Klarinet Archive - Posting 000198.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: RE: [kl] Fair Use
Date: Mon, 09 Feb 2009 14:13:40 -0500

At 11:18 AM -0800 2/8/09, Kevin Fay wrote:
> In
>Acuff-Rose, the Supremes analyzed the traditional parody defense against
>Section 107's four-factor test. The good news is that parody was held to be
>criticism, so that it could meet the first of the four factors. The bad
>news is that the fourth factor - market harm - is now to be included in the
>analysis of whether parody is fair use or not. This is not necessarily good
>news - the parodist must now prove that their parody will not harm the
>market for the original copyrighted work.

Not quite. It can (and often--perhaps even usually--does) harm the
market for the original and this is perfectly legal and NOT a
copyright violation. As the "Supremes" said in their decision:

>We do not, of course, suggest that a parody may not harm the market
>at all, but when a lethal parody, like a scathing theater review,
>kills demand for the original, it does not produce a harm cognizable
>under the Copyright Act. Because "parody may quite legitimately aim
>at garroting the original, destroying it commercially aswell as
>artistically," B. Kaplan, An Unhurried View of Copyright 69 (1967),
>the role of the courts is to distinguish between "[b]iting criticism
>[that merely] suppresses demand [and] copyright infringement[,
>which] usurps it." Fisher v. Dees, 794 F. 2d, at 438.

At 11:18 AM -0800 2/8/09, Kevin Fay wrote:
>Two points of caution:
>
>1) Parody is a very special form of derivative work, with a unique and
>narrow protection under U.S. law. You cannot take the Acuff-Rose decision
>as a protection of any sort of general right to make derivative works from
>copyrighted materials (like an arrangement of the Prokofiev flute sonata,
>for example). Without satirical criticism of the original work, it just
>doesn't apply.

Of course it doesn't apply. Who ever said it did? This was a side
conversation that you wandered off on when you presented this
unrelated case as your evidence of your argument.

What is clear so far is that you have not shown a single case to
support your claim that copying over a marked-up part that one owns
is a copyright violation, or any case even vaguely similar to that.

Given the fact that this type of activity happens every day in every
musical institution and musical environment all over the world, it is
clear that no lawyers feel they could win such a case. If they
thought they could, there most certainly would be many high-profile
HUGE lawsuits over it, because of the huge magnitude and
pervasiveness of the practice.

Conclusion: it is highly likely that this is NOT a copyright violation.

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

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