I
would need copyright permission from her. She
asked whether the publisher would pay for the
permissions. I said, ‘Sadly, not.’ She asked me to
send a word count to Wright’s literary agent. She
said she thought I had done a good job, and my
book would revive interest in Wright. She would
discuss the price with Wright’s agent, but she’d
try to keep it low. She understood that I didn’t
have much money. To my amazement, she never
asked to see the manuscript. I didn’t mention that
some of the unpublished letters I had managed
to find were not among those in the Beinecke
Library; indeed, they were love letters that Ellen
Wright would find deeply hurtful. Ellen gave
permission, for a very reasonable fee.
“I had a fellowship for two months to study
at the Beinecke and took an immense amount
of notes. I think American copyright law takes
into account that there is no point in giving
scholars access to material if they can’t quote
it even minimally. I boned up on fair use. It is
certainly not 15%, in my understanding. It is
far more minimal than that. e most I allowed
myself from the love letters were eight words a
letter, ten words maybe, in a letter of a page or
two. Publishers never seem to know much about
it. It’s quite extraordinary. It’s more a matter of
ringing around talking to any copyright people
who know something. And looking on the
Internet. It’s inordinately difficult to find out.”
Rowley’s last book was about Sartre and
Beauvoir. “Sartre’s published estate is mostly
738148 Brennan.indd 16 11/16/05 9:38:43 AM
Brennan Center for Justice 17
owned by Gallimard [the French publisher].
But the unpublished estate is in the hands of
the woman whom Sartre adopted when she
was in her 20s, Arlette Elkaïm Sartre. And
Beauvoir’s adopted daughter is the executor
for the Beauvoir estate. When I started out on
the book, I was told again, just as I was with
Ellen Wright: ‘ere’s no way you’re going to get
anything from Arlette.’
“I’m writing the book for Harper Collins,
and from the outset my understanding was that
I would have fair use of the unpublished material
I got to see from Sartre. Any letters – and I got
hold of hundreds – I could just do the slightest
quoting, and some loose paraphrase. One woman
gave me 550 pages of Sartre’s handwritten letters
to her mother. I quoted up to 30 lines, thinking
that’s all I can get away with. I paraphrase very
loosely, always in my voice. My understanding is
that loose paraphrasing is fine.
“I have since discovered that copyright law
is different in France. I wanted the book to be
published in France as soon as possible. Gallimard
wanted it, but insisted that they would need the
consent of the two adopted daughters. I said:
‘Consent for what?’ But Gallimard, which makes
massive posthumous royalties from the Sartre
and Beauvoir estates, did not want to risk falling
out with the two heirs and literary executors. I
soon found out that in France there’s this thing
called le droit moral.
111
And they do not have
fair use for unpublished material. You cannot
quote and you cannot paraphrase, even loosely,
without permission.
“So the manuscript was sent to both
daughters, and the Beauvoir daughter says fine,
and the Sartre daughter says to Gallimard: ‘If you
publish that book, I’ll take away the entire Sartre
estate from you.’ In other words, Gallimard
won’t be publishing this book. en Arlette
told me that even interviews with her or with
Sartre, I’d have to cut out all the quotes. Well,
luckily on that score I was safe. e interviewer
has the copyright on them. But she also said I
would have to take out all paraphrasing from
the letters. Harper Collins’ lawyer was at first
very laid back and said, ‘we’ll publish it as is,
and we’ll show up the French.’ But my editor
at Harper Collins said, ‘Hazel, we can’t have
two editions. We have sold subsidiary rights to
England, for example. ey’ve bought in good
faith with the understanding that they can
distribute that book at least to English-speaking
bookshops in Paris.’ She says if it’s smuggled
into France in any way, even through Amazon,
the English publisher could get sued and they
can sue HarperCollins US, and everybody’s
very unhappy, and therefore, I have to make
these cuts.
“I’m refusing to make the cuts. I’m saying I
worked within American law, and that the book
is fine in this country.
“I don’t think you can be a biographer without
being a fiercely determined kind of person.
And the fact that I got to see these letters from
various women around Europe is in itself fairly
amazing. So I’m not going to give up a fight just
like that.
112
“I find the whole copyright thing enormously
arbitrary. Some people charge you $350 for five
lines. Some charge you nothing for several pages.
ere are no rules, so you’re always in a rather
stupid, mendicant position as a permission
seeker. Harper Collins did tell me that they
had someone that would do it for me, but I
didn’t feel like paying several thousand dollars
for somebody else to do it. Also, I frequently
managed to negotiate the prices down. I can’t
imagine the person to whom Harper Collins
contracts out this job doing that for me.
“But oh my god, the problems you can have!
I have quoted quite a bit of Nelson Algren
[Beauvoir’s lover at one time] – previously
published material. e Algren copyright holder
is a literary agent in New York. Over the months,
he did not answer my emails, he did not answer
phone calls, he did not answer letters. I had to
approach him through intermediaries. He asked
to see the entire manuscript. He wanted to check
that I’d portrayed Algren sufficiently positively.
It’s really insulting. is is a subject that works
us all up, isn’t it?”
“is is a subject that works
us all up, isn’t it?”
738148 Brennan.indd 17 11/16/05 9:38:43 AM
18 Will Fair Use Survive?
Betty Fussell agreed: “As everything has
tightened up, the definition of intellectual
property applies to everything. Have I fought
publishers on this! Because it was the publishers
who were saying you have to get permission for
any reference to a recipe. And I said, ‘that’s not
true.’ I got somebody to look up the law in the
Copyright Office. It says that how-to manuals
of instruction are exempt from copyright.
Because it’s shared knowledge. How to fix a
bicycle tire – that cannot be copyrighted. And
recipes are the same.
113
e nature of recipes is
shared oral knowledge.”
Women Make Movies
Nine members of Women Make Movies
met on April 14, 2005. Jason Wulkowicz is a
documentary filmmaker who, with his wife,
is working on their first independent film.
Faith Pennick is a director and producer of
documentary and narrative films. Laura Poitras
and Samantha Farwella are also documentary
filmmakers. Michelle Coe is the Production
Assistance Program Coordinator of Women
Make Movies. e four other filmmakers asked
to remain anonymous.
Our four anonymous participants were also
the most specific in describing experiences
with fair use. eir desire for confidentiality
may reflect the particular difficulties faced by
documentary filmmakers, whose work typically
includes historical photos, relevant visual art
and music, and trademarked logos or snatches of
song played on a radio in the course of filming.
Yet they are running a risk any time they fail
to get clearance. As one of the group recalled,
“Going to film school, it was drilled into my
head you have to get people to sign everything.
You have to get festival rights, get this, get that;
it’s just automatic. No discussion of fair use in
film school.”
Having learned little or nothing about fair use
during their professional training, and working
in a field with an intense clearance culture, these
artists were struggling to understand fair use.
Wulkowicz expressed the experience of several
in the group: his first independent film is “about
the women who worked behind the scenes in the
golden age of television.” When he worked for
others, he said, licensing was mostly “somebody
else’s problem. Now, dangerous new waters. We
finished shooting, so we’re in editing now. We’re
making decisions about what we can and can’t use,
and another factor that comes into it. With the
fair use side of things, do you purposely alter your
work so that you have somebody commenting on
what’s being seen, just so that you can use it, as
fair use?”
He explained: “If you have somebody who
worked on a Studio One broadcast, and it’s
part of a montage of a series of works that this
woman has directed, but she doesn’t mention
each one specifically, or talk about that episode,
then it seems like it’s harder to argue fair use,
and so, in order to try and tell a story about this
period, do you need to make everything into a
little vignette: ‘oh, I remember when so and so
tripped on a hammer’?”
“We’re thinking fair use as a last resort, ’cause
it’s too tricky, and because as soon as you ask for
permission, you don’t want to just say, ‘well, we’re
going to do fair use anyway.’ Our first approach is
to ask permission.”
Faith Pennick was also in post-production,
“on a documentary that I directed called Silent
Choices,” and was dealing with the copyright issues
for the first time. She thought perhaps fair use
applied to “a spontaneous news event and you’re
there with a camera. en, as far as the people or
things that are in the frame of what you capture,
people can’t say, ‘Well, you can’t use that, ’cause I
didn’t sign.’” en she asked, “or is that different
from fair use? If you’re trying to get footage for
something, as opposed to using the footage that
you shot without getting release forms signed?”
One of our anonymous participants had a
clearer understanding, based on an experience with
PBS: “If your use of the material is commenting
on the subject of that material, it’s fair use. For
instance, I worked on a PBS show that was
about independent film, and we showed a clip
from every filmmaker’s work, because we were
commenting on that work. We were interviewing
them or having discussion about it. We did not
get clearances. Our lawyer looked at it and felt it
was fair use.”
One of her colleagues responded, based on
readings she had found on the Internet: “If it’s
738148 Brennan.indd 18 11/16/05 9:38:43 AM
Brennan Center for Justice 19
used for non-commercial purposes. It also has
to be sort of short and can’t be a reproduction
of the whole image or the whole sound. And it
can’t lessen the commercial value of something.
ese are things that I’ve been reading.”
“I have a lot of fair use,” she added. “I’m
working on a film about a painter who was a
member of the Russian avant garde, and half
the story is constructed images with photo
montage. So I take segments from various
photos – PhotoShop and After Effects give you
a lot of freedom. If you take an image from a
photograph, take a little section and start to
manipulate it or take it out of context, is that
fair use? e technology has presented all kinds
of possibilities for artists.
“I also had a music situation – music that I
wanted to use, and one of the composers was
Shostakovich. I wanted to use segments from
pieces. ese are synchronization rights – I
would hire the pianist to do the performance.
114
I thought it would be a piece of cake. No way. It
was extremely complicated. Different publishers
publish Shostakovich. I had to figure out which
publisher has the right to license Shostakovich
in North America. It’s Schirmer, by the way.
“One of the clearinghouse people I talked to
said, ‘Maybe you can get away with fair use, if
it’s educational. Is this meant for an educational
audience?’ And I just didn’t want take the risk. I
was just like, ‘I’ll just stick with public domain.’
If I was caught, it would be really expensive. I
did talk to someone at Schirmer’s, and she gave
me their typical prices, and it’s like 15 cents per
DVD copy, for a minimum of $5,000 for five
years, and you have to add on to that the non-
theatrical rights. ere are layers, and it was just
too much.
“Let’s say I wanted to use the Shostakovich
Preludes – 30-second segments from seven of
them. In terms of fair use, is that a small enough
segment? Or do you judge per Prelude as a
composition? at was unclear to me. Fifteen
cents times seven times $5,000 for five years, and
now I have another layer of the non-theatrical,
and also they mentioned film festival rights, and
that was just North America. And then if it had
any potential somewhere else, in terms of public
television, whatever, that’s a whole ’nother thing.
“I also wanted to use Prokofiev, but I found a
public domain publisher, so that was great.”
Another member of the group admitted that
she “had no idea” about fair use. She wanted to
copy from a Frank Capra film about World War
II, part of the Why We Fight series.
115
She hired
somebody to trace the rights, and “it turned
out that Capra was hired by the government, so
I didn’t have to pay for the right to use three
seconds of it.”
116
But the film was for PBS,
which requires E&O insurance. “at requires
you to have a lawyer, and that adds up. I had to
hire my own lawyer to get the E&O insurance.
It cost me $250, and he got it in writing that this
particular piece was public domain.
“I had another experience, with e Wizard of
Oz, just in case you ever think of using it. I was
making my own experimental documentary, and
I was going to use maybe 10 seconds. It was the
first film I saw when I was a little girl, and it left
such an impression on me. I called the Turner
Library in Atlanta; the minimum fee is $5,000
for one minute. Any more than that, a lot more.
I decided that was not an important experience
after the $5,000 price tag. I never even learned
that expression fair use. I just thought: copyright
– call right away.”
Another participant, who just completed her
first feature, said she had “cleared a lot of the
rights myself because I didn’t have money to
have anyone help me. Actually, I find if you go
to the artist first, and you get their blessing, the
label will often follow. My current film is about
a bipolar artist who tried to take her life, and
there’s some music in it. She was in a music video
in 1991. I needed that footage, which comes at a
wonderful time in the film. I knew I needed to
get it, and I actually almost did think about fair
use for that. But I got a little scared, so I waited,
and lined up all these other little successes to say,
“e technology has presented
all kinds of possibilities
for artists.”
738148 Brennan.indd 19 11/16/05 9:38:44 AM
20 Will Fair Use Survive?
well, this and this person gave it for free. I got
very fond of that music and couldn’t bear not
to use it, and found the person through various
sources, and he said he wanted to see it. It took
him a month and a half to watch; then he called
and said, ‘Tough film, but, yeah, go ahead and
use it.’”
Samantha Farwella expressed the same
uncertainty. “My feature film was a documentary,
with a lot of music, and I knew most of the
musicians, so I went right to them even if they
had labels, and I got the stuff that I needed. e
other film I made, about 9/11, I used some of
my own footage, but other stuff was just all over
the place. I assumed it was illegal. I used found
footage from two films, Atomic Café and Baraka.
I used “Idioteque,” which is a Radiohead song.
I actually wrote to Radiohead and never heard
back from them. A lot of times people just don’t
respond to you if you’re not that big. I still
put the film in about ten festivals. ey’re all
‘Ladyfests,’ so it’s not really on the radar.
“I didn’t want to make a profit from it, but it’s
frustrating, because the big guys like Sony can
take away people’s rights. It works both ways for
them, basically. ey can sue you for using – and
then, if you give them your music, they make
profits off it, so I think in certain aspects, we
need to look at different levels of control, maybe
letting some control go for some of us.
“e technology is changing. We have digital,
we have online. It’s changing and we have to
change with it. We need to find new avenues
and I think Creative Commons is something
that everyone should look at. It’s a place where
they take out the middleman. You can authorize
others to use your work. A friend of mine put
his song on there, and then another person put a
violin to it, and then somebody put audio to it,
and it just keeps going.
“In fact, I have a question for anyone here. My
feature film that I thought I was very meticulous
in getting permissions on, there are two scenes
in it. One is where someone is driving in the car,
and he starts singing ‘Tomorrow,’ from Annie.
Just a couple of bars. And I’m thinking now:
‘uh-oh. Does it count as incidental use? Do you
want to risk that?’”
“Incidental use” came up repeatedly in this
focus group. Laura Poitras described her film
Flag War. “A character was singing; a radio
was playing the background. We worked with
the clearance house, Diamond Time. ey
looked through it, and what we were told
was, ‘incidental’ – it’s a balance between how
much it pushes the story forward and how
much it happens to just be circumstantial. e
radio comes on, and you go with it and you’re
using it to push your story along, as opposed
to something that just had happened in the
moment. ey said you probably want to clear
it. e cost was prohibitive. So, we lowered the
volume way down.”
Diamond Time’s distinction between
incidental use and “pushing the story along” has
some legal support. When artist Faith Ringgold
sued Black Entertainment Television for using a
poster of her “Church Picnic” story quilt as part
of a set decoration, a federal court ruled that the
use was not “incidental”; the station had used
the work “for precisely the decorative purpose”
that the judges thought Ringgold had in creating
it.
117
On the other hand, a court found that a
news broadcast’s use of about one minute of
a song played by a band during a parade was
fair use precisely because it was central to the
story.
118
An image or quotation does not have
to be incidental or irrelevant to the story to
qualify as fair use; indeed, the less incidental
the borrowing is, the more necessary it may be
to “conjuring up” the original work. Incidental
uses might, however, qualify as de minimis – that
is, not even significant enough to raise an issue
of copyright infringement.
119
Equally problematic as incidental music
in documentary films is the appearance of
brand-name logos and other trademarks. One
participant commented: “ey’re everywhere. I
“e technology is changing.
We have digital, we have
online. It’s changing and we
have to change with it.”
738148 Brennan.indd 20 11/16/05 9:38:44 AM
Brennan Center for Justice 21
cut a scene from a film because there was a big
cup with this gas station trademark on it, but
the problem is, you can’t go into a store, you
can’t buy anything that doesn’t have a logo on
it. So they don’t give you the option of having
a cup with no logo, but I
was like, ‘oh god, I didn’t
realize that cup had this
huge logo in the side of
the frame.’”
Why did she think this
would create a problem?
“Because the subject of
the film was coming clean
about an addiction. It’s
a very heavy scene. It’s
not pretty in any way,
and I don’t think they
would have wanted to be
associated with it.”
But as another member
of the group commented:
“at’s the environment
in which we work. You
can’t just put somebody in
a chamber.”
120
Often the filmmaker resolves the problem by
blurring the logo. Wulkowicz said: “Maybe you
could use it until you’re told you have to blur
it. But you see everything being blurred now,
because for the first time, we’re able to do that
technically without it being a big deal.”
e College Art Association
Ten people participated in the College Art
Association focus group on May 10, 2005.
Brian Hughes is a graduate student in art and
education; Jonathan Talbot is a collage artist;
Barbara Levy is an artist and gallery owner;
Eric Gray is a photographer; Tony White is
an assistant professor, artist, and librarian. Joy
Garnett is a painter who has long used found
photographs in her work. Sandra Camomile is
a professor of digital art and a studio artist who
also appropriates found objects. Alysa Cardone
is an assistant professor in visual and performing
arts at a community college in the Bronx. Frima
Fox Hofrichter is a professor and art historian.
One participant asked to remain anonymous.
Brian Hughes began the conversation: “I
had a show at my school where I took images
of Picasso’s ‘Weeping Woman’ off the Web, and
using the thumbnails, remixed them. It’s just
me, the thumbnails, and PhotoShop. One of
my confusions with that
was, okay, this is fine
with the work I do; I can
justify this as research.
But I was curious if I can
slap a Creative Commons
license on my remix
images and encourage
others to keep going. e
boundaries were unclear
for me where I became a
user of another person’s
copyrighted images.”
Jonathan Talbot ex-
plained that he’d worked
in the music industry;
some of his music “even
made the charts,” which
“doesn’t mean I’ve ever
seen a penny for it. When
I went into the visual arts,
I looked at my experience in the music busi-
ness, the fact that copyright protection had not
helped me at all to get the money that was due
me, because it was never quite enough money
to pay the attorneys to get it for me. So I be-
came a painter. en I became a collage artist.
And now I expropriate everything. I have taken
a good look at how Picasso expropriated. And I
guess that if I’m to pick a role model, Picasso’s
a good one.
“I’ve only asked once for permission. at
was a Joseph Cornell piece which I like, and
I have done 50 or 75 compositions based on
it, not on the imagery but on the geometrical
layout. And in teaching, I want to show people
how art evolves. So I show them what I did with
this Joseph Cornell piece. I put it in PowerPoint.
And I thought I better ask the Joseph Cornell
folks if I could use it. ey sent back a very nice
letter that said, ‘By all means as long as you’re
just using it to teach people.’
“I guess I should add one caveat: I’m aware
that Rauschenberg got sued and lost.
121
And
when I explain to people that there are things
Marcel Duchamp, “e Urinal”; © 2005 Artists
Rights Society (ARS), New York / ADAGP, Paris /
Succession, Marcel Duchamp
738148 Brennan.indd 21 11/16/05 9:38:45 AM
22 Will Fair Use Survive?
you can do with the pages of Time and Newsweek,
in terms of transferring images, I tell them that
they better get permission first. I try to cover my
behind, but I never get permission.”
Sandra Camomile added: “[Marcel] Duchamp
happens to be one of my huge influences, and
I think that his appropriation of the urinal
definitely steps on somebody’s design work.
When I pull images off the Internet, I’m using
found objects.”
Joy Garnett uses a similar process, drawing
inspiration from photographs, often anonymous
ones, for the imagery in her paintings. “Part
of the subject of my work is the relationship
between found sources, such as photographs,
and the transformative act of painting.
Originally, I had gone from science imagery to
declassified government imagery. None of that
was problematic. en I did a project where I
started pulling images from the mass media,
mostly from the Web. I mounted a show in
January 2004 of about eleven paintings, of
decontextualized figures pulled from news wires
and Web sites. e show was called ‘Riot,’ and
the theme was people in extreme emotional
states. It was all kinds of people – fighter pilots
and guardian angels; skinheads rioting. e
sources are forgotten; that’s part of the process.
“One of the paintings, kind of the centerpiece
for the show, was a picture of a guy in a beret
with a cross around his neck, and he’s throwing
a Molotov cocktail; he has a ponytail and he
looks like a hippie. And he’s really big; it’s a big
painting. So we made that the invitation card,
and we sent it out.
“Halfway through my show, I get this email
from an acquaintance. e subject line was the
name of a famous Magnum photographer, and
the content of the email was, ‘She’s coming to
my studio next week. Your card is on the wall. I
assume you asked her permission.’
“And I was like, ‘What are you talking about?’
He sent me the URL to Magnum, and I found
the original image that my fragment, which
I had found on some anarchist Web site, was
from. It was a 25 year-old photograph by Susan
Meiselas that was part of a famous book she had
done in 1981, called Nicaragua. I wrote back
saying, ‘I didn’t even know. How could I ask her
permission? I wouldn’t have asked her permission
anyway.’ I mean, implicit in that would be that
for every moment of my creative process, I
would have to be concerned with finding the
authors of these photographs, contacting them
for permission, and dealing with their attitudes
about permission.
“I didn’t contact her. A week after the show
came down, my gallery and I – we have images
on our Web sites – we each get a cease and
desist from Susan Meiselas’s lawyer saying that
this painting ‘Molotov’ is a derivative work
based on her copyrighted photograph, that I
had pirated the photograph, and that I had
to sign a retroactive licensing agreement that
would sign over all of my rights to the painting
to Susan Meiselas in accordance with Magnum
copyright derivative works formalities. And if
I wanted to show, sell, or reproduce the image
again, it wouldn’t just require a credit line
to her, it would require that I got her prior
written permission.
122
“I was completely flipped out. So I did two
things. I contacted a really good copyright
lawyer. And I went on to my discussion group
at Rhizome,
123
where only moments earlier we’d
been discussing the Grey Album and sampling
– this whole area of fair use remixing, licensing,
and being sued. ey were incensed on my
behalf. In the meantime, I went to my lawyer,
who was also incensed. He thought that this
was silly, that in terms of the four factors of
fair use, it could be argued either way, but the
main thing was I had used only a portion of the
original. Whether or not an artwork is available
commercially is not the whole issue. It’s also
creative. It’s commentary. is comes under fair
use. It didn’t in any way change the market value
of the original.
“So we wrote a very brief letter saying that I
was sorry; that I was not aware that I had chosen
her photograph; that I was not interested in
using seminal iconic famous photographs; that
I was interested in photographs that had been
lost. I suppose I was guilty of not recognizing
her photograph. But it was famous in 1981,
and I was little then. I wasn’t around during the
Sandinistas. I also mentioned that I was hurt
by being accused of copyright infringement
when in fact I had transformed the work, and
738148 Brennan.indd 22 11/16/05 9:38:46 AM
Brennan Center for Justice 23
that painting is all about quoting, referencing,
copying. And I have my precedents in the
contemporary art world, painters who use
photography. So we I said I would not sign the
form giving her rights to my work, because I
have something to protect as well.
124
And in
fact, that’s when I began to get mad, instead of
feeling like maybe I’d done something wrong.
We sent out this letter, and discussion is still
raging on Rhizome.
“A few days later I get a 12-page very
aggressive response from the lawyer saying that
instead of waiving their licensing fee, now I
have to pay $2,000. And that there was all this
caselaw, as though she’d cut and pasted from
Copyright 101. It didn’t make any sense, and I
didn’t think it related to what I had done. But
it was incredibly intimidating and my lawyer
agreed. He was surprised that we got that kind
of response because our letter was very polite
and reasonable, and it was an apology.
