Klarinet Archive - Posting 000042.txt from 2009/02
From: Jonathan Cohler <cohler@-----.org>
Subj: Re: [kl] Derivative Works
Date: Mon, 02 Feb 2009 19:21:30 -0500
At 3:58 PM -0600 2/2/09, Michael Nichols wrote:
>OK. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). What does
>this case tell us: 1.) Fair use is determined on a case-by-case
>basis, as there are no bright-line rules; 2.) Fair use is an
>affirmative defense (meaning that the onus is on the *defendant* to
>prove fair use, once the plaintiff has established a prima facie case
>of infringement)
Sorry, but that is a meaningless statement. Every case is decided on
a "case-by-case" basis. There are no "bright-line" rules anywhere in
the law, or we wouldn't need courts then would we?
There is nothing in Campbell v. Acuff-Rose Music about "prima facie"
establishment of infringement. Furthermore, what you are saying does
not contradict what I said. If there were enough evidence presented
by a plaintiff to establish a "prima facie" case, then that means
precisely that the plaintiff has proved more likely than not, if no
rebuttal is given, that its claim is valid (that's the definition of
"prima facie"). Obviously, then the burden of proof would shift to
the defendant. But that happens only AFTER the plaintiff has proved
a case (prima facie or otherwise).
So as I said, prima facie or not, in ALL cases in the United States
of America, the plaintiff must prove their case first. NOT the other
way around. No exceptions. None. Zip. Zilch. That's just the way we
designed our jurisprudence in this country. Law 101. Sorry.
Using fancy words like "prima facie" to obfuscate doesn't change reality.
By the way, in Campbell v. Acuff-Rose Music, the Supreme Court found
(among several other things) that:
>The Court of Appeals properly assumed that 2 Live Crew's song
>contains parody commenting on and criticizing the original work, but
>erred in giving virtually dispositive weight to the commercial
>nature of that parody by way of a presumption, ostensibly culled
>from Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
>417, 451, that "every commercial use of copyrighted material is
>presumptively . . . unfair . . . ." The statute makes clear that a
>work's commercial nature is only one element of the first factor
>enquiry into its purpose and character, and Sony itself called for
>no hard evidentiary presumption. The Court of Appeals's rule runs
>counter to Sony and to the long common law tradition of fair use
>adjudication. Pp. 12-16.
In other words, the fact that it was a commercial use of copyrighted
material, was NOT prima facie evidence of infringement. Many other
factors must be considered.
Furthermore, if you look at Sony Corp. v. Universal City Studios,
Inc., 464 U.S. 417 (1984), you will see that the court found:
>A challenge to a noncommercial use of a copyrighted work requires
>proof either that the particular use is harmful, or that if it
>should become widespread, it would adversely affect the potential
>market for the copyrighted work. Actual present harm need not be
>shown; such a requirement would leave the copyright holder with no
>defense against predictable damage. Nor is it necessary to show with
>certainty that future harm will result. What is necessary is a
>showing by a preponderance of the evidence that some meaningful
>likelihood of future harm exists. If the intended use is for
>commercial gain, that likelihood may be presumed. But if it is for a
>noncommercial purpose, the likelihood must be demonstrated.
You still have not shown me a case that is relevant to our discussion
of sheet music, however.
Show me a case.
P.S. I really like the movie Jerry Maguire. The "show me the money"
scene was my favorite! :-)
--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org
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