Stanford University Libraries’ Fairly Used Blog published a post on 22 December 2014 entitled
It poses a interesting case. You can read the summary of the US 7th Circuit court affirmation of a lower court decision that the image at the left here was fair use of the photograph on Justia.com. (1)
Fair Use is a complicated issue and every case is judged on it’s own merit. Every time I think I have a good handle on the issue another question arises that doesn’t fit or another decision is made that seems counter to previous decisions. The best we can do is to follow the rules as best we can and keep ourselves informed on current issues and decisions.
The following links offer some interesting discussions on the issue of Fair Use.
(1) Justia.com offers daily summaries of US Supreme Court, Appellate Court, and State Supreme Court decisions.
Last week the 9th circuit reversed a Los Angeles federal judge and ordered Google to remove the controversial “Innocence of Muslims” from YouTube. The ruling is controversial for a number of reasons. This blog does not intend to take a position, but rather to lay out the facts and perhaps relate them to the genealogical world.
- The actress was paid to create a scene for a specific movie
- The movie was never made
- The scene was later included in an anti Muslim film with her voice dubbed over with an insult to Mohammed
- The actress claimed copyright to her artistic work (It is important to remember that artistic expression retains the same copyright protection as writing a book or painting a picture)
- The court upheld her copyright and ordered Google to remove the film
Over the years, as I held copyright discussions, the concept of using a copyrighted work in an “unacceptable” way was one of the hardest concepts to explain. I would mention using a holocaust book in a Nazi display and other equally ridiculous ideas that no one could quite see happening. Is this in fact that type of use?
Google, in its arguments, stated that taking the video down from YouTube would be pointless as it had already been widely distributed and that Garcia had contributed to her “notoriety” by filing a lawsuit to stop the video. The 9th circuit called this argument preposterous and actress Cindy Garcia stated she is a “strong believer and supporter of the First Amendment and the right not to be associated with this hateful speech against her will.”
As I thought about this case it made we wonder about some of our “genealogical” practices. We are wonderful collectors,users, and sharers of stories, sometimes to the point of forgetting the rights of those telling the stories. Do we record without permission? Do we share oral and video sessions without permission? Do we make a point of having a signed release for anything we have recorded? If someone has sent us a family story do we make sure we have permission to share it before we do?
An oral or video recording might in fact be subject to copyright protection for artistic performance as well as protection for the telling of the story itself. While facts can not be copyrighted the creative telling of factual circumstances can.
Another thought I had as I reviewed this case was the right to privacy of individuals. That permission to share stories, recordings and videos can be really important in protecting privacy. We are very quick to share stories and more on instant media: facebook; youtube; google+ and more. Are we sharing items that others might be not want known? Does the right to know drown out the right to privacy?
There are many fine lines that we need to pay attention to as we share our genealogies.
12-3200-cv UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 ( Argued On: May 8, 2013 Decided: July 1, 2013)
In a decision announced today, the Second Circuit decertified a class action suit brought by the Authors Guild, Inc. and told Judge Denny Chin to rule first on whether Google’s book scanning is fair use.
This is a victory for Google. The company has argued that the scanning of books has not hurt authors, but rather made long forgotten books available to a wider audience. They also claimed that allowing the suit to go forth as a class action forces authors who are happy about the scanning to join forces with those who are not.
This unanimous decision decertified the class action without prejudice. If Judge Chin decides that the scanning is not a Fair Use, then the class action suit could be reinstated. Complicating the issue is the fact that Judge Chin is now a member of the Second Circuit. You can read the entire court decision here. Docket No. 12-3200-cv
A parallel case brought against the Hathi Trust is also being heard by the Second Circuit. In that case the Authors Guild is appealing a lower court decision in which Judge Harold Baer ruled that the scanning of over 10 million books was FAIR USE. He stated “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act],” Inside Higher Ed Read more here.
Genealogists have a lot at stake with these decisions. Many “genealogies” are caught in the limbo of copyright with no likelihood of republication. A workable solution with Google or the University of Michigan’s Hathi Trust could make digital copies available quickly at a reasonable cost.
To access digitized books see Hathi Trust and GoogleBooks