statute. Yet the history of statutory attempts in this country, and the examples from abroad, suggest great difficulties in specifying the scope of fair use for particular situations. On the other hand, a general statutory recognition of fair use seems to add nothing to the present law as a guide for the courts. There will always be new situations and new uses arising, so that a detailed statute, even if it gave some present guidance to the courts, would be certain to fall behind the times. There are two general proposals on which I might comment briefly: It does not seem to be a helpful approach to make the fairness of use conditional on acknowledgment of the source. Though acknowledgment of credit may be an important element in determining whether a given use is fair, it should not immunize excessive takings. Conversely, the absence of acknowledgment should not stigmatize insubstantial ones. Proposals that would give the copyright owner power to forbid any use are open to especially strong objection. Just as acceptance of the benefits of statutory copyright is conditioned on ultimate dedication to the public, so also permission for fair use should be implied in the statutory grant. If there is any doubt that our public policy requires the acquiescence of the copyright owner in copying that is insubstantial and noncompetitive, then perhaps these words should be included to make it quite clear that such copying is not an infringement. However, I doubt that this is necessary if the statutory statement with respect to infringement is consistent enough with present law so as to permit the survival of existing precedents. I realize that these precedents leave many areas of fair use uncertain in their boundaries, but that is a kind of disorder characteristic of the common law, and one that people seem to be able to live with. RALPH S, BROWN. By Edward A. Sargoy JUNE 3, 1958. Re: Copyright Office Revision Studies, Fair Use of Copyright Works by Alan Latman. I have read with great interest Alan Latman's finely done analysis of the judicial development of the concept of "fair use" of copyrighted works. I particularly appreciate his perceptive breakdown of the subtle shadings in the criteria developed by the courts. These depend, as he indicates, upon such a diversity of factors, among others, as the character of the works involved, the type of use, the objective of the user, the relative amount and importance of use involved, the effects of the presence or absence of competition in the media concerned, the scope of benefits gained, the economic and other effects upon the original work, implied consent, forced consent, etc. This judicial development tends to persuade me that, except as to certain specific situations, the statute should neither define nor specify general criteria for fair use. If a future law were to be modeled on the present system of statutory copyright for published and registered works, I would not find any necessity to depart from the present statute's omission to mention fair use (again, except for certain specific situations I would spell out). The concept has developed judicially, as Alan Latman so clearly brings out, under our statutory system which accords certain expressly defined and limited exclusive rights to the copyright proprietor and not an exclusive right of general use. As I understand it, the common law concept of personal property in an unpublished, unregistered intellectual or artistic work gives a far broader right of exclusive use to the owner. What may be fair use under the statute may not necessarily be noninfringement at common law. It is possible that a general revision may bring into the statute aspects of common law protection now left to the States, either by way of broadening the definition of publication so as to include therein first public disseminations, or may even take over the entire field of writings, published as well as unpublished. If this be done, perhaps some distinctions as to fair use may have to be made in the statute, by way of exceptions to or limitations upon remedies, depending upon such factors as first publication, public rendition or dissemination, use of notice, deposit and rezistration in the Copyright Office, etc. With the possible inclusion of certain new subject matters in the statute, such as works of architecture, and the necessity for clarification in certain fields for which there may be general public acceptance, I am sympathetic to covering special situations expressly in the statute. I think provisions such as those in 56581-60 section 12 of the so-called Shotwell Committee legislation, the Thomas bill, S. 3043 (76th Cong., 3d sess., Jan. 8, 1940) providing that no remedies shall be available under that act in certain cases, could well be given consideration. These would cover such matters as the performance of copyrighted musical compositions for bona fide charitable, religious, or educational purposes; the incidental and not reasonably avoidable infringement of a copyrighted work in the depiction or representation of current news events made or taken at, or disseminated from, the scene or location, at the time of occurrence; the making, distribution, publication, exhibition, or dissemination of photographs, motion pictures, photographic or television images, printed illustrations or representations of a work of architecture which is not in the nature of architectural models, designs, or plans; the making, distribution, publication, exhibition, or dissemination incidental to and as part of the depiction of a public scene, of photographs, motion pictures, or photographic or televised images of a work of art visible from a public place; recording by a radio or television broadcaster for its private file and reference purposes of any matter broadcast; private translation for purpose of private study or research; making of single copies of an unpublished work lawfully acquired by a library if such copies are made and used for study and research only and not for sale, exchange or hire; an equitable system of remuneration whereby a library may make one copy of an out-of-print published work under certain circumstances for research purposes and not for sale, exchange, or hire. Provision might also be made for reproduction of the work in connection with judicial proceedings, along the lines of the British Act of 1956. I merely mention the above as areas in which there may be statutory provisions, which of course must necessarily be spelled out in further detail. As Alan Latman's comparative study of the laws in other countries, and the history of our own proposed legislation, indicates, this problem of statutory limitations upon or exclusions from remedies in special situations is one which comes to the fore, when we consider general revision in this increasingly complex field. The British faced it, and their Act of 1956 is more extensive in this regard. The recent Report of the Royal Canadian Commission, as you know, also goes into these problems rather fully. With kind regards, EDWARD A. SARGOY. By Melville B. Nimmer JUNE 16, 1958. The following are my views with respect to the study, "Fair Use of Copyrighted Works," by