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other per curiam decision, the Supreme Court considered the record unsatisfactory and vacated the judgment of the court of appeals, with direction to return the case to the district court. Public Affairs Associates v. Rickover ((1962) 369 U.S. 111, 7 L. Ed. 20 604). The court of appeals had remanded the case to the district court for determination of the issue of "fair use," and a dissenting opin. ion in the Supreme Court would affirm that remand. Very truly yours,
RALPH H. Dwan,
Berlin v. E. C. Publications, Inc. (329 F. 2d 541) : Parody lyrics to 23 songs which were published in a magazine were held not to be an infringement of the copyrighted musical compositions.
Wihtol v. Crow (309 F. 2d 777): The making of a new arrangement of a copy. righted musical composition and performance of that new arrangement was held not to be a fair use.
Eisenschiml v, Fawcett Publications (246 F. 2d 598): Defendant's use of plaintiff's books in writing an article which was published in a magazine was found to be a fair use.
Loew's Inc. v. Columbia Broadcasting System (131 F. Supp. 165, affirmed) ; Benny v. Loew's Inc. (239 F. 2d 532, affirmed) ; Columbia Braodcasting System v. Loew's, Inc. (2 L. Ed. 2d 583): Held that defendant's television burlesque was not a fair use of plaintiff's motion picture.
Toksvig v. Bruce Pub. Co. (181 F. 2d 664): The use by defendant of plaintiff's book in the preparation of defendant's book was found to be an infringement and not a fair use.
Associated Music Publishers, Inc. v. Debs Memorial Radio Fund (46 F. Supp. 829, affirmed); Associated Music Publishers, Inc. v. Debs Memorial Fund (141 F. 2d 852): The playing of phonograph records of part of a copyrighted musical composition by a radio station was held not to be a fair use of the composition.
20th Century-Fox Film Corp. v. Stonesifer (140 F. 2d 579): A motion picture was held not to be a fair use of a copyrighted play.
Mathews Conveyor Co. v. Palmer-Bee Co. (135 F. 2d 73): The use in defendant's catalog of two cuts from plaintiff's catalog was held to be so unsubstantial as not to be an infringement of copyright.
College Entrance Book Co., Inc. v. Amsco Book Co., Inc. (119 F. 2d 874): Defendant was found to have copied plaintiff's books in the publication of its own books, in order to avoid the trouble or expense of an independent work, and this was held to be an unfair use since both plaintiff's and defendant's books met exactly the same demand on the market.
Leon v. Pacific Telephone & Telegraph Co. (91 F. 2d 484): Defendant's use of plaintiff's telephone directory in preparation of another directory listing the same information in different order was found not to be a fair use of the copyrighted directory.
Sheldon y. Metro-Goldwyn Pictures Corp. (81 F. 2d 49): A motion picture was found to be too similar to a copyrighted play to constitute a fair use of it.
Shapiro, Bernstein & Co., Inc. v. P. F. Collier & Son Company (26 USPQ 40): The publication of 10 out of 18 lines of the words of a copyrighted song in a story in a weekly periodical was held not to go beyond the limits of fair use.
Holdredge v. Knight Publishing Corporation (214 F. Supp. 921): An article contained in defendant's magazine was found to be not a fair use of plaintiff's book.
Columbia Pictures Corp. v. National Broadcasting Co. (137 F. Supp. 348): A television show was held not to infringe the copyright on a movie, for the reason that "Some limited taking should be permitted under the doctrine of fair use, in the case of burlesque, to bring about this recalling or conjuring up of the original."
American Institute of Architects v. Fenichel (41 F. Supp. 146) : Defendant made and used six copies of one form in a copyrighted book of forms and delivered them to the contractor with whom he was dealing. The delivery of copies was held to be a publication, but a fair use, since the defendant's use was not the kind of use intended to be forbidden by the statute.
Karll v. Curtis Pub. Co. (39 F. Supp. 836): The publication of words to a copy. righted song in an article contained in a magazine was held to be a fair use of the song.
Broadway Music Corporation v. F-R Pub. Corp. (31 F. Supp. 817): The printing of the chorus of a copyrighted song in a story contained in a weekly magazine did not go beyond the limits of fair use.
Henry Holt & Co., Inc. v. Liggett & Myers Tobacco Co. (23 F. Supp. 302): The use by defendant of quotations from plaintiff's book in its pamphlet published for a commercial purpose was not excusable as a fair use.
Hill v. Whalcn & Martell, Inc. (220 Fed. 359): The defendant's burlesque of the plaintiff's copyrighted cartoon characters was held to injuriously affect the value of the copyright, so as to constitute an infringement.
Dun et al v. Lumbermen's Credit Ass'n. et al (144 Fed. 83): Defendant's use of plaintiff's book in preparation and publications of its own book was held to be a fair use.
