Re: Net/Music "Fair Use" Issue - OnLine Guitar Archive Needs Help!

On 05/05/98, Lee Hamovitz <ldh[_at_]loop.com> wrote:
>
> >Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > In fair use, the court is required to balance ALL of the factors. If
> > any of the four factors is the most important, it is the fourth factor,
> > the effect of the use on the potential value of or market for the
> > copyrighted work. [See Campbell; see also Harper & Row v. The Nation
> > Enterprises.]
> >
> > In this particular case, I would have to agree with Mr. LiRocchi that
> > posting guitar "tabs" of copyrighted songs is very likely an
> > infringement and is unlikely to be excused as a fair use.
>
> Not a lawyer, but curious......
>
> When you write, "the effect of the use on the potential value of or
> market for the copyrighted work," does it matter if that effect is
> negative or positive? And is that question one for the court or the
> copyright holder to decide?
>
> In the instance of the guitar tabs, the tabs probably encourage the
> purchase of the recordings and sheet music. Guitar players learning the
> song have a motivation to purchase both. I would consider that a
> "positive" effect for the actual copyright holder.
>
> Does the copyright owner making money on the "infringement" affect the
> case. And, again, does an impartial third party decide this or is it a
> matter of whatever the copyright holder says?

The question is for the court to decide, if and when it comes to litigation. But that's a problem if you're trying to counsel a client ahead of time, because you can rarely give a definitive answer as to what a court is going to do.

My best guess at an answer is that yes, a court can take into consideration the fact that the use arguably increases sales of the copyrighted work; but you would need evidence that this is the case, not just assertion. And you'd still face the argument that the copyright owner could make money selling authorized "tabs", so why should it tolerate sales of unauthorized ones?

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Thu May 07 1998 - 00:04:31 GMT