RE: Questions about two cases of copyright infringement

[Kevin L Smith <kevin.l.smith@xxxxxxxx>]

Rather than analyze these situations as fair use, I would look to the 
section 110 performance exceptions.  For the latter one (it has to have 
been on a Southwest flight; they seem to have singing stewardesses for 
some reason), I think 110(4) might except this performance from the public 
performance right -- it is a performance of "a nondramatic literary or 
musical work otherwise than by a transmission to the public [that means 
the YouTube in the museum won't qualify for this exception] without any 
purpose of direct or indirect commercial advantage and without payment of 
any fee or other compensation for the performance to any of its 
performers, promoters or organizers."  I think it is a safe bet that the 
salary the stewardess gets would not be considered compensation for the 
performance.  The real issue would be whether there was any commercial 
advantage.  This might be arguable, but I suspect the cost and uncertainty 
of making the argument would discourage a complaint.

Kevin

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@xxxxxxxx
http://library.duke.edu/blogs/scholcomm/



"Jason Griffey" <Jason-Griffey@xxxxxxx> 
08/17/2009 02:56 PM

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RE: Questions about two cases of copyright infringement






Those are both really interesting. My take on them would be:

Very little risk for the first. Artistic use of material is traditionally
given wide leeway for Fair Use testing...but for a more detailed analysis,
knowing what was being shown via YouTube (the content) would be important.

The second gives me more pause, and for exactly the reasons you outline. I
wouldn't be comfortable with that one, vis-`-vis a Fair Use claim. It 
almost
certainly wouldn't have qualified as a parody, as it didn't "comment" on 
the
original (I'm guessing).

Jason


-----Original Message-----
From: Jack Boeve [mailto:JBoeve@xxxxxxxx]
Sent: Monday, August 17, 2009 2:35 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Questions about two cases of copyright infringement

SUMBITTED BY MODERATOR ON BEHALF OF ROBERT HOLLEY.
Please reply to the list. Thank you.
============

I have some questions about two occurrences during the 2009 ALA Annual
Conference and would like to ask for comments on whether two copyright
infringers were running any "real" risks for their infringement.

In the first case, a professor who was hosting an exhibit at one of the
Chicago museums was showing YouTube videos on two monitors in a
continuous loop. I asked the professor about copyright permissions. The
person answered that he didn't have any.

The second case happened as my flight landed in Detroit when one of the
flight attendants sang a pastiche of a song from a Disney movie that was
certainly under copyright protection given Disney's policies on
copyright. I don't think that the pastiche would have qualified as a
parody. I thought that this possible infringement was more dangerous
because the speech was commercial, the airline has deep pockets, and a
Disney executive might be taking the flight.

My questions are whether these two cases posed any real risks for being
sued for copyright violation or whether these fell under the category of
theoretical violations where the people involved were indeed violating
copyright but ran little risk of any consequences.

Thanks!

Bob

Robert P. Holley
Professor, School of Library & Information Science
Wayne State University
Detroit, MI 48202
313-577-4021 (phone)
313-577-7563 (fax)
aa3805@xxxxxxxxx (email)