Sampson & Murdock Co. v. Seaver-Radford Co. (140 Fed. 539): Defendant's use in the preparation of its city directory of the plaintiff's copyrighted city directory was found not to be a fair use.
Social Register A88'n. v. Murphy (128 Fed. 116): Defendant's use of plaintiff's copyrighted publication in the preparation of its own similar publication was not a fair use.
Simms v. Stanton (75 Fed. 6): The defendant's books were found not to be an infringement of the books previously published and copyrighted by plaintiff, because defendant did not draw upon the plaintiff's copyrighted books to any substantial degree. Such use as was made was considered to be a fair use.
Mr. St. ONGE. In the sentence that you propose adding to section 107, you say “to reproduce the copyrighted work for personal or private use.
What distinction do you make between the personal and private?
Mr. Dwan. Well, sir, by "personal use" I think we would mean in a business meeting, for instance.
Would that be what we had in mind ?
Mr. HERZOG. We would define them just the opposite, I think. A personal use is where you make a copy for your own reading and own study. A private use would be where you would be using it in a meeting or sending it on to the next fellow, rather than making a call.
Mr. St. ONGE. And finally, on this question of fair use, Mr. Dwan, in your last sentence on fair use, you say you submit that the public interest is better served by the present Copyright Act than it would be by the passage of H.R. 4347 without the amendment that you recommended.
Would you take the position that no bill at all would be better than H.R. 4347 with section 107 as it stands?
Mr. Dwan. That is our feeling; yes, sir.
Mr. St. ONGE. I think it would be better to let other members question the witness at this point, if they wish to.
Do you wish to question him on fair use, Mr. Poff! Mr. POFF. Thank you, Mr. Chairman. Several previous witnesses have had occasion to refer to H.R. 11947, which was introduced on July 20, 1964. I believe you made reference to that bill, Mr. Dwan. While not giving a citation, specific reference was made to section 6 of that bill.
In order that the questions we ask on this subject might have meaning, I believe it would be appropriate, Mr. Chairman, to insert that section at this point in the record. I ask unanimous consent that this be done.
Mr. St. ONGE. Without objection, it is so ordered.
(The section referred to follows:) $ 6. Limitations on exclusive rights: fair use.
Notwithstanding the provisions of section 5, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an
infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
(1) the purpose and character of the use; (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.
Mr. POFF. When Mr. Cary testified originally, he made the following statement relative to fair use:
This doctrine has never been included in any of our copyright laws, and yet the courts have, on their own initiative, down through the years held that the exclusive rights of the author are not to be strictly constructed but, broadly speaking, are to be subject to a limitation that a reasonable portion of a copyrighted work may be reproduced without permission where necessary for a legitimate purpose which is not competitive with the copyright owner's market for his work.
That last clause, while not identical, is substantially synonymous with the fourth subparagraph of section 6 of H.R. 11917. This, I assume, is the subparagraph which would best serve your purposes in light of the answers that have been given to questions raised by the acting chairman. Is this correct?
Mr. Dwan. No, sir; we don't think that section 6 of 11947 quite covers our problem.
Mr. Poff. I didn't intend to ask that. I simply ask, does this not touch the heart of your problem, and if you had to choose between these two approaches, would you not choose the approach of H.R. 11947?
Mr. Dwan. Provided it included some language along the lines I have suggested.
Mr. Poff. Are you saying that it will not give you the protection you need unless the specific language you suggested is used ? Mr. Dwan. That is our view;
yes, sir. Mr. Poff. You would not recommend any further itemization of the paragraph in explanation of guidelines for court interpretation of the term "fair use"?
Mr. Dwan. We would have no objection to further itemization, but we don't feel particularly qualified to suggest further language except in the field in which we are involved. We would have no objection to further elaboration by example.
Mr. POFF. Isn't it a fact that case law in general today embodies the concept expressed by Mr. Cary in the paragraph I recited ?
Mr. Dwan. I am sure Mr. Cary made a good effort to interpret the cases.
Mr. LAUDER. The cases that there are, Mr. Poff, as Mr. Dwan pointed out in his statement, all involve publication by competitive organizations to the publisher or the copyright owner, and none of them involve private use, personal or private use, by a person who is not in the publishing business, and who is not publishing something. So the cases are more or less inapplicable to the average person who owns a copying machine.
Mir. Poff. Should a case be brought by a copyright owner against a person who owns one of your machines and uses it to reproduce something for his personal use, would not a court considering the fair use doctrine apply the test stated by Mr. Cary? Namely, is it or is it not competitive with the market which the copyright owner might reasonably expect?
