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II. PRESENT LAW

The silence of the 1909 act on the question of fair use is consistent with prior history. There has apparently never been any specific statutory provision dealing with the question in the copyright law of the United States. At least one provision of the 1909 act has, however, had an indirect impact. Section 1(b) extends to the owner of a copyright in a literary work the exclusive right "to make any version thereof." This provision changes the prior case law under which a "bona fide abridgment" was permissible. In general, however, the rationale underlying the fair use doctrine and the criteria for its application are discernible in a body of case law unaffected by legislative developments.

A. THEORETICAL BASES OF THE FAIR USE DOCTRINE

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Fair use may be viewed from two standpoints. It may be considered a technical infringement which is nevertheless excused. On the other hand, it may be deemed a use falling outside the orbit of copyright protection and hence never an infringement at all. While this distinction has been said "to have no practical significance," it may explain different usages of the expression "fair use." For example, the court in Shipman v. R.K.O. Pictures, Inc., stated that: "Fair use is defined as copying the theme or ideas rather than their expression." This definition is based on a concept of fair use as an appropriation of unprotected material. Such concept is related to the view that fair use is the negation of infringement, rather than a privileged infringement. This usage is perhaps unorthodox in focusing upon a single inquiry, especially an inquiry which must be made in every infringement action. In other words, there may be no problem of determining the reasonable nature of a taking when nothing legally protectible has been taken.

This inquiry may, however, furnish a useful first step in the laborious weighing of factors characteristic of fair use analysis. Such was the procedure apparently used in a recent case involving the burlesque of a story, where the court stated:

Burlesque may ordinarily take the locale, the theme, the setting, situation and even bare basic plots without infringement, since such matters are ordinarily not protectible.10

Appropriation of even protectible material must always be "substantial" to constitute infringement; thus a minimal amount of copying should perhaps always be considered "fair." It has been suggested that fair use simply represents an attempt by the courts "to bring some order out of the confusion surrounding the question of how much can be copied." "1

Again, this approach may be directed to the question of infringement in general, rather than fair use in particular.12 The question of the amount of material copied will be discussed below in conjunction

See Folsom v. Marsh, 9 Fed. Cas. 342, 343 No. 4,901. (C.C.D. Mass. 1841); AMDUR, COPYRIGHT LAW AND PRACTICE, 762 (1937).

7 Cohen, "Fair Use in the Law of Copyright" ASCAP, COPYRIGHT LAW SYMPOSIUM, No. 6, 43, 48 (1955).

100 F. 2d 533, 537 (2d Cir. 1938).

Cf. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49 (2d Cir. 1936).

10 Columbia Pictures Corp. v. NBC, 137 F. Supp. 348, 350 (S.D. Cal. 1955).

11 Note, 14 NOTRE DAME LAW. 443, 449 (1939).

12 See Oxford Book Co. v. College Entrance Book Co., 98 F. 2d 688 (2d Cir. 1938). Cf. Macmillan Co. v. King, 223 Fed. 862 (D. Mass. 1914).

with the other criteria of fair use.13 It should be noted, however, that a broad underlying premise for the doctrine of fair use is supplied by the notions that: (1) the user has unlimited use of a great deal of unprotected material embodied in a copyrighted work; and (2) the user may, under any circumstances, copy an insignificant portion of protected material.

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The doctrine of fair use goes beyond the boundaries set by these considerations. The amount of protected material freely available may be determined by many factors. One theory behind such permissible copying is the implied consent of the copyright owner. many cases, duplication of portions of his works should be desired by the author for its beneficial effects. These implications may be supported by express indications of the author's consent. 15 On the other hand, indications of a restrictive intent, such as a statement requiring consent for any quotations, undermine this theory.16 In its place, there has been offered the theory of a consent enforced by the figurative bargain embodied in the securing of a statutory copyright. In other words, as a condition of obtaining the statutory grant, the author is deemed to consent to certain reasonable uses of his copyrighted work to promote the ends of public welfare for which he was granted copyright. This concept has at least a surface harmony with the general assumption that the fair use doctrine does not apply to common law literary property.18

