Fair Use Project

The Stanford Center for Internet and Society's "Fair Use Project" ("the FUP") was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom.

Substantive Tags: Fair Use Project

(Updated) Golan v. Holder Heads To Supreme Court

by Anthony Falzone, posted on February 2, 2011 - 10:16am


Briefing for the cert. stage is now complete. You can read the government's opposition to our cert. petition here, and our reply in support of our cert. petition here.

Amicus briefs in support of our cert. petition were filed by the Electronic Frontier Foundation on behalf of the Internet Archive (available here) and the Conductors Guild (available here).

Library of Congress: Fair Use Lets You Jailbreak Your iPhone

by Anthony Falzone, posted on July 26, 2010 - 7:16pm

The Library of Congress dropped a bombshell today in the form of new exemptions from the DMCA's anti-circumvention provisions.

The biggest splash of all was for smartphones: The Library approved an exemption proposed by the Electronic Frontier Foundation that allows smartphone owners to modify the handset's software to run unauthorized applications.

Substantive Tags: Fair Use Project

10th Circuit Reverses Golan: URAA Passes First Amendment Test

by Anthony Falzone, posted on June 22, 2010 - 9:02am

Last year, we won an important victory for our clients when the District Court held the URAA violates the First Amendment insofar as it suppresses parties' rights to keep using works they exploited when those works were in the public domain. Yesterday, the Tenth Circuit Court of Appeals reversed that decision, holding the URAA does not violate our clients' First Amendment rights.

Substantive Tags: Fair Use Project

Second Circuit Adopts Stricter Standard For Copyright Injunctions

by Anthony Falzone, posted on April 30, 2010 - 1:07pm

Last summer, a federal district court in New York issued a preliminary injunction banning the publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. And that was the problem: Under the District Court's analysis, the injunction followed almost automatically from its finding of likely infringement.

Along with colleagues at Georgetown and the University of California, Berkeley, we submitted an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund, which explained why injunctions cannot issue so easily; many more factors have to be considered, including the speech rights at stake, and the public interest.

Today, we learned the Second Circuit Court of Appeals agrees. It issued what is likely to become a landmark decision on the standard for copyright injunctions. The Court acknowledged that the existing test it had employed for decades was incompatible with recent Supreme Court decisions, and articulated a new test that sets a higher bar for copyright injunctions. Read the full opinion here.

We are especially proud to see the Court adopt so much of the analysis we offered in regard to the proper injunction standard. Read our brief here.

Substantive Tags: Fair Use Project

BT Wins Again: Second Circuit Affirms Summary Judgment and $175,000 Fee Award

by Julie Ahrens, posted on November 14, 2009 - 1:23pm

After years of litigation based on spurious allegations of copyright infringement, BT was vindicated again this week when the Second Circuit affirmed the district court’s dismissal of the case on summary judgment and the award of $175,000 in attorneys' fees to BT.

Substantive Tags: Fair Use Project

FUP Withdraws From Fairey Case; Hope Remains

by Anthony Falzone, posted on November 13, 2009 - 1:21pm

As reported, we are no longer representing Shepard Fairey in his dispute with The Associated Press. The events that led to this have been well-publicized; they involve Shepard's deletion of electronic files relating to the question of which photograph he used to create the Obama Hope poster, and his creation of new documents designed to make it look as though he used a different photograph.

There are lots of reasons lawyers may not be able to continue representing a client. But it's important to make one thing clear: Our decision in that regard had nothing to do with the underlying merits of Shepard's case. We believe as strongly as ever in the fair use and free expression issues this case presents, and we believe Shepard will prevail on them. The question of which photo he used as a reference simply should not make a difference, much less overshadow the merits of this important case.

Shepard has a fantastic set of lawyers representing him now, so he is in good hands, as are the important rights at stake in this case. That fact makes us profoundly happy. We'll be watching and rooting for Shepard, albeit now from the sidelines.

Joyce Estate Pays $240,000 In Attorneys' Fees To Shloss And Her Counsel

by Anthony Falzone, posted on September 28, 2009 - 10:47am

The long saga of Professor Carol Shloss's dispute with the Estate of James Joyce over her right to use copyrighted source materials in connection with her biography of Lucia Joyce has come to a remarkable end: Last May, the Court ordered the Estate to pay more than $326,000 in attorneys' fees. After initially appealing that decision to the Ninth Circuit, the Estate thought better of it and agreed to pay $240,000 in fees to resolve the matter once and for all.