Mr. Dwan. We can't be sure of that. Mr. LAUDER. They might apply that test, Mr. Poff. I think first of all the private user would defend on the basis that what he did was not a publication, and has never been covered by the copyright law, and only secondarily would he rely upon the fair use doctrine, that what he did would be fair use as long as he didn't publish, I would think. But it is hard
to say what the courts would say. Mr. POFF. That is all I have on this part of his testimony, Mr. Chairman. I will have questions on the other section later.
Mr. St. ONGE. Mr. Edwards?
Mr. EDWARDS. Mr. Dwan, do you think that under your amendment the following would be a violation of the copyright, where a citizen takes a Walter Lippmann column and makes 550 copies on one of your machines and sends one to each Member of Congress?
Mr. Dwan. If he sends them gratuitously, I think that would be within our proposal.
Mr. LAUDER. He is not competing with Walter Lippmann at all.
Mr. EDWARDS. I would point out that it would cost $27.50 at 5 cents a page, but if he had to buy the New York Times on the west coast it would cost $110.
Mr. LAUDER. If he can find that many copies on the west coast.
Mr. EDWARDS. Yes. So it would be a loss to the newspaper, to the publisher; is that correct?
Mr. LAUDER. It is possible, a minimal loss.
Mr. HERZOG. I think our comment on that is that usually this is done only when you cannot get the original publication. Actually, the problem to the publishers, as we understand it, and to ourselves, who do some publishing, is when someone asks for yesterday's newspaper, it is impossible to get, and they wouldn't make a special run to serve all Members of the Congress this particular copy.
Actually, it would cost them more than the cost of the paper. So it has never been an economical thing to serve the public in that way,
Mr. EDWARDS. Would it be a violation if the head of a high school glee club consisting of 50 members would take one copy of sheet music and make 50 copies on one of your machines and pass them out to the members of the glee club instead of buying 50 copies?
Mr. HERZOG. We think in a way it would, but it is actually being done today and, again, it is the fact that the local music store has only one copy, so there is no other way to supply the orchestra or chorus with these copies, and that is why it is done.
Mr. EDWARDS. That is all, Mr. Chairman. Thank you.
Mr. TENZER. I understand, Mr. Chairman, you want us to confine the questioning at this time to the testimony relating to section 107.
Mr. ST. ONGE. I think it might be helpful.
Mr. TENZER. Mr. Dwan, on the first page of your statement you suggest, and I quote you:
We believe that practices which are now considered fair use should be stated in that section in order to provide some guidance for consideration of individual
Have you given consideration to how lengthy the listing or enumeration of practices would be in order to include all which might be considered in "fair use?”
Mr. Dwan. I think Mr. Herzog has some thoughts on that.
Mr. HERZOG. We have been part of these ad hoc committees, and so on, in trying to define this, and the uses are so vast and so limitless that I don't know that anybody would be genius enough to define all the uses that are presently being made.
Mr. TENZER. Then you agree it would be a rather lengthy list ?
Mr. TENZER. To repeat the question, in your statement you say, “We believe that practices which are now considered fair use should be stated in that section.” Is that what you are suggesting?
Mr. HERZOG. I think our suggestion is to cover this in a broad sense rather than listing them individually.
Mr. TENZER. Have you drafted such a provision which you think would enumerate in a broad sense the practices now considered fair use?
Mr. HERZOG. I think our attempt is when we say "personal or private use" it would cover almost all of the uses that are presently being made of these copying devices.
Mr. TENZER. In other words, your opinion is that by the use of the two terms, “private use" and "personal use," you have included all of the present practices which are considered in fair use?
Mr. HERZOG. We think so.
Mr. TENZER. Are there possibly any practices which have been considered as fair use in cases which have been through the courts which would not come under the heading of “private” or “personal use" ?
Mr. LAUDER. Yes, there are.
Mr. LAUDER. A lot of them involve parodies of various works, or taking a piece of a work and including it in another work. That is where most of the cases of fair use are. They are in published works which include a little bit of the copyrighted work in which the court has said it is a fair use and not an infringement because it is not a substantial use. All of the cases, as far as I am aware, are in that area.
Mr. TENZER. Then in cases instituted after passage of a law including an amendment such as you propose, we would still require court action to determine whether a particular instance was fair use or not fair use; isn't that correct?
Mr. LAUDER. As long as there was a publishing, yes, sir. It would involve the same law there is today. It would involve a court decision as to whether the particular published use was a fair use or not.
Mr. TENZER. Then perhaps Mr. Dwan could explain the statement on page 2 in which he says:
It seems inconsistent to ask the court to decide a question in litigation which the Register of Copyrights could not decide.
What do you mean by that?
Mr. DWAN. We feel that the Register had all these witnesses and all this testimony, and he ought to be able to give the court some guidance.