125
“Now I believe that the whole thing was just
a scare tactic to get me to take the stuff off the
Web. And it worked. I called my lawyer and said
I was taking my images off the Web site because
I didn’t want them to go to my Internet provider.
I didn’t want my Web site pulled. is is what
I was really afraid of, because I use that site to
send images to galleries, to writers, to critics.
“But here’s the punch line. Seconds before I
took the images off, people on Rhizome grabbed
my images in solidarity. ey uploaded my pages
to their Web sites; then one of these artists takes
my painting and flips it. He puts it up on his site,
and now it’s a derivative work based on my work.
And everyone started making digital collage
based on the Molotov image. It all turned into
protest art. For the next five months, this image
went global. So there are a couple of morals to
this story. e idea that you can control what’s
going on right now in the digital realm with the
older paradigm of copyright control is gone.
e ideas of the new technology are part of our
culture whether or not we’re aware of it.”
126
At the end of this story, Talbot remarked: “It
seems to me you’ve created a wonderful situation,
because I can only imagine her trying to pay her
lawyer to send the same kind of letters to those
thousands of people. She could never have done
it. So you took it out of your personal role and
made it a worldwide thing, and you’ve covered
your behind.”
Garnett replied, “Well, they did it for me. It
was nice. But it was not about me. It was about
the issue.”
Publishing is another area fraught with
difficulty for these scholars and artists. Frima
Fox Hofrichter, an author of art books, said that
when she has needed images, she has always
sought permission, unless the publisher took
care of it. Years ago, when she was writing about
a then little-known 17th century artist, Judith
Leyster, two collectors denied permission to
reproduce specific works, “and I did not use
them,” even though “other art historians said I
could have used them.”
What made her decide not to?
“Because I asked. And I thought once I asked,
then I was obligated to follow what they said,
which is why people don’t want to ask.”
127
To this, Talbot replied: “One of my reasons
for not asking is that I sell little collages for $400,
which may have 30 images in them. I don’t make
time to go asking questions for something which
sells for $400. Sometimes I get only $200. If I’m
Joy Garnett, “Molotov”
738148 Brennan.indd 23 11/16/05 9:38:46 AM
24 Will Fair Use Survive?
going to start writing letters for a $200 item, I’m
out of business.”
Alysa Cardone described a similar dilemma in
teaching. “I teach Web design, both on the high
school and college level. I get a lot of projects
that are what I would call fan sites. One of my
groups right now is doing an animé site. How
can they put together a Web site without using
somebody else’s images? It’s all about animé.
ese are the issues that, as a teacher, I get very
confused about. I got really worried, because the
younger they are, the less they understand about
stealing from the Web.”
Cardone surfed the Web for guidance. “I started
searching in Google, and I found a consortium
on digital rights at the University of Texas Web
site.
128
I took what I thought would work for
them, that they could understand. I condensed
it, and put it at the end of my syllabus. I made
them read it out loud the first day of class.
“And of course, as the semester goes on, I
have an animé site. I have an e-commerce site
that’s using brand images, because how do you
teach e-commerce marketing without them?
ey can’t invent new products. I mean, we
only have 15 weeks. So I bent the guidelines
a little, but it’s staying in the classroom right
now.
“But my school is going to put up some of
these on their Web site, to entice people into
our new Web design program. And I’m really
confused because what if they put up this great
site, and it’s all re-purposed content that they
had no permission to use? Is my school going to
be liable for this?
“Another big area of concern is grants. I’m
a recipient of a grant, and we’re photographing
and creating an oral history for this community
in the Bronx, Mott Haven. e legal counsel at
my school is way more concerned about human
subject survey information and photo releases.
But I have to make an online gallery out of this.
What happens when I put all these pictures on the
Web, and anybody can download them? at’s
a concern because I’m having these people that
I’m photographing sign all these documents, and
I have no control once I put that stuff up, what
happens to it. We could invest in watermarking
technology, but we have no extra money.”
Cardone also talked about classroom use.
“I do photocopy tutorials and use them in my
classes. At one point, I only used stuff that was
available in the public library, so that they could
go and research the book themselves. But then
I stopped doing that, because when I’m dealing
with new releases of software, they’re not in the
library yet. And I need the latest tutorials. I can’t
force them to buy all these books. ey have
no money. I teach in the South Bronx. ey
don’t even have cameras when they take my
photography class. So sometimes, in the cause
of educating people who have no money, I do
copy material.”
She doesn’t think that such copying would
qualify as fair use, because “my photocopy
center won’t do it out of the book. I have to
make a flat copy on paper because they think it’s
an infringement if they copy out of the book. So
I know that it’s probably not fair use, but in the
interest of education – and I’m not making any
money; I’m just trying to help them.”
129
Does she hold students strictly to the guide-
lines? “Well, I started to think about that, because
I really like their site, and I want to put it up as
an example of what you can do as a class. ey
took a Twinkie, for example, and they outlined
it, and put the little animé character sitting on a
Twinkie. Twinkie’s a registered trademark. But if
you look on the Web, fan sites are like that. is
is a very typical fan site and this is the kind of
thing that my students want to create. And in
my opinion, the more interested they are in the
subject matter, the more they’re going to engage
in it, and the more they’re going to learn.”
“...sometimes, in the cause
of educating people who
have no money, I do copy
material.”
738148 Brennan.indd 24 11/16/05 9:38:46 AM
Brennan Center for Justice 25
Talbot commented: “Here’s the headline:
Hostess sues penniless Bronx student.”
Another participant exclaimed: “Well, it’s
parody. I mean, really!”
Cardone added: “Where we work influences
how we deal with this. When I worked in
private publishing, it was totally not appropriate
ever to use an image in the wrong way. In
education, it’s a little different. You don’t want
to give people the idea that it’s okay to trace
and collage for money. But if I’m not making
money, then it’s probably okay as long as I cite
or I use things appropriately. I don’t know.
How does everybody else feel about this?”
From the other side of the copyright divide,
Barbara Levy described seeing images very
similar to ones she had created, of a sunrise
over Great South Bay in Long Island. “And I
was shocked – I thought, did he just move the
camera a little bit to the left, a little to the right,
did he crop my thing and move the yellow
somewhere else? ere were six or seven images
that were almost identical to six or seven images
of mine. My immediate response was, oh I’m
paranoid. Two people can have the same idea
at the same time. But I didn’t like it.”
Eric Gray responded: “If somebody was to
use my image and credit me, I’d be like, ‘ank
you. No problem.’ If they were to not credit
me, then I’d start having a big problem because
I would like to be recognized for it. But in
photography, it’s hard to find a truly unique
image. Your example, I’ve seen that image
about a hundred times, I’m sorry to say. e
sun and the ocean, it is a universal thing.”
What about documentary photography,
which might include billboards or other objects
that display trademarked logos as part of the
scene? Gray thought that “if it’s in the public
forum, it’s fair to have a picture taken of it” – at
least, as long as it is not the main subject of the
photo. Cardone gave an example: “My student
took a picture of the building on 42nd Street
with all the clocks and different time zones, and
an MTA bus going past it, blurry, and there
was an ad on the side of the bus that said, ‘e
first time.’ It was a really profound picture. It
had the speed of the traffic, the ad with that
statement, and then this building which is very
recognizable. But if she wanted to exhibit that,
I don’t know how easy that would be. It is not a
picture of the ad. It’s a statement about time in
the city.”
Sandra Camomile said: “I also teach
students in a digital world, and I feel I have a
responsibility to give them information on how
to protect themselves, and possibly companies
that they are going to work for. So this is what
I tell them. If they’re going to take images from
the Internet and use somebody else’s work, they
have to manipulate the image enough that the
artist will not be able to recognize that image
as their own. I have them show me the original,
and I look at what they’ve done. And there have
to be significant changes before I would say,
‘yeah I think you’d be okay.’ I don’t know this
for certain, though.
“I’ve heard percentages, like it needs to be
changed 75%. I’ve heard 80%, 90%, 95%. I’ve
looked for information. It seems to be a moving
target. So I give them the advice that if the artist
can’t recognize the work, then you’re going to be
okay. Otherwise, you could put your company
into bankruptcy. You could put yourself into
bankruptcy with legal fees. And I tell them that
right now copyright and fair use are uncertain.
And you don’t want to become the test case.”
130
Tony White has also been educating
himself about copyright law, “but what I find
discouraging is, the more you learn about
copyright and fair use, the more of a chilling
effect it has on your creative expression. Greater
education about this topic, for artists, seems to
have a chilling effect.”
e meeting ended with a word of caution
from Eve Sinaiko, publications director of
the College Art Association: “I heard around
this table a fair amount of misinformation
– not that anyone did this deliberately. But be
careful about asking each other for advice on
points of law.
“From CAA’s point of view, we are aware that
for both artists who create art and scholars who
write about it and study it, there are enormous
tensions and increasing difficulties in this
realm. Misunderstandings of the law, fear of
the law, excessively aggressive uses of the law,
or reluctance to assert the law on both sides are
738148 Brennan.indd 25 11/16/05 9:38:46 AM
26 Will Fair Use Survive?
causing problems for our communities. And
we as an organization are looking for ways to
improve that situation.”
Location One Gallery
We met with ten artists at Location One
Gallery on May 19, 2005. Carol Jacobsen is
a video artist and professor. Erika Block is
a playwright, theater director, and student
at New York University’s ITP (Interactive
Telecommunications Program). James Robinson
said: “I’m not sure if I’m an artist, but I work in
publishing and a lot of the work I’ve been doing
recently has been creative ways of publishing
text.” Nayda Collazo-Llorens works in various
media and is an artist in residence at Location
One. Heather Wagner and Sebastien Sanz de
Santamaria are also artists at Location One;
Sanz de Santamaria is part of the arts collective,
Flux Factory. Ursula Endlicher works with
new media and the Internet. Clay Shirky is a
writer and Web publisher who teaches at ITP.
Jamie Allen is a sound artist and musician. One
participant, a recent ITP graduate, asked to
remain anonymous.
e most striking aspect of this focus group
was that the artists were able to invoke fair use
more readily than the authors and filmmakers
in our previous discussions. As Shirky said,
“we swim in a remix culture,” where seeking
permission for every item that goes into the
mix is neither practical nor logical. Jamie
Allen likewise doesn’t think of copyright “as a
necessary aspect of art”; “I don’t think of ideas
that I produce as being mine per se.” Our
anonymous participant said that she applies
markedly different standards to her use of sound
samples, “which I freely appropriate as an artist,”
and to copying in her day job, where “I have to
watch that stuff diligently for a media company
and it’s like everything has to be approved and
did we pay for it?”
Carol Jacobsen added that “artists
traditionally, and contemporary artists especially,
are appropriating; and a lot of us do see our ideas
as contagious, and want them to be contagious.
So we’re not as concerned” about copyright.
But as a teacher, she recognizes “a concern on
campuses today about academic integrity –
cheating and copying and those kinds of issues.
“And I’m realizing ‘Gee, in the art world we kind
of appropriate everything.’
“In class, we talk about the fact that if it’s
in the public domain, and if it’s commercial
or news, maybe it’s more accessible and okay
– especially if it’s short clips. But I do urge
students to think about it, especially if they’re
borrowing from an artist or an independent
source. I should probably have a lawyer come
to every video class I teach to talk about some of
these issues. I do talk about the fact that if we’re
showing their videos on campus, there should be
no problem. But if they send their videos with
appropriated material to a film festival, they may
have a problem.
“I know the university is concerned about
copyright issues. We can’t make course packs
without sending for permission for every article,
and so many professors I know run to the copy
machine and make copies themselves, or to the
few little shops that don’t require copyright. I
have sought permission from Art in America and
different magazines, and they charge and arm
and a leg, even for articles that I wrote!”
Clay Shirky was particularly incensed
about the educational use issue. “NYU has
a phenomenally restrictive fair use policy,
occasioned, I believe, by our proximity to the
major media outlets – we’re such a high visibility
target in the town where all seven major media
companies are headquartered. If you’re looking
for somebody to sue, we’d be on your list.
“It certainly has not been as restrictive in other
places that I’ve taught. NYU’s policy is that it’s
fair use is if a student is in your office and you
think of something they should read and you
take a book off the shelf and take it down the hall
– anything more premeditated than that must go
through copyright clearance. ey make no real
distinction between large and small extractions of
information. NYU’s position is that we’re going
to artificially create a safe harbor by creating this
“we swim in a remix culture”
738148 Brennan.indd 26 11/16/05 9:38:47 AM
Brennan Center for Justice 27
phenomenally limited circumscription around
what the professor is allowed to do. And that
is mainly a way to force upon the professor the
risk of fair use. Most professors don’t actually
abide by that policy, because it gets in our way
of dealing with our students. What it means is if
I’m ever sued, NYU won’t lift a finger.”
131
Ursula Endlicher uses the Internet for all
aspects of her work, both gallery installations and
online art. One recent project dealt with spam:
“I pulled in a lot of text and names [from spam
emails] – all the information I’d gathered over
the years – and I displayed it in an interactive
piece. As you enter a room, you have what I call
an identity ticker – it assigns the names of people
who have sent me spam. Who are they? ey’re
probably not people; they’re probably computer-
generated programs. I use the text that was in
the body of the email. It gets randomly triggered
by a user who comes in.” She did not question
the legality of the project, because, she says, of
the “weirdness” of spam.
Heather Wagner created a project using
Internet icons and images. “For a while, I was
grabbing the little icons that are on Google
news every day. Under each heading there’s
a different icon – U.S. news, sports news,
international. So every day I was grabbing them
and making a little collage of what was the top
news. It didn’t occur to me that if I ever printed
it or showed it someplace, I would need to get
anyone’s permission. It’s just stuff that’s out there
– a picture of Bush, or the Pope or something.
Whereas if it were by a person who created the
image with some artistic intention, I wouldn’t
think I could just grab it.”
In an installation piece, Wagner used the text
of the Samuel Beckett monologue, Not I. She
thought about seeking permission, but was told
that the Beckett estate is “notoriously bad. Don’t
even try.” e estate requires scrupulous adher-
ence to Beckett’s stage directions, even down to
“the measurements of how far upstage the ac-
tors can be.” In Wagner’s version, there were no
actors at all: “I had a computer voice read the
play, and then had it trigger visual things.” Al-
though Wagner thought her appropriation was
probably illegal, there is certainly an argument
that the fair-use factors would favor her trans-
formative use of this iconic 20th century text.
Erika Block has had experience in theater,
and describes her knowledge of fair use as “sort
of old school – how many minutes of music can
you use without getting rights?” She said that
she has “freely used music, sounds, and verses in
production,” adding: “I’m religious about giving
attribution; and I figure that working for a little
nonprofit, where 3,000 people are going to see
the show, is really different from a commercial
project with larger audiences.”
She has also used samples in digital artwork.
A current project called “Dirty Little Stories”
is a digital montage, adapted from a theater
piece, using clips of dialog from classic film
noir. “For the theater production, we basically
rented VCR tapes and created digital recordings.
I integrated the clips with original photos into
an interactive montage.” She is aware of the
copyright implications, but doesn’t know the
answers. “Some of them are really quick clips;
some of them are longer. Is it two minutes for
music fair use? ere’s some number. I can’t even
remember it. Do you know the answer? I have
to decide if it’s worth using that material before
I go further with distributing this work. I think
I would probably use it and give attribution.”
James Robinson’s recent project, “e
Quotomatic,” calls upon a digital archive
of quotations using a supermarket bar code
scanner. “Instead of quoting a price for an
object, it gives you a quotation. It recognizes
what the object is, like a can of corn, and then
it’ll search Bartleby.com, which is an online
archive of 80,000 quotations. It looks for a
quote that is relevant to a can of corn. en
prints it out on a mailing label.
“I’m sure a lot of the work in the archive is
copyrighted, but I’m not concerned with that.
I’m not even really concerned with fair use.
at’s changed a bit since I came to ITP, where
I had artistic license. Having worked in the
publishing world, I’ve come to the conclusion
that copyright is a political tool. Once you get
into the legal game, it’s over.”
Robinson elaborated by describing his
involvement with BaseballLibrary.com, an
online archive of baseball history. “We had a
feature that we were doing for CBS Sports Line
called ‘Believe It or Else.’ We received a cease
and desist letter from the ‘Ripley’s Believe It
738148 Brennan.indd 27 11/16/05 9:38:47 AM
28 Will Fair Use Survive?
or Not’ people. So we took it down, although
CBS wanted to stand up to them. at sort of
dispute, to me, is the big boys’ play. It’s like, ‘can
we get two million or, you know, three hundred
grand?’ Because you’ve got to pay the lawyers.”
Another issue that arose is copying for
informational purposes. Nayda Collazo-Llorens
has published text on her own Web site “that
has been written either about my work or shows
I’ve been in. And I’ve always mentioned where
it’s taken from. ese are essays relevant to my
work. My Web site is a documentation of my
projects, so whenever there’s text in a catalog or
a review from a newspaper, be it about my work
or about the shows I’ve been in, I’ve included
those. I’m assuming that’s fine. But truly, I have
no idea, and I haven’t cared enough to find out.”
Likewise, Sebastien Sanz de Santamaria said that
his Flux Factory collective posts reviews on its
Web site: “When I uploaded an entire article
from the New York Times, I just thought, ‘I hope
I’m not doing something wrong.’ I would think
that, as we are the subject of the reviews, it would
be accepted.”
How do they feel when somebody else copies
their work? Clay Shirky uses Creative Commons
licenses, but he tries to stop outright plagiarism.
“One time, some guy from Singapore stole a
bunch of my articles. It wasn’t fair use, because it
was the whole article. I went directly to the guy.
And that was enough – it disappeared, because
it was embarrassing to him. He was doing it
to increase his credibility, not to derive money
from it. And so if his credibility was damaged by
being discovered, that was enough of a remedy.”
Heather Wagner mentioned a bandmate who
was reluctant to post digital clips of the band’s
music for fear that it might be stolen. “To me,
that’s literally insane. If they do, if they post it to
a P2P site, then as Clay says, if someone wants
to make us famous by just grabbing our clips
and putting them someplace else, that’s great.”
“... if someone wants to make
us famous by just grabbing
our clips and putting them
someplace else, that’s great.”
738148 Brennan.indd 28 11/16/05 9:38:47 AM
Brennan Center for Justice 29
T
he Chilling Effects Clearinghouse began
in 2002 when Wendy Seltzer, a fellow
at the Berkman Center for Internet &
Society, realized that the Internet’s vast potential
for people “to express their views, parody
politicians, celebrate their favorite movie stars,
or criticize businesses”
132
was being threatened
by the widespread practice of sending cease and
desist letters, or take-down notices under the
Digital Millennium Copyright Act (the DMCA).
ese letters usually demanded the suppression
of material that the senders claimed violated their
IP rights. Many of these letters were not legally
justified, but were nonetheless effective against
non-lawyers and non-commercial sites. Seltzer
and other cyber-activists began ChillingEffects.
org in order “to document the chill” by collecting
examples of cease and desist and take-down
letters, and linking them to FAQs “that explain
the allegations in plain English.”
133
e more than 1,000 letters that have
been deposited with Chilling Effects provide
information about what kinds of copyright or
trademark infringement claims are made, the
number of those claims that are legally weak or
even frivolous, and the number that target Web
pages or newsgroup postings which might be
considered fair use or have a First Amendment
defense. Following up on the information in the
Clearinghouse can both amplify these findings
and tell us how often cease and desist or take-
down letters have a chilling effect, how often
they are resisted, and what factors contribute to
the different outcomes.
e first part of our study analyzed the letters
on the Chilling Effects site for one full year,
2004. Of the 332 letters in the database for
that year,
134
320 related to IP issues. e other
12, which we eliminated from our analysis,
concerned defamation or child pornography.
Eighty-two percent, or 263 of the letters in
the sample of 320, were DMCA take-down
notices received by ISPs. e remaining 18%
were cease and desist letters sent directly by
copyright or trademark owners to individuals
or organizations. Many of the letters contained
multiple allegations – for example, copyright
infringement, trademark infringement, unfair
competition, violation of trade secrets, improper
use of a Web address or domain name.
Google contributed the great majority of the
2004 take-down notices (245). As a journalist
recounts, Google became concerned that take-
down notices from the Church of Scientology
regarding an anti-Scientology site called
“Operation Clambake”
135
were depriving Web
surfers of information critical of the religion.
e company “‘realized that didn’t serve its
public very well, but they were looking for
something to help minimize their legal risk,
and Chilling Effects was there to help.’”
136
Google decided to forward the take-down
notices to Chilling Effects while removing the
listings from its index in accordance with the
DMCA, and, in their place, inserting a link to
the notice on the Chilling Effects site.
Most of the take-down letters to Google
concerned search-result links to Web sites,
newsgroups, or blogs. e leading sender in
this category was Star’s Edge International, a
psychological improvement and “planetary
enlightenment” organization that offers a
self-discovery course called Avatar.
137
Star’s
Edge sent 32 take-down letters to Google in
2004, complaining that Avatar’s copyrighted
lectures and course materials were posted by
participants in such online discussion groups as
“alt.clearing.avatar,” “nl.scientology,” and “alt.
religion.scientology.”
CHAPTER 3
e “Curse of Avatar” and Other
Controversies from the Chilling
Effects Clearinghouse
738148 Brennan.indd 29 11/16/05 9:38:47 AM
30 Will Fair Use Survive?
e American Pool Players Association sent
the second largest number of letters to Google
in 2004 – a total of 20. ese letters demanded
the removal from discussion group postings
of pages from the Association’s manual. ey
did not indicate how much of the manual
was reproduced, whether it was more than
uncopyrightable formulas and instructions,
138
or to what extent the postings also contained
criticism or commentary that would strengthen
a fair use defense. But they did refer to subject
lines in the postings such as “Bud Light
Pool League” and “Re Bud-Lite Handicaps,”
which suggest that commentary probably did
accompany some of the quotes from the manual.
Other subject lines such as “Pool and Billiards
Frequently Asked Questions” could indicate
copying without commentary.
MIR Internet Marketing, which sells Web
optimization products, was the third most
frequent sender of take-down notices in
2004, with a total of 15. MIR claimed that
it owned the copyright in phrases used on
competitors’ Web sites, and demanded that
Google remove links to those sites when
these phrases were typed into a search query.
In one instance, the words MIR claimed to
own were: “improve your brand visibility, find
new customers, or improve.” In other letters,
MIR said it owned the phrases “naturally
attract visitors by winning top ranking on the
major search engines” and “not a process of
manipulation.”
139
Google complied with the
demands, and posted in place of the excised
links: “In response to a complaint we received
under the Digital Millennium Copyright Act,
we have removed 1 result(s) from this page. If
you wish, you may read the DMCA complaint
for these removed results.” ere followed a
link to the ChillingEffects site.
e multiple take-down notices from Star’s
Edge, MIR, and the Pool Players Association
illustrate the repetitive nature of many copyright
or trademark conflicts. ey show the persistence
of some owners in trying to squelch what
they perceive as infringement, and the equal
persistence of Web publishers and discussion
group contributors in quoting copyright-
protected material.
Analysis of the 2004
Letters in the Chilling
Effects Clearinghouse
We divided the 2004 letters into five
categories: (1) those that seemed to state
legitimate claims for copyright or trademark
infringement; (2) those that, by contrast, seemed
to state weak claims; (3) those that targeted
expression with a strong claim to fair use, or
an analogous First Amendment defense under
trademark law; (4) those targeting speech with
less strong, but still reasonable claims to a fair use
or First Amendment defense; and (5) those with
possible fair use or First Amendment protection,
but where we couldn’t make a judgment without
more information.
