Is Fair Use Code-able? Part 1 – The Project

We’ve been coding copyright law for a long time.  We were asked, “What about fair use? Is it codeable?”  Challenged accepted.  For three years, the copyright class has investigated this in different manners.  We’ve looked at case law, we’ve looked at special areas, and we concentrated on artists as users (and transformative works).

 

This project began as a question posed by Kyle Courtney at Harvard.  We took up the challenge and as a Copyright Class in 2013, we spent one month focused on learning about fair use, and attempting to see how we could make sense of fair use using flowcharts.  Geena Yu, a 2L at the time, continued with the project, writing an independent study paper looking at scholarship, and attempting to look at the problem from her own angle.  Dr. Elizabeth Townsend Gard and Geena Yu presented their initial findings at the Works In Progress Intellectual Property Conference at the USPTO in February 2015.  The project is still in its beginning stages.  

Since then, we have also looked at the question in our 2016 advanced trademark/copyright course, looking through the lens of the artist.

Now Helen Buckley, Ben Vanesse and Dr. Townsend Gard are tackling/attempting to code fair use.  We began with non-transformative works, and now are looking at news reporting, transformative works, and scholarship/research.  We think it is codeable.  Stay tuned for more updates on our work.  

“Who’s On First?” in the public domain, says Appeals Court

We don’t get a lot of recent cases where copryight renewal turns out to be the key element.  But this case is amazing.  It’s a case where Abbot and Costello’s heirs tried to prevent a broadway production, Hand to God, from using about 30 seconds of “Who’s on First?”  The district court found transformative use.  The Appeals court, said, “no.”  Nothing transformative about using the comedy routine in the manner used in the show.  But here’s where it gets interesting:  the court found that (in a complicated manner), “Who’s on First?” is likely in the public domain — no renewal record.  

  1.  “Who’s on First?” was first performed on the radio.
  2. Then, it was incorporated into a couple of films, but because it had already been created before the film, the comedy bit was considered separately protected, and not created at the “instance and expense” of the films.  The registration and renewal records for those films do not apply.
  3. Then, we turn to the registration/renewal records.  The comedy routine is finally registered in 1944, but not renewed.   

The court notes that the part used in the play (the beginning of the routine) was covered by this first registration.  

Here is the opinion.  So, not transformative (fair use), but in the public domain.  Maybe the estate should have let the 30 seconds be used without fuss…