The theory of "enforced consent" suggests another rationale which relies more directly upon the constitutional purpose of copyright. It has often been stated that a certain degree of latitude for the users of copyrighted works is indispensable for the "Progress of Science and useful Arts." 19 Particularly in the case of scholarly works, step-bystep progress depends on a certain amount of borrowing, quotation and comment.20

Justification for a reasonable use of a copyrighted work is also said to be based on custom." This would appear to be closely related to the theory of implied consent. It also reflects the relevance of custom to what is reasonable. In any event, it has been stated that fair use is such use as is "reasonable and customary.' * 22

B. THE PROBLEM IN CONTEXT

The problem of fair use has so far been discussed in general terms. The defense of fair use has been raised most frequently in certain contexts. The more characteristic situations will be examined. It should be appreciated that the problem arises in other contexts and

"See II, C, infra.

14 See e.g., Karll v. Curtis Pub. Co., 39 F. Supp. 836 (E.D. Wis. 1941); G. Ricordi & Co. v. Mason, 201 Fed. 182, 183 (C.C.S.D.N.Y. 1911).

"See American Institute of Architects v. Fenichel, 41 F. Supp. 146 (S.D.N.Y. 1941).

See Yankwich, What is Fair Use? 22 U. of CHI. L. REV. 203, (1954) for the following illustrative legend: "All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews." Readers are often directed to the party from whom permission or information should be sought. 17 Note, 15 SO. CALIF. L. REV. 249, 250 (1942).

BALL, op cit. note 3 supra, at 280 n. 5; Golding v. Radio Pictures Inc., 193 P. 2d 153 (Cal., Dist. Ct. App. 1948). Perhaps the distinction is between published and unpublished works rather than works for which statutory protection has been obtained and those which are protected under the common law. See SHAW, LITERARY PROPERTY IN THE UNITED STATES 67 (1950). The test would be the applicability of the fair use doctrine to unpublished works registered under section 12 of the Federal copyright statute. See W. H. Anderson Co. v. Baldwin Law Pub. Co., 27 F. 2d 82, 89 (6th Cir. 1928); Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 511 (1945).

See Mathews Conveyor Co. v. Palmer-Bee Co. 135 F. 2d 73 (6th Cir. 1943).

Note, 15 SO. CALIF. REV. 249, 250 (1942).

Shapiro, Bernstein & Co. v. P. F. Collier & Son Co., 26 U.S.P.Q. 40, 42 (S.D.N.Y. 1934).

is, in a sense, inherent in much copyright infringement litigation. However, the wide range of situations would seem to be but variations of the basic conflict between the copyright owner anxious for exclusive rights and the user who, for one reason or another, denies that his use of the copyrighted material infringes upon such rights. Examination of the cases will reveal the various criteria of fair use and how they interact.

1. Incidental use

Section 1(b) of the copyright statute grants the exclusive right to make any new version of a literary work and to arrange and adapt a musical work. These rights are sufficiently broad to include a change in the medium of expression of copyrighted material. Thus, it has been held that a television comedy may not copy substantially from a serious motion picture.23 But a different situation is presented where a reasonable amount of material is used incidentally and as background in an entirely different class of work. Such an appropriation may be considered a fair use. This is best illustrated by the use of excerpts from the lyrics of a copyrighted song in the course of a literary production. The courts have been reluctant to impose liability in such a case.24 The incidental nature of such use, and its inability to compete with the copyrighted work have produced a finding of fair use.

