Scott Hervey was quoted in an article in the International Business Times on how Fox’s fair use defense in a copyright infringement lawsuit arising over its use of a famous 9/11 image could change the landscape of copyright enforcement online.
Is Fox News Proposing a New Standard For Determining Fair Use?
North Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11, 2001. On September 11, 2013, a Fox News producer posted a photograph that juxtaposed the 9/11 photograph with a World War II photograph of four U.S. Marines raising an American flag on Iwo Jima on the Facebook page for the Fox News’ television program Justice with Judge Jeanine. North Jersey Media Group sued Fox, claiming that the posting of the combined image infringed its copyright. Fox news argued that the use was protected “fair use” and moved for summary judgment. The court denied Fox’s motion and Fox is now appealing to the 2nd Circuit.
Fox’s appeal centers around the lower court’s analysis of the first fair use factor: the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative.” A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc, “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
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The Blurred Lines of an Infringement Action
Many of you may be familiar with the pop hit “Blurred Lines” by Robin Thicke, Clifford Harris, more popularly known as T.I., and Pharrell Williams (the “Composers”). If it does not sound familiar by title, perhaps you may recall it for its controversial nudity laden music video, or the fact that it was the song performed by Thicke and Miley Cyrus at the MTV Video Music Awards in 2013 when Miley’s scandalous conduct went viral and shocked the world—including Thicke’s spouse. However, what you may be less familiar with is the fact that the heirs of Motown great Marvin Gaye (the “Heirs”) have been threatening to sue the Composers since at least early 2013. The Heirs claim that “Blurred Lines” infringes their copyright in the Marvin Gaye song “Got to Give it Up.” However, in August 2013, after months of discussion on the issue, the Composers opted to file an action for declaratory relief in the United States District Court for the Central District of California, seeking a judgment that “Blurred Lines” does not infringe “Got to Give it Up.” The justification there was likely that sometimes the best defense is a strong offense. The Heirs then filed a counterclaim for copyright infringement alleging that “Blurred” Lines” does in fact infringe “Got to Give it Up” and also that another song by Robin Thicke and Paula Patton—“Love After War”—infringes Marvin Gaye’s song “After the Dance.” The trial on this matter began on February 24, 2015 and is currently ongoing.
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The Left Shark, Katy Perry and Copyright Chum
What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? First the backstory.
The “Left Shark” in question is a Katy Perry backup dancer who was dressed in a shark costume for Perry’s beach-themed number “Teenage Dream” during the Super Bowl halftime show. The Left Shark (the dancer to Perry’s right) seemed to have forgotten his dance moves — how else could you explain the flailing of fins. The Internet took notice; so did 3D sculptor Fernando Soza.
Soza’s satirical barbs are usually reserved for the politico set, such as Governor Chris Christie wearing a traffic cone and carrying a sign that reads “traffic study”. However, this time he took aim at the Left Shark and created a 3D printed sculpture of one regular shark, one pink shark and one holding a beer bottle.
So what do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? You have the makings for a copyright dispute, of course. What else could there be?
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Your Facebook Copyright Notice is More Annoying than Farmville
If you use Facebook, you probably already have noticed that many users are posting statements claiming that Facebook somehow acquires ownership of users’ intellectual property that has been posted to that site. Reacting to this entirely erroneous proposition, many Facebook users have posted very scary and onerous status updates aggressively asserting their intellectual property rights in the materials they have uploaded onto Facebook. One user posted that they “hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. . . . for commercial use of the above my written consent is needed at all times!” (Undoubtedly her use of an exclamation point will add significant legal weight when this status update is considered by a court in the forthcoming case of Everyone v. Facebook.) That same user warns us that violation of her privacy is punished by law, UCC 1 1-308-308 1-103 and the Rome Statute. Undoubtedly, Facebook is horrified by the prospect of violating either of these statutes. Or not.
This Facebook user (and legions of other Facebook users who (ironically) have copied her ominous copyright warning) apparently have missed the plainly worded terms governing the use of Facebook’s online services. While it’s not clear how the Uniform Commercial Code or the Rome Statute possibly could govern the relationship between a Facebook user and the website, the Facebook terms of use agreement clearly states that “you own all of the content and information you post on Facebook . . . .” The agreement further provides that users merely give Facebook a limited, non-exclusive license to any intellectual property content posted on the website, a license which expires when the content is deleted by the user. Perhaps these simple contract terms were missed during the analysis of international criminal statutes (which have not been ratified in the United States), or laws related to the sale of goods.
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