Copyright

Here is a copy (below) of the June 2, 2008 decision of Judge Sidley Stein in the Southern District of New York, holding that a 15 second snippet of the Lennon song “Imagine,” within the feature length movie “Expelled“, is “fair use” under U.S. copyright law. In other words, the film makers did not infringe Yoko Ono’s copyright rights. “Expelled” is a documentary that deals with “intelligent design” (vs. Darwinism, Creationism, ect.), and is narrated by Ben Stein of Ferris Buehler fame (presumably no relation to Judge Stein, but bad luck of the draw for Yoko Ono nevertheless). The “fair use” doctrine is an exception to the legal rights of U.S.copyright owners. It permits the use and publication, without permission, of parts of the work for purposes of “criticism, comment, news reporting, teaching … scholarship, or research.” A large body of judge-made law has built up interpreting and applying this doctrine. The court’s ruling on fair use is no surprise, and applies “black-letter” fair use law to undisputed facts. Any outcome other than a ruling in favor of fair use would have been a surprise. For more on fair use click here. Lennon v Premise Media – Upload a doc Read this doc on Scribd: Lennon v Premise Media

Many lawyers in Massachusetts would agree that Massachusetts Federal District Court Judge William Young is one of the most erudite judges in the district. Yet, he has written relatively few copyright law decisions in his 23 years on the federal bench. A Westlaw search shows that he has authored fewer than ten substantive copyright decisions. In a decision issued on February 28th in the case Situation Management Systems v. ASP Consulting Group, Judge Young undertook the question that has caused many lawyers to call copyright law one of the most metaphysical of practice areas: how to draw the line between expression that is protected by the law, and that which is not. In this decision, Judge Young concluded that Situation Management System’s (“SMS”) workshop training materials, aimed at improving business and personal productivity, did not make the grade. Judge Young found that the challenged texts, created by two former employees of SMS who had formed a competing business, had been created very quickly, indicating that the former employees had not started from scratch, but had likely used the SMS materials as a starting point. After explaining the famiar (to copyright afficionados) concepts of “idea v. express,”, scenes a faire and the fact that copyright law does not protect a “process,” Judge Young applied these docrines to the case at hand. He found that SMS’s materials were “aggresively vapid . ….

Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright. I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.” Although I haven’t seen this treatise yet, I hope that it is a change from Nimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia. I would also add that it may be time for the intellectual property fathers of the 20th century, whose treatises have become so calcified and entrenched with the courts that it’s hard for anyone to compete with them, to make some room for the next generation. After all, Melville Nimmer died in 1985, and his treatise is now edited by his son, David Nimmer. Roger Milgrim (Milgrim on Trade Secrets) , Donald Chisum (Chisum on Patents) and Thomas McCarthy (McCarthy on Trademarks) are in their 60s. Bill Patry, by comparison, is only in his mid-50s. And, he has a blog. And, a sense of humor. For some amusing repartee between Patry and readers of The Volokh Conspiracy, click here.