Alan Latman. The Copyright Act should give express legislative recognition of the judicially developed doctrine of fair use. However, it is my opinion that such recognition should be in general terms, and should not attempt any specific enumeration of particular instances of fair use. Such specific enumeration would be undesirable in that it would lead to a mechanical and rigid application of a concept which, by its very nature, is dependent upon a weighting of delicate factors in a given factual situation. Moreover, since the courts are not likely to abandon the doctrine of fair use, even in instances not specifically covered in any particular formula, the effect would be to unnecessarily broaden the doctrine of fair use by granting its immunity, even where not warranted if the particular formula can be made applicable, and by further granting its immunity where the court feels this is desirable, even if the formula cannot be made to expressly apply. I would therefore suggest that any new Copyright Act expressly adopt and thereby codify the existing judicial doctrine of fair use. Furthermore, I would expressly exclude from the scope of fair use the unlicensed copying of the "basic dramatic core" taken from a copyrighted work. I have previously had occasion to discuss this issue in an article entitled "Inroads on Copyright Protection," (64 Harvard Law Review, 1125 (1951) at p. 1130). The California Supreme Court, in Golding v. RÃO Pictures, Inc. (35 Cal. 2d 690, 221 P. 2d 95 (1950)), accorded protection to what the court there referred to as the plaintiff's "basic dramatic core. Subsequently, in Weitzenkorn v. Lesser (40 Cal. 2d 778, 256 P. 2d 947 (1953)), the California Supreme Court in effect overruled the Golding case, and held that a "basic dramatic core" was nothing more than an idea, and, as such, nonprotectible. " As I have indicated in the article cited above, it seems to me that the underlying policy of the copyright law warrants protection for a more or less intricately developed plot line, and that such should not be regarded as merely an "idea," subject to the privilege of copying under the doctrine of either fair use or insubstantial appropriation. It is of course true that any workable distinction between a mere "idea" and a "basic dramatic core" is not susceptible of precise statutory definition, but must rather be worked out by the courts on a case-by-case basis. Nevertheless, a statutory exclusion of a "basic dramatic core" from the scope of fair use would create a judicial basis for extending the copyright owner's area of protection in this respect to a greater extent than has heretofore been recognized under the existing doctrine of fair use. Finally, I should like to comment on what is currently the most controversial aspect of fair use: the issue of parody or burlesque. On the one hand, it seems clear that there should not be an unlimited right to copy merely by virtue of the fact that the copier injects his material into a parody or burlesque. However, since a copyright owner is less likely to license the use of his work for purposes of parody or burlesque than he is for other purposes, and since there is a certain social utility to a parody or burlesque (at least when it constitutes a satire) I would conclude that although the traditional doctrine of fair use should apply in this area, the line of permissible appropriation should be drawn so as to give greater freedom to the copier in this area than would otherwise be true under the doctrine of fair use. Nevertheless, this nuance in the application of the fair use doctrine seems better adapted to case law (and is apparently the view adopted by Judge Carter in the "Gaslight" and "From Here to Eternity" cases), and probably should not be embodied in any statutory form, unless the courts hereafter depart from this approach. In this connection, it is interesting to note that the 4-to-4 split by the U.S. Supreme Court in Benny v. Loew's, with Justice Douglas not participating, may foreshadow a future holding that parody or burlesque is per se privileged quite apart from the amount of material copied, in view of Justice Douglas' past tendency to limit the scope of the copyright monopoly (e.g., see Mazer v. Stein (347 U.Š. 201 (1954))). Ì would regard such a rule of law as unfortunate, even though I believe the doctrine of fair use should be most liberally applied in the area of parody and burlesque. Sincerely yours, MELVILLE B. NIMMER. By Elisha Hanson OCTOBER 10, 1958. Relative to the study on "Fair Use of Copyrighted Works," by Alan Latman, it would seem to be the wiser course to leave the further development of this phase of copyright law to the courts. Accordingly, in my opinion, no statutory provision regulating fair use should be advocated by the panel at this time. However, if someone comes up with a proposal for such a provision, I should like to see it. ELISHA HANSON. By Robert Gibbon (The Curtis Publishing Co.) OCTOBER 24, 1958. * * The following comments *** I submit as a representative of a magazine publisher, not as an authority on copyright in all of its ramifications. There are some aspects of the law which are troublesome to us and to our writers. These, and the areas in which appropriate legislation can eliminate doubt and misunderstanding, are the source of major concern to us. Fair Use of Copyrighted Works. We recognize the concept of fair use as an abridgment of rights granted under a copyright. The courts have developed rather fixed limitations to the concept designed to give as much protection to the copyright holder as possible. This is as we think it should be. Any attempt in a statute to define fair use or to classify it would probably expand its scope. see no benefit to such expansion. We can ROBERT GIBBON. By William P. Fidler OCTOBER 30, 1959. As copies of the various studies on the general revision of the copyright law have been received, I have sought the advice of competent scholars concerning the relationship of the academic profession to the issues raised by these studies. At this time I am presenting some of the points of view expressed by professors who are competent to judge the technicalities of copyrights, and I hope to forward other views at a later date. As to fair use, the academic scholars I consulted tend to agree with the comments of consultants, whose views were printed, particularly with respect to the point that statutory treatment of the problem is probably not feasible. Consideration might be given, however, to the enactment of a statutory rule applicable to prose text, which would permit free copying of a limited number of words without permission. The limit might be stated as 50 or 100. If there were such a provision, a great deal of bothersome correspondence might be avoided. I recognize, however, that it would be necessary also to require that the quotation be in isolation from other quotations from the same work, lest otherwise a substantial text be appropriated in the form of a series of relatively brief quotations. I am not sure whether a workable statutory provision along this line could be drafted, but the attempt might be worth making. * * * * WILLIAM P. FIDLER. |