Re: droit de suite

On Thu, 6 Apr 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Wed, 05 Apr 2000, Marty Hayes <9ball[_at_]hostsite.net> wrote in part:
> >
> > As I understand copyright law, the fair use doctrine already permits
> > copying without permission for the purpose of news reporting
> > regardless of whether the copyright holder is a human or an
> > organization"
>
> Not so fast. Section 107 of the Copyright Act identifies "news
> reporting" as one of a non-exclusive list of six purposes for which
> a use might be found fair ... but the question of whether the use IS
> fair or not rests on the application of the four factors that follow,
> and is very fact-specific. It is emphatically not correct to assume
> that merely because the purpose of the use is "news reporting" the
> use is a priori fai.

Mr. Cumbow, you are absolutely right, and it was not my intention to suggest that any copying for news reporting purposes is *automatically* considered fair use. For the sake of brevity, I surmised that this discussion group was already aware that the application of "fair use" would involve applying the four factors within that doctrine. Simply put, I didn't think that qualifier needed to be reiterated among this set.

Let's go back to the statements that prompted that response. It was Lance's contention that copyright law is being used to, if I recall the phrase, "silence whistleblowers", and to prevent the public from discovering potentially embarrassing but true activities of a company or congregation. (He cited such an example in the issue surrounding the church that Tom Cruise is alleged to belong to.)

Now, before you pick apart my next statement, let me acknowledge here publicly that only the courts can definitively conclude on a case-by-case basis what is and isn't a fair use. Having said that, I tend to believe that the copying Lance suggests should be allowed would satisfy the "purpose and character" factor (to make the public aware of conduct/activities of the congregation or company that may influence their perception) , the "nature of copyrighted work" factor (as being true statements of the activities that occurred), and the "effect on value" factor (because the piece is not sold within or outside of the organization and doesn't have a *market* value). As you know from the Texaco appeal, prevailing on all four factors is not required, only prevailing on the majority of the factors.

For those reasons, I made the statement that the qualifiers he is proposing would be unnecessary.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Fri Apr 07 2000 - 16:27:26 GMT