For each letter, we used Google to search for
the material that was targeted in order to amplify
our judgment about the legal strength of the IP
owners’ claim and the likelihood of a fair use or
First Amendment defense. In many cases, the
targeted material was no longer accessible, but
sometimes we were able to gather additional
information from telephone interviews or
responses to our online survey.
In making our judgments, we adhered to the
legal precedents. Of course, this is no simple
task: the four fair use factors in copyright law
are broad and general, and trademark law is
also full of ambiguities. Nevertheless, there were
clear differences among the materials targeted by
the 320 letters. One major criterion was whether
the material involved commentary, criticism, or
other transformative use of the copyright or
trademark-protected work. e other examples
given in the fair use law itself – scholarship,
research, news reporting, and classroom use
– were equally important, but less frequently
encountered in our 320-letter sample. We
also considered how much of the IP-protected
material was copied or quoted, and whether the
use was commercial and likely to compete with
the market for the original.
e ultimate legal result in any of these
controversies, had they gone to court, would
have turned on a much more detailed set of
facts than we could assemble in evaluating
738148 Brennan.indd 30 11/16/05 9:38:47 AM
Brennan Center for Justice 31
320 separate cease and desist and take-down
letters. Our judgments are not definitive legal
predictions. But in many situations, a simple
look at the material in question gives a good
sense of the likely strength of an IP claim or a
fair use defense.
In the first of our five categories, legitimate
copyright or trademark claims, we placed
many letters complaining about copying by
commercial competitors. ese seemingly
legitimate claims ranged from a complaint by
the Bhaktivedanta Book Trust that another site
was displaying its artwork without permission
to Ovulation-Calendar.com’s protest that a
competing manufacturer had copied its “texts,
descriptions, interfaces, images, and computer
codes.”
140
Other apparently legitimate claims
involved texts describing architectural designs,
National Health Scotland’s “ReadySteadyBaby”
Web site, PaddleAsia Company’s description of
its birdwatching tours,
poetry texts used on
posters, and Web links
to unauthorized copies
of photographs owned
by the Brazilian version
of Playboy magazine.
141
We also categorized
as legitimate all but one
complaint about dis-
tribution or sharing of
copyrighted music, mov-
ies, or software.
142
Of
our 320-letter sample, 23
targeted file-sharing and another 14 concerned
circumvention of software locks. Some might
question our judgment as too conservative be-
cause nonprofit copying for private enjoyment is
fair use in some circumstances. But we assumed
that most of the file-sharing was large-scale and
as such, not fair use under the Supreme Court’s
2005 decision in the Grokster case.
143
Finally, we placed ten of the 32 Star’s Edge
letters in the “legitimate claims” category. Judging
by their subject lines – for example, “Here it is!
e Avatar Course for FREE!” – the postings
targeted by these ten letters likely consisted
of full texts of copyrighted course materials.
Arguably, even full-text postings could be fair
use in the context of a critical discussion group,
but we doubt that the legal precedents would
support such a claim.
144
Weak trademark and copyright claims,
our second category, commonly involved
assertions of control over nondistinctive
phrases, or situations in which there was little
likelihood of confusion.
145
We put 37 cease
and desist or take-down letters in this category.
Examples included the use of common terms
like “penisimprovement” or “Pet Friendly” in
a way that would not likely cause consumer
confusion.
146
Where we found weak claims, we
did not go on to analyze whether the targeted
words or images might also qualify for a fair use
or First Amendment defense. Indeed, a fair use
defense only arises after an owner has stated a
legitimate copyright or trademark claim.
Our third category consisted of letters target-
ing speech that we thought had a strong fair use
or First Amendment defense. Examples included
a parody of the New York
Times’s online corrections
page; a site mocking
American Express called
“American Expressway”;
and an “Internet Infidels”
site containing parodies
of pro-Creationism car-
toons.
147
We found 17
letters in this category,
including four of the
32 sent by Star’s Edge;
among the subject lines
of the targeted discussion
group postings in those four cases were “Look
Who Is Talking,” “Harry Palmer the NUT or the
CLONE of Hubbard,” and “e Curse of Avatar:
Harry Shows His True Sleezy Colors” (sic) (refer-
ring to Harry Palmer, Avatar’s founder).
148
Our fourth category – a reasonable but
not strong claim to fair use or analogous First
Amendment protection – consisted of 13 items.
Examples included two fan sites and an image
of “e Wild Christmas Reindeer” that seemed
small enough to qualify as a fair-use “thumbnail”
reproduction.
149
Finally, we placed 86 items in the category
of “possible claim to fair use, but not enough
information to tell.” is category included
a site offering a “recognizable portion” of the
Tracey ompson at Pet Friendly Travel, “Cyrus”
738148 Brennan.indd 31 11/16/05 9:38:49 AM
32 Will Fair Use Survive?
“Paris Hilton Sex Tape”
150
(how much was
copied would be relevant in determining fair
use), a site containing recipes for Cuban dishes
(since it was taken down, we did not know
whether copyrighted text was copied along with
lists of ingredients, which are not protected),
151
and “harrypottergalleon.com” (we could not
find this site, and could not tell from the cease
and desist letter whether it was simply a fan site
using “Harry Potter” as part of its domain name
or whether it was capitalizing on the name by
selling mugs, T-shirts, and the like).
152
Also in the “need more information”
category were five take-down notices from
the proprietor of “www.royalty.nu,” a site
specializing in monarchies from Genghis Khan
to the British Royals. e site owner claimed
that his articles on King George III, “Bad Queen
Caroline,” “e Real Prince Dracula,” and other
aristocrats were reprinted on Google’s “alt.
gossip.royalty” discussion group.
153
Whether
the copying constituted fair use would depend,
among other things, on how much was taken
and whether it was transformed or enhanced
by surrounding commentary.
154
e group was
presumably nonprofit – an important factor,
but not in itself dispositive of Royalty.nu’s
copyright claim.
We categorized 18 of the Star’s Edge letters
as having a “possible claim to fair use – more
information needed,” since it appeared that at
least some of the material in the targeted mes-
sages consisted of criticism and commentary.
Typical of this category were postings with such
subject lines as “Harry Palmer talking about Feel
Its (clarified),”
155
as well as material from e
Source Code by Eldon Braun, a publication that
reproduced Avatar materials. In 2003, Palmer
and Star’s Edge had obtained a court injunc-
tion against Braun’s distribution of e Source
Code;
156
but the injunction only bound Braun
and his agents – not individuals participating in
discussion groups. Without more information
about how much was copied from e Source
Code and what commentary accompanied it,
we couldn’t judge whether these postings might
have qualified as fair use.
Our total of strong or reasonable fair use
or First Amendment defenses, combined with
material that probably did not amount to
copyright or trademark infringement in the
first place, was 67 items out of 320. us,
more than a fifth of the letters in our sample
threatened to chill expression that probably
did not violate IP laws. Another 86 letters – or
about 27% of the sample – targeted material
that was possibly fair use or First Amendment
protected, and thus might well have threatened
free expression. e total of letters with a likely
or possible chilling effect was thus 153 – almost
half of the sample.
Looking at the type of expression that
was potentially chilled, we found the biggest
category, with 48 letters out of 153, consisted
of commercial sites, many of them using
nondistinctive terms.
157
e two other big
categories were fandom or other sites relating
to pop culture or sports (33 letters) and sites
commenting on religious beliefs or spiritual
improvement groups (31 letters). ere were
12 targeted sites that we classified as artistic
expression, 20 that we categorized as political
speech, news, or commentary, and five that we
classified as scholarship, science, or health. (It
was impossible to classify the speech targeted by
the remaining four letters.)
Our next step was to try to determine the
outcome of the controversy in the 153 cases
where we thought free expression might be at
risk. Of the 17 instances where the targeted
expression had a strong claim to fair use or
First Amendment protection, we found that
five items were removed, 10 were not removed,
one was probably removed (we could no longer
find it, but we also did not find the usual
Google disclaimer), and one was partially
removed (the image in question was no longer
in the Google image gallery, but the Web page
still existed).
For the categories of reasonable and possible
fair use, we found that most of the material was
removed or partially removed (or, in one case,
the operator of the targeted Web site ended
up paying the writer of the demand letter a
licensing fee). For the 37 targeted items that
were likely not infringing in the first place, the
number of removals was 18, with two likely
removals and four partial removals; 10 items
were not removed.
158
738148 Brennan.indd 32 11/16/05 9:38:49 AM
Brennan Center for Justice 33
Examples of Weak IP Claims
e examples below illustrate the range of IP
claims that that we thought were weak, often
because the terms in dispute were not very
distinctive or because we saw little likelihood
of confusion. Of course, the outcome of each
case, had it gone to court, would have depended
on more detailed evidence. Nevertheless, the
examples are instructive. In many cases, they
show IP owners trying to monopolize the use of
common English words.
• In January 2004, Time Warner sent a letter to
Web Inceptions, Inc., which operated a site called
“PrivateLessons.Info.” Time Warner claimed
exclusive ownership of the trademark “Private
Lessons” and demanded that Web Inceptions
immediately cease all use of the term.
159
When
we searched for PrivateLessonsInfo, it was still
being operated by Web Inceptions, with a
headline stating that the domain name was for
sale.
160
• In December 2004, the dating site Match.
com sent a cease and desist letter to a company
that had registered the domain name “springfield
match.com.” A visit to the targeted site yielded a
page that read: “Coming Soon – Springfield
Match.com,” which by its romantic typeface
suggested that this would indeed be a dating
site, and that its creators were not deterred by
Match.com’s letter.
161
• In August 2004, ZC Investments, which does
business as the Canyon Ranch resort, demanded
that Taylor Canyon Ranch in Arizona stop using
the term “Canyon Ranch.”
162
Although there are
plenty of ranches with canyons in America, so
that the likelihood of confusion seems remote,
this demand was apparently successful – we
could not find a Web site for Taylor Canyon
Ranch in 2005.
• In July 2004, Scholastic, Inc. complained
that RedHouseBooks.com infringed its “Red
House” trademark. Scholastic contended that
since 1981, it had been using the term Red
House for its catalogs of books, posters, and
other products. It demanded a transfer of the
domain name, delivery, “for destruction,” of
all documents on which “RedHouseBooks.
com” appeared, and a detailed accounting of all
sales and revenues.
163
As of mid-2005, however,
RedHouseBooks.com was still active, selling
first editions by modern authors, “famous and
forgotten,” and out-of-print books on social
movements of the 1960s.
164
• In December 2004, “MassMutualSuks.
com” received a cease and desist letter from
MassMutual. Despite the letter’s threats of legal
action, MassMutualSuks.com was still online in
2005, although it was simply a placeholder.
165
• e Muzak company had more success with
a cease and desist letter to muzak.smoe.org, even
though the site had nothing to do with elevator
music. In response to the letter, muzak.smoe.org
changed its URL to www.smoe.org. e owner
explained: “if you’re wondering – yes, there is a
reason why we changed our series’ name. It has
to do with a certain concern which supplies el-
evator music to the masses, and a cease and de-
sist letter we received therefrom. Ain’t legalities
grand?”
166
• Finally, the Intel Corporation claimed that
a group called PROgressive INTELLigence
violated its trademark by using the term “PRO-
INTELL” on its Web site. Intel’s letter had
a conciliatory tone, and invited negotiations
over reasonable use of “Prointell.” e letter
explained that “we are … obligated by law to
protect our mark; otherwise we risk losing our
trademark rights.”
167
e PROgressiveINTEL-
Ligence site is still up, with a disclaimer that it
“is not sponsored by, affiliated with, or related to
Intel Corporation in any way.”
Examples of Strong or
Reasonable Fair Use Defenses
• In February 2004, Chick Publications, Inc.
wrote to a Web hosting company demanding
the removal of religious parodies from “www.
Time Warner claimed
exclusive ownership of the
trademark “Private Lessons”
738148 Brennan.indd 33 11/16/05 9:38:49 AM
34 Will Fair Use Survive?
howardhallis.com,” a comedy and comic-book
site.
168
After notification from the ISP, Hallis
deleted the parody artwork, and wrote ruefully:
“Taken down due to legal stuff. … Sorry folks.
Cthulhu destroys all that you love!” He added: “I
myself don’t agree with Chick’s fundamentalist
Christianity … e piece was done in fun, but
you got to realize that the laws can censor you.”
A reader responded:
i was very impressed by your “Cthulhu
Chick Tract” – i thought it was hilarious,
and a nice spoof on the original (which i
consider intellectually insulting).
i am sorry that you had to take the page
down. However, i am also surprised, as i
thought that “fair use” laws allowed the
modification of copyrighted material for
parody purposes.
169
We agreed with the reader. e religious
parodies would have had a strong fair use defense.
• An April 2004 letter to Google from AirTran
Airways demanded the removal of links to
pages on 2600.com: e Hacker Quarterly,
a site that critiqued AirTran’s poor safety
record. AirTran complained that 2600 had
reproduced its Web pages “in their entirely, or
in substantial, verbatim excerpts “
170
One page,
dated September 24, 1997 and headlined “So
We Killed a Few People, Big Deal,” contained a
parody press release that began:
ValuJet Airlines today changed its name to
AirTran Airlines and along with its merger
partner AirTran Airways introduced a
new business strategy designed to bring
dismemberment to a broader travel
audience. e airline said that its objective
is to make air travel more attractive
to business travelers and even more
convenient for suicidal maniacs.
171
Another page, headlined “Hacked,” repro-
duced an AirTran Web page and suggested that
ValuJet's merger with AirTran was intended
to distract public attention from a 1996 Valu-
Jet crash that killed 110 people.
172
ese pages
are still up. eir use of copyrighted and trade-
marked material created little likelihood of con-
fusion and had a strong claim to fair use.
• e operator of netfunny.com received a
letter from American Express in April 2004,
demanding that he stop using the terms
“American Expressway” and “Membership
Has Its Privileges” because they are “virtually
identical to our client’s American Express
mark” and are “likely to cause consumers to
be confused, mistaken, or deceived as to the
source of origin of your services.”
173
A visit to
netfunny.com shows that its American Express
parody is still posted, with a link to a site where
“you can read about an effort by American
Express to get this joke deleted.
”
On that page,
blogger Brad Templeton writes that he received
a “one of those bullying ‘cease and desist’
letters from American Express’s law firm,” and
proceeded to post another parody, this time of
Amex’s lawyers, concluding: “After all, Being
Giant and Intimidating has its Privileges. …
American Express Lawyers: Don’t leave your
home page without them.”
174
Contrary to Amex’s claim, there was little
likelihood of confusion here, and netfunny’s
First Amendment defense was a strong one.
• A February 2004 email from the Discovery
Channel to what was probably a fan site de-
manded the removal of a TV program’s logo, text,
and photographs. e email acknowledged that
“you are using the trademarks and photographs
to facilitate commentary about Discovery’s pro-
grams,” but explained: “if Discovery permits
Justin Hampton, Cover of Danger Mouse’s Grey Album
738148 Brennan.indd 34 11/16/05 9:38:50 AM
Brennan Center for Justice 35
your unauthorized use of its intellectual prop-
erty, Discovery may have trouble preventing
future egregious infringements by competitors
and persons intending to trade off the goodwill
of Discovery.”
175
We categorized this probable
fan site as having a reasonable fair use defense
because the copied material was accompanied
by commentary.
• Another fan site, for the TV show Caroline
in the City, included transcripts from the show’s
episodes, plot summaries, and fan fiction.
e operator received a cease and desist letter
from CBS-TV in January 2004, claiming
both copyright and trademark infringement.
Although the letter noted that “you may not
have been aware of the applicable laws,” and
said CBS was “quite happy to know” that
Caroline in the City had loyal fans, it threatened
legal action if the material was not removed.
e letter went on: “please understand that
it doesn’t bring us any pleasure to send legal
letters to our fans.”
176
We thought the site had a reasonable fair use
defense because its transcripts and summaries
were posted in the context of commentary,
were not for profit, and were more likely to
increase than interfere with the market for the
TV show.
177
However, the owner removed the
transcripts and fan fiction, explaining that she
had received a cease and desist letter. is resulted
in an outcry from fans, and a few months later, a
new owner re-posted summaries of episodes, but
not the transcripts. She wrote: “woo, I got rid of
that depressing letter Ann posted a few months
ago. And if you look closely on the left, you’re
in for a little surprise: e dearly missed section
is back!!” ere was also a disclaimer explaining
that the site is nonprofit and has no connection
with the producers of the show.
178
• Seven letters from Capitol Records/EMI in
February 2004 warned against any distribution
of DJ Danger Mouse’s Grey Album, a “mash-up”
using the rapper Jay Z’s then-recently released
Black Album mixed with songs such as “Julia,”
“Happiness is a Warm Gun,” and “Rocky
Raccoon” from the Beatles’s 1968 White Album.
Hundreds of Web sites had announced that
they would post the album on “Grey Tuesday,”
February 24, 2004, as a gesture of protest against
a copyright system that fails to acknowledge
the importance of mixing and sampling to
musical creation. e letters demanded not
only that e Grey Album not be distributed
but that recipients identify “any third parties”
who had supplied them with copies, provide
an accounting “of all units of e Grey Album
that have been distributed via your website,” and
“make payment to Capitol in an amount to be
discussed.”
179
Danger Mouse himself, Brian Burton,
had agreed to Capitol’s demands, and so did
some recipients of the threatening letters.
But DownhillBattle.org, coordinator of Grey
Tuesday, reported that “for 24 hours, over
170 sites made the album available in protest,
defying legal threats.”
180
To the letter from EMI
that Downhill Battle itself received, the group
responded that “your efforts to suppress music
stifle creativity and harm the public i nterest;
we will not be intimidated into backing down.
Downhill Battle has a fair-use right to post this
music under current copyright law and the
public has a fair-use right to hear it.”
181
e Electronic Frontier Foundation (EFF)
posted a legal memo that bolstered the protesters’
claim to a fair use defense. Distribution of e
Grey Album, EFF said, was for a noncommercial
purpose; downloads would not “substitute for
purchases of e White Album or other recordings
of the Lennon-McCartney songs on the album”;
e Grey Album was “a transformative use of e
White Album, not a wholesale copy”; and the
postings were intended as “a commentary on
the use of copyright law to stymie new kinds of
musical creativity.”
182
Although some copyright
experts might consider EFF’s analysis to be a
stretch for fair use, certainly e Grey Album was
a creative and transformative use of the Beatles’
material – a major factor in fair use cases.
Summary and Conclusions
e chart below summarizes the impact of
the 153 letters in the Chilling Effects database
for 2004 that either targeted material with a fair
use/First Amendment defense or that stated a
weak IP claim.
ese numbers indicate, not surprisingly,
that the stronger the claim to fair use or other
738148 Brennan.indd 35 11/16/05 9:38:51 AM
36 Will Fair Use Survive?
legitimate borrowing of protected material,
the more likely it was that the material would
not be removed from public circulation. But a
substantial amount of material was totally or
partially removed in the face of weak copyright
or trademark claims (24 out of 37 items). ese
removals were largely due to the strong pressure
placed on ISPs by DMCA take-down letters.
Response to cease and desist letters was more
variable, at least in the “strong fair use” category,
with more than half the group willing to stand
up to copyright owners’ threats and risk being
sued in order to continue posting their work.
Despite this resistance on the part of some
recipients, and despite the relative ease with
which content can be re-posted using a new ISP
after being blocked because of take-down notices,
the 2004 letters in the Chilling Effects database
resulted in significant suppression of criticism,
commentary, and other likely fair and legal uses
of copyright and trademark-protected work.
Although some people were intimidated by cease
and desist letters into relinquishing their rights,
the more consistent problem stemmed from the
take-down provisions of the DMCA. Copyright
owners may prefer the DMCA procedure
because ISPs are easy to find and are more likely
to respond with “expeditious” takedowns than
are individuals.
Particularly troubling was the frequency of
weak claims to exclusive control of common
words or trademarked phrases. Most of our 37
weak claims were in this category. Yet more than
half of the weak claims resulted in the suppression
of speech (including the elimination of valid Web
links). In some cases, the sender’s apparent goal
– to force search engines to direct traffic to its site
and away from competitors’ sites – succeeded.
On the other hand, more than half of the
2004 letters did seem to state valid claims for
copyright or trademark infringement. Many
concerned outright copying of large chunks
of material from others’ Web sites, often for
commercial purposes. In these cases, one might
argue that cease and desist, and even take-
down, letters are useful because they can stop
infringement without the expense of litigation.
Overall, the speech-suppressing effects of
cease and desist letters are probably even more
pronounced than our analysis suggests, because
those who deposited such letters with Chilling
Effects are likely to be a more knowledgeable
group than the average. Many of them have
access to Web resources and online community
support. eir level of resistance is therefore
likely to be higher and the chill somewhat less
than within the universe of letter recipients.
e 263 DMCA take-down letters for
2004 more closely represent a random sample,
since Google said it would send all the letters
it received to Chilling Effects. Twelve of the 17
items with a strong fair use or First Amendment
defense were targeted by take-down letters. At
least ten of these were criticism or commentary
sites or postings, which suggests that they may
have been targeted at least in part because the
IP owner did not like the message that they
were expressing. is aspect of the analysis
demonstrates the censorship power that the law
puts in the hands of IP owners.
Strong Fair Use/
First Amend-
ment
Reasonable
Fair Use/First
Amendment
Possible Fair
Use/Not Enough
Info
Weak Copyright
or Trademark
Claim
Acquiesced / Removed 5 0 59
183
18
Did Not Acquiesce/Remove 10
184
2 1 10
Likely Removed 1 2 12 2
Partially Removed 1 2 5 4
Undetermined 0 7
185
9 3
TOTALS 17 13 86 37
738148 Brennan.indd 36 11/16/05 9:38:51 AM
Brennan Center for Justice 37
A
t our request, Chilling Effects asked
those depositors who had left contact
information if they would participate
in telephone interviews. Seventeen people
responded, and from late 2004 through early
2005, we interviewed them in order to learn about
their knowledge of fair use, their reactions to the
cease and desist or take-down letters, the final
outcome of the controversies, and their feelings
about the experience. Although our interviewees
represent a small sample, their experiences
illustrate a range of free expression conflicts.
Twelve of them published commentary, news, or
other information – in five cases, critiquing the
individual or organization that complained of
infringement. ree others ran small businesses;
two ran fan sites.
Of the 17 controversies, seven involved
copyright; seven involved trademark (including
disputes over a domain name); and three involved
both. Ten of the interviewees were confronted
with cease and desist letters; four were subject to
DMCA take-down notices; two were the targets
of both; and one received an invoice for using “a
substantial amount” of an article.
Twelve were aware of fair use; five were not.
Of the 12 who knew about fair use, five had a
basically accurate understanding of the concept.
Six were partly accurate; only one was seriously
off the mark. He said: “If something is in the
public domain, you can use it as long as you don’t
profit from it. If it is privately owned, you need
to seek permission to use it for any purpose.”
186
irteen of our interviewees consulted
lawyers, but only six retained them. ree of the
lawyers worked pro bono; another was paid by
a trade organization; and one managed to win
the case for the modest fee of $1,000. Of those
who did not retain lawyers, the most common
reason, not surprisingly, was cost – not only
legal fees, but the possibility of having to pay a
judgment if they lost the case. Other significant
considerations, cited by seven interviewees, were
fear, intimidation, and the emotional cost of
defying an IP owner.
We thought that seven of the cease and desist
or take-down letters stated weak copyright or
trademark claims. In another five cases, there
were strong or at least reasonable fair use or First
Amendment defenses. Another four interviewees
had possible arguments against the claims in the
letters. Only one clearly had a losing case.
