Will Fair Use Survive? Free Expression in the Age of Copyright Control

By Marjorie Heins and Tricia Beckles
Brennan Center for Justice at NYU School of Law
Free Expression Policy Project
December 2005

"Every Barbie for Herself"
by Tom Forsythe

Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research, Will Fair Use Survive? paints a striking picture of an intellectual property system that is perilously out of balance.

To read the report, click here.
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Introduction

Fair use is a crucial exception to "intellectual property" controls - it allows users to publish, distribute, or reproduce copyrighted or trademarked material without permission, for certain purposes. But extensive research, including statistical analysis and scores of firsthand stories from artists, writers, bloggers, and others, shows that many producers of creative works are wary of claiming fair use for fear of getting sued. The result is a serious chilling effect on creative expression and democratic discussion.

Several factors must be considered in deciding whether a use of copyrighted material is "fair." Among the most important are:

1) the purpose and character of the new work;

2) the nature of the original work;

3) the amount and substantiality of the original work that was used; and

4) the effect of the new work on the market for the original.

Examples of fair use are criticism, commentary, news reporting, scholarship, and "multiple copies for classroom use."

Findings

The report suggests the need for strengthening fair use so that it can be an effective tool for anyone who contributes to culture and democratic discourse. The report finds:

Artists, writers, historians, and filmmakers are burdened by a "clearance culture" that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material.

The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use.

An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and "take down" letters, showed that nearly 50% of the letters had the potential to stifle protected speech.

Report Highlights

The giant Bank of America sent a threatening letter to a small ceramic piggy bank company called Piggy Bank of America, claiming its use of the name was a trademark violation.

A "planetary enlightenment" group called Avatar consistently suppressed online discussion group postings critical of its program by using DMCA "take down" letters.

MassMutual sent a cease and desist letter to the gripe site "MassMutualSuks.com," claiming trademark infringement.

Mattel sued artist Tom Forsythe for his series of "Food Chain Barbies," acerbic commentaries on Mattel's role in perpetuating gender inequality. Only after a long, bruising court fight did Forsythe win the right to parody Barbie.

The report recommends: creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; changes in the law to reduce the penalty for guessing wrong about fair use; and the creation of a national pro bono legal support network.

The report has already been praised by writers and filmmakers including Gordon Quinn, maker of Hoop Dreams, who writes:

The Brennan Center report on fair use clearly identifies a critical issue – fair use is a terribly important problem facing filmmakers, and it needs to be addressed. ... This report is part of a wider movement to educate people about fair use, and it’s going to help us users organize and re-assert the right to fair use.

Click here for all the endorsements

On December 15, 2005, Representatives Rick Boucher, Zoe Lofgren, and John Doolittle circulated a "Dear Colleague" letter praising the report for explaining why fair use "is a crucial part of our copyright law," and why legislation is needed to secure fair use rights in the digital environment. To read the Dear Colleague letter, click here.