This lawsuit represented the culmination of more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit Professor Shloss from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake. Roughly a year into the lawsuit, the Estate agreed to settle the case on terms that permit the publication of the material that was deleted. But Shloss also demanded the Estate pay attorneys' fees to compensate her counsel for the many hours they put in vindicating her rights in the face of the Estate's assertions of infringement. With this payment, much of that cost has been recouped.

The key here is to realize there are solutions to problems like the one Carol Shloss faced other than simple capitulation. The risks and costs of standing up for important rights like hers may be significant, but they can be managed. The playing field can be leveled and the tables can be turned. I hope this fact is impressed not only on other scholars, but also on the institutions that need to support them when they are faced with threats like these, as well as lawyers who are in a position to donate their time to help.

I hope what we accomplished here becomes a model for dealing with problems like the one Carol faced, whether my organization is involved or not. Whether that happens or not, I'm proud of Carol for standing her ground, proud of what we accomplished with her, and proud to have worked with the fantastic team of lawyers that got us here.

Confusion Over Copyright Injunctions And Other Restraints Of Speech

by Anthony Falzone, posted on August 3, 2009 - 2:33pm

About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis.

An injunction banning a book is a big deal. It's usually called a prior restraint, and it's usually highly suspect; the U.S. Supreme Court held publication of the Pentagon Papers could not be restrained despite the government's claim that national security would be jeopardized.

In 60YL, it's Holden Caulfield who's in jeopardy. An aged Caulfield has escaped from a retirement home instead of a prep school, and faces an unlikely threat: Salinger himself. The conceit of 60YL is clever. It's written as if Salinger himself has ended his decades of seclusion to "finish what [he] started." Salinger is trying to kill Caulfield -- his "monster" -- "bringing him back just so [he] can kill him." But the plan goes awry, and Caulfield won't die. As Salinger and Caulfield play out their game of cat and mouse through a second adventure in New York, they urge us to ponder the relationship between an author and his work.

The District Court's decision to enjoin publication of 60YL puts way more than just poor Holden in jeopardy. There are profoundly important free speech rights at stake any time a court bans publication of a book, and they include those of the public as well as the author and publisher. Those interests were simply ignored in the Court's analysis.

This case does raise some difficult copyright issues. But whether the book is likely to be held an infringement at the conclusion of the case or not, courts have to consider and balance all of the important interests at stake before banning publication of a book -- or any expressive work. This Court just didn't do that.

Part of the problem is the law about when courts may enjoin books and other expressive works has become confused. So today, we and our colleagues at Georgetown and the University of California filed an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund.

Our brief explains the errors we believe the District Court made in issuing this injunction, and what we believe the proper standard should be. It urges the Second Circuit to adopt a more stringent test for issuing preliminary injunctions against books and other expressive works, and to reject the narrow interpretation of the fair use doctrine applied by the District Court.

Read the brief here.

UPDATE: Apparently, we are not alone in our concern. The New York Times and other press organizations have also submitted an amicus brief, which you can read here. Public Citizen has also submitted its own amicus brief, which is available here.

Substantive Tags: Fair Use Project

Stamps, Sculpture and Free Expression

by Anthony Falzone, posted on July 15, 2009 - 2:17pm

We filed an amicus brief today in Gaylord v. U.S., a potentially important but little-noticed fair use case on appeal in the Federal Circuit. We filed it on behalf of the Andy Warhol Foundation, and several other amici, including the Warhol Museum, contemporary artists Barbara Kruger, Thomas Lawson, Jonathan Monk, and Allen Ruppersberg, and a variety of law professors who care about the extent to which copyright promotes and protects free expression.

One of the important questions the case presents is whether this stamp makes fair use of the statue that appears in it. The image you see is a photograph of a sculpture taken at dawn in a snowstorm. The sculpture itself is called The Column, and is part of the Korean War Veterans' Memorial in Washington DC. It features nineteen larger-than-life soldiers arranged in two columns, representing a platoon of soldiers on patrol in the Korean War. The Postal Service got permission to use the photograph that appears on the stamp, but not the column depicted in it, so the sculptor sued the Postal Service for infringing his copyrights in the sculpture.

One of the important questions this case presents is whether and to what extent an artists has the right to use existing imagery to create new artistic expression. We think fair use does and should protect this right, which is crucial to huge amounts of expression, including vast amounts of modern art. We submitted an amicus brief because we thought the Federal Circuit should hear the views of those who create, promote and defend that art.

Read the brief here.

Substantive Tags: Fair Use Project, free speech
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