Klarinet Archive - Posting 000156.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: RE: [kl] Fair Use
Date: Sun, 08 Feb 2009 09:08:17 -0500

More detail on the "presumption of infringement" discussion...

In reading Campbell v. Acuff-Rose Music 510 U.S. 569 more closely, I
discovered the following.

The Supreme Court reversed and remanded the Court of Appeals
judgement (which found against 2 Live Crew for copyright
infringement), because:

The Supreme Court wrote:

>"It was error for the Court of Appeals to conclude that the
>commercial nature of 2 Live Crew's parody of 'Oh, Pretty Woman'
>rendered it presumptively unfair. No such evidentiary presumption is
>available to address either the first factor, the character and
>purpose of the use, or the fourth, market harm, in determining
>whether a transformative use, such as parody, is a fair one. The
>court also erred in holding that 2 Live Crew had necessarily copied
>excessively from the Orbison original, considering the parodic
>purpose of the use."

And while they noted that 2 Live Crew had failed to present any
evidence to prove that their parody would not damage the market for
the original, instead of finding against them for failing to present
their "affirmative defense", they remanded and noted the following:

>Contrary to each treatment, it is impossible to deal with the fourth
>factor except by recognizing that a silent record on an important
>factor bearing on fair use disentitled the proponent of the defense,
>2 Live Crew, to summary judgement. The evidentiary hole will
>doubtless be plugged on remand.

So the fact that they did not present a complete affirmative defense
was not sufficient to find them responsible. In other words, there
is not a total black-and-white (or bright line, if you will)
presumption that they are responsible for infringement despite the
fact that they failed to present their affirmative defense in full.
The court simply said, go back and try again...

Kind of a middle ground. Not a very bright line.

--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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