But despite the overall weakness of the claims
made in the letters, five recipients acquiesced.
(All of them felt that had they chosen to fight,
or been able to afford an attorney, they would
have had a better outcome.) One lost his case;
one settled; and two had their posting or link
removed by an ISP. Two others who were targets
of take-down letters removed the challenged
material temporarily, and later were able to
reinstate it. In total, nine of the 17 had their
material suppressed, even though 12 of them had
a strong or reasonable defense, or received letters
with dubious IP claims. Although the sample
is too small and self-selected to be scientific,
it shows a substantial chilling effect from both
cease and desist and take-down letters.
Weak Copyright or
Trademark Claims
187
Protecting the Voice
e Cape Cod Voice, a fortnightly regional
journal, received a cease and desist letter in June
2002 from New York City’s Village Voice, asserting
both trademark infringement and dilution. e
letter concluded: “We hope to resolve this matter
amicably … Our previous experience with the
Bloomington Voice, Dayton Voice and Tacoma
Voice newspapers – each of which successfully
changed its name after our client raised trademark
infringement concerns with them – indicates that
we can accomplish this goal.”
188
CHAPTER 4
Parodies, Critiques, and “Pet Friendly”
Web Sites: e Telephone Interviews
738148 Brennan.indd 37 11/16/05 9:38:51 AM
38 Will Fair Use Survive?
Dan Hamilton, managing editor of the Cape
Cod Voice, told us that at first the staff did not
think the demand was serious. ey did a Google
search that yielded more than a million Web sites
with “Voice” in their names. ey then hired a
Boston law firm, courtesy of their membership
in the New England Press Association. One of
the attorneys wrote a reply to the demand letter,
pointing out that there was little likelihood of
confusion since “my client modifies its use of the
word ‘voice’ with the geographic modifier, ‘Cape
Cod.’” en she asked: “Is it your position that
no other publication may use the word ‘voice’
in its title? is would seem to be quite a reach,
given that a Google keyword search … takes just
0.16 seconds to bring up 1,150,000 instances in
which the words ‘voice’ and ‘newspaper’ appear
together.”
189
A phone conversation between Seth Rolbein
of e Cape Cod Voice and Greg Goff of e
Village Voice followed. Rolbein recounted its
substance in a memo (later published on e
Cape Cod Voice’s Web site). First, Goff offered
to pay the costs involved in a name change,
including new business cards. When asked
why e Village Voice was bothering to pursue
this, he explained: “If we let one go, it makes it
impossible to pursue the next one. So we feel we
need to be overprotective.” But, Rolbein asked,
is e Village Voice pursuing “every one of the
hundreds of ‘Voices’ out there?”
“We make a distinction among the products
we’re aware of that use the word ‘Voice,’” Goff
explained. “e ones we don’t pursue are either
international, or are dedicated to a cause or ethnic
orientation. But ones that are geographic, which
we feel are easily confused with our publication,
we pursue.”
“How about, for example, e Houston Voice?”
Rolbein asked.
“Houston is oriented to a gay population,”
Goff said. “So that’s kind of on the line.”
190
More correspondence followed. Rolbein
pointed out that “there is no confusion between,
say, e Boston Herald and e Miami Herald,
e Washington Post and e New York Post.”
Eventually, e Village Voice abandoned the
field. e Cape Cod Voice then published a series
of articles exploring trademark law. In one of
them, Hamilton noted “the new corporate
tendency to fire off a scattershot of nasty letters
to anyone who, in their opinion, poses even a
vague threat to their trademarks.”
191
He told us
he was “astonished at how easy it is for a large
corporation to make an absurd claim about a
common English term.”
Pet Friendly
Another questionable cease and desist letter
came in 2002 from a pet product manufacturer,
Pet Friendly, Inc., which described itself as “the
exclusive supplier of rope chew toys to the largest
retailer in the world for over a decade.” e letter,
to Pet Friendly Travel,
192
asserted that its use of
the term “Pet Friendly” amounted to trademark
infringement because it “will cause the public to
mistakenly assume that your business activities
originate from, are sponsored by, or are in some
way associated with Pet Friendly, Inc. and its
valuable trademark rights.”
193
Like e Village Voice’s claim, this one
founders on the commonness of the words – a
search on Google yields www.petfriendly.ca (pet-
friendly Canadian vacation rentals) and www.
petfriendlytravel.com/Pages/states/georgia/
georgia.html, among others.
Tracey ompson, owner of Pet Friendly
Travel, told us that she was initially “freaked
out” by the letter – “crazed and scared.” After
she did some legal research, she “realized they
didn’t have a case,” and “it became almost
funny.” It was “still a pain,” however, because
she had to hire an attorney, and Pet Friendly,
Inc. began sending her invoices for $7,000 per
week for the unlicensed use of the name. On the
advice of her lawyer, she wrote back disputing
the invoices, but they persisted for about a
year, amounting, by mid-2003, to $336,000.
By this time, ompson said, many of the “Pet
Friendly” businesses that had received these
demands were in touch with each other, and
were ignoring the invoices.
194
Pet Friendly
Travel is still up and running.
Piggy Bank of America
A woman who makes ceramic piggy
banks under the domain name www.
piggybankofamerica.com received a cease
and desist letter from Bank of America’s legal
department in the fall of 2002.
195
“It appears that
738148 Brennan.indd 38 11/16/05 9:38:51 AM
Brennan Center for Justice 39
you have intentionally targeted Internet users
who are attempting to reach Bank of America’s
web site,” the letter began. “It is our opinion that
your registration and use of piggybankofamerica.
com is a violation of Bank of America’s service
mark rights and is misleading to the public.
… We demand that you and all other entities
associated with you immediately discontinue the
use of this domain name and that you promptly
transfer to us your registration for this domain
name and any others including a variation of
Bank of America to us.”
196
Our piggy bank maker
said she “panicked and felt
helpless” upon receiving the
letter. One lawyer told her that
it would cost $50,000 if she
wanted to contest the Bank’s
position. She had several
sleepless nights and “finally
felt like I should just give it up
and turn over my ownership to
Bank of America.” However,
she posted information about
her case on a message board
and was referred to Stanford
Law School’s Cyberlaw Clinic,
which agreed to represent her.
A clinic student wrote a
well-researched reply to Bank
of America, citing relevant case
law to show that there was no
likelihood of confusion between the small piggy
bank maker and the massive financial institution.
One cited case rejected the Hasbro Company’s
claim against Clue Computing based on Hasbro’s
trademark for the board game Clue.
197
Another
noted that an apple grower using the URL “apple.
com” probably does not infringe the trademark
of Apple Computer because “APPLE is also a
common noun, used by many companies, and the
goods offered … differ significantly.”
198
Bank of
America responded with an offer to drop its claim
if the piggy bank URL could be changed slightly
– to “piggybanksamerica.com,” for example. e
Stanford Clinic replied that “there is absolutely
no basis for your complaints against our client,”
and that she “will not incur the expense, hassle
or loss of sales entailed in moving her handmade
piggy bank business to another domain name.”
199
ere the matter rested.
Although this interviewee was able to keep
her domain name, she is “still distracted by the
notion that one day Bank of America is going to
sue.” She described her situation as “haunting”
and hopes that “there will be laws to protect small
businesses that go through such situations.”
An Info-Junkie
Ann Bradley, the founder of “eInfoworld.
com,” began her Web site to post information
about psychology, including a book that she
sold through the site. When
we visited eInfoworld in May
2005, it was mostly devoted
to the story of her battle with
the International Data Group,
or IDG, owner of Infoworld.
com, though it also contained
links on such subjects as
vegetarianism, narcissism, and
divorce.
In February 2000, Bradley
received a letter from IDG
claiming trademark and
domain name infringement
and demanding that she
“immediately” turn over her
registration of eInfoWorld.
com.
200
She wrote a lengthy
response that quoted a recent
article about “reverse domain
name hijacking” – “the
predatory practice of asserting a spurious claim
of trademark infringement in order to seize
a similar or identical registered address from
a legitimate domain holder.” She concluded
with a threat of her own: “if you want to play
Goliath to my David, I will do this the only way
I know how. I have put all this information and
more up on my website which has not yet been
released to the public.” She said she would post
the information, and publicize it in chatrooms
and other forums, “unless IDG Inc. drops this
frivolous action against me.”
201
is produced a conciliatory response. A
lawyer for IDG asked Bradley to call her so
that they could “hopefully resolve” the issue
“in an amicable manner that suits both our
needs.” Following further emails and phone
conversations, IDG said that it would not pursue
Piggybankofamerica.com,
Ceramic Piggy Bank
738148 Brennan.indd 39 11/16/05 9:38:52 AM
40 Will Fair Use Survive?
legal action as long as eInfoworld “is not used
to confuse, mislead or misinform any reader
of the source or content of the information on
the site,” and “there are no negative statements
about IDG or any of its subsidiary companies.”
Bradley complied with the first request, but
not the second. Her home page now reads:
“eInfoworld is about information. It begins with
the story of a domain name fight. IDG does not
own eInfoworld.com. Reverse domain hijacking
failed. See entire story on this site: taking on a
corporate law firm and winning. No lawyers.
You never know what you can do until you try.”
She added that IDG had recently published e
Dummies’ Guide to Domain Names (IDG owns
the “Dummies” series), and wondered “if they
use themselves as a case study.”
202
Star Wars
In 1997, Vermonter Steve Mount created
the personal Web site www.Tatooine.com. As
he explained, Tatooine is “the planet where
everything gets started” in the first film of the
Star Wars trilogy – “A harsh desert world with
twin suns, Tatooine is home to Jawas, Sand
People, banthas, krayt dragons, dewbacks,
rontos, human settlers, and the aliens, criminals,
and smugglers who populate the Mos Eisley
Spaceport.”
203
Mount did not intend a fan site,
but because he was planning to host a “Mos
Eisley Spaceport” bulletin board, he chose a
URL with a Star Wars theme.
e bulletin board, he told us, “wasn’t Star
Wars related – it was just a bunch of guys who
got online to chat once in a while. We did not
use any graphics or images from the movie.”
His “Tatooine” site tracked gasoline prices in
Vermont, published fiction, poetry, and family
photos, described episodes of various TV
programs, and hosted Web pages for the 1989
University of Vermont graduating class.
204
A cease and desist letter from LucasFilm,
owner of Star Wars, arrived in January 2000.
Although it referred, in boilerplate fashion, to
both copyright and trademark infringement, the
letter did not point to any copyrighted text or
images that Mount had appropriated, beyond
the single word Tatooine; it was therefore really
only a trademark claim. Failure to respond
within ten days, the letter said, “may result in
the initiation of legal proceedings.”
205
After receiving the letter, Mount told us, he
“contacted people visiting my bulletin board,”
and others on the Web, “to see if there was
any support for me keeping the site.” He also
generated publicity; but in the end decided
that “it was an expensive proposition to fight
this kind of a suit,” and he lacked the resources.
“ere was a lot of moral support. My arguments
were that I was protected under fair use since
it was not a commercial site and that the name
was derivative of place names and earth.” But “I
had to make arguments to LucasFilm and hope
they would say ‘oh yeah, you’re right,’ but they
weren’t buying it.”
Within a week, they came to an agreement,
whose terms, he says, are confidential, beyond
the fact that he handed over the domain name
and received “certain technical concessions”
– for example, “that hits to Tatooine.com, for
some period of time, would continue to come to
me.”
206
Mount said: “I think I could have
mounted a good defense if I had the wherewithal,
but it wasn’t worth it. Too bad LucasFilm didn’t
do anything with the URL; it just links to www.
starwars.com. It died an ignominious death – it
was sad and disappointing that nothing special
was done with www.tatooine.com.”
We think Mount would have had a
good chance of keeping “tatooine.com”
had this dispute gone to court. His site was
noncommercial and not likely to be confused
with an official Star Wars site, and he had
chosen the name in good faith.
207
An Unappreciated Baseball Fan
e former owner of a fan site devoted to
baseball player Manny Ramirez started the site
in the mid-1990s on his college server. It was,
he told us, the “first real fan site” where people
could support Ramirez and share messages. In
January 2002, he acquired www.mannyramirez.
com; he moved the content from his college
server to the new site in April 2002.
About a year later, he received a letter from
the athlete’s attorneys telling him to cease
his use of the domain name because it would
“cause the public to believe” that the site was
operated, sponsored, or authorized by Manny
Ramirez.
208
He consulted several attorneys, but
each required a substantial fee. Ultimately, he
738148 Brennan.indd 40 11/16/05 9:38:53 AM
Brennan Center for Justice 41
represented himself and settled with Ramirez’s
attorneys. He cannot disclose the terms, but
since he no longer operates the site, we can infer
that he relinquished the domain name. He says
that he gained “valuable knowledge that will
inform his decisions in this area in the future.”
When he first created the site, he “had no clue
about the legality, I just put it up as a fan,” and
“I didn’t know that I could be taken to court.”
He told us that the experience had “soured” him
on “superstars,” and called it “unfortunate when
lawyers need to get in the way,” since “at the end
of the day you are only trying to be a fan.”
e athlete’s claim of trademark infringe-
ment was not very strong because there was
unlikely to be confusion about sponsorship,
the fan site was apparently noncommercial,
and the URL was not registered in bad faith.
Decisions by UDRP panels have allowed simi-
lar or identical names to be used by fans unless
the site is simply a placeholder, there is a sub-
stantial likelihood of confusion, or the owner
is acting in bad faith.
209
Preserving Wildlife
In May 2004, Google received a take-down
letter alleging copyright infringement on a
site devoted to wild animal preservation. e
dispute was really about a contract for redesign
of the site. e designers, who claimed they
had not been paid for their work, evidently
thought that getting the site taken down
by asserting copyright in the design would
generate the desired payment. e site owner
did not acquiesce, and a lawsuit was filed.
It settled when the site owner paid a portion
of the designers’ bill; the court, he told us,
threw out the copyright claim. Reflecting on
the experience, our interviewee critiqued the
DMCA take-down procedure: “just because
someone is crying wolf doesn’t mean you have
to respond.”
Strong or Reasonable Defenses
e National Debate
One of the most striking examples of an
ill-advised cease and desist letter came from
e New York Times and sought to suppress
a parody of the Times’s corrections page that
appeared on “eNationalDebate.com.”
210
Robert Cox, operator of e National Debate,
told us that the conflict began in 2003 when
he became concerned that the Times required
everyone except op-ed columnists to publish
corrections; the op-ed writers were permitted
to decide this on their own. To protest this
policy, he began chronicling errors in op-ed
columns and publishing them on a “Columnist
Corrections” page.
Around this time, Times columnist Maureen
Dowd wrote a column quoting President Bush
and, according to Cox, “she manufactured the
quote by taking something he actually said and
putting in ellipsis dots, materially altering what
he said.”
211
Cox phoned the Times repeatedly
about the Dowd column. “e column was
published on Wednesday and was syndicated on
ursday, so there was time to correct before it
got printed in other papers. But when I finally
reached someone, I received questions like ‘Who
are you with?’ and ‘Do you have an ax to grind
against Maureen Dowd?’ I spent the next year
trying to use my blog and emailing other forums
to get the message out – to pressure Dowd to
issue a correction.”
A fellow journalist suggested that Cox tweak
the Times by parodying its corrections page.
He took both liberal and conservative op-eds,
and wrote fake corrections “in a Times-esque
style. People in the blogosphere thought it was
very funny.”
e Times did not. Its March 2004 take-
down letter to the ISP Verio demanded that it
block the corrections page.
212
(Cox also received
a cease and desist letter.) Verio told Cox that
he had to remove the page within 72 hours;
otherwise his site would be shut down.
“...routine elevation
of copyright to a right of
censorship could easily squelch
active debate and criticism
of important ideas.”
738148 Brennan.indd 41 11/16/05 9:38:53 AM
42 Will Fair Use Survive?
At that point, Cox took to the blogosphere
for help and advice. He soon received offers of
pro bono representation. While his attorney,
Ronald Coleman, prepared a response to the
Times’ demand, Cox took down his parody
corrections page to avoid having his entire site
shut down by Verio.
Coleman’s reply to the Times expressed
amazement that the paper could have “a good
faith belief that our client’s web page was not
protected by the First Amendment as a parody.”
He quoted the Times’s own impassioned
editorial three years before, defending the
novelist Alice Randall’s race-sensitive reworking
of Gone With the Wind in her novel e Wind
Done Gone.
213
Citing the Supreme Court’s “Oh,
Pretty Woman” decision, the Times had written
that Randall’s novel necessarily “requires some
borrowing from the original,” and that “in an
era when media conglomerates control the rights
to vast amounts of intellectual property, routine
elevation of copyright to a right of censorship
could easily squelch active debate and criticism
of important ideas.”
214
Within hours of receiving
this letter, Cox says, the Times announced that it
would withdraw its complaint.
In the end, Cox agreed to put a sentence
on his corrections page making clear that it
was a parody. In March 2004, the Times an-
nounced a new policy requiring corrections of
op-ed columns. Cox told us that the experience
made him realize the need “to organize other
citizens and journalists to resist efforts by any
type of government or organization to shut
down speech they disagree with.” With col-
leagues, he created the Media Bloggers Associa-
tion as a means to organize and provide legal
defense.
215
Mastercard’s Priceless Image
Brian Martin operates Attrition.org, an
acerbic Web site “dedicated to the collection,
dissemination, and distribution of information”
about the computer security industry. Among
the humorous image galleries and spoofs on
the site are several, contributed by readers and
fans, that parody MasterCard International’s
advertising campaign using the phrase, “Priceless
… ere are some things money can’t buy; for
everything else there’s MasterCard.”
216
In June 2001, Martin received a cease and
desist letter from MasterCard claiming exclusive
ownership of the “Priceless” trademark and
accusing Attrition.org of “blatantly” copying
the style of the “Priceless” ads in a manner that
was not only infringing, but “often obscene.”
e letter demanded prompt removal of the
material; “otherwise, MasterCard will have no
choice but to consider legal action.”
217
Martin publicized the threat in a mood,
as he told us, of “hey guys, get a load of this
– what are they smoking?” A few of the lawyers
on his email list told him that Attrition was
“on solid ground,” but he did not engage legal
counsel. Instead he replied, based on his own
research, that MasterCard’s trademark claim
was groundless because there was no likelihood
of confusion; and its copyright claim was
equally bad, because parodies are protected as
fair use.
218
MasterCard took no further action,
and the ad spoofs remained up for more than a
year.
Martin commented: “the biggest irony is that
the legal pressure created negative publicity,”
and “has only spawned more parody,” yet
MasterCard “still sends out those C&D letters.”
He has received emails from other recipients
“to find out how I responded to this. I told
them not to back down; they didn’t have to.
I did say that I was not a lawyer, but based on
experience, they had good cases.”
“is kind of issue needs exposure,” he
concludes. Corporations are “trying to pressure
people, trying to use scare tactics and legal
tricks.” In early 2005, one Priceless parody
could still be found on the Attrition site. e
image showed a youth thumbing his nose
at an overweight police officer. e caption
read: “umbing our nose at your pompous
bullshit: PRICELESS. ere are some things
only hubris can buy. For everything else,
there’s Attrition.”
219
Latter-Day Saints
Roger Loomis, a former Mormon, established
“www.LDS4U.com” as an “unauthorized inves-
tigator’s guide to e Church of Jesus Christ of
Latter-day Saints.” e site is not hostile to the
Church, but includes discussion and analysis;
it seeks to “fairly present both sides and let the
738148 Brennan.indd 42 11/16/05 9:38:53 AM
Brennan Center for Justice 43
reader arrive at his own conclusions.”
220
Until
2002, it included excerpts from six official Mor-
mon “missionary discussions.”
In July 2002, Loomis’s ISP received a take-
down letter from Intellectual Reserve, Inc., the
owner of the Church’s missionary discussions.
e ISP forwarded the letter to Loomis,
directing him to remove the items “ASAP.”
Loomis replied directly to the Church’s attorney:
“It is my personal belief that these pages were
not copyright violations, but I will go ahead and
remove them from the Internet as you requested.”
Two months later, the attorney demanded that
he remove three images as well, one of Joseph
Smith, the Mormons’ founder; another of gold
plates (important icons in Mormon doctrine),
and the third of Gordon Hinckley, the current
Church president.
221
Again, Loomis complied.
When we asked why he acquiesced,
Loomis told us that it was easier to remove
the material than to get into a “big battle,”
especially since he was worried about paying
Intellectual Reserve’s legal fees if he received
an unfavorable ruling. e risk of money
liability was not worth the “emotional time
commitment.” At the same time, he thought
that he had a fair chance of prevailing if he
had been able to afford a good attorney.
Durango Bill
Bill Butler operates www.durangobill.com
(“Durango Bill’s Home Page”), a collection
of information on subjects ranging from
paleography, the Grand Canyon, number theory,
and “the fallacies of Creationism and ‘Intelligent
Design Evangelism’” to a description of ways
to “fight back against DMCA abuse.” In July
2004, Yahoo, Butler’s ISP, received a take-down
notice asserting that durangobill.com was using
a logo from Online Christ-Centered Ministries
(OCCM) on a Web page titled “Durango Bill’s
Example of a Typical Young Earth Creationist.”
222
e page critiqued Jason Gastrich, a Creationist
and the apparent proprietor of OCCM. eir
disagreements ranged from Butler’s accusation
that Gastrich faked his educational credentials
to an exchange regarding Gastrich’s claim that
the Colorado River flows uphill.
223
In response to the take-down letter, Yahoo
sent Durango Bill a “Notice of Infringement”
instructing him to remove the “Jason Gastrich”
page or else Yahoo would shut down his site.
Over the following days, Butler repeatedly tried,
without success, to contact Yahoo to determine
which parts of the page he could delete to
comply with the notice. On July 23, his site was
shut down. ree days later, he was finally able
to reach someone at Yahoo, and was allowed
to delete the Gastrich page and post a note
explaining what had occurred.
Meanwhile, Butler found a Web site that
provided a sample DMCA counter-notice.
224
He used the sample to compose a response to
Yahoo asserting that his Web site was within
fair use. Under the law, Yahoo now had to allow
him to re-post his Web page, unless Gastrich
filed a lawsuit against him. On August 4, 2004,
Gastrich did sue, in California federal court.
Butler retained a lawyer, who moved to
dismiss Gastrich’s complaint on the ground that
the federal court in California had no jurisdiction
over him. (He operates his Web site from his
home in Colorado.) e motion succeeded in
December 2004. After nearly six months, Butler
was able to restore his “Jason Gastrich” page.
“Folded Up Like a House of Cards”
Artist Dee Dreslough was a devotee of
science fiction novels by Anne McCaffrey – the
Dragonriders of Pern series, Renegades of Pern,
Planet Pirates, and many others. In the mid-
1990s, Dreslough created a Web site and began
taking commissions for original works of art. At
the request of fellow McCaffrey fans, she drew
dragons and other characters. She told us: “I
drew pictures of people and dragons inspired by
Attrition's “Priceless”’ Parody, by Brian Martin/
Image by Jay Dyson
738148 Brennan.indd 43 11/16/05 9:38:54 AM
44 Will Fair Use Survive?
her books, but not created by Anne McCaffrey.
ese were original characters based in her
book-worlds created by other fans.” She thought
that there were “enough levels of filtration for
the work to be allowed.”
Dreslough elaborates on her Web site: “my
depictions of Pernese dragons differed from
McCaffrey’s own definition of the dragons.
My dragons had ears, proto-horns rather than
head-knobs, and non-bug eyes, as well as varied
hues and stripes in the skin.”
