Legal Review: Figuring Out the Ever Fleeting Doctrine of 'Fair Use'

1 Aug, 2006 By: Response Contributor Response

For those who would like to learn more about this area of law, key cases include the following:

1. Sandoval v. New Line Cinema Corp. — Finding fair use, when the motion picture "Seven" included a 90-second scene in which, in the background, in shots that lasted from one to six seconds and totaled 30 seconds, one could see the plaintiff's copyrighted photographs, always out-of-focus and never as the centerpiece of the scene.
2. Ringgold v. Black Entertainment Television — Finding no fair use, where sitcom "Roc" showed a poster of plaintiff's story quilt hanging on a wall nine times, for a total of less than 30 seconds, during which the work of art was "plainly observable, even though not in exact focus."
3. Jackson v. Warner Bros. Inc — Finding fair use, where plaintiff's lithographs were visible, in the background, for less than 60 seconds, in the motion picture "Made in America."
4. Amana Refrigeration, Inc. v. Consumers Union of U.S., Inc. — Finding no fair use, where defendant Amana had reprinted and circulated, as promotional material, a review of one of its microwave ovens in Consumer Reports magazine.

In the final analysis, perhaps the best advice is that which has been set forth in the leading treatise on copyright law, Nimmer on Copyright, which suggests to those considering "fair use" concepts: "'Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.'" In offering that suggestion, Nimmer is quoting from Joseph McDonald, and I, in turn, am quoting from him 85 which is a fair use, I hope.

Gregory J. Sater is partner at Rutter Hobbs & Davidoff Inc., a Los Angeles law firm. He specializes in intellectual property, advertising and marketing law and can be reached at (310) 286-1700.

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