the lawbook field, for example, have accurately been characterized by a recent court as "somewhat confusing." " Despite this confusion, it may be that the basic issue in each case is whether an earlier work has been collaterally used or substantially copied as well. A law digester may "use" the citations of cases found in an earlier encyclopedia. Since use of citations properly consists of reading and independently analyzing the cases, unauthorized copying cannot be said to take place even if the defendant's published list of cases is identical to the plaintiff's.55 If the two works are mere compilations of cases, a different rule apparently obtains; even the verification of the original list will not shield the user from liability.56 The citations of an earlier work may be used as a check on the later work. But the copying of such material as headnotes cannot be justified as fair use, even in the case of treatises, encyclopedias, or texts.57 58 The latitude permitted scholars in quoting material from earlier works does not extend to the use of a scholarly work for nonscholarly purposes. Thus, in Henry Holt & Co., v. Liggett & Myers Tobacco Co.,8 three sentences from the plaintiff's scientific treatise were used in an advertising pamphlet to enhance the sale of the defendant's product. The court held that defendant's use was not for the scientific purposes for which plaintiff's consent might be implied. Similarly, the publishers of Sexology magazine met difficulties in attempting to convince the court of the scientific nature of the magazine so as to justify use of "the identical words of earlier books or writings dealing with the same subject matter." 59 60 When material from a compilation of facts, names, or other information is used for the purpose of preparing a rival compilation, it is often difficult to avoid mere copying. The courts have permitted a very limited use of such material as a source or means of verification. But the use of earlier material as a check upon the completeness or accuracy of the user's work must be followed by a bona fide independent recanvass.62 And in any event, independent effort, such as the exercise of judgment in the selection of material, must be expended. Mere verification of the original material is insufficient. 5. Personal or private use 63 64 Although the case law is apparently silent on the point, at least one writer has concluded that "anyone may copy copyrighted materials for the purposes of private study and review." It has, moreover, been vigorously argued that "private use is completely outside Loew's, Inc. v. Columbia Broadcasting System, Inc., note 38, supra, 131 F. Supp. 175. 65 White v. Bender, 185 Fed, 921 (C.C.N.D.N.Y. 1911). "W. H. Anderson Co. v. Baldwin Law Pub. Co., 27 F. 2d 82 (6th Cir. 1928). "Callaghan v. Myers, 128 U.S. 617 (1888); West Pub. Co. v. Lawyers' Cooperative Pub. Co., 79 Fed. 756 (2d Cir. 1897). 23 F. Supp. 302 (E.D. Pa. 1938). Thompson v. Gernsback, 94 F. Supp. 453 (S.D.N.Y. 1950). Sce Social Register Ass'n v. Murphy, 128 Fed. 116 (C.C.D.R.I. 1904). In West Pub. Co. v. Edward Thompson Co., 169 Fed. 833, 853, (C.C.E.D.N.Y. 1909) mod. and aff'd., 176 Fed. 833, (2d Cir. 1910) the court characterized cases involving maps and directories as depending "more upon the idea of unfair use, and the unlawful saving of labor in order to avoid the necessary original research than upon the appropriation of any literary ideas or arrangement, based upon literary ability and studied plan." Cf. Conde Nast Publications, Inc., v. Vogue School of Fashion Modeling, Inc., 105 F. Supp. 325 (S.D.N.Y. 1952). Dun v. Lumbermen's Credit Ass'n, 144 Fed. 83 (7th Cir. 1906). Hartford Printing Co. v. Hartford Directory & Publishing Co., 146 Fed. 332 (C.C.D. Conn. 1906). List Pub. Co. v. Keller, 30 Fed. 772 (C.C.S.D.N.Y. 1887). Cf. Jeweler's Circular Pub. Co. v. Key stone Pub. Co., 281 Fed. 83 (2d Cir. 1922). #Sampson & Murdock Co. v. Seaver-Radford Co., 140 Fed. 539 (1st Cir. 1905). Cohen, op cit., note 7, supra at 58. the scope and intent of restriction by copyright." 66 It is difficult to assess the effect of the absence of litigation in this area. It may reflect acquiescence on the part of copyright owners to copying by scholars for their own use. That such acquiescence is not complete is indicated by attempts to regulate, by agreement, the role of libraries in supplying copies to scholars. The increasing use of photoduplication processes will undoubtedly require continuing attention to this area. For the purposes of the present study, it may be observed that the categorical statements set forth above can neither be supported nor attacked on the basis of authority. It may well be, however, that the purpose and nature of a private use, and in some cases the small amount taken, might lead a court to apply the general principles of fair use in such a way as to deny liability. 