225
She posted
her creations on a Web page called “Dee’s
Dragonrider Art Gallery.”
In April 1997, McCaffrey’s attorney sent
a cease and desist letter citing both copyright
and trademark infringement. e letter began
by quoting Dreslough’s own Web statements
– that her art was inspired by Dragonriders of
Pern, and that “if mentioning my inspiration is
something that can get me sued … oh well. If
I’ve goofed, let me know where to fix and I will.”
e letter demanded that Dreslough “remove
your art gallery from the Internet immediately,”
and promised legal action if she did not comply.
It said she was guilty of contributory copyright
infringement for every other Web site where
a fan had posted one of her Pern-inspired
drawings; and closed by mentioning that in
previous lawsuits, McCaffrey had won damages
“in the middle and low six figures.”
226
Dreslough told us that at first she “felt
horrible”; she thought she had “done a bad
thing” and offended her literary hero. But she
was also distressed that the hero had resorted to
legal threats. “If one of our friends-in-common
had just told me, ‘Anne’s annoyed by your Web
site; take it down,’ I would have done so in an
instant.”
Dreslough was frightened by the threats
– particularly the massive damages that might
accrue based on “contributory” infringement.
At the time, she told us, “$15,000 was all that
I made in a year. I couldn’t afford a lawyer to
argue the case. I couldn’t even afford a lawyer to
have the case researched.” She removed the art
from her site and asked all of her fellow fans to
do the same.
“I folded up like a house of cards,” she
reflected. “When I had to destroy my art, that
really hurt. Did McCaffrey own my art, or did
I? I’ll never know, and it doesn’t matter now.”
Possible Defenses
e Avatar Wars
Ronald Cools, a former Avatar follower
who was responsible for many of the critical
discussion group postings described in chapter
3, told us that his critiques, including copies of
Avatar course materials, were meant to expose
what he considers a “psycho-cult.” He was
not the only Avatar critic who posted course
materials. Whatever the mix of commentary
and copying in these posts, the result was that
throughout 2004, Star’s Edge’s take-down letters
did suppress criticism of its program.
Cools, a resident of the Netherlands, also
created his own Web site in order to “expose the
policies of Star’s Edge and to warn people about
the Avatar program.” e Web site explains that
he had been involved in Avatar for eight years “and
became a licensed ‘Avatar Master’ in 1992. During
this time I did not know that Avatar derived
directly from Scientology nor that its creator
Harry Palmer has been a dedicated Scientologist
for many years.” At the bottom of Cools’s site is
a disclaimer: “is Web site is not affiliated with
Avatar, Star’s Edge Inc, Harry Palmer or/and
Scientology. Its objective is to inform the public
within the limits of Free Speech.”
227
In February 2005, Cools received his first
cease and desist letter from Star’s Edge. It
referenced his discussion group postings but not
his Web site, and referred to both Netherlands
and international law. Someone advised him
that since the cease and desist letter was in
English and not in Dutch, he did not have to
respond. Cools continues to post information
about Avatar and Palmer, both on his own site
and in discussion groups.
Film Clips and Commentary
e operator of a movie Web site learned
in 2004 that his ISP had received a take-down
notice from a distribution company complaining
that the site contained stills and footage from
one of their films without permission. He
complied with the demand, even though he was
aware of fair use and thought that it gave him a
738148 Brennan.indd 44 11/16/05 9:38:54 AM
Brennan Center for Justice 45
defense. He believed the company’s real quarrel
was with his negative review of their movie. He
removed the material because he thought it was
the “easiest course of action,” and did not want
the ISP to de-list his site.
Reprints on Blogs
In early 2004, the operator of a blog site on
political issues reprinted part of an article in
the course of a discussion of Reform Judaism.
e article’s author sent a letter explaining that
he was a freelance writer whose only source of
income was payment for his work. He said that
the blog had reprinted more than 750 words
from his article, and enclosed a bill for $150.
Somehow, this dispute escalated. e blogger
refused, and asked his wife, a lawyer, to represent
him. He told us that he became too personally
invested in the case. Certainly, paying the author
$150 would have been simpler than the eventual
settlement of $1,500. His wife feared that a legal
defense would cost upwards of $50,000, “and to
my regret, we paid them off.”
Teddy Bear Woes
e proprietor of a teddy bear business con-
tracted with Overture.com to buy a sponsored
listing using the search phrase “Vermont Teddy
Bear.” Two months later, he received a cease and
desist letter from the Vermont Teddy Bear Com-
pany (VTB), asserting that it had been using the
trademark since at least 1985, had sold “hundreds
of millions of dollars worth of teddy bears,” and
had “expended over 100 million dollars” promot-
ing the Vermont Teddy Bear mark.
228
Our interviewee ignored the letter, and did
not hear from VTB for another four months,
when two emails arrived; again, he did not reply.
In January 2005 – shortly before Valentine’s
Day – he received another letter and a flurry
of emails threatening that he would be liable to
VTB for all of his profits multiplied by three, in
addition to VTB’s attorney’s fees. At this point,
he checked with Overture, “and they said that I
was not doing anything wrong.” But four days
later, they removed his ad. He believes that
VTB “put the screws” to Overture. He sought
counsel, but the lawyer was indecisive. In the
end, he pulled a similar ad that he had bought
from Google.
e teddy bear entrepreneur compares his
story to David and Goliath: a big company with
deep pockets “trying to strongarm me with their
beliefs.” Although his purpose was apparently
to draw potential customers interested in
Vermont Teddy Bears to his site, this “initial
interest confusion” wouldn’t necessarily create
liability for infringement.
229
A Technical Violation
Our last interviewee, Charles White, did
not have a defense because he picked the wrong
suffix for his intended fan site dedicated to the
late Grateful Dead star, Jerry Garcia. White
bought jerry.garcia.name in 2001, but had
not begun to build the site when he received a
cease and desist letter asserting that “the Estate
of Jerome J. Garcia” owned numerous domain
names referencing the beloved guitarist,
and used them to market “a wide variety of
consumer products.”
230
Although Jerry Garcia himself might have
cringed at such an assertion of private property
control, and ordinarily a fan site – or a critical
site – acting in good faith can use the name
of a company or a celebrity for its URL, the
estate’s attorneys correctly pointed out that
there are specific rules for use of the “.name”
domain. As ICANN’s Web site explains,
registrations using the “.name” ending must
either consist of an individual’s own name,
or the name of a fictional character where the
registrant “holds trademark or service mark
rights” in that character.
231
us, Charles White could have relinquished
jerry.garcia.name and registered a different
URL for his fan site, using a .com, .org, or
.net ending. Instead, he told us, he refused to
transfer the name; “at that point they said they’ll
go through arbitration.” “ICANN asked for my
response within 90 days and I wasn’t able to
do it since I was in the middle of my semester
at school. I eventually got a notification about
an official decision.” He would have liked to
mount a defense, but did not have time. “It’s
one of my less talked-about achievements,” he
said, “having the ghost of Jerry Garcia come
back and haunt me.”
738148 Brennan.indd 45 11/16/05 9:38:55 AM
46 Will Fair Use Survive?
W
e posted our online survey, entitled
“Copyright, Fair Use, and the
Impact of Cease and Desist Letters,”
on our Web site from the fall of 2004 to spring
2005.
232
Organizations that encouraged their
members to fill out the survey included the
National Alliance for Media Arts and Culture,
the Association of Independent Video and
Filmmakers, Women Make Movies, the
National Arts Journalism Project, National
Video Resources, Independent Feature Project,
the Center for Arts and Culture, and the College
Art Association. We received 290 completed
surveys, of which 58 described controversies,
and the remaining 232 gave opinions and
comments about fair use and copyright.
233
e largest category of respondents described
themselves as professors or scholars (131).
Visual artists were the second biggest category,
with 80. e great majority (263) had heard of
fair use as a defense to copyright or trademark
infringement. 231 said they had relied on fair
use in deciding whether to borrow, reproduce,
or quote from somebody else’s work. Of the
58 who had been involved in at least one
controversy, 14 said they were the owners
of IP-protected material; 40 said they were
borrowers; two said they were both; and two
said they were neither. Only four reported that
a lawsuit had been filed.
Twenty-three of the respondents said they
had received cease and desist letters; six said they
received DMCA take-down notices. 17 of the
23 who received cease and desist letters either
acquiesced, partially acquiesced (for example,
negotiated a settlement), or learned that an
ISP removed the item at issue.
234
Among the
recipients of take-down notices, one said that he
acquiesced – although this was only temporary
– and one learned that an ISP took down the
material. ree did not acquiesce and one did
not respond to the question.
235
What follows are some of the narratives;
in a few instances, we have supplemented the
survey responses with information from follow-
up emails.
236
Gaelic Dreams and
Closeted Gay Artists
• e nonprofit group Internet Infidels operates
both an online discussion forum and a site called
the “Secular Web” (“a drop of reason in a pool
of confusion”).
237
Among the contributions to
the discussion forum is an “Answers in Genesis
Cartoon Parody Contest,” which invites readers
to send in parodies of the cartoon-style lessons
in Creationism and other fundamentalist beliefs
that are found on the “Answers in Genesis”
(“AiG”) Web site.
238
One parody of AiG’s
“CreationWise” comic strip, for example – the
Infidels’ “CreationDumbass” cartoon – shows a
fundamentalist acknowledging: “I guess I should
try reading something else [other than the Bible]
for a change.”
239
In January 2004, Infidels received a cease and
desist letter from AiG, asserting that both the
“CreationWise” parody and another cartoon
called “After Eden” infringed AiG’s trademarks.
e letter acknowledged that the cartoons were
parodies, but insisted that they were nevertheless
“likely to cause confusion as to affiliation.”
240
Jim Lippard, president of Internet Infidels,
felt that AiG “had a legitimate, but exaggerated
complaint.” e group responded by removing
all AiG trademarks, names of original artists,
and copyright notices. e parodies themselves
remained on the discussion site, with new ones
appearing regularly.
Lippard said that the chilling effect of the
cease and desist letter was “minimal, but could
have been more significant.” His board discussed
CHAPTER 5
Internet Infidels and Homeland Security
Blues: e Online Survey
738148 Brennan.indd 46 11/16/05 9:38:55 AM
Brennan Center for Justice 47
deleting the postings, “which would certainly
have been an easier route to take. Had the
organization and board members been more
risk-averse and less proponents of free speech,
a chilling might have occurred.” Asked why
Infidels offered any concessions at all, he replied:
“We consulted with an attorney who was willing
to take our case, but we decided it was better
to come to an agreement because AiG brings in
$10M/year in donations to our $90K/year, and
they get their legal services donated to them,
while we would have had to pay (though we did
get the consultation for free).” He added that
AiG “used a highly distorted version of events in
their April 2004 fundraising letter.”
• Inya Nest’s fan fiction site, “Stalkers Nest,”
contained “a list of current Works in Progress,”
along with the names of “FanFic stalkers”
whose job was to prod authors for more
installments. One of the Works in Progress
was called “Gaelic Dreams,” which led to a
cease and desist letter in November 2002 from
Gaelic Dreams Imports, a company describing
itself as “your source for all things Scot and
Irish. Now offering Welsh & English imports
too!” e letter demanded: “all references to
the name ‘Gaelic Dreams’ must be immediately
removed from your website.” It warned that
Gaelic Dreams Imports would “prosecute any
and all who knowingly or through misdirection
violate the copyright laws of the U.S. and
international community.”
241
Nest submitted the letter to Chilling Effects,
then informed Gaelic Dreams Imports that she
had done so. After this, “they didn’t bother me
any more.” She believed that Gaelic Dreams
Imports was “just trying to threaten without
much legal proof behind them. I was glad
that my friends suggested that I report them,
so that I did feel more secure.” Yet the author
of the “Gaelic Dreams” story later renamed
the entry, partly because of the import
company’s threat.
• Stefan Didak operates World Wide Warning,
a site that warns of “fraudulent businesses
and activities.”
242
Didak began the site as “a
result of the displeasure of almost having been
defrauded by a con artist and finding myself
meeting other people who had similar or worse
experiences with said con artist.” e object of
his displeasure, David Waathiq, is described
on the site as having “a long trail of defrauded
inventors, unpaid creditors and vendors, upset
partners, contractors and clients in multiple
ongoing schemes where he convinces prospects
that he can provide services that in many cases
he cannot.”
243
In April 2004, Google received a DMCA
take-down letter from an attorney, demanding
the removal of links and search terms relating
to David Waathiq and leading to www.
worldwidewarning.net. e letter asserted
copyright violations for the use of photographs,
graphics, literary work, personal and business
documents, and text marketing language.
244
It
is not clear how Google responded, but a year
later, using “David Waathiq” as a search term on
Google still led to World Wide Warning’s David
Waathiq page, headlined “Professional Con
Artist.”
Didak believes that for Waathiq, the DMCA
take-down procedure was “a cheap and simple”
way to try to stop criticism of his activities.
Didak himself never received a cease and desist
letter; and no legal action was taken.
• Robin Lionheart posts mirror Web pages
of material that, he says, has been “shut down
by legal bullying.” One such page mirrored an
article entitled “Amway: e Untold Story,” with
a summary and excerpts from Consumer Reports
reviews of Amway products. In February 2002,
Lionheart received a cease and desist letter from
Consumer Reports’ attorney, Wendy Wintman,
objecting to the summary and excerpts.
Lionheart responded by correcting factual
errors in Wintman’s letter and asserting that
his quotes and summaries qualified as fair use.
An exchange of emails followed, during which
Wintman apologized for her mistakes, which
“Librarians let people
come in and read back issues
of Consumer Reports”
738148 Brennan.indd 47 11/16/05 9:38:55 AM
48 Will Fair Use Survive?
she attributed to the many form letters that
she sends, but insisted that “you are giving
consumers for free what we charge for as part
of our subscription.” Lionheart commented:
“Perhaps I should inform her of another
‘commercial’ threat to consumer.org’s business:
public libraries. Librarians let people come in
and read back issues of Consumer Reports.”
245
• In March 2003, the artist Chrissy Conant
created a three-part sculptural project using the
U.S. Department of Homeland Security
terms
“severe,” “high,” “elevated,” “guarded,” and
“low” in colorful chokers, blankets, and wall
hangings.
246
Conant applied for the trademark
“Chrissy Homeland Security
®
Blanket” and
later, for additional trademarks for the wall
hangings and chokers. About two years later,
she received an email from one Shirley Ivins,
who claimed to be the owner of the “Homeland
Security Blanket” trademark. is was followed
by a cease and desist letter from Ivins’s attorney,
demanding not only that Conant stop using the
mark, but that she supply an inventory “of all
items in your possession that bear the infringing
trademarks,” that she destroy all such items, and
that she produce an accounting of her sales in
order to determine the amount of money that
she owed to Ivins. e letter threatened legal
action if Conant did not comply “within the
time frames set forth.”
247
Conant didn’t respond initially, but after
receiving another communication from Ivins,
“that unless I pulled my blankets out of my
retailer locations, she would contact them
and tell them that I had infringed upon her
trademark,” she consulted an attorney who “had
me write a response, telling her that I disagreed
with her accusation, and if she threatened my
relationships with my vendors, I intended to
prosecute my claims against her.” Ivins or her
attorney evidently contacted Amazon.com,
which told Conant that they had cancelled
her listing “because I ‘may’ be in violation of
their community rules prohibiting copyright
infringement.”
Conant did not go through with her threat
to sue for financial reasons. She continues to
sell her limited edition blankets and other po-
litically loaded creations directly and through
an art gallery and a few museum shops. She
has heard nothing further from Ivins, but is an-
noyed that someone can close down a major
venue for sales such as Amazon simply by mak-
ing an accusation.
• Jonathan Katz, an art historian and expert
in lesbian and gay studies, wrote: “I wasn’t in-
volved in controversy, because I knuckled un-
der, but in two cases, I’ve wanted to publish
images of artists’ work in the context of an
article on the relationship between their work
and their sexuality, and both times permission
was denied. I felt confident that I was covered
under fair use, but the publishers felt other-
wise.” e first situation involved the catalog
for a Robert Rauschenberg show; the second,
an article on Georgia O’Keeffe. e Rauschen-
berg catalog, accompanying an exhibition at
Yale, appeared without images of the artworks,
but the O’Keeffe article “turned so centrally
on the images that it remains unpublished six
years later.”
“Fair use doesn’t protect against lawsuits,”
Katz adds, “and publishers are by nature timid.
e effect is that publishers refuse to publish
work they deem controversial, and for those of us
who work in gay and lesbian studies, censorship
has therefore become a way of life.”
Katz supplemented his survey answers in a
conversation with Eve Sinaiko of the College
“Chrissy Homeland Security
®
Blanket”’ 2004,Image
courtesy of Chrissy Conant, www.chrissyconant.com
738148 Brennan.indd 48 11/16/05 9:38:55 AM
Brennan Center for Justice 49
Art Association. He told her: “I am not able to
publish on Rauschenberg, Twombly, Johns, and
other artists because all their work is in copyright,
and they withhold permission to reproduce work
based on disagreeing with my accompanying text,
which identifies their sexuality as central to their
achievement.” His book on the post-Abstract
Expresssionist generation, with 140 images, was
accepted by University of Chicago Press, but the
publisher insisted on indemnification for any
claim of copyright infringement. “I met with
an attorney,” Katz said, “who advised me that
though I would probably win the case – that
is, my fair use position is probably a strong one
– the financial resources of these artists are such
that the costs to me would be too punishing. As
a consequence, I have begun negotiations with
another publisher in the hopes that they will not
insist on indemnification.”
248
Katz concludes that the chilling effect “goes
beyond publishing: it influences what museums
do.” Recent Twombly and Rauschenberg
exhibition catalogs and wall labels did not
mention gay issues, even though “the works in
question centrally thematized sexuality.”
Political Art and
Private Censorship
• A cartoon artist recalled: “It was about
1990 and David Duke, a notorious Klansman,
was running for governor of my home state,
Louisiana. I did a series of paintings that
borrowed Charles Schulz’s Snoopy. It seemed
necessary to use a beloved American icon for
political reasons. People will pay more attention
to a hanged dog than they will to a hanged
man.” When the works were exhibited at a New
York art gallery, “United Features Syndicate
objected. My attorney said parody, and United
went away.” His only loss was lawyer fees.
• Another artist wrote that in the mid-1990s, he
created a montage of Elvis Presley and Vietnam
War photos as part of a work titled “e Hero’s
Journey.” It was produced as a series of prints
and posted on the Web. He received a cease
and desist letter from the archive that owned
the original photographs, and replied “with a
detailed fair use argument.” He “discussed the
matter with a lawyer who showed little interest
in taking on such a corporate entity.” Since he
was about to change ISPs, he “agreed to take
down the Elvis-in-Vietnam material,” but did
not agree to destroy the prints, which were later
purchased by a museum in Finland. He reflects:
“I made original artworks that commented on
the myth of the hero in a contemporary context.
Having shallow pockets and no outside support,
I had no choice but to acquiesce.”
• A filmmaker reported that in 1994 he filmed
a public event during which a high school band
played a copyrighted musical work. He received
a cease and desist letter and ended up paying
a license fee. Outcome: “ey were happy. We
felt screwed. I’ve been a filmmaker for 25 years,
most of them making documentaries. I’ve never
seen the climate WORSE for artists trying to get
work out that contains copyrighted material.
Few if any lawyers, distributors, or insurers are
willing to accept fair use as an argument and
take a stand.”
• An art historian wrote: “I published an essay
on the Mexican artist José Clemente Orozco’s
‘Catharsis’ mural, in the Palace of Fine Arts in
Mexico City. I wanted to reproduce an image
of the mural, so I contacted the family (as the
copyright holders) and the Mexican government
[e National Institute of Fine Arts, which
oversees image rights]. I was told by one of the
surviving children of the artist that he would
not grant me permission unless he could review
my essay. We proceeded to go back and forth
for three months, never getting beyond the first
page. I realized that this was a cat and mouse
game for him, something that made him feel
necessary and involved in scholarship, and that
he would never approve of my text on ideological
grounds (he insisted, for instance, that I could
not refer to Diego Rivera in the article if I
wanted to reproduce his father’s work, among
other ridiculous things).
“Having shallow pockets and
no outside support, I had no
choice but to acquiesce.”
738148 Brennan.indd 49 11/16/05 9:38:56 AM
50 Will Fair Use Survive?
“Without his permission, the government
would not grant me permission either. e Press
and I then decided that it would fall under the
category of fair use if I reproduced one of my
own ‘tourist’ photographs of the mural. So I
did this. e Press also told me that I could
publish a detail of the mural, photographed
from a book, as that could be treated like a
citation. Or, if I could find an image of the
work from an out-of-print journal or defunct
press, I could photograph that. Both options
seemed to me absurd.”
• A scholar described his inability to use a
photo taken by David Douglas Duncan of Pablo
Picasso watching his daughter Paloma drawing
at a table, for a book chapter on Picasso’s interest
in his childrens’ drawings. “It was the only
documentation of an essential point I wanted
to make, and Duncan decided he didn’t like my
point of view and refused to let me use the photo.
e publisher was afraid of being sued and took
it out.” In other situations, he has managed to
convince reluctant copyright holders to grant
permission: “I was able to persuade the owners
to relent, but if they had elected not to, my
publisher was unwilling to use fair use because
of the fear of a lawsuit.” is “self-censorship by
publishers,” he says, “has significantly impaired
my ability to comment on and interpret visual
material. It is essential that any visual image that
is shown publicly be available for comment and
criticism; otherwise we have no free discourse
over things that significantly shape our cultural
and political views.”
• An art scholar wanted to reproduce paintings
by a 17th century Italian artist, which were in
the collections of five different museums. “I
wanted to show this artist’s work to reinforce
my discussion about these paintings in a book.
I copied the images from the museums’ Web
sites or when they weren’t available online, I
scanned them from museum catalogs. I created
a composite of four paintings by this artist to
illustrate the similarities and differences that
were obvious when the works were placed
next to each other. e publisher of my book
would not accept my fair use statement when
I submitted this in place of rights agreements
and required that I obtain permission from
each of the museums and personally pay for all
license fees. is is just one example of fair use
not being honored by publishers. As a visual
resources curator, we exercise fair use extensively
in order to make images available for use in the
classroom and for study. e teaching of art
history could not happen without fair use!”
• A film scholar wrote: “I made a still from
a video of a feature film available from the
university library. My scholarly work describes
this still in detail in order to make a particular
point. e U.S. copyright holders [that is,
movie studios and archive houses] do not
produce stills to order, but only the ones
they pre-select. e copyright holder’s still
would not have served my purpose because
it was a few seconds away from the moment
I wanted. I was willing to argue fair use, but
the publisher was not willing to risk taking on
a major Hollywood film house. Our solution
was that I hand-traced a photocopy print of the
still I had produced, reducing it to a kind of
line diagram. e essay is now published, but
I regard the solution as a major compromise. I
would think twice before writing again on film.
It was as if the film house was dictating what I
could write about, since the choice of image
to be published was not mine if I wanted to
reproduce the image as a still photograph.”
• A videographer who is hired to document
family histories wrote: “Many times I will lose
work to others for not being willing to break
copyright law and use a song that is protected.
ASCAP and BMI won’t even answer requests
for small uses. People want to have certain
songs that have been a part of their life, their
family, or any other aspect of their world, and I
can’t give that to them because large companies
won’t even acknowledge my existence to give me
permission.” He feels that copyright law should
not require clearance in these situations. “ere’s
no need to stop people from having things that
have touched their hearts in documentaries
about their lives.”
