Many recent decisions have touched on the copyright fair use doctrine. Although recent decisions have not provided as much clarity as may be desired, a few key, but disparate, points have surfaced.
The copyright fair use doctrine has often perplexed copyright owners and users, as well as the practitioners advising them. Fair use is a defense to copyright infringement based in the First Amendment. Non-exclusive factors for a fair use analysis include: the reasons for and manner of the use, the type and portion of the work copied, and the impact, if any, on the value of the work copied. These factors are to be balanced by the court.
Use of a Copyrighted Work in a Parody - U.S. District Court for the Central District of California, Decision of 15 June 2012, No. 8:11-cv-00731, Northland Family Planning Clinic Inc. v. Center for Bio-Ethical Reform
An anti-abortion organization used large excerpts from a pro-choice video to create a new video, adding and interspersing new footage.
The court found the use to be a parody, protected as fair use under the Copyright Act. Parodies are typically transformative uses for the purposes of criticism of the original work. The court noted that parodies need not be humorous nor made from well-known works. In fact, because the original video was not well-known, the parodist was entitled to use more of the work so as to appropriately "conjure" up the original work.
Google Library Digitization Project
There have been a couple of recent developments in the longstanding battles between Google and book authors, publishers and the Authors Guild related to Google’s library digitization project.
On October 4, 2012, the Association of American Publishers and Google announced they had reached a settlement, ending one portion of the seven-year-long of copyright infringement litigation. The parties announced that "U.S. publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use."
The settlement does not resolve Google's pending litigations with the Authors Guild. Google has said that it intends to argue that the scanning of more than 12 million works into a searchable database constitutes fair use. Those searching the database for a particular term are presented only book snippets that contain that search term.
Also in October, a federal court ruled in Google's favor that the digitization of books for the purpose of preserving them and making them searchable by the print-disabled, constitute fair use. The district court’s analysis of the fair use factors focused on the transformative nature of the copying, that the use served a different purpose than the original works, and that licenses for the activity were not, and not likely to be, available.