On the Fair Use of Copyright

Topics: Copyright Law

Copyright and trademark infringement has always been the topic of controversy and has been hazy and unclear. Sometimes some conflicts are caused by unclear and hazy contracts, agreements, rules, and laws. Such copyright and trademark laws impose a pullback on the creative individuals over whether something is considered fair use or not causing a conflict between individuals and companies. Because large companies lobby for copyrights for more control on profit, they have an advantage over individuals in an economical factory forcing the individual unable to proceed without a good lawyer.

On a bigger scale recent major copyright issue for big corporations such as Disney vs Redbox where Redbox is selling the supposed ‘combo pack’ of a Blu-ray disc, a DVD, and a digital code separately. Disney was upset over the ordeal of Redbox splitting up the combo and selling the code by itself whereas the packaging clearly states that the code is NOT for sale or transfer. Redbox responded with that a “first-sale doctrine” where the buyer of a copyrighted work has the right to resell it or give it away as long as they don’t make their copy to sell.

From my perspective, this case is a hazy area of the line in business law where different selling methods clash with copyright issues. Disney updated their contract of the user agreement and other agreements for the movie “Black Panther” where then the judge agreed that from now on Redbox can not sell codes by itself for future movie titles, BUT they are allowed to continue to sell previous titles due to respect of “advocate for the consumers” The updated agreement is an example of the Clickwrap Agreement that we learned in class where that agreement the user made online by clicking “I Accept” is enforceable by law.

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For this case, even though Redbox is not pirating Disney movies, Redbox is selling Disney movies at a way cheaper price than the market price which would hurt Disney’s revenue considering how many Redbox users are buying such code around the country. This case should provide a good warning on clarifying contracts and agreements so such unwanted actions shall not be done with conflicting resale terms and first-sale rights.

Hank Willis Thomas v. Graeme Williams is another recent case built around an unclear distinction between fair use vs copyright infringement. This case revolves around a photograph taken by Graeme Williams in 1990 of kids play marching in front of policemen sitting on top of an armored vehicle, which was used in Hank Willis Thomas the “Gravitas” in 2018 by doing some editing and displayed at the Goodman Gallery at the Joburg Art Fair. Thomas used William’s photograph without permission nor gave us credit for using his material, the photo was simply cropped, desaturated of color, and changed the levels of the foreground kids and the background policemen.

From Williams’ perspective, this was not a creative piece of art, it was minimal editing and theft. There should be a line between what is fair-use copyright and copyright infringement and this case is still under review for the decision on whether the artwork “Gravitas” by Thomas is acceptable under the fair-use copyright laws. From this case, we can tell that the line has not been firmly set between copyright infringement and fair use, so this might be a heads up to media and photography business/producers to rethink where the line is at to avoid legal conflicts and consequences.

A trademark aspect of this topic is HBO vs. Game of Thorns where HBO is filing a trademark opposition against the trademark “Game of Thorns” due to the supposed possibility of confusion because the name is rather similar to the famous television series “Game of Thrones” and possible of dilution of the unique brand. HBO claims that the name “Game of Thorns” is too similar to the popular show “Game of Thrones” and it might confuse the consumers that “Game of Thorns” was part of HBO’s company or product. Assumed dilution is to claim that “Game of Thrones” is a popular show and the name is unique, by allowing such a name as “Game of Thorns” would dilute the name and cause lower quality of the brand through blurring. This case is yet to be settled as it is filed recently in October, but my opinion on this is that since trademarks are based on name AND category, and that “Game of Thorns” is a botanical museum while “Game of Thrones” is to entertainment and products. Even though it might cause some dilution and confusion, I doubt it would affect “Game of Throne” to any significance. This opposition shows the blurry line between trademark acceptability under different categories for registering companies and the risk of confusion and dilution for opposing companies.

Another blurry line between copyright infringement and parody is the recent Doctor Seuss Enterprise claimed that the broadway show “Who’s Holiday” was an infringement of Dr.Seuss’ “How the Grinch Stole Christmas” and brought it to court. DSE wrote a cease-and-desist letter that led to the cancellation of the Broadway show. It came to the court of Manhattan that DSE filed a copyright violation in which finally a federal judge ruled that “Who’s Holiday” was an acceptable parody that is protected under the First Amendment and is NOT a copyright infringement because it is a Parody of the original that does not use any setting or style of “How the Grinch Stole Christmas” only recount the plot to invoke the original storyline.

This case shows how copyright can be denied to parodies and the protection of parodies under the First Amendment if you are a content creator, but sometimes the line between both is unclear so it might be difficult to settle the case if you are producing a parody with about the original work.

A blurry line between trademark slogan and parody example is the Sesame Street vs Happytime Murder where Sesame Street is proposing that Happytime Murder’s marketing tweet of “Not Sesame. All Street.” might confuse consumers that this movie might be related, endorsed, or sponsored to Sesame Street and that they don’t have the right to use ‘Sesame Street’. The judge ruled in Happytime Murder’s favor because Sesame Street couldn’t prove that the quote was confusing. I believe that this case shows that sometimes you think that such a trademark is illegally used by others, but in reality, it was acceptable because the quote is a parody of “Sesame Street”. It even states that it is NOT sesame, and I don’t think that someone would mistake the movie with a family-friendly tv show of sesame street puppets. This case shows how similar slogans and apparent infringement might not always be so, there is a blurry line between that and parody. Businesses should look out for this type of blurred line before throwing out a lawsuit.


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On the Fair Use of Copyright. (2022, Jun 30). Retrieved from https://paperap.com/on-the-fair-use-of-copyright/

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