• Anne Elizabeth Moore describes herself as a
“cultural interventionist” who has used images
from the Mattel Company’s “American Girl Doll”
catalog to create parody gift cards containing
political commentary on the materialism of
738148 Brennan.indd 50 11/16/05 9:38:56 AM
Brennan Center for Justice 51
Mattel’s products. Instead of clothes, makeup,
or other things that Mattel encourages girls to
list on the cards, Moore wrote statements about
“what couldn’t be purchased that might address
young girls’ needs better”: for example, “healthy
body images,” “safe and effective birth control,”
and “equal pay for equal work.” She called her
project “Operation Pocket Full of Wishes” and
attempted to distribute her parody cards at the
American Girl Place store in Chicago, but was
forcibly ejected.
Knowing Mattel’s reputation for litigiousness,
she was too intimidated after this incident to
include her works as illustrations in three articles
that she wrote about Operation Pocket Full of
Wishes,
249
or in speaking engagements. She
writes that her inability to rely
on fair use “has severely limited
the venues in which my critique
of Mattel has appeared.”
• Another politically engaged
artist, who creates “deconstruc-
tive texts,” wrote that for one
major work, she “borrowed
all over the place: literature,
schoolbooks, emails, news me-
dia, philosophy and websites.”
Among her found texts were
email posts from the “Spoons
Collective Deleuze and Guat-
tari List Server,” a discussion
group dedicated to the authors
Felix Guattari and Gilles De-
leuze.
250
She did not receive a
cease and desist letter, but “I
did receive 100s, literally, of
emails from professors, artists, and writers from
all over the world,” protesting her quotations.
“I replied to the actual authors of the posts.
ere were too many to remember. I deleted it all
once it was over, about a year later. I continued
to receive hate emails for months on the subject.
I eventually replaced all controversial sections
with quotes from Critical Art Ensemble’s essay
on the ill effects of copyright.”
• Finally, in chapter 3 we described a controversy
involving a critic of Chick Publications’
Creationism cartoons. One survey participant
directed us to another parody of a Chick cartoon,
called “Charlie’s Ants.”
251
He wrote: “Awaiting
inevitable cease and desist from Chick’s lawyers.
None yet, but others have received them.”
e Copyright
Owner’s Perspective
• A professor wrote that she had organized an
exhibition of another artist’s work at her college
gallery. e student newspaper reproduced one
of the works without permission, but with a
caption that said, in effect, “if you want a little
nude action, go by the art gallery.” e article
about the exhibition was equally sophomoric.
She “felt that it was important to send the
message that visual images are not free for the
taking, even for universities
citing fair use.”
She protested to her dean,
who defended the students’
free press rights, even though,
she said, he had censored art
on campus in the past.
252
“I
was very disturbed that my
dean was unwilling to give
my concerns a fair hearing.
I saw this incident as a part
of an ongoing pattern of
disregard for the rights of
visual artists.” So she wrote
to the college president, who
was more supportive. As a
result, the college gallery “has
implemented a new policy that
any reproduction of art work
must originate with the gallery
director. Signs stating ‘no photography’ have
been posted outside the gallery.”
• An artist and adjunct instructor refused her uni-
versity’s request that she sign over the copyrights
in any work she created while in its employ. She
notes that her current employer, a junior college,
“is now attempting to do the same, even if the
work is done outside the college.”
• e coordinator of rights clearances at a
major museum wrote: “My one concern is
the assumption by scholars that anything they
publish is educational and therefore falls under
fair use, regardless of the status of the publisher
or publication. For example, a professor
Anne Elizabeth Moore, “Free Tampons”
from Operation Pocket Full of Wishes
738148 Brennan.indd 51 11/16/05 9:38:56 AM
52 Will Fair Use Survive?
reproducing an artwork in a book with a print
run of 20,000 is not considered to be educational,
but a commercial use.”
253
• “A librarian wrote: “I was once caught in
the middle between a professor and a copyright
holder. Professor wanted to put five complete
photocopies of a single copyrighted book on class
reserves in my library (no permissions requested
or received). I refused to accept more than
one copy for reserves. Around the same time,
I attended a copyright symposium in which a
librarian colleague stood up and declared that
she actively encouraged art students never to
request permissions. Her position struck me as
irresponsible. I feel that while librarians should
be strong defenders of fair use, they should also
be willing to defend copyright holders.”
• A teacher commented: “Students routinely
take images off Web sites with no sense that they
belong to someone else. ey also pass software
and music on to each other as though everything
was seamlessly available. ey seem to understand
the Internet as an extension of television and it is
just there for free. It is disturbing to see an entire
generation growing up with a resource that they
see as free for the taking.”
• A studio artist wrote that she was not credited
for drawings, maps, and text that were used in a
PBS special. “I consulted with an art specialist
attorney who reviewed my contract, said it was
clear and I was correct. It would cost $10-20,000
to sue them. I couldn’t afford it.”
• Another artist wrote: “Paintings were made
directly from my copyrighted artwork, with a
little changed in the background, but basically
verbatim copies. ese then were sold in galleries
and until recently on the Web. I did not have
enough money to pursue my suit with the other
artist.”
• A sculptor complained that one of her
installation pieces, consisting of inflatable figures,
a tree, and “scientists spinning around the tree”
was copied in a work with similar elements. is
second sculpture was obviously “influenced by
our work, but there is no integrity, no credit
given to us as artists for creating such works or
for influencing him.”
e problem here is that copyright law does
not create ownership of ideas.
Comments on Fair Use
• “I have been told by my school that I am
prohibited from showing videos on the life and
work of Robert Rauschenberg, Chuck Close,
etc. due to the fact that the school is a ‘for
profit’ institution. Of course, at colleges and
universities with high tuition, endowments,
investments, and generous alumni, this is not a
problem because they are ‘not for profit.’ Give
me a break!”
• “My current institution is extremely vigilant
about following copyright law to the letter when
it comes to course packets and electronic reserves.
Consequently, course packets can easily reach
$100-200. Electronic reserves are likewise not
an option, for if the article or text has been used
once before, they won’t put it up on the system
without press approval. If the press demands
money (which most do) for subsequent postings,
the college won’t post it. So professors are faced
with the following options: (1) we cannot use
supplementary materials; (2) we can create a
combination of paper and e-reserves, which
can be really hard on large classes where lots of
students have to share the information; (3) we
can charge the student an outrageous amount
for a packet of xeroxed essays that they won’t be
able to sell back; (4) we can break the law.”
254
• “I think that your questions address legal
actions, but not the sort of fears that most faculty
have about fair use. e Web site on which we
post images is only open to students enrolled in a
particular class at a particular time. is means
that no one else (including other faculty) has
access to these images without having to go
through the slide librarian. is block is to
protect copyright, but it does hamper use by
faculty and students.”
• “I am anxious that for-profit entities will
eventually put obstacles in the way of my teaching
efforts. I am also frustrated that there seems to
be a ‘don’t-ask-don’t-tell’ atmosphere around fair
use and intellectual property: if you ask whether
you have permission to use something, you risk
being denied, so better to remain quiet.”
• “Reproducing color images has become so
prohibitive for scholarly presses that some have
stopped publishing art history books. We are
terribly hampered in discussing works of art if
738148 Brennan.indd 52 11/16/05 9:38:57 AM
Brennan Center for Justice 53
they are reproduced only in black and white,
and even securing those images is terribly time-
consuming. It would be great if museums would
make a blanket allowance for use of images of
their holdings so long as the images are not
distorted, details are clearly labeled as such,
and the scholar would not make a significant
profit.”
• “e high cost of securing reproduction
rights for photographs of works of art created
centuries ago prevents many scholars from fully
publishing their research findings. Museums
should not be allowed to place such high
copyright fees on their photographs of these
works, as if they were ‘original creations.’ e
works of art are clearly in the public domain and
should be accessible for scholars. e current
situation is disheartening.”
255
• “e question of ownership and fees for art
made in the second half of the 20th century
remains a concern for those of us who work in
this field. For my last book, I sometimes had
to pay two or three entities (museum/family/
licensing agency) that added up quickly, or the fee
requested was simply more than I could handle.
is effectively takes material out of circulation,
especially if the owner is not sympathetic to
one’s project or approach.”
• “I am a strong advocate of fair use for
scholarship and believe that it is being endangered
by profit motives. Many university presses are
dropping art publications due to rising costs
and fear of litigation. In the long run, this will
adversely affect copyright holders, as their work
will not be made known through the critical act
of scholarship, and students will not be made
familiar with their work in the classroom.”
• “As an art historian, I have to ask for
permission to reproduce images. Sometimes the
charges are outrageous and sometimes I cannot
find the right company or person for permission.
It is unfair to have to spend so much time, and
sometimes pay an outrageous amount of money,
to be able to publish an article.”
• “Cases in which some action occurs, e.g.,
cease and desist letters being sent or take-down
notices issued, are only the tip of the copyright/
fair use iceberg. You might have asked about self-
censorship, instances where artists or scholars
have declined to use material that should fall
within fair use, for fear of being sued. Or cases
where creative/intellectual workers do not work
entirely for themselves, where someone up the
administrative chain has put the kibosh on work
for fear of ‘exposure.’”
• “Fair use needs to be better understood by
documentary producers. Just knowing you
may have a good fair use argument doesn’t
always give you the courage to use a news clip,
when you know the corporation that owns
the clip has a posse of attorneys on staff just
waiting to pounce.”
• “e real issue is the limiting effect
on documentary filmmakers to address
issues of social, political, economic, and
cultural significance for educational and
noncommercial purposes.”
• “It is getting harder to make historical
documentaries, because of the cost of archival
photos and footage, and licensing quotes from
original historical documents. e definition of
fair use should be expanded, not just for use in
news programs.”
• “I feel that fair use policies are extremely gray
and I’d like to understand them better.”
“Just knowing you may have
a good fair use argument
doesn’t always give you
the courage to use a news
clip, when you know the
corporation that owns
the clip has a posse
of attorneys on staff just
waiting to pounce.”
738148 Brennan.indd 53 11/16/05 9:38:57 AM
54 Will Fair Use Survive?
W
hat can we learn from the fair use
research project?
First: artists, scholars, Web
publishers, and many others are aware of fair use
and sometimes rely on it. But many have only
a vague sense of what it means, or mistakenly
believe that the law imposes numerical limits on
the amount of material they can borrow. ere is
an urgent need for accurate information.
Second: prevailing practices in an industry
have a big effect on the ability to take advantage
of fair use. At one extreme is the film world,
where a clearance culture and the need for E&O
insurance have nearly obliterated fair use. At
the other end of the spectrum are the students,
Web activists, and artists who freely appropriate
copyrighted or trademarked material for creative
purposes. Clearly, more support for fair use and
free expression is needed in the communities
where these principles are most threatened.
ird: whatever the precise percentage of
dubious cease and desist or take-down letters
that are sent in any given year, substantial
numbers of them do state weak claims, or seek
to suppress material with a strong or reasonable
fair use or First Amendment defense. More
than 20% of the letters in the Chilling Effects
database for 2004 (67 letters out of 320) were in
this category, while another 27% – or 86 letters
– had a possible fair use or First Amendment
defense. e disconnect between prevailing law
and the claims made in many cease and desist or
take-down letters is striking.
Finally, many recipients who do not acquiesce
in the demands of cease and desist letters are not
sued. e experiences of Attrition.org, the Piggy
Bank of America, the Cape Cod Voice, and dozens
of others show that non-acquiescence is alive and
well. But many other recipients acquiesce, and
the validity of their fair use or First Amendment
defenses are never tested.
e counter-argument, of course, is that
many people would prefer to receive a cease
and desist letter, and settle the conflict, than
be confronted with a lawsuit. And a cease and
desist letter, although threatening, in itself has
no coercive power. e same cannot be said for
DMCA take-down notices, which usually cause
the suppression of speech even before there is
a chance to negotiate. By conditioning an ISP’s
immunity from suit on compliance with a take-
down notice, §512 of the DMCA creates very
strong pressure to remove material merely on the
“good faith” representation that it is infringing.
As Google’s experience with Scientology reflects,
§512 is a powerful tool for anyone seeking to
suppress criticism. We saw other examples
of this phenomenon in the take-down letters
targeting the New York Times parody correction
page, Roger Loomis’s Mormon discussion site,
and the Chick cartoons parodist. e fact that
take-down letters greatly outnumber cease and
desist letters on the Chilling Effects site suggests
how pervasive the §512 procedure has become.
Activists have risen to the challenge of
defending fair use, with days of protest, massive
downloads of important works, community
support networks, informational Web sites,
and pro bono legal assistance. ese initiatives
show that there is widespread support for fair
use and free expression, and discontent with
overzealous IP enforcement efforts. But larger
and more systematic approaches are also needed –
approaches that do not malign the importance of
copyright and trademark, but that strike a proper
balance between IP ownership and users’ rights.
What measures could help restore the
balance? Section 512 is bad legislation, but it is
not about to be repealed. One way to ameliorate
its effects is through better use of the counter-
notice provision in the law. Informational and
advocacy groups should explain the counter-
notice procedure and work with ISPs to make
sure that anyone whose online speech is targeted
by a take-down letter is given adequate help in
preparing a counter-notice.
One specific initiative would be to mount
a survey of ISPs to learn what their §512
procedures are; then propose standard notices
for them to send to their users, which explain
how to prepare a counter-notice and provide
Conclusion
738148 Brennan.indd 54 11/16/05 9:38:57 AM
Brennan Center for Justice 55
sample counter-notice language. ISPs should also
dispel the intimidating effect of the requirement
in §512 that the sender of the counter-notice
consent to be sued, by pointing out that any of
us can be sued at any time, whether we consent
or not.
Another important initiative would be
to make comprehensible information more
widely available. Despite the suggestion of
a few participants in our research that more
information about fair use can produce a chilling
effect, knowledge is still better than ignorance.
Information about how fair use applies in
different contexts can encourage artists,
scholars, and the rest of us to assert our rights
more fully, and may persuade ISPs (including
universities) to resist unjustified demands by
IP owners. One effective way to generate such
information is through collective action within
different disciplines, to articulate their own
understandings of fair use.
An example is the Filmmakers’ Statement of
Best Practices in Fair Use, which outlines what
filmmakers themselves consider fair use with
respect to commentary, sampling popular culture,
incorporating background sounds and images,
and using archival material.
256
Potentially, the
Statement can be used to persuade distributors,
insurers, archive houses, and others involved in
film culture to accept the importance of fair use
and stop demanding clearances for borrowings
that most filmmakers consider fair. Although
there is a risk of setting standards more narrow
than a court might allow, statements of best
practices are better than negotiated guidelines
because they reflect the consensus of a creative
community and do not contain numerical limits
that are inconsistent with the flexibility of fair
use law.
Increased community support and pro bono
legal assistance are also needed. Although
consulting legal counsel did not correlate with
non-acquiescence in our research, this may be in
part because many private attorneys view fair use
through the lens of IP owners. Public interest
lawyers at the Electronic Frontier Foundation
and student IP clinics take a less owner-oriented
stance. But there are not enough of them to fill
the need. A national legal support backup center
combined with a clearinghouse of legal pleadings,
reply letters, and other materials would be a
worthy project. Bar associations can help by
insisting that educational outreach campaigns of
the type recently undertaken by the Copyright
Society of the USA deal evenhandedly with
fair use.
257
And more aggressive use of §512(f)
of the DMCA, providing for damages and
attorneys’ fees where owners have made material
misrepresentations in their take-down letters,
can help redress the imbalance.
But even knowledge, community support,
and legal backup are not enough. A major
force contributing to the erosion of fair use
is the culture of gatekeeper-intermediaries –
publishers, broadcasters, distributors, and many
ISPs – who care less about legal niceties or the
rights of users than about avoiding expensive
lawsuits. is structural problem means that
proponents of fair use must not only educate,
advocate, and litigate; they must promote
alternative technologies that eliminate media
bottlenecks. Open access academic journals,
open source distribution for creative products,
and independent ISPs that are willing to resist
DMCA take-down letters are some of the
innovations that can help liberate fair use from
clearance-culture gatekeepers.
Our conversation with insurance broker
Dennis Reiff suggested another remedy. Would it
be possible to set up alternative E&O insurance
options – perhaps offered on a nonprofit basis
by arts service organizations – that would take
better account of fair use? Reiff thought it was
“a wonderful idea” – but “who would back it?
Who is going to file it in all 50 states? ere’s a
tremendous amount of work involved.”
e disconnect between
prevailing law and the
claims made in many cease
and desist or take-down
letters is striking.
738148 Brennan.indd 55 11/16/05 9:38:57 AM
56 Will Fair Use Survive?
Reiff thought that instead, the government
should be “a little more definitive as to what
constitutes a fair use other than this nebulous
‘criticism, comment, news report, teaching,
scholarship and research.’” Many of our
participants likewise called for specific guidelines.
But as we have seen, quantitative limits ignore
context and other fair use factors. ere does not
seem to be any set of bright-line rules that would
honor the spirit of fair use while eliminating its
unpredictability.
But other changes in the law could reduce
its chilling effect. e penalties for copyright
infringement should be reduced, and the law
should not impose money liability on anybody
who reasonably believed her copying was fair.
258
An alternative dispute resolution mechanism
such as mediation or arbitration – as long as it is
voluntary – could also lower the cost of guessing
wrong. e law could provide that any borrower
who abides by the decision of an arbitrator
would not be liable for money damages.
e free expression safeguards in intellectual
property law are essential to creativity, culture,
and democracy. ey are particularly critical
today, when the term of copyright control often
lasts for well over a century. We hope this report
will spark discussion, activism, community
support, and policy reform. Although other
approaches are welcome and desirable, fair use
must be strengthened, not abandoned.
Electronic Frontier Foundation, “Keep on Blogging!”
738148 Brennan.indd 56 11/16/05 9:38:58 AM
Brennan Center for Justice 57
Recommendations
1 Create a clearinghouse on fair use and
other free expression issues in IP law, with
information that is easily comprehensible
and gives practical guidance. Include clear
explanations of the DMCA take-down and
counter-notice provisions.
2 Survey ISPs on their DMCA take-down
procedures; then work with them to assure
that anyone whose online speech is targeted
gets adequate information and help in pre-
paring a counter-notice.
3 Create a national legal support backup cen-
ter, with a network of pro bono attorneys
and IP law student clinics, and a clearing-
house of legal pleadings and other resourc-
es.
4 Work with bar associations to assure that
educational outreach campaigns deal even-
handedly with fair use. Investigate the pos-
sibility of sanctions against lawyers who
send frivolous cease and desist letters.
5 Work with arts service organizations to in-
vestigate possibilities for alternative errors
and omissions insurance and for statements
of best practices.
6 Investigate opportunities for amending IP
law to reduce penalties, to eliminate money
damages against anybody who reasonably
guesses wrong about a fair use or free ex-
pression defense, and to create alternative
dispute resolution mechanisms whose deci-
sions, if obeyed, would relieve an accused
infringer of money liability.
738148 Brennan.indd 57 11/16/05 9:38:58 AM
58 Will Fair Use Survive?
1
Mattel v. Walking Mountain Productions, 353 F.3d
792, 796 (9
th
Cir. 2003).
2
Id., 806.
3
Forsythe was represented by the ACLU of Southern
California and a cooperating law firm. Tom Forsythe,
“Food Chain Barbie and the Fight for Free Speech,”
NCAC on the Issues, Aug. 20, 2004, http://www.ncac.
org/issues/foodchainbarbie.htm.
4
Cecilia Ogbu, “Note: I Put Up a Website About
My Favorite Show and All I Got Was is Lousy
Cease-and-Desist Letter: e Intersection of Fan Sites,
Internet Culture, and Copyright Owners,” 12 S. Cal.
Interdisc. L.J. 279, 303-07 (2003).
5
See Julie Keller, “Buffy Cyberfans Slayed By Fox,”
Eonline.com, Dec. 23, 1999, www.eonline.com/News/
Items/Pf/0,1527,5782.00.html (visited 8/13/05); Letter
from Warner Brothers to Jonathon Woodward, Nov.
8 1995, www.io.com/~woodward/@cme/served.txt
(visited 8/13/05).
6
“Intellectual property” is a fairly recent term
covering copyright, trademark, patents, and other
legal structures protecting the fruits of intellectual and
creative work.
7
17 U.S. Code §106 sets out the rights of copyright
owners. eir term of control was 14 years under
the first U.S. copyright law, but is now the life of the
author plus 70 years, or 95 years for corporations.
8
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575
(1994), quoting Emerson v. Davies, 8 F. Cas. 615, 619
(C.C.D. Mass. 1845).
9
Folsom v. Marsh, 9 F. Cas. 342, 344, 348 (C.C.D.
Mass. 1841) (ruling that a biography of George
Washington took too much of Washington’s letters
without consent).
10
Jack Benny v. Loews, 239 F.2d 532 (9
th
Cir 1956),
affirmed by an equally divided court, 356 U.S. 43
(1958).
11
Time. v. Bernard Geis Associates, 293 F. Supp. 130
(S.D.N.Y. 1968).
12
Rosemont v. Random House, 366 F.2d 303 (2d Cir.
1966); id., 311-13 (Judge Lumbard concurring)
(reversing a preliminary injunction that had prohibited
publication of the book).
13
Walt Disney Productions v. Air Pirates, 581 F.2d
751, 753 (9
th
Cir. 1978), quoting Note, “Parody,
Copyrights, and the First Amendment,” 10 U.S.F.L.
Rev. 564, 571, 582 (1976).
14
MCA, Inc. v. Wilson, 677 F.2d 180, 184 n. 1 (2d Cir.
1981).
15
Id., 188, 191 (Judge Mansfield dissenting).
16
17 U.S. Code §107.
17
Sony Corp. v. Universal City Studios, 464 U.S. 417
(1984). See also Bond v. Blum, 317 F.3d 385 (4
th
Cir.
2003) (copying by the father in a child custody case
of an autobiographical manuscript by his ex-wife’s
husband entitled Self-Portrait of a Patricide, in support
of his motion for sole custody of their children, was fair
use).
18
Rebecca Tushnet, “Copy is Essay: How Fair
Use Doctrine Harms Free Speech and How Copying
Serves It,” 114 Yale L.J. 535 (2004). Tushnet also gives
the example of lovers sharing poetry. Having to seek
permission before copying a favorite love poem would
definitely slow down the mating process.
19
U.S. Constitution, article I, §8, cl. 8.
20
Harper & Row v. Nation Enterprises, 471 U.S 539
(1985); Maxtone-Graham v. Burtchaell, 803 F.2d 1253
(2d Cir. 1986). e Court in Harper & Row explained
that an important factor was whether the borrower
took the heart of the original work; see chapter 1.
21
Campbell v. Acuff-Rose, 510 U.S. at 591-92.
22
Ellsmere Music v. National Broadcasting Co., 623 F.2d
252 (2d Cir. 1980).
23
Fisher v. Dies, 794 F.2d 432 (9
th
Cir. 1986).
24
Ringgold v. Black Entertainment Television, 126 F.3d
70 (2d Cir. 1997).
25
Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992).
26
See Williams & Wilkins Co. v. United States, 487 F.2d
1345 (Ct. Cl. 1973), affirmed by an equally divided
court, 420 U.S. 376 (1975); American Geophysical
Union v. Texaco, 60 F.3d 913 (2d Cir. 1994).
27
Relevant documents are on file at the American Civil
Liberties Union.
28
http://www.chillingeffects.org/notice.
cgi?NoticeID=578 (visited 9/8/05).
29
http://www.whitehouse.org/administration/lynne.
asp (visited 9/8/05).
30
Benjamin Weiser, “Web Site Hears From Cheney
After Parody Involving Wife,” New York Times, Mar. 6,
2003, A24.
