November 1, 2008

USF Fair Use Symposium: Panel 1 — Real Lawyers, Real Cases

I’m liveblogging today from the University of San Francisco School of Law Fair Use Symposium. The first panel is called “Real Lawyers, Real Cases.”  The panelists:

  • J. Thomas McCarthy (USF, Moderator)
  • Annette Hurst (Orrick)
  • Jason Schultz (Berkeley)
  • Corynne McSherry (EFF)
  • Bill Coats (White & Case)
  • Ray Nimmer (University of Houston Law Center)

First, Bill Coats:

User Generated Content and Copyright Issues from the Entertainment Industry Point of View.

He represents many content owners, including one Japanese anime producer whose Japanese-broadcast shows appear on the internet, with English subtitles, before they have a chance to subtitle them and show them on Cartoon Network themselves.

[He does a very good presentation on the latest issues in online copyright law, including inducement and the "making available" question. Unfortunately, he runs out of time before going into depth on issues of fair use.]

LucasFilm, his client, sponsors interesting UGC contests.

Next, Annette Hurst:

The parody branch of the fair use defense, focusing on Mattel v. Walking Mountain.

The client was Tom Forsythe. He took photos of Barbie in “compromising positions with vintage kitchen appliances.”  Most of his sales of art prints were to Mattel’s private investigators. He also had a postcard for sale. He also had it on his business card. The precipitating factor for the lawsuit was going up on the web.

Mattel brought copyright claims based on its sculptural work (“the head of the doll without adornment”), trade dress claims (the appearance of the doll with adornment), and trademark claims for the word mark “BARBIE.”

One key issue was whether the works were satire or whether they were parody. (This was spun out in the Dr. Seuss case.) For example, the Barbie Enchiladas photo, Forsythe said, embodied his view that Barbieis being sold to us as a consumer food concoction that we are to blindly internalize. It helped atmospherically that the work had been lauded in a competition by Guggenheim curators.

Mattel struggled to argue that it’s simply a doll, not a symbol with social importance. The struggle they had with this is porrayed best in connection with Cutting Board Barbie. Mattel argued that this was a distrubing image, but was forced to concede that there’s more to the doll than a hunk of plastic. Once the photos stop being about just the doll, the parody case is close to being won.

Is satire/parody a specrum or a binary? From whose perspective — the artist’s, the public’s? Message evaluation is more often seen in trademark cases. Indeed, Mattel put in a survey. But if you’ve got a survey, you’re gonna beat summary judgment. So they argued that parody is a question of law — and the Ninth Circuit agreed.

And how do you prove a negative to win on summary judgment on the fourth factor? They put in an economic expert based on Mattel’s existing works and licensed derivatives. The economist said they’re not in the same market. Mattel responded that they have licensed high-end photographic works in the form of coffee table books.

Lucasfilm has realized that if they harness the market for UGC, even for parodic works, they will have a very good case for defeating the fourth factor even for parodic works.

Next, Ray Nimmer:

“Fair Use: Major Markets or Small Victories”

There are several views of fair use — should you protect small incursions, or is this an exercise in information market engineering? That is, is it “no harm, no foul” or a market allocation principle that allocates part of the market to non-owners?

There is a divide between “global” arguments — that a given clas of conduct should always be immune from copyright liability — and individual arguments that are much more specific to the facts of the particular case.

The “market harm” prong can be tantamount to saying “I’m not there yet — steal it from me.”

He’s involved in Scientology v. Leterese, in which he’s suing Scientology for using a sales book. They said it was de minimis, fair use, and asserted laches.

He thinks fair use should be about personal beefs, not about allocating markets among large companies. It’s meant to create a safety valve for claims that are stupid.

Corynne McSherry and Jason Schultz:

“From Due Process To No Process?: The Role of Fair Use in DMCA Takedowns”


Not all fair use questions are impossibly vague. It can be fairly straightforward. Also, what does “fair” mean? Well, one of the things “fair” means is “due process.”

Before the DMCA, you had to file a lawsuit — and comply with Rule 11.

[He describes 512.]

[He discusses the Michael Crook, Electric Slide, Geller, and Truthiness/Falsiness cases.]


[She discusses the Dancing Baby case quite compellingly.]

Her proposal: OSPs should do human review when there is a counternotice, and immediately restore in the case of clear fair uses.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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