copyright law Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

By: Barely Legal Radio  09-12-2011
Keywords: Legal Advice, Free Legal Advice

copyright law Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

Art made possible only by the Fair Use Doctrine of the U.S. Copyright Act.

Judging it against the 4 prongs in the act I will lay out the case here again.

Remember, Section 107 of the U.S. Copyright Act contains a list of the various purposes for which the reproduction of a particular work, without permission, may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Below are the 4 factors courts use to determine “Fair Use.”

    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work

1. Although Mr. Banksy’s work is for profit, that does not disqualify. He is creating art with arguably substantial social commentary. The comment here is on posed group photography. Juxtaposing four people from two different centuries  can say quite a bit about American cultural norms through the ages reflected in such photographic work.

3.  The amount and substantiality of the portion used weighs in Mr. Brainwash’s favor as well. He didn’t even use the entire band. He cut them out like paper dolls and trimmed them to make his point, going no further. And he did not use the label “Run DMC.” He is not trading off their name, if they decide to sue him as well.

4. It is this prong that weighs heaviest in Mr. Brainwash’s favor. His work could have zero negative effect on Glenn E. Friedman’s original work. It can only have a beneficial effect on the original work. Its iconic status is further enhanced because out of all the pictures of Run DMC that have been taken over the years, this is the big one, the one in the Oscar nominated film that is oozing with cultural relevance and hipness.

In the other examples in Bonners’ post, Mr. Brainwash has not created “transformative” works. His works could be described as perhaps just “enhanced” publicity photos.  And he used more than he needed of the original work to make his points. He even included Jam Master Jay in these reproductions.

Regarding damages, however, Friedman should not be able to recover more than the reasonable statutory or even actual damages because he’s arguable suffered only the damages from not being compensated for the proceeds from the sale of the items not covered by the Fair Use Doctrine, plus attorney fees. He should send an invoice, and Mr. Brainwash should pay it. This is one of the best things to ever happen to Glen since he was blessed enough to be my school mate in college.

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Uncategorized Archives page 2 of 7 – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

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Uncategorized Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

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Fair Use Doctrine Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

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