31
Remedies for copyright infringement include
either “actual damages” that the owner can prove,
or “statutory damages” of anywhere between $750-
$30,000. Where the court finds the infringement was
“committed willfully,” it can increase the statutory
damages up to $150,000, and can order the loser to pay
the other side’s attorney’s fees and costs. 17 U.S. Code
§§504, 505. Criminal penalties range up to ten years in
prison. 18 U.S. Code §2319.
e law does allow a judge to “remit statutory
damages in any case where an infringer believed and
had reasonable grounds for believing that his or her use
Endnotes
738148 Brennan.indd 58 11/16/05 9:38:58 AM
Brennan Center for Justice 59
of the copyrighted work was a fair use,” but only if the
infringer was an employee or agent of certain nonprofit
organizations, and the copying fell within specific
categories. 17 U.S. Code §§504(c)(2). Courts can also
acquit criminal defendants who honestly believed their
acts were fair use. United States v. Moran, 757 F. Supp.
1046, 1048 (D. Neb. 1991).
32
17 U.S.Code §512(c)-(g). Other provisions of the
DMCA make it a crime to circumvent the digital rights
management, or “DRM” technologies that corporate
copyright owners have created to stop unauthorized
access to, or copying of, their products. Courts have
recognized that these “anti-circumvention” provisions
threaten fair use – for example, when a film critic wants
to circumvent DRM in order to access a film frame
to illustrate an article – but they have upheld the law
nonetheless. Universal City Studios v. Corley, 273 F.3d
429, 459 (2d Cir. 2001); United States v. Elcom Ltd.,
203 F. Supp.2d 1125, 1131 (N.D. Cal. 2002).
33
17 U.S.Code §512(g) contains detailed requirements
for counter-notification, including a statement that
the subscriber consents to be sued by the sender of the
take-down notice.
34
Online Policy Group v. Diebold,, 337 F. Supp.2d
1195, 1203 (N.D. Cal. 2004). e court also found
that Diebold had knowingly misrepresented that the
postings violated copyright law, in violation of §512(f)
of the DMCA.
35
See Bridgeport Music v. Dimension Films, 410 F.3d
792, 803-04 (6
th
Cir. 2005) (describing the clearance
culture for music sampling).
36
David Bollier, Brand Name Bullies: e Quest to Own
and Control Culture (2005), 24-26.
37
Pat Aufderheide & Peter Jaszi, “Untold Stories:
Creative Consequences of the Rights Clearance Culture
for Documentary Filmmakers” (Center for Social
Media/Program on Intellectual Property & the Public
Interest, American University, 2004), http://www.
centerforsocialmedia.org/rock/finalreport.htm (visited
6/17/05).
38
Michael C. Donaldson, Clearance & Copyright
(2003), 209, includes a sample E&O insurance form.
39
Westmoreland sued CBS for a documentary that
“charged a conspiracy by the general’s command in
1967 to show progress in the war by understating
the size of the enemy”; he withdrew the suit after 18
weeks of trial, including damaging testimony from
his former aides. Myron Farber, “e Westmoreland
Case: A Broken West Point Tie,” New York Times, Feb.
24, 1985, 1:1. Sharon sued Time over charges that he
encouraged the killing of Palestinians at refugee camps;
a jury found that Time had made false and defamatory
statements, but not deliberately or recklessly; thus,
there was no liability. Arnold Lubasch, “Time Cleared
of Libeling Sharon But Jurors Criticize Its Reporting,”
New York Times, Jan. 25, 1985, A1. Even though
the defendants won both of these suits, the costs of
defending them were enormous.
40
Reiff’s description here of industry practice
conflicts with a section of the copyright law that
allows “the making, distributing, or public display of
pictures, paintings, photographs, or other pictorial
representations” of “an architectural work,” as long as
“the building in which the work is embodied is located
in or ordinarily visible from a public place.” 17 U.S.
Code §120. anks to David Nimmer for pointing
out that Disney does not own the copyright in the
architectural work, Disney Hall.
41
Ad-Hoc Committee of Educational Institutions and
Organizations on Copyright Law Revision Guidelines,
“Agreement on Guidelines for Classroom Copying in
Not-For-Profit Educational Institutions,” reprinted in
House Report No. 94-1476, 94
th
Cong., 2d Sess. 65-
74 (1976).
42
E.g., Basic Books, Inc. v. Kinko’s Graphics Corp., 758
F. Supp. 1522, 1535-37 (S.D.N.Y. 1991) (commercial
copy center’s reproduction of college course packs
was not fair use, and was also outside the Classroom
Guidelines); American Geophysical Union v. Texaco,
60 F.3d at 919 & n.5 (copying of journal articles by
hundreds of company scientists in connection with
their research was not fair use; it was not “spontaneous”
within the meaning of the Classroom Guidelines,
which, although “not considered necessarily binding
on courts,” are “persuasive authority marking out
certain minimum standards for educational fair uses”);
Princeton University Press v. Michigan Document Services,
99 F.3d 1381, 1390 (6
th
Cir. 1996) (photocopying by
a commercial copy shop for course packs was not fair
use; included in the legislative history of §107, the
guidelines represent part of Congress’s “understanding
of fair use”). One of the dissenting judges in the
Princeton case objected to his colleagues’ reliance on
guidelines that Congress specifically chose not to enact
into law; id., 1412 (Judge Ryan dissenting).
43
See Kenneth Crews, “e Law of Fair Use and the
Illusion of Fair Use Guidelines,” 62 Ohio State L.J. 599,
639-40 (2001) (describing two settlements in which
photocopy shops agreed to adhere to the guidelines,
and another case in which New York University did so).
44
Organizations that opposed some or all of the
CONFU Guidelines include the American Association
of State Colleges and Universities, American Council
on Education, American Historical Society, American
Library Association, Association of American
Universities, Association of Research Libraries, Medical
Library Association, National Association of State
Universities and Land-Grant Colleges, and American
Association of Law Libraries. Crews, 62 Ohio State L.J.
at 610 n. 36.
45
Id., 603 n. 4.
46
See http://www.negativland.com (visited 7/22/05);
Negativland, Fair Use: e Story of the Letter U and the
Numeral 2 (1995); Bollier, Brand Name Bullies, 214.
47
For more on e Grey Album, see chapter 3; for more
on Rhizome, see chapter 2.
738148 Brennan.indd 59 11/16/05 9:38:58 AM
60 Will Fair Use Survive?
48
See Katie Dean, “Eyes on the Prize hits P2P,” Jan.
27, 2005, http://www.freepress.net/news/6393 (visited
1/27/05).
49
See “Illegal Art: Freedom of Expression in the
Corporate Age,” http://www.illegal-art.org (visited
7/20/05).
50
Stipulated Judgment, Starbucks Corp. v. Kieron
Dwyer, No C 00 1499 MMC (N.D. Cal. Mar. 28,
2001).
51
Email from Stay Free! editor Carrie McLaren, Aug.
30, 2005.
52
See the Free Press site statement at http://www.
freepress.org (visited 6/30/05).
53
http://www.chillingeffects.org/copyright/notice.
cgi?NoticeID=94; http://www.chillingeffects.org/
protest/notice.cgi?NoticeID=92 (both visited 3/23/05).
54
http://www.chillingeffects.org/html/barney_letter.
html (visited 3/23/05). e EFF Barney page was an
archive of the online magazine Computer Underground
Digest and the item in question was called “Barney
Bashing.”
55
See www.creativecommons.org (visited 6/30/05).
56
is chapter focuses on U.S. law. Other countries
recognize a similar exception to copyright, called “fair
dealing.” For additional information on fair use and
the other free expression safety valves in copyright law,
see Stanford University Libraries, “Copyright and Fair
Use,” http://fairuse.stanford.edu; University of Texas,
“Fair Use of Copyrighted Materials,” http://www.
utsystem.edu/OGC/IntellectualProperty/copypol2.
htm; Electronic Frontier Foundation, http://www.
eff.org; Chilling Effects Clearinghouse, http://www.
chillingeffect.org; and Marjorie Heins, “e Progress of
Science and Useful Arts”: Why Copyright Today reatens
Intellectual Freedom (2003), http://www.fepproject.
org/policyreports/copyright2dexsum.html (all visited
7/20/05).
57
Sony Corp. v. Universal City Studios, 464 U.S. 417,
452 (1984).
58
Harper & Row v. Nation Enterprises, 471 U.S. at 566.
59
e amendment reaffirmed Harper & Row’s ruling
that the unpublished nature of a work is a “key”
factor, but repudiated its extension by one court of
appeals to say that unpublished works “normally
enjoy complete protection against copying.” Salinger
v. Random House, 811 F.2d 90, 97 (2d Cir. 1987).
A second case, rejecting fair use for quotations from
unpublished writings by Scientology founder L. Ron
Hubbard, heightened the sense of urgency in the
publishing world that led to the amendment; see New
Era Publications v. Henry Holt & Co., 873 F.2d 576
(2d Cir. 1989); William F. Patry, e Fair Use Privilege
in Copyright Law (2d ed. 1995), 91; 4 Nimmer on
Copyright §13.05[A][2][b].
60
Campbell v. Acuff-Rose, 510 U.S. at 583.
61
Id., 579, 587-88. e Court relied on an article by
Judge Pierre Leval, which argued that transformation
is the core of fair use. Pierre Leval, “Toward a Fair Use
Standard,” 103 Harvard L. Rev. 1105 (1990).
62
Campbell v. Acuff-Rose, 510 U.S. at 584, quoting 3
Boswell’s Life of Johnson 19 (G. Hill ed. 1934).
63
e courts in Castle Rock Entertainment v. Carroll
Publishing Group, 150 F.3d 132, 145 (2d Cir. 1998),
and American Geophysical Union v. Texaco, 60 F.3d at
926, noted that the Supreme Court has abandoned its
over-emphasis on the fourth factor.
64
Grand Upright Music v. Warner Brothers, 780 F. Supp.
182, 183 (S.D.N.Y. 1991).
65
Newton v. Diamond, 388 F.3d 1189, 1192 (9
th
Cir.
2003); Williams v. Broadus, 60 U.S.P.Q.2d (BNA)
1051 (S.D.N.Y. 2001) (both discussing the history of
sampling and noting that some samples may be “de
minimis” – too fleeting to create copyright liability).
One court rejected the de minimis concept entirely for
sampling from sound recordings, but acknowledged
there might be a fair use defense. Bridgeport Music. v.
Dimension Films, 410 F.3d 792.
66
Twin Peaks Productions v. Publications Int’l, 996 F.2d
1366 (2d Cir. 1993); Castle Rock v. Carroll Publishing,
150 F.3d 132.
67
SunTrust Bank v. Houghton Mifflin, 268 F.3d 1257
(11
th
Cir. 2001).
68
NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir.
2004).
69
Chicago School Reform Board v. Substance, Inc., 354
F.3d 624, 629 (7
th
Cir. 2003).
70
Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394
(9
th
Cir. 1997). is decision has been criticized for
ignoring the fact that borrowing in a satire may qualify
as fair use even if it is not a parody of the quoted work,
as long as the balance of all the fair use factors favors
the borrower.
71
Los Angeles News Service v. KCAL-TV, 108 F.3d 1119
(9
th
Cir. 1997).
72
Los Angeles News Service v. Reuters Television Int’l, 149
F.3d 987 (9
th
Cir. 1998).
73
Los Angeles News Service v. CBS Broadcasting, 305
F.3d 924 (9
th
Cir. 2002).
74
Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 25
(1
st
Cir. 2000).
75
David Nimmer, “‘Fairest of em All’ and Other
Fairy Tales of Fair Use,” 66 Law & Contemporary
Problems 264, 280-82 (2000).
76
Michael Madison, “A Pattern-Oriented Approach to Fair
Use,” 45 Wlliam & Mary L. Rev. 1525, 1577, 1587 (2004).
77
Crews, 62 Ohio State L.J. at 605-06.
78
Id., 607.
738148 Brennan.indd 60 11/16/05 9:38:59 AM
Brennan Center for Justice 61
79
15 U.S. Code §1114. e “false designation of
origin” section of the Lanham Act has the same
requirements, 15 U.S. Code §1125(a), and the
standards are similar for protection of unregistered
marks in state law.
80
Lucasfilm .v. High Frontier, 622 F. Supp. 931, 933-
34 (D.D.C. 1985). Some courts categorize parody and
editorial use generally as not being “in commerce.” On
the other hand, Congress has passed laws barring even
noncommercial use of specific words; the Supreme
Court upheld such a law when applied to prohibit the
Gay Olympic Games from using the term “Olympic.”
San Francisco Arts & Athletics, Inc. v. U. S. Olympic
Committee, 483 U.S. 522 (1987).
81
Hormel Foods v. Jim Henson Productions, 73 F.3d 497
(2d Cir. 1996).
82
Transcript of Preliminary Injunction Hearing in Fox
News Network v. Penguin Group, Aug. 22, 2003, http://
alfrankenweb.com/foxcourt.html (visited 5/18/05). e
judge added that “fair and balanced” is probably not
even a valid trademark, “because the words are used so
frequently,” and that in any event, Franken had a First
Amendment right to make fun of Fox, which trumped
any possible claim under trademark law.
83
Dallas Cowboys Cheerleaders v. Pussycat Cinema, 604
F.2d 200, 202 (2d Cir. 1979).
84
Yankee Publishing v. New America Publishing, 809 F.
Supp. 267, 272 (S.D.N.Y. 1992).
85
anks to ChillingEffects.org for these examples;
the second comes from Zatarain’s, Inc. v. Oak Grove
Smokehouse, 698 F.2d 786 (5
th
Cir. 1983). 15 U.S.
Code §1115(b)(4) creates the classic or descriptive fair
use defense.
86
Mattel v. Walking Mountain Productions, 353 F.3d at
810-11.
87
Playboy Enterprises v. Welles, 279 F.3d 796 (9
th
Cir.
2002).
88
New Kids on the Block v. News America Publishing,
971 F.2d 302 (9
th
Cir. 1992).
89
Eldred v. Ashcroft, 537 U.S. 186, 221 (2003); Harper
& Row, 471 U.S. at 560.
90
Mattel v. Walking Mountain Productions¸ 353 F.3d at
807; Mattel. v. MCA Records, 296 F.3d 894, 904 (9
th
Cir. 2002).
91
Charles Atlas v. DC Comics, 112 F. Supp.2d 330, 341
(S.D.N.Y. 2000).
92
Rogers v. Grimaldi, 875 F.3d 994, 999 (2d Cir.
1989).
93
Id., quoting Cohen v. California, 403 U.S. 15, 26
(1971).
94
Anheuser-Busch v. Balducci Publications, 28 F.3d 769,
772, 775 (8
th
Cr. 1994).
95
15 U.S. Code §1125(c).
96
ese are examples given in Mattel v. MCA Records,
296 F.3d at 903.
97
Jews for Jesus v. Brodsky, 993 F. Supp. 282, 307-08
(D.N.J.) (granting a preliminary injunction), affirmed
without opinion, 159 F.3d 1351 (3d Cir. 1998). e
finding of commercial impact was based on a link to a
site that sold merchandise, and the court’s perception
that simply using the Jews for Jesus name would
“inhibit the efforts of Internet users” to locate the
official site. Id., 308.
98
Mattel v. MCA Records, 296 F.3d at 903-07.
99
Lamparello v. Falwell, 420 F.3d 309, 313 (4
th
Cir.
2005). is court criticized the Jews for Jesus decision,
and another case involving use of the Planned
Parenthood name, for stretching the likelihood of
confusion test to include a theory of “initial interest
confusion” that cuts trademark law “off from its
moorings, to the detriment of the First Amendment.”
Id., 317 n. 6. See also L.L. Bean v. Drake Publishers,
811 F.2d 26, 28 (1
st
Cir. 1987) (rejecting a state law
trademark dilution claim against a parody of the
L.L. Bean catalog, and noting that since the time of
Chaucer, parodies have “ridiculed sacred verities and
prevailing mores”).
100
15 U.S. Code §1125(d).
101
Strick Corp. v. James B. Strickland, Jr., 162 F.
Supp.2d 372, 377 (E.D. Pa. 2001).
102
People for Ethical Treatment of Animals v. Doughney,
113 F. Supp.2d 915, 920-21 (E.D. Va. 2000), affirmed,
263 F.3d 359 (4
th
Cir. 2001).
103
See Bosley Medical Institute. v. Kremer, 403 F.3d
672, 679 (9
th
Cir. 2005); Lamparello v. Falwell, 420
F.3d at 317-18. In Bihari v. Gross, 119 F. Supp.2d
309 (S.D.N.Y. 2000), the court held that a Web site
critical of an interior design company was entitled to
use a similar domain name because the site was not
commercial; no reasonable viewer would think it was
endorsed by the company being disparaged; the critics
were acting in good faith; and the site was entitled to
the “descriptive fair use” defense.
104
PETA v. Doughney, 263 F.3d at 362, 368.
105
Paul Alan Levy, “Legal Perils and Legal Rights of
Internet Speakers” (Public Citizen Litigation Group,
n.d.), 15. For more on ICANN decisions and “.sucks”
sites, see Bollier, Brand Name Bullies, 128-30.
106
Estate of Tupac Shakur v. Barranco, Nos. AF-0348a
& AF-0348b (UDRP Oct. 28, 2000); Nintendo of
America v. Alex Jones, No. D2000-0998 (UDRP Nov.
17, 2000).
107
We have edited the focus group transcripts for
coherence and readability. We have not included ellipsis
dots, but have scrupulously retained the speakers'
meaning. e transcripts are on file at the Brennan
Center.
108
is is one example of an inaccurate, or at least
overbroad, statement by a focus group participant.
738148 Brennan.indd 61 11/16/05 9:38:59 AM
62 Will Fair Use Survive?
109
Not an exact quote. See Alan Alexander Milne,
“Rice Pudding,” http://ingeb.org/songs/whatisth.html
(visited 5/26/05).
110
Wright v. Walker, 953 F.2d 731 (2d Cir. 1991)
(holding that Walker’s limited quotations from Richard
Wright’s unpublished letters and journals were fair use).
111
France recognizes four categories of “moral rights”
that differ from U.S. law. e first is the “right of
disclosure” – the right to decide whether or not to
publish. Under French law, even a paraphrase of an
unpublished writing could violate le droit moral. See
Sheri Falco, “e Moral Rights of Droit Moral: France’s
Example of Art as the Physical Manifestation of the
Artist,” Archive, Vol. 2, No. 206 (n.d.), http://www.
ibslaw.com/melon/archive/206_moral.html (visited
4/25/05).
112
is dispute was resolved a few weeks after the focus
group, when Rowley agreed to some cuts for a separate
European edition of the book, Tête à Tête: Simone
de Beauvoir and Jean-Paul Sartre. Emails with Hazel
Rowley, Apr. 2004.
113
See U.S. Copyright Office, “Recipes,” FL-122
(Jan. 2004), http://www.copyright.gov/fls/fl122.pdf
(visited 9/7/05) (“mere listings of ingredients as in
recipes, formulas, compounds or prescriptions are not
subject to copyright protection. However, where a
recipe or formula is accompanied by substantial literary
expression in the form of an explanation or directions,
… there may be a basis for copyright protection”).
114
Not precisely accurate: “A synchronization or
‘synch’ right involves the use of a recording of musical
work in audio-visual form: for example as part of
a motion picture, television program, commercial
announcement, music video or other videotape.”
ASCAP, “Common Music Licensing Terms,” http://
www.ascapagecom/licensing/termsdefined.html (visited
7/19/05).
115
Capra’s Why We Fight films for the Army have been
described as “some of the most memorable propaganda
used by the government during World War II.” Heidi
Rickard & Jennifer Bunke, “World War Two,” http://
web.uccs.edu/history/student%20presentations/heidi/
world_war_two.htm (visited 5/26/05).
116
U.S. Government-produced materials are in the
public domain. 17 U.S. Code §105.
117
Ringgold v. Black Entertainment Television, 126 F.3d
at 78-80 & n. 8. A Library of Congress regulation
governing royalties to be paid by public broadcasters for
the use of visual works sets a higher rate for “featured”
than for “background” displays; it does not mention
fair use. 37 Code of Federal Regulations 253.8, cited in
Ringgold, 77.
118
Italian Book Corp. v. ABC, 458 F. Supp. 65, 68
(S.D.N.Y. 1978).
119
E.g., Gordon v. Nextel Communications, 345 F.3d
922 (6
th
Cir. 2003) (use of medical illustrations as
background props for a dental office scene in an
advertisement was incidental and de minimis).
120
e passing use of a trademark in a film scene
would not seem to meet the requirement for
infringement: that the mark be used in connection
with the sale, distribution, or advertising of products or
services. 15 U.S. Code §1114.
121
Not exactly accurate – Rauschenberg chose to settle
the suit. See Artnet News, Feb. 10, 2000, http://www.
artnet.com/Magazine/news/artnetnews/artnetnews2-
10-00.asp (visited 5/11/05) (describing Rauschenberg’s
1974 mixed-media print “Pull,” “made famous when
San Francisco photographer Morton Beebe sued the
artist for incorporating two of his photographs in the
work without permission”; Rauschenberg claimed
that the appropriation was protected by the First
Amendment, but settled the case for $3,000, legal fees,
a copy of the print, and an agreement to credit Beebe
when the work is exhibited).
122
e letter is at http://firstpulseprojects.com/
1stletter-from-bhoffman2.26.04.html (visited 6/15/05).
123
Rhizome is a nonprofit organization seeking to
“provide an online platform for the global new media
art community.” e Web site defines a rhizome as “a
horizontal, root-like stem that extends underground
and sends out shoots to the surface,” and adds:
“rhizome is also a figurative term used by Gilles
Deleuze and Felix Guattari to describe non-hierarchical
networks of all kinds. “About Us,” http://rhizome.org/
info/index.php (visited 6/10/05).
124
e reply letter is at http://firstpulseprojects.com/
letter-to-bhoffman2.27.04.html (visited 6/15/05). It
agrees to credit Meiselas and Magnum on the title of
the painting, but not to seek Meiselas’s approval for any
reproduction or display.
125
e second demand letter is at http://
firstpulseprojects.com/2ndletter-from-
bhoffman3.03.04.html (visited 6/15/05).
126
Garnett’s story, with copies of the correspondence
with Meiselas’s attorney, and links to the many
variations on “Molotov,” can be found at http://www.
firstpulseprojects.net/riot_2003/joywar (visited
6/15/05).
127
A common assumption, but asking and being
refused does not undermine a fair use defense.
Campbell v. Acuff-Rose, 510 U.S. at 585.
128
“CONFU – e Conference on Fair Use,” http://
www.utsystem.edu/OGC/IntellectualProperty/confu.
htm (visited 6/20/05). See pages 6-7 (noting that these
guidelines do not accurately reflect the law of fair use).
129
Like the “classroom use” guidelines, the practices of
copy centers don’t necessarily reflect fair use law. Courts
have ruled that the creation of educational course packs
by commercial copy shops is not fair use, but this
does not mean that copying a few pages from a book
would make a copy shop liable. It also leaves open the
question of how much nonprofit copying by individual
738148 Brennan.indd 62 11/16/05 9:38:59 AM
Brennan Center for Justice 63
professors and students for teaching and research
purposes would qualify. Compare Basic Book. v. Kinko’s,
758 F. Supp. 1522, and Princeton University Press v.
Michigan Document Services, 99 F.3d 1381 (both ruling
that commercial coursepacks are not fair use), with
Williams & Wilkins v. U.S., 487 F.2d 1345 (large-scale
copying by a government library to assist scientific
research is fair use), and Duffy v. Penguin Books, 4 F.