6. News The strong public policy in favor of the wide dissemination of news might conveniently be furthered by an expanded concept of fair use with respect to news items. As will be demonstrated below, this approach has been taken by many foreign countries and has been proposed in several attempts at legislative revision in this country. The present U.S. law, however, does not seem to have developed any special rules pertaining to the fair use of news articles. The incidents and facts embodied in news items cannot, of course, be subject to copyright protection.68 News as such is not copyrightable. But the literary aspect of a news article is entitled to protection and direct quotation or copying of the words or arrangement of the article entails the usual risks, notwithstanding the wider circulation of news achieved by the copying. The appropriation of a copyrighted news article was directly involved in Chicago Record-Herald Co. v. Tribune Association. The court characterized the defendant's article as follows: It presents the essential facts of that [plaintiff's] article in the vary garb wherein the author clothed them, together with some of his deductions and comments thereon in his precise words, and all with the same evident purpose of attractively and effectively serving them to the reading public.70 Whether or not such a commercial purpose actuated the defendant in New York Tribune, Inc. v. Otis & Co., was one of the inquiries bearing on the defense of fair use which the court there reserved for full trial. The defendant in New York Tribune had photostated an entire editorial dealing with the presidential campaign. Questions insufficiently illuminated on motion included the number of copies distributed by the defendant, his intent, and the effect of his publication on the distribution of plaintiff's work. Shaw, "Publication and Distribution of Scientific Literature," 17 College and Research Libraries 294, 301 (1956). 67 See "Gentlemen's Agreement" between Joint Committee on the Reproduction of Materials for Research and the National Association of Book Publishers, set forth and discussed in 1 Journal of Documentary Reproduction 29 (1939); Smith, "The Copying of Literary Property in Library Collections," 46 Law Lib. Journal 197 (1953); 47 Law Lib. Journal 204 (1954). The British have made similar arrangements. See The Royal Society Information Services Committee, "Fair Copying Declaration and List of Publishing Organizations Subscribing to It". (June 1950). 6 Cf. Oxford Book Co. v. College Entrance Book Co., 98 F. 2d 688 (2d Cir. 1938). See Chicago Record-Herald Co. v. Tribune Ass'n, 275 Fed. 797, (7th Cir. 1921). Relief for unfair competition arising out of the appropriation of news was recognized in the famous case of International News Service v. Associated Press, 248 U.S. 215 (1918). 70 275 Fed. 799 (7th Cir. 1921). 71 39 F. Supp. 67 (S.D.N.Y. 1941). 7. Use in litigation No cases have been found involving the permissibility of direct quotation or other use of copyrighted material in judicial or administrative opinions or by lawyers in briefs or otherwise in connection with pending litigation. It would seem that great latitude would be accorded such use. In the absence of reported decisions or records of controversy, the extent of this use cannot be delineated. 8. Use for nonprofit or governmental purposes 73 In New York Tribune, Inc. v. Otis & Co.,72 it was indicated that a commercial motive on the part of the defendant would bear unfavorably upon the defense of fair use. Judge Carter in the Jack Benny case 3 analyzed "the impact of commercial gain or profit" even further and concluded that: (1) "in the field of science and the fine arts, we find a broad scope given to fair use"; (2) "As we draw further away from the fields of science or pure or fine arts, and enter the fields where business competition exists we find the scope of fair use is narrowed but still exists"; and (3) the writer of a scholarly work "does not invite or consent to its use for commercial gain alone." 