Librarians Ask for Fairer Fair-Use Ruling

Three librarians associations are among five organizations that have filed a friend-of-the-court brief to protest a ruling that they say could severely narrow the definition of “fair use” of copyrighted materials including moving images.

As the online publication Inside Higher Ed reports today (September 30, 2010), the groups are urging the U.S. Court of Appeals for the Fourth Circuit to reconsider a ruling it made this month (September 2010)  that the librarians say would make it harder for scholars, librarians, documentary producers, and news organizations to “present a truthful and accurate account of events in any audio or visual medium.”

The ruling in Frederick E. Bouchat v. Baltimore Ravens Limited Partnership marks “the first time any court has held [that] the appearance of a copyrighted logo or other artwork captured incidentally and unavoidably in the course of a non-fictional narrative constitutes copyright infringement,” the groups say in urging the court to reverse itself.

The ruling bars the Baltimore Ravens football company from using an unauthorized copy of a drawing that the plaintiff, Bouchat, had proposed to the team. In a previous case, a court ruled that the Ravens organization had breached copyright when it used the symbol as its official logo from 1995 to 1998.

In 2008, Bouchat brought suit again, this time seeking to bar from Ravens and the NFL from using any version of his drawing. His two main targets included annual Ravens highlight films that NFL film producers have been selling for $50.

This month (September 2010), a divided three-judge panel of the Fourth Circuit ruled that the highlight films that the NFL sells, as well as historical highlight footage played during Ravens’ home games in Baltimore that displays the Bouchat “Flying B” logo in clips dating from 1996-1998, fails a “four-part test” of fair use.

The court’s two-judge majority found that the use of the logo had the same purpose it had during those years – to identify the players as Ravens – and that “simply filming football games that include the copyrighted logo does not transform the purpose behind the logo’s use into a historical one.”

At the same time, reports Inside Higher Ed’s Douglas Lederman, the court also upheld the Ravens’ use of the copyrighted logo in a display in its headquarters lobby as permitted by the “fair use” exception to copyright law because its use in that museum-like setting is a non-commercial use that adds something new to its original purpose as a logo.

Enter the Librarians

The American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries, along with the International Documentary Association and WGBH Educational Foundation, argue in their brief that the court’s ruling “flies in the face” of Supreme Court precedent that “protects historical and biographical uses like this one, whether or not they are undertaken for profit.”

The groups contend that the ruling could make it difficult, for example, “to make an effective biography of a musician without including sound and movie clips depicting his work … or to create a comprehensive study of surrealist art without including works by Salvador Dali. It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards and other copyrighted works along the way. It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food (‘Super Size Me’) or Walmart’s business practices (‘Wal-Mart: The High Cost of Low Price’) without depicting each company’s logo.”

The groups say that while using such images would still be possible under the ruling, but it would deter use of copyrighted images by making it costly and time-consuming because it would require creators of new content, such as documentary films, to obtain permission every time they wished to use a copyrighted image.

Categories: Shorts

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