Fair Use?

/ 29 January 2005

I’ve been thinking about the Eyes on the Prize distribution some more. I’d called it “stealing” and “clearly illegal” in my prior post and comments (since edited). That was inconsiderate. Let’s consider the case more carefully. The claim made by Downhill Battle is that copying Eyes on the Prize for the purpose of showing it at screenings on 2/8 is fair use. Fair use must be evaluated by four factors, lets look at the four factors with regard to this case. Remember, I am not a lawyer. I am not even an expert in copyright. I’m just doing this exercise to help with my own thinking. Your milage may vary!

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;In this case the copies are being made for showing during Black History Month and to illuminate the tensions between copyright and the transmission of culture. As long as these copies are used only for such non-profit educational purposes, I think there is likely to be a reasonable for fair use on this factor.Note that the use is not “transformational”. While the screenings at which the documentary is presented may create a critical context that changes its role (a conversation about copyright in addition to the lessons of civil rights), this new context does not seem to me to really transform the work. As a result, I would not anticipate a slam-dunk case for fair use on the first factor.

(2) the nature of the copyrighted work;

Eyes on the Prize is a television miniseries documentary. The courts seem to treat fact-based material more generously w/r/t fair use than fictional material. This is clearly factual material. On the other hand I think visual material, like TV or film, tend to get more protection than some printed works. This may be a wash or it may lean very slightly toward fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Well, we are being asked to copy the whole show. In fact, each episode of the show is probably to be considered a complete work. I think this factor clearly tilts against fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Now this gets interesting. Since the producers and PBS are no longer selling copies of the series, is there a market at all? They claim to be working on re-securing the rights they need to distribute the work, and if they succeed there should be a decent market for the DVD or other distribution. Even so, does the mp4 distribution really take away from that market potential? I think a case could be made that this distribution and the publicity and screenings surrounding it will increase the market for this series, should it ever be distributed officially again. I know I am now interested in buying a copy, when I’d forgotten about the series before all this. In my mind this factor leans toward fair use.Hm. Factors (1) and (4) tilt toward fair use, factor (3) tilts against fair use, factor (2) may be a wash, but slightly toward fair use in my estimation. That adds up, in my view, to fair use! Downhill Battle has a point.Now, this is not a legal ruling in any sense, and you have to do you own analysis of the factors before making your own decision. And document your own decision in case you are ever called to defend it in a court.

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