74 It would seem to follow from Judge Carter's analysis that where the commercial element is completely absent, a finding of fair use is strongly indicated. In Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc.,75 where the defendant was a nonprofit organization but engaged in commercial activities to raise funds for its expenses, the court rejected the defense of fair use. The infringing use of plaintiff's musical composition consisted of a broadcast of about one-third of the work during the course of a sustaining program of a radio station operated by a nonprofit corporation. The court held that the philanthropic and educational aims of the corporation did not prevent the broadcast from constituting a "public performance for profit" within the meaning of section 1(e) of the act; significant to this holding was the fact that the corporation sought immediate, if not ultimate, commercial gain by allocating one-third of the available time to commercial advertisers. In passing, however, the district court did take note of the fact that the defendants did not contend "that the corporation is a public or charitable institution."76 The court found the fair use defense to require little consideration."" In affirming, the Court of Appeals stated: There can be no doubt that the portion of the plaintiff's composition which was broadcast which amounted to about a quarter of his entire work and was reproduced to aid in building up a listening audience does not come within the definition of "fair use.' "178 The Associated Music case may demonstrate the difficulty in establishing the absence of any commercial motive. On the other hand, it may indicate that a finding of fair use will not be compelled by the fact that the defendant seeks no profit from its operation. Undoubtedly, this is but one illustration that generally no single factor will determine whether a use is fair or unfair. 39 F. Supp. 67 (S.D.N.Y. 1941). Loew's, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew's, Inc., 239 F. 2d 532 (9th Cir. 1956), cert. granted, 353 U.S. 946 (1957). 14131 F. Supp. at 175. "Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc., 46 F. Supp. 829 (8.D.N.Y. 1942), aff'd, 141 F. 2d 852 (2d Cir. 1944). 70 46 F. Supp. 830. " Id. at 831. 141 F.2d at 855. Where the Government is the user of copyrighted material, a different situation is presented. There is considerable doubt whether the Government is liable for copyright infringement." Again, this is, strictly speaking, a situation governed by considerations other than fair use.80 But immunity of the Government in this area has frequently been associated with the immunity of the members of the public who make a reasonable use of a copyrighted work. For example, a wartime legislative proposal 81 authorized the Librarian of Congress to make copies of copyrighted works for the purpose of furnishing such copies not only to high Government officials, but also: (3) To any person *** upon his certification that he cannot otherwise obtain the material and that he desires it for the purpose of private study, research, criticism, review, demonstration, litigation, comment, newspaper summary, or fair use as recognized by the courts ** It should be noted that this proposal (which did not become law) prescribed that the making of copies by the Librarian of Congress shall not constitute infringment. In the absence of such legislation, the Librarian might be personally liable, since the sovereign immunity of the Government in this area has been held not to shield individual Government employees committing the unauthorized copying.82 It should further be noted that the proposal specifically recognized that subsequent use of the material furnished by the Librarian might constitute infringment. Although not entirely clear, it would seem that such subsequent use might constitute infringement even if within the governmental purposes or the purposes quoted above. C. ANALYSIS OF THE CRITERIA OF FAIR USE The cases examined above support the conclusion that fair use is not a predictable area of copyright law. One writer has characterized this situation as follows: There is one proposition about fair use about which there is widespread agreement: it is not easy to decide what is and what is not a fair use.83 85 The conflicting results possible in this area are graphically illustrated by two cases involving the same plaintiff, court, and year. In Green v. Minzenheimer and Green v. Luby, the court found factual differences upon which to distinguish two imitations or parodies of plaintiff's song. These differences do not present any clear guide to the disposition of future litigation. This situation is understandable in any inquiry dependent upon a concept of reasonableness. The reluctance of courts to rule on the defense of fair use prior to trial has already been illustrated in New York Tribune Inc. v. Otis & Co.86 Accordingly, "fair use is to be determined by examination of all the evidence." 