Re: Reprinting Lyrics in Court Cases

At 04:24 PM 4/12/96 -0500, you wrote:
>
> On Thu, 11 Apr 1996, Mark Lemley wrote:
> [snipped discussion about copyright protection for legal briefs]
>>
>> I have tried without success to get guidance on a related question of
>> particular personal interest -- what liability (if any) would a
>> casebook author have for reprinting a court decision which included
>> as an appendix copyrighted pictures, song lyrics, etc.
>>
>> Mark Lemley
>> Assistant Professor, University of Texas School of Law
>> Of Counsel, Fish & Richardson, P.C.
>> mlemley[_at_]mail.law.utexas.edu
>
> First, distinguish a decision to include the lyrics from a decision
> to include a case that itself includes the lyrics. We are discussing
> only the latter. You are still fundamentally reproducing a copyright
> protected work, and you are looking to fair use for salvation. Under
> that analysis, I see a few factors at work:
>
> Purpose: When you reprint the lyrics for their own sake, you are probably
> not making a transformative use, and your book has the ambiguous mixed
> commercial/noncommercial purpose. But once the court incorporates the
> lyrics into the decision, it has itself transformed the lyrics from art
> into a crucial element of legal analysis. Your reprinting of the case
> is similarly transformative with respect to the original. Your purpose
> also takes on stronger "noncommercial" implications, because publishing
> and sharing information about the law is an essential form of
> communication needing greater protection under fair use.

How can it be "non-commercial"? I hope mark gets royalties. It is, however, for an educational purpose.

> Effect: Lyrics in a court decision and in your book do not compete for
> the market for the original work. Indeed, it is a market over which
> the copyright owner has no control (no one controls judges!), and
> putting the lyrics in the case is inherently an unlicensable market
> for derivative works.

It would compete for market. If I want a copy of the lyrics to "Pretty Woman" i coudl copy the court opinion or get Mark's book rather than deal with the copyright owner. However, I think this effect on the market would be de minimus and not hinder the fair use claim.

> Then there are some practical issues.... What judge would want to rule
> that students cannot be allowed to learn from having the benefit of
> full court cases? And are copyright owners accepting the risk of some
> limited disclosure and continued, but limited, reproduction as a result
> of bringing their case (implied consent???)?
>
> What do others think?
>
> Kenneth Crews
> Indiana University
> Indianapolis
> <kcrews[_at_]velcome.iupui.edu>

Fair use would probably allow the inclusion of the appendix, particularly in the case of infringement cases since a detailed comparison is necessary to follow the legal reasoning. A more interesting case is the one in which the entire copyrighted material is included within the opinion. Would something like merger pertain since enforcement of the copyright would block access to the public opinion?

     <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>
     Buford C. Terrell                             1303 San Jacinto
     Professor of Law                             Houston, TX 77002
     South Texas College of Law                 voice (713)646-1857
     terrell[_at_]stcl.edu                             fax (713)646-1677
     <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>