Fair Use? A Poll

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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10 Responses

  1. Aaron Perzanowski says:

    I think it’s fair, but more importantly, § 110(1) tells us that it doesn’t matter whether or not your proposed use is fair:

    “the following are not infringements of copyright:

    (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction…”

  2. Dave Hoffman says:

    Aaron,
    Well, then! You learn new things everyday!

  3. Aaron Perzanowski says:

    Dave,

    I think your example is still instructive. The fact that Stu and Maddy believe they can license this use – and likely have licensed it in the past – tells us something important about how copyright law gets “enforced” on the ground.

  4. Bruce Boyden says:

    110(1) is very important for educators to know. But based on a 5-second look at the site, I’m not certain what they are trying to charge $25 for. The prices are $50 for “Presentations: One-Time Use,” which to me means the right to make a *copy* of the cartoon for inclusion in a single slide show. (If the intent is to restrict both copies and displays, they’ll run into a 109(d) problem, although I suppose you could get into an argument over whether the copy was lawfully made if you then display it beyond the terms of the license.) Then there’s “Teacher Class Use: $25.” If that’s $25 to show the website in class, then I agree with Aaron; but if it’s $25 to make a *copy* for inclusion in a class Powerpoint, then 110(1) doesn’t apply, and you’d have to fall back on fair use. Given that the market seems at least partly aimed at legal educators, I’m a little skeptical of the fair use case for reproduction for in-class display, the same way it’s not fair use, e.g., to make copies of textbooks.

  5. Aaron Perzanowski says:

    Here’s what the site says:

    “Teacher Class Use.
    This license covers unlimited print and electronic uses of the cartoon by a teacher for six months. Permitted uses include any typical class-related use such as in class lectures, on a syllabus, or in course materials (print, email, and web).”

    This language is pretty sloppily written, in that it fails to distinguish between reproductions – which, as Bruce points out, fall outside of the scope of 110 – and displays that require no permission whatsoever.

    But at least some reproductions of the cartoons, namely the ones in my browser cache, are authorized. Nothing in 110 would seem to prevent me from using that authorized reproduction for display purposes.

  6. If displaying a PowerPoint slide to your class is a noninfringing display because of 110(1), there’s a powerful fair use argument for the necessary reproductions along the way. So I wouldn’t feel compelled to use the browser cache; I’d feel comfortable putting it in the slide. Keep in mind, in particular, that the “lawfully made” restriction in 110(1) applies only to audiovisual works.

  7. A.J. Sutter says:

    The comments in this thread are very informative — thanks. Incidentally, while Japanese law doesn’t have, as far as I can tell, the fair use concept, it does have an explicit permission for reasonable use at non-profit educational institutions (Copyright Law Art. 35).

    But the cartoon in question is barely worth the effort. It’s not visual gag, so you could convey the point via a work-around: paraphrasing the joke while speaking. In that case, even a precise quote of the text — not that it’s such a scintillating bon mot — would fall within 110(1). Better yet, you could probably embellish the father’s speaking part to make it funnier.

    What’s more noteworthy is the cartoon’s premise. Obviously it would’ve been too contrived for the daughter to have asked for a “Revlon story,” yet it sounds natural that she asked for a “Disney story,” rather than for a fairy tale or simply “a story.” Sad.

  8. Dave Hoffman says:

    AJ – so the claim is that if we took the joke into the lab and dissected it a bit, we could come up with something better?

  9. A.J. Sutter says:

    Dave, not dissection but synthesis. Retorts being the most important piece of equipment, though perhaps not the glassware type.

  10. AF says:

    This is an interesting case for testing informal copyright norms as well as fair use in the legal sense (assuming for the moment that they’re distinct concepts). I find their attempts to sell these licenses slightly unseemly, yet I wouldn’t mind if they tried to run the same business by posting unusable versions of the cartoons (eg, with conspicuous “Copyright” watermarks) and then selling clean versions. And I’d mind even less if instead of cartoons they posted low-res photos, and then sold licenses to higher-res images.

    I wonder if others have the same reaction.