87 Once determined, one appellate court treated it as a "question of fact" which the court was reluctant to reexamine.88 101 Cong. Rec. 7894, 84th Cong., 1st Sess. (1955). Cf. H.R. 8419, 85th Cong. (1957) which would ex pressly impose liability on the Government. 80 One writer points out that the normal rules of fair use should shield many Governmental uses, even without reliance on sovereign immunity. Stiefel, Piracy in High Places-Government Publications, ASCAP, COPYRIGHT LAW SYMPOSIUM, No. 8, 3 at 9 (1957). 81 S. 2939, 78th Cong., 2d Sess. (1944). "Towle v. Ross, 32 F. Supp. 125 (D. Ore. 1940) H.R. 8419, 85th Cong. (1957) would make the government liable rather than the individual employee, 83 Cohen, op. cit., note 7, supra, at 52. 4177 Fed. 286 (C.C.S.D.N.Y. 1909). 5 177 Fed. 287 (C.C.S.D.N.Y. 1909). See p. 11, supra; cf. Winwar v. Time, Inc., 83 F. Supp. 629 (8.D.N.Y. 1949). $7 See Mathews Conveyer Co. v. Palmer-Bee Co., 135 F. 2d 73 (6th Cir. 1943). Eisenschiml v. Fawcett Publications, Inc., 240 F. 2d 598 (7th Cir. 1957). A different view was expressed In 56 COLUM. L. REV. 585 (1956) at 593 n. 37, where it was concluded that: "The question of fair use should be decided by the court, as a question of law." (Emphasis added.] It has been suggested that: The cases indicate that there are eight elements which the courts consider; any one of the eight may, in a particular case, be decisive. These factors are: (1) the type of use involved; (2) the intent with which it was made; (3) its effect on the original work; (4) the amount of the user's labor involved; (5) the benefit gained by him; (6) the nature of the works involved; (7) the amount of material used; and (8) its relative value.89 Perhaps more basic are the oft-quoted criteria set forth by Mr. Justice Story in Folsom v. Marsh as: the 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.90 Judge Yankwich found that Story's criteria have been the basis of American case law. He restates the decisive elements as follows: (1) the quantity and importance of the portion taken; (2) their relation to the work of which they are a part; (3) the result of their use upon the demand for the copyrighted publication,"i It has been noted above that the nature of the works involved has been suggested as one factor in determining fair use. This factor might explain what appears to be a stricter rule in the case of compilations than in more scholarly works. Whether special significance attaches to the nature of a work as a parody is involved in the Loew's and Columbia cases. But Judge Yankwich finds that with respect to the diverse publications which have been the subject of litigation, there has been "uniforın application of the principles of fair use.'" 92 Sufficient has been said to emphasize the factual niceties of fair use determinations. Accordingly, it is believed that for purposes of analysis, the criteria of fair use may conveniently be distilled even further, without danger of oversimplification. In fact, the tests may perhaps be summarized by: importance of the material copied or performed from the point of view of the reasonable copyright owner. In other words, would the reasonable copyright owner have consented to the use? At times, custom or public policy defines what is reasonable. It is well within the bounds of reasonableness for the copyright owner to consider important a use which competes with his own work. A use having such an effect undermines the very basis of his quasimonopolistic protection. Thus, the court stated in the Mutt and Jeff case: One test which, when applicable, would seem to be ordinarily decisive, is whether or not so much as has been reproduced will materially reduce the demand for the original.93 The courts have apparently been prepared to anticipate such a harmful effect; the copyright owner is protected not only against a use having an unfavorable competitive effect," but also a use with a competitive purpose or potential. Thus, in Shapiro, Bernstein & Co., v. P. F. Collier & Son Co.,95 the following tests were set forth: *** The extent and relative value of the extracts; the purpose and whether the quoted portions might be used as a substitute for the original work; the effect upon the distribution and objects of the original work. [Emphasis added.] Hill v. Whalen & Martell, Inc., 220 Fed. 359, 360 (S.D.N.Y. 1914). "Social Register Ass'n v. Murphy, 128 Fed. 116 (C.C.D.R.I. 1904). Cf. Hartford Printing Co. v. Hartford Directory & Publishing Co., 146 Fed. 332 (C.C.D. Conn. 1906). 26 U.S.P.Q. 40, 43 (S.D.N.Y. 1934). |