Re: including e-mail story in my book

On 7/20/98, Daniel J. Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
>
> On 7/20/98, Madelyn Littman <flw_mcl[_at_]msn.com> wrote:
> >
> > On July 16, 1998, William Shadish <shadish[_at_]mail.psyc.memphis.edu> wrote:
> > >
> > > I have also found an opinion on this fair use matter of the commercial
> > > purpose that in order for this criterion to apply, the material must
> > > add materially to the value of the commercial product.
> > ....
> > While this does not totally answer your question, I think it gives some
> > guidelines as to what has to be considered. It is possible that court
> > decisions have held that the material copied must also add materially to
> > the value of the commercial product.
>
> I'm not aware of any court cases that use "value added to the infringing
> work" as a criterion for determining whether or not the infringement
> constitutes fair use. The first factor -- purpose and character of the
> infringing use, including whether or not it is commercial -- may
> tangentially touch on whether the copied work added to the value (since
> arguably if a use was not commercial, the value added wouldn't be
> relevant). However, I'd be interested to hear of any cases where the
> value added by a copied work was considered by a court.

I think Littman and Shadish are referring to the consideration given to whether the claimed fair use was "transformative." The concept originates, so far as I recall, in Campbell v. Acuff-Rose. More recently it was relied on in Infinity Broadcasting Corporation v. Kirkwood, No. 96 CIV. 0885 (S.D.N.Y., June 6, 1997), a case involving the retransmission of radio broadcasts via telephone so that radio advertisers, performing rights societies, etc. could monitor distant broadcasts. The Court weighed the first factor in favor of the defendant, even though the reproduction was commercial, because the use was "transformative," i.e. it did not merely supplant the intended use of the original work. BTW, does anyone know whether there is an appeal pending in Kirkwood?

John Noble
<jnoble[_at_]dgsys.com> Received on Tue Jul 21 1998 - 13:08:34 GMT