Supp.2d 268 (S.D.N.Y. 1998) (photocopying portions
of out-of-print books to aid in research is fair use).
130
Some courts have said that a musical borrowing
is de minimis and thus not a copyright infringement
to begin with, if “the average audience would not
recognize the appropriation.” Newton v. Diamond, 388
F.3d at 1193; Fisher v. Dees, 794 F.2d at 434 n.2.
131
NYU’s policy is probably the result of a lawsuit
settlement in which the university agreed to abide by
negotiated guidelines; see page 6.
132
“Chilling Effects Clearinghouse,” http://www.
chillingeffects.org/ (visited 5/10/05).
133
Id.
134
e number was actually 339, but we did not count
seven items. Six of them were not cease and desist
or take-down letters, and the seventh was no longer
available on the site.
135
“Operation Clambake: e Fight Against the
Church of Scientology on the Net,” http://www.Xenu.
net (visited 5/11/05).
136
Mark ompson, “Overzealous Lawyers Beware:
Today’s Sites Are Fighting Back,” USC Annenberg
Online Journalism Review, Sept. 15, 2004, http://ojr.
org/ojr/law/1095284771.php (visited 4/12/05)
(quoting Wendy Seltzer).
137
“What is Avatar?”, http://www.avatarepc.com/html/
whatis.html (visited 4/24/05).
138
Because copyright does not protect any “idea,
procedure, process, system, [or] method of operation,”
the bare formulas and instructions for calculating pool
handicaps would not be copyrightable. 17 U.S.Code
§102(b).
139
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1217, 1154, and 1072 (all visited
5/11/05). Short phrases are not covered by copyright,
but may have trademark protection if they are distinctly
enough associated with a particular service or product.
U.S. Copyright Office, Circular 34, “Copyright Not
Available for Names, Titles, or Short Phrases,” http://
www.copyright.gov/circs/circ34.html (visited 9/7/05).
140
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1204, 1315 (both visited 5/11/05).
141
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1269 (Haiku houses); 1359 and 1259
(National Health Scotland); 1581 (Paddle Asia); 1531
(poetry); 1221 (Brazilian Playboy) (all visited 5/11/05).
142
e one claim in this category that we classified
as “possible fair use – more information needed”
involved the alleged distribution of a Cisco Systems
source code on an online discussion group; http://www.
chillingeffects.org/dmca512/notice.cgi?NoticeID=1511
(visited 5/16/05).
143
MGM v. Grokster, 125 S.Ct. 2764 (2005) (ruling
that peer-to-peer networks can be liable for inducing
copyright infringement, and assuming that sharing
copyrighted works through these networks, even
though for personal use, is illegal).
144
See Religious Technology Center v. Lerma, 40
U.S.P.Q.2d (BNA) 1569 (E.D.Va. 1995) (no fair use
where a critic of Scientology posted large segments
of the Church’s texts without commentary on many
of the postings); Religious Technology Center v. Lerma
& Washington Post, 897 F. Supp. 260 (E.D.Va. 1995)
(newspaper’s limited quotation of Scientology materials
accompanied by commentary was protected by the First
Amendment and fair use); Religious Technology Center
v. Netcom Online Communication Services, 907 F. Supp.
1361, 1378 (N.D. Cal. 1995) (ISP was protected by
fair use, but not the person who posted “large portions”
of Scientology works “with little added commentary”);
Religious Technology Center v. F.A.C.T.NET, 901 F.
Supp. 1519, 1524-26 (D.Colo. 1995) (likely fair use
defense where the materials were posted in a limited-
access online library and “in the context of online
dialogue in [a] particular newsgroup”).
145
Not only are nondistinctive terms unlikely to create
consumer confusion about the origin of a particular
product or service, but they are often not eligible for
trademark protection in the first place. Trademark
law classifies marks into four categories, based on how
distinctive they are. “Generic” marks get no trademark
protection, and the same is true of “descriptive” marks
unless they have acquired a “secondary meaning.”
“Fanciful” or “arbitrary” marks get the most protection,
and “suggestive” marks are second in priority.
1 McCarthy on Trademarks and Unfair Competition
§§ 11.1, 11.2 (4
th
ed. 1996); Playtex Products v. Georgia
Pacific, 390 F.3d 158, 163 (2d Cir. 2004).
146
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1329 (“penisimprovement”);
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=1065 (“Pet Friendly”) (both visited
5/11/05). e owner of www.penisimprovement.com
complained that his masthead image had been copied,
but the allegedly infringing sites had a different image.
For more on “Pet Friendly,” see chapter 4.
147
For more on the New York Times controversy, see
chapter 4; for more on “Internet Infidels,” see chapter
5; for more on “American Expressway,” see page 34.
148
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1357, 1386, 1387, 1431 (all visited
7/10/05). ese letters complained of multiple
newsgroup postings, but based on the subject lines, we
thought at least one of the postings would have a strong
fair use defense.
738148 Brennan.indd 63 11/16/05 9:39:00 AM
64 Will Fair Use Survive?
149
http://msophelia.blogspot.com/prancer.jpg (visited
5/11/05); the take-down letter is at http://www.
chillingeffects.org/dmca512/notice.cgi?NoticeID=1071
(visited 4/7/05). See Kelly v. Arriba Soft Corp., 336
F.3d 811 (9
th
Cir. 2003) (thumbnail reproductions on
an Internet search engine were fair use); Bill Graham
Archives v. Dorling Kindersley, 75 U.S.P.Q.2d 1192
(S.D.N.Y. 2005) (thumbnail images of concert posters
in a book on e Grateful Dead were fair use).
150
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1330 (visited 3/16/05).
151
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1089 (visited 4/7/05). See U.S.
Copyright Office, FL-122, supra note 113.
152
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1225 (visited 3/16/05).
153
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1307, 1381, 1306, 1353, 1458 (all
visited 5/11/05).
154
In Los Angeles Times v. Free Republic, 54 U.S.P.Q.2d
(BNA) 1453 (C.D. Cal. 2000), a court ruled that
copying complete news articles, even in the context of
a nonprofit discussion site, does not qualify as fair use.
An important factor in the court’s analysis was that
the use was not “transformative” – that is, the site did
not comment on the articles, but instead used them as
sources for general current events discussion.
155
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1137 (visited 5/11/05).
156
See the court order appended to http://www.
chillingeffects.org/dmca512/notice.cgi?NoticeID=1475
(visited 4/24//05).
157
Although commercial, these sites have First
Amendment protection. An entrepreneur has the right
to choose a name or use text to convey her ideas and
information about her product. Many commercial
sites are maintained by artists or craftsmen, and
many products contain literary expression or political
commentary.
158
We could not determine the result in the other
three cases.
159
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=1047 (visited 5/11/05).
160
http://www.privatelessons.info (visited 5/16/05).
161
http://www.chillingeffects.org/acpa/notice.
cgi?NoticeID=1550; http://www.springfieldmatch.com
(both visited 5/11/05).
162
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=1355 (visited 5/11/05).
163
http://www.chillingeffects.org/acpa/notice.
cgi?NoticeID=1364 (visited 5/11/05).
164
http://www.RedHouseBooks.com (visited 5/16/05).
165
http://www.chillingeffects.org/udrp/notice.
cgi?NoticeID=1539; http://www.MassMutualSuks.com
(both visited 5/11/05).
166
http://www.chillingeffects.org/acpa/notice.
cgi?NoticeID=1437; http://www.smoe.org/cgi-bin/mj_
wwwusr?func=info&list=hom-announce (both visited
5/16/05).
167
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=1530; http://www.prointell.com (both
visited 5/11/05). Intel was incorrect. “Abandonment”
of trademark rights only occurs when use of the mark
“has been discontinued with intent not to resume,” or
when the owner allows the mark to become “generic.”
15 U.S. Code §1127. Failure to “police” the mark is
only relevant if the mark “has lost all significance as an
indication of origin.” 2 McCarthy on Trademarks and
Unfair Competition §17.05. Similarly, under copyright
law, there must be a proven intent to abandon one’s
rights. National Comics Pubs. v. Fawcett Pubs., 191 F.2d
594, 598 (2d Cir. 1951); Dam ings From Denmark
v. Russ Berrie & Co., 290 F.3d 548, 560 (3d Cir. 2002).
“Failure to pursue third-party infringers has regularly
been rejected as a defense to copyright infringement or
as an indication of abandonment.” Capitol Records v.
Naxos of America, 372 F.3d 471, 484 (2d Cir. 2004).
e doctrine of abandonment therefore provides no
excuse for IP owners to send cease and desist letters in
every conceivable case of infringement.
168
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1226 (visited 5/16/05).
169
http://www.howardhallis.com/bis/cthulhuchick
(visited 4/17/05).
170
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1248 (visited 5/16/05).
171
http://www.2600.com/hackedphiles/value_jet/
hacked/html/home.html (visited 5/16/05).
172
http://www.2600.com/hackedphiles/value_jet/
(visited 5/16/05).
173
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1218 (visited 5/16/05).
174
http://www.netfunny.com/rhf/jokes/91q2/
amexprew.html; http://ideas.4brad.com/
archives/000064.html (both visited 5/16/05).
175
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1187 (visited 5/16/05).
176
http://www.chillingeffects.org/fanfic/notice.
cgi?NoticeID=1067 (visited 4/24/05).
177
is is a controversial prediction; there is not much
legal precedent on fan sites. See page 10; Deborah
Tussey, “From Fan Sites to Filesharing: Personal Use in
Cyberspace,” 35 Georgia L. Rev. 1129 (2001); Rebecca
Tushnet, “Using Law and Identity to Script Cultural
Production: Legal Fictions: Copyright, Fan Fiction, and
a New Common Law,” 17 Loyola L.A. Entertainment L.
J. 651 (1997).
178
“Fanfic and Transcript Removal,” http://www.
sincereamore.com/board/viewtopic.php?t=462;
“Disclaimer,” http://www.sincereamore.com/main_
content/disclaimer.html (visited 4/17/05).
738148 Brennan.indd 64 11/16/05 9:39:00 AM
Brennan Center for Justice 65
179
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1123, 1124, 1129, 1131, 1132, 1133,
1142 (all visited 5/16/05).
180
http://www.downhillbattle.org (visited 4/17/05);
see also http://www.greytuesday.org/ (visited 4/17/05).
181
“Response to EMI’s Cease and Desist Letter,”
Feb. 23, 2004, http://www.downhillbattle.org/index.
php?p=68 (visited 6/24/04).
182
http://www.eff.org/IP/grey_tuesday.php (visited
5/16/05). EFF also noted that EMI did not have a
federal copyright claim because sound recordings
weren’t covered by the federal law until 1972; it might
have had state law remedies.
183
Twenty of these resulted from take-down letters
from the American Pool Players Association, and 18
from Star’s Edge.
184
Two proprietors of sites that we’ve categorized as
“Strong Fair Use - Did Not Acquiesce or Remove”
– Robert Cox of the New York Times correction page
and “Durango Bill,” both described in chapter 4 – did
temporarily remove the targeted material in order to
avoid having their ISPs take down their sites.
185
All of these related to Danger Mouse’s Grey Album.
186
He was mistaken because once something is in the
public domain, it can be used for any purpose, whether
for-profit or not-for-profit. If work is not in the public
domain, part or all of it still might be usable without
permission; this is the whole point of fair use.
187
We have edited the interviews in the interests
of coherence and readability, but have scrupulously
retained the speakers' meaning. Interview notes are on
file at the Brennan Center.
188
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=445 (visited 5/4/05).
189
See http://www.capecodvoice.com/vvimages/
theme1121.html (visited 5/4/05) for this letter, along
with the rest of the correspondence and e Cape Cod
Voice’s commentary.
190
http://www.capecodvoice.com/vvimages/
theme1121.html (visited 5/4/05).
191
http://www.capecodvoice.com/vvimages/
theme1121.html (visited 5/4/05).
192
http://www.PetFriendlyTravel.com (visited 5/4/05).
193
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=420 (visited 5/4/05).
194
Another Pet Friendly, Inc. cease and desist letter
found in the Chilling Effects Clearinghouse targeted
Pet Friendly Rentals of California; see http://www.
chillingeffects.org/domain/notice.cgi?NoticeID=1065.
A site with the URL http://www.pet-friendly-rentals.
com California.was still operating in mid-2005 (both
visited 5/4/05).
195
is interviewee asked to remain anonymous.
196
http://www.chillingeffects.org/protest/notice.
cgi?NoticeID=460 (visited 5/4/05).
197
Hasbro v. Clue Computing, 66 F. Supp.2d 117
(D.Mass.1999), affirmed, 232 F.3d 1 (1
st
Cir. 2000).
198
Interstellar Starship Services v. Epix,, 304 F.3d 936,
944 (9
th
Cir. 2002).
199
e correspondence is on file at the Brennan
Center. See the Clinic’s description of the case at http://
cyberlaw.stanford.edu/about/cases/udrp_cases.shtml
(visited 5/4/05).
200
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=541 (visited 5/4/05).
201
is and subsequent correspondence between
Bradley and IDG are on file at the Brennan Center.
202
http://www.eInfoworld.com (visited 5/4/05).
203
http://www.saltyrain.com/about.html (visited
5/5/05).
204
http://www.saltyrain.com/tatooine/hoopla.html
(visited 4/23/05).
205
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=159 (visited 5/5/05).
206
http://www.saltyrain.com/tatooine/hoopla.html
(visited 4/23/05).
207
See the discussion in chapter 1, pages 11-14.
208
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=841 (visited 4/22/05). is was one of
several interviewees who asked to remain anonymous.
209
See pages 13-14; Uniform Domain Name Dispute
Resolution Policy, Oct. 24, 1999, http://www.icann.
org/dndr/udrp/policy.htm (visited 7/22/05); P. Landon
Moreland & Colby Springer, “Celebrity Domain
Names: ICANN Arbitration Pitfalls and Pragmatic
Advice,” 17 Santa Clara Computer & High Tech L.J. 385
(2001).
210
http://www.thenationaldebate.com/blog (visited
6/14/05).
211
It is open to debate whether Dowd’s editing
altered Bush’s meaning. On May 5, 2003, Bush said:
“at group of terrorists who attacked our country
is slowly, but surely being decimated. Right now,
about half of all the top al Qaeda operatives are either
jailed or dead. In either case, they’re not a problem
anymore.” http://www.whitehouse.gov/news/releases
/2003/05/20030505-4.html (visited May 11, 2004).
In her May 14, 2003 column, Dowd quoted Bush
as saying: “at group of terrorists who attacked our
country is slowly but surely being decimated. …
ey’re not a problem anymore.” “Osama’s Offspring,”
New York Times, May 14, 2003, A25.
212
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1178 (visited 5/19/05).
213
See page 10 for a description of e Wind Done
Gone case.
214
“Gone With the First Amendment,” New York
Times, May 1, 2001, A22. Coleman’s letter is at
http://www.chillingeffects.org/responses/notice.
cgi?NoticeID=1186 (visited 5/19/05).
738148 Brennan.indd 65 11/16/05 9:39:00 AM
66 Will Fair Use Survive?
215
“MBA Legal Defense Initiative Takes on First Case,”
http://www.mediabloggers.org/archives/2005/02/mba_
legal_defen.php (visited 5/2/05).
216
“What is Attrition?”, http://attrition.org/attrition/
about.html (visited 4/24/05).
217
http://www.chillingeffects.org/protest/notice.
cgi?NoticeID=153 (visited 5/3/05). is is one of
three cease and desist letters from MasterCard on the
Chilling Effects site, all complaining of defamatory
or tasteless takeoffs on MasterCard ads: http://www.
chillingeffects.org/protest/notice.cgi?NoticeID=473;
http://www.chillingeffects.org/trademark/notice.
cgi?NoticeID=17 (both visited 5/3/05).
218
Martin’s reply is at http://attrition.org/news/mc/
mc010.txt; a description of the controversy is at http://
attrition.org/news/mc/ (both visited 5/3/05).
219
“Mastercard reatens to Sue Attrition,” July 1,
2003, http://attrition.org/mews/mc/ (visited 4/24/05).
At the time Mastercard threatened Attrition, it had
already sued Ralph Nader’s 2000 Presidential Primary
Committee for using takeoffs on the “Priceless”
campaign in its campaign ads. In March 2004, a
court dismissed the suit, ruling that there was no
likelihood of confusion. Mastercard Int’l, Inc. v. Nader
2000 Primary Committee, 70 U.S.P.Q.2d (BNA) 1046
(S.D.N.Y. 2004).
220
http://www.lds4u.com; http://www.lds4u.com/
balanced.htm (both visited 5/3/05).
221
e take-down letter is at http://www.
chillingeffects.org/notice.cgi?NoticeID=352 (visited
5/4/05); the later correspondence is on file at the
Brennan Center.
222
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1340 (visited 4/22/05).
223
See http://www.durangobill.com/JasonGastrich.
html (visited 4/22/05) for details.
224
“Do It Yourself Counter Notification Letter,”
http://www-2.cs.cmu.edu/~dst/Terrorism/form-
letter.html (visited 4/22/05). is site, operated by a
Carnegie Mellon University professor, explains that
“one of the favorite tools of both cults and corporations
seeking to take embarrassing information off the
Internet is to falsely claim violation of a copyright
or trademark,” and outlines the DMCA provision
for a counter-notification letter. “Most people don’t
know how to write such a letter, which is why I’ve put
together this helpful form.” Chilling Effects also has a
“Build Your Own Counter-Notice” page, http://www.
chillingeffects.org/dmca/counter512.pdf (visited
9/17/05).
225
“Important Notice,” http://www.dreslough.com/
main/important.htm (visited 4/25/05).
226
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=143 (visited 5/3/05).
227
http://www.AvatarScam.com/ (visited 4/17/2005).
228
http://www.chillingeffects.org/trademark/notice.
cgi?NoticeID=1280 (visited 4/21/05).
229
Compare 1-800 Contacts v. WhenU.Com, 75
U.S.P.Q.2d (BNA) 1161 (2d Cir. 2005) (using a
company’s Web address to trigger pop-up ads is
not an unauthorized “use” under trademark law);
Playboy Enterprises v. Netscape, 354 F.3d 1020 (9
th
Cir.
2004) (using the terms “playboy” and “playmate” to
trigger banner ads might infringe or dilute Playboy’s
trademarks, depending on the market context, the
user’s intent, and other factors). In GEICO v. Google,
330 F. Supp.2d 700 (E.D.Va. 2004), a judge initially
ruled that Google was not liable for using the GEICO
name to sell ads, but might have “contributory” liability
for sponsored links using the trademark. After trial,
the judge found that advertisers using the trademark
in their headings or text did create a likelihood of
confusion; the only remaining question was whether
Google was contributorily liable. GEICO v. Google,
2005 Westlaw 1903128 (Aug. 8, 2005). Overture was
also a defendant in this case, but settled with GEICO
in late 2004, which might explain why it changed its
mind about the teddy bear ads.
230
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=262 (visited 5/5/05).
231
ICANN, “Domain Name Dispute Resolution
Policies,” http://www.icann.org/udrp/#erdrp (visited
5/5/05).
232
Because of the length of this report, we are not
reprinting the survey, which is available on request
from the Brennan Center.
233
Four individuals who had received cease and
desist letters nevertheless answered “no” to the
survey question whether they had been involved in
a “controversy.” We counted them as having been
involved in a controversy despite their negative
answer to the question. Of the 58 surveys recounting
controversies, four described multiple incidents. A few
of those who answered the survey were also interviewed
by phone or participated in a focus group.
234
Some of these numbers are based on our reading of
all of a respondent’s answers, not just the answer to the
acquiescence question. For example, a respondent says
he did not acquiesce, but then describes a settlement.
235
e person whose ISP took down the material
– Bill Butler – was ultimately able to re-post; see
chapter 4.
236
We have edited quotations for coherence and
readability, but have scrupulously retained the meaning.
237
http://www.iidb.org/vbb/index.php (visited
6/1/05).
238
http://www.answersingenesis.org (visited 5/25/05).
239
http://www.iidb.org/vbb/showthread.php?t=66561
(visited 4/12/05).
240
http://www.chillingeffects.org/protest/notice.
cgi?NoticeID=1069 (visited 6/1/05).
241
http://www.chillingeffects.org/domain/notice.
cgi?NoticeID=480 (visited 4/22/05).
242
http:// www.worldwidewarning.net/portal.htm
(visited 6/2/05).
738148 Brennan.indd 66 11/16/05 9:39:01 AM
Brennan Center for Justice 67
243
http://davidwaathiq.worldwidewarning.net/ (visited
6/2/05).
244
http://www.chillingeffects.org/dmca512/notice.
cgi?NoticeID=1254 (visited 6/2/05).
245
e correspondence can be found at http://amway.
robinlionheart.com/cuthreat.xhtml (visited 4/16/05).
246
See http://www.chrissyconant.com (visited 7/22/05).
247
Letter from attorney Daniel Kirshner to Chrissy
Conant, Apr. 20, 2005 (on file at the Brennan Center).
248
e need for art scholars to reproduce complete
images as part of their commentary is obvious, but
not firmly established as fair use. In Ringgold v. Black
Entertainment Network, though, the court suggested
that if a TV program produced a feature on an artist
and included shots of her works, “the case for a fair use
would be extremely strong.” 126 F.3d at 79.
249
Anne Elizabeth Moore, “Operation Pocket Full of
Wishes,” Mar. 15, 2005, http://www.inthesetimes.com/
site/main/article/2006 (visited 9/9/05).
250
http://lists.driftline.org/listinfo.cgi/deleuze-guattari-
driftline.org (visited 6/6/05).
251
e parody page is at http://aphid.org/CA/index.
php; the Chick site at http://www.chick.com/reading/
tracts/0039/0039_01.asp (both visited 6/2/05).
252
e dean had ordered the removal from a site near
a campus theater of a student sculpture that used found
objects to represent body parts. Our respondent wrote:
“of course, the plumbing pipe as a penis caused the stir.
Ironically, the play being performed was A Midsummer
Night’s Dream. Funny that a plumbing pipe penis was
more offensive than a woman sleeping with a donkey!”
253
is statement reflects a misunderstanding of
fair use, because a work can be both educational and
commercial. Fair use is not precluded because a work is
marketed commercially; see pages 9-10.
254
Professors supplying photocopies in violation of
university policies would not necessarily be breaking
the law. Some universities may have reacted to court
decisions rejecting fair use defenses for commercial
copy shops by imposing policies that are more
restrictive than fair use law. See pages 6-7 and n. 129.
255
In 1999, a federal court ruled that museum
reproductions of works in their collections do not have
enough originality to qualify for copyright protection.
In other words, these images can be reproduced
without asking permission – as long as the work that
was photographed is in the public domain. Bridgeman
Art Library v. Corel Corp., 36 F. Supp.2d 191 (S.D.N.Y.
1999). But the clearance culture persists: museums and
archive houses continue to demand fees and licenses.
256
See http://www.centerforsocialmedia.org/fairuse.
htm;.and for background, Pat Aufderheide & Peter
Jaszi, “Recommendations” (Center for Social Media/
Program on Intellectual Property & the Public
Interest, American University, 2004), http://www.
centerforsocialmedia.org/rock/recommendations.htm
(visited 8/31/05).
257
e “Copyright Kids” section of the Copyright
Society’s Web site includes the following discouraging
statement: “Unless you are absolutely sure, relying on
the doctrine of 'Fair Use' to avoid seeking Permission to
copy a work is risky.” “Copyright Basics,” http://www.
copyrightkids.org/cbasicsframes.htm (visited 6/17/05).
258
At present, there is only a very narrow exemption
from damages. See n. 31.
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70 Will Fair Use Survive?
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