The absence of music may preclude impairment of the value of the plaintiff's musical composition; it has been so held where portions of the lyrics were used as background for the action in a short story, 25 or in connection with a magazine article about the professional football team on which the song was based.26 Similarly, a finding of fair use was made even where half of the magazine comment on the death of an actress consisted of extracts from the copyrighted song associated with her.27 But a contrary result was reached where all the lyrics as well as the melody line of plaintiff's song were included in a narrative history of popular songs in the United States.28

Thus, the use of extracts from copyrighted material for illustrative purposes, or merely as a vehicle for an entirely different and noncompeting work, would seem permissible.29 Reproduction of musical material for the "amateur performer" is not within such immunity.30 The fortuitous inclusion of copyrighted material in newsreels or news broadcasts represents an incidental use which has given rise to several legislative proposals. These will be discussed below. 2. Review and criticism

Discussions of fair use often begin with the question of quotation from a work for the purposes of criticism and review. It is universally agreed that "in reviewing a copyrighted work, or in criticising it,

23 Benny v. Loew's Inc., 239 F. 2d 532 (9th Cir. 1956), cert. granted, 353 U.S. 946 (1957).

24 Shapiro, Bernstein & Co. v. P. F. Collier & Son Co., note 22, supra; Broadway Music Corp. v. F-R Pub. Corp., 31 F. Supp. 817 (S.D.N.Y. 1940); Karll v. Curtis Pub. Co., 39 F. Supp. 836 (E.D. Wis. 1941). 25 Shapiro, Bernstein & Co. v. P. F. Collier & Son Co., note 22, supra.

26 Karll v. Curtis Pub. Co., note 24, supra.

27 Broadway Music Corp. v. F-R Pub. Corp., note 24, supra.

28 Sayers v. Spaeth, Copyright Office Bulletin No. 20 at 625 (S.D.N.Y. 1932).

29 Cf. Green v. Minzenheimer, 177 Fed. 286 (C.C.S.D.N.Y. 1909).

30 Sayers v. Spaeth, note 28, supra.

quotations may be taken therefrom." 31 stated:

Thus it has been recently

Criticism is an important and proper exercise of fair use. Reviews by so-called critics may quote extensively for the purpose of illustration and comment.32

It is interesting to note that there is apparently no reported American decision involving alleged infringement in the course of serious criticism. This may be due to the self-restraint on the part of the critics and the desire on the part of authors and publishers to encourage reviews of their works-reasons suggested for the decline in libel litigation involving the cognate doctrine of fair comment.33

3. Parody and burlesque

There have been half a dozen American cases dealing with parody, mimicry, and burlesque. These may be considered a humorous type of criticism; but the element of criticism is often absent from burlesque, leaving humor as the only aim.34 The current importance of the problem of parody as fair use in indicated by the fact that the Supreme Court recently granted certiorari in Columbia Broadcasting System v. Loew's, Inc., in which the court, without discussing the issues in its opinion, divided four to four.35

The key issue would seem to be the extent, if any, to which the general tests of fair use are to be modified in this area. The early case of Bloom & Hamlin v. Nixon,36 indicates that the parody feature is quite significant. The court there stated:

Surely a parody would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced.

While it is not entirely clear that this was held to be so because of the nature of a parody, the court did find that "the good faith of such mimicry is an essential element." Liability was denied on the ground that the use of plaintiff's song was merely incidental to the mimicry of the singer, and not a subterfuge by which to reproduce copyrighted material.

In the well-known Mutt and Jeff case,37 the court apparently assimilated the parody to serious criticism and use of copyrighted material in general. Perhaps because the comic strip was itself humorous, the court found that the defendant's parody constituted a "partial satisfaction of the demand" for the parodied work and accordingly amounted to an infringement.

Recent litigation in the California Federal courts indicates that the interaction between motion pictures and television has heightened the problems posed by parodies and burlesques. In Loew's Inc. v. CBS, Inc.38 Jack Benny's television parody of the motion picture “Gaslight” was under attack. It was clear that the taking was substantial. In a comprehensive and analytical opinion, District Judge Carter noted that "parodized or burlesqued taking is treated no dif

31 AMDUR, op. cit. note 5, supra at 757.

" Loew's, Inc. v. CBS, Inc., 131 F. Supp. at 175.

