Re: Clarification

On Mon, 14 Dec 1998, Bob Stock <bstock[_at_]attymail.com> wrote:
>
> On 12/12/98, Larry Weiss <pgw[_at_]idt.net> wrote:
> >
> > On Thu, 10 Dec 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> > >
> > > Not quite. Fair use is use without RECEIVING permission. You can
> > > ask for permission, and (according to Campbell), doing so cannot
> > > cannot be held against you. You can still claim fair use even if
> > > you asked for permission and it was denied.
> >
> > I am not sure this is precisely correct. Campbell held that
> > requesting permission is not dispositive; but I don't believe the
> > case suggested that it isn't evidential. If it is, it might swing
> > the balance in a close case.
>
> "[W]e reject Acuff-Rose's argument that 2 Live Crew's request for
> permission to use the original should be weighed against a finding
> of fair use. Even if good faith were central to fair use, 2 Live
> Crew's actions do not necessarily suggest that they believed their
> version was not fair use; the offer may simply have been made in
> a good faith effort to avoid this litigation. If the use is
> otherwise fair, then no permission need be sought or granted.
> Thus, being denied permission to use a work does not weigh against
> a finding of fair use."
>
> Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n. 18 (1994).

   My caveat was carefully hedged because of the ambiguity of this language -- does not "necessarily" suggest; "may ... have been"; "[i]f the use is otherwise fair..." The broad statement "does not weigh against a finding" is not consistent with this more equivocal reasoning. And does this mean "may not be considered" or "does not determine"? Hence my expression of uncertainty. Also, as the case was remanded for further findings, this might be regarded as dictum; but it might not be. It will require further litigation to determine if the Court intended to rule out any evidentiary role for a request for a license when the issue of fair use is a close one.

Larry Weiss
<pgw[_at_]idt.net> Received on Tue Dec 15 1998 - 23:47:21 GMT