Ford, Fair Comment in Literary Criticism, 14 NOTRE DAME LAW. 270 (1939). For an historical discussion of this area, see Yankwich, Parody and Burlesque in the Law of Copyright, 33 CAN. B. REV. 1130 (1955).

See Foley, "Copyright-Burlesque of Literary Property as Infringement of Copyright," 31 NOTRE DAME LAW. 46, 48 (1955).

25 356 U.S. 43 (1958). Justice Douglas took no part in the decision.

28125 Fed. 977, 978 (C.C.E.D. Pa. 1903).

#7 Hill v. Whalen & Martell, Inc., 220 Fed. 359 (S.D.N.Y. 1914).

#131 F. Supp. 165 (S.D. Cal. 1955), aff'd sub nom Benny v. Loew's Inc., 239 F. 2d 532 (9th Cir. 1956), af'd by a 4-4 division of the Supreme Court, 356 U.S. 43 (1958).

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ferently from any other appropriation." 39 In finding for the plaintiff, the court held that the change in mode of expression from serious to comic did not preclude infringement. The court also found that the defendent's commercial use of plaintiff's material was directed to a competing entertainment field, although he concluded that reduction in demand for the original, stressed in the Mutt and Jeff case, was not essential. This result was affirmed by the Court of Appeals for the Ninth Circuit which emphasized that "wholesale copying" can never be fair use, not even where the treatment of the material is inverted by means of burlesque."

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Even more recently, Judge Carter has had before him what he labeled as "the reverse or counterpart" of the Loew's case. In Columbia Pictures Corp., v. NBC," he found that Sid Ceasar's television burlesque of "From Here to Eternity" did not infringe the copyright of that motion picture. This was so notwithstanding the similarities beyond theme, situation, setting and basic plot. In reaching this result, Judge Carter seems to have modified the Loew's approach He permitted use of an incident, some small part of the development of the story and even "possibly some small amount of dialogue," emphasizing that the burlesquer should be permitted "to bring about this recalling or conjuring up of the original." 42 The court adopted as a conclusion of law the statement that

the law permits more extensive use of the protectible portion of a copyrighted work in the creation of a burlesque than in the creation of other fictional or dramatic works not intended as a burlesque.43

The subsequent 4 to 4 decision of the Supreme Court in the Loew's case indicates the uncertainty that exists regarding this problem. 4. Scholarly works and compilations

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The conflict between the right to "use" and the right to publish or copy is sharply presented in the area of scholarly works; this area includes such fields as science," law," medicine, history 47 and biography. Research is the foundation of such works. And research has flippantly been defined as "plagiarism from two or more sources." 49 One court suggested that

with reference to works in regard to the arts and sciences, using those words in the broadest sense *** authors are sometimes entitled, indeed required to make use of what precedes them in the precise form in which last exhibited. ***50 [Emphasis added.]

The decisions in the field of scholarly works, as well as those concerning compilations, do present special problems by reason of the identity of subject matter covered by groups of works.51 It may be that the character of a work-as a scientific work, parody, etc.is an extremely significant factor.52 In any event, the decisions in

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46 Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302 (E.D. Pa. 1938).

47 Eisenschiml v. Fawcett Publications, Inc., 240 F. 2d 598 (7th Cir. 1957).

48 Toksvig v. Bruce Pub. Co., 181 F. 2d 664 (7th Cir. 1950).

49 Pilpel, "But Can You Do That?," Publishers Weekly, Aug. 26, 1957, p. 33.

50 Sampson & Murdock Co. v. Seaver-Radford Co., 140 Fed. 539, 541 (1st Cir. 1905).

81 Lipton, The Extent of Copyright Protection for Law Books, SECOND COPYRIGHT LAW SYMPOSIUM 11 (1940).

2 See Thompson v. Gernsback, 94 F. Supp. 453 (S.D.N.Y. 1950).

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