ILLUMINATING PATTERNS: PREDICTING FAIR USE OUTCOMES IN COPYRIGHT LAW.

• Author: Train, Tyler

1. INTRODUCTION

   "Fair use is one of the most unsettled areas of the law. The doctrine has been said to be 'so flexible as virtually to defy definition.'" (1)

   This quote from one federal circuit judge speaks for the large contingent of lawyers and creators alike who face frustration in the ostensible uncertainty of courts' determinations of the fair use doctrine in copyright law. (2) The fear alone within such uncertainty has the power to freeze the very expression that copyright law was constitutionally enacted to protect. (3) Several scholars who have recognized this fact have attempted to resolve the uncertainty by considering the existence of patterns within specific "clusters" of works. (4) However, most have failed to set forth concrete patterns for any of these clusters until recently, when entertainment attorney, Michael Donaldson, wrote the article Refuge from the Storm: A Fair Use Safe Harbor for Non-Fiction Works ("Refuge").

   In Refuge, Mr. Donaldson laid out a simple three-question test ("the Three-Question Test"). (5) Mr. Donaldson originally intended for the Three-Question Test to analyze the cluster of "non-fiction works." (6) As part of his analysis, Mr. Donaldson instructed practitioners to look beyond the language of the case law and instead shift the focus to the subjects of the litigation. (7) He encouraged a comprehensive, analytical comparison of the new work to the underlying work to foster a better understanding of what the courts were presented with before writing their opinions. (8) Approaching the issue from this angle, Mr. Donaldson contended, could go a long way toward providing clarity to outcomes widely considered unpredictable. (9)

   Much of the confusion in fair use stems from the statutory language of the Copyright Act's four-factor test. (10) The statute asks for a determination of (1) the purpose of the use in the new work; (2) the nature of the underlying work; (3) the amount taken from the underlying work in the new work; and (4) the market effect that the use in the new work has on the underlying work. (11) Because Congress did not include any indication of how to weigh these factors, however, courts have been left to skew some of these determinations into an almost unidentifiable analysis. (12) To those well versed in the complex legal system of copyright law, the four-factor test is merely an ex post vehicle for a decision predetermined by court opinion. (13) It is no secret within this community that a literal reading of the four-factor test would be unhelpful at best and downright misleading at worst.

   Mr. Donaldson's proposition takes the analysis one step beyond even a literal reading of the courts' language into an examination of the "items" behind the litigation. (14) It may well be that patterns tend to reveal themselves best when doing a little bit of both. To get inside the judges' minds, it is beneficial to read what they wrote and see what they saw. This practice can help sort the many different clusters that have been previously identified into a few basic characterizations. When works are characterized rather than categorized into clusters, patterns are easier to identify and more broadly applicable. (15)

   In preparation for this article, the patterns for these characterizations were discovered and tested through a wide range of fair use cases. The research methodology was similar to that of Mr. Donaldson and Professor Barton Beebe. (16) However, where Mr. Donaldson parsed out any cases not considered to involve non-fiction works, this article picks up where he left off by exploring every fair use case recognized by the Copyright Office's Fair Use Index. (17)

   This article begins by suggesting a change in the way certain works are labeled. The first part of the article includes an explanation of the cluster theory as well as an introduction and comparison to the newly proposed characterization theory. In the next part, this article explains Mr. Donaldson's analysis and suggests a shift in how to apply it more effectively to fair use cases. The third part of this article introduces a completely novel pattern and analysis for a newly discovered group of works. This article concludes by explaining which patterns have been discovered and which are still waiting to be unveiled.

2. RETHINKING THE LANDSCAPE

   "If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. " (18)

   1. MULTI-PART CLUSTER THEORY

      Professor Samuelson's cluster theory of predictability presents a 'pie in the sky' ideology to many in the legal community even today. (19) Yet, this suggestion is a key building block to the brave few daring enough to use the fair use doctrine as a predictable staple in their practice. Professor Samuelson's suggestion is precisely what Mr. Donaldson built on in selecting the cluster of non-fiction works he used to identify a pattern that would lead to a reliable prediction of the outcome of each particular case. (20) In labeling his cluster with a word as broad and as polarizing as "non-fiction," Mr. Donaldson implicitly suggested that works are to be divided into two categories--fiction and non-fiction. (21)

      This is not an outlandish place to start, as these are commonplace labels in the community. (22) However, these tend to be equivocal categories, suiting literary works well but causing confusion as to where to draw the line for other works. (23)

      This is another reason why the characterizations used in this article provide for a simpler and broader analysis. It is exceedingly important to note that these characterization considerations must be limited to the new work that uses an asset from an underlying work--not the underlying work itself. (24) The new work may or may not even be copyrightable in its own right, but that discussion is not relevant to its characterization and is outside the scope of this article.

   2. THREE-PART CHARACTER THEORY

      1. Redefining Labels

         When redefining labels for new works, the characterizations were borrowed from language in the courts' discussion of the second statutory factor, the nature of the work. The new characterizing labels became functional works, informational works, and creative works. (25) Functional works are those of which the primary purpose is to provide a practical service for the user such as search engines and databases, home video recording devices, and music file sharing services. (26) Creative works are those of which the primary purpose is to capture the author's artistic expression such as motion pictures, paintings, novels, and songs. (27) Finally, informational works are those of which the only purpose is to transmit factual information to another such as promotional flyers, awareness campaigns, and news reporting. (28)

         Sometimes, although rare, a work will blend the technical traits of functional works with the artistic traits of creative works, such as architectural blueprints. (29) However, functional and creative works tend to contrast each other and generally do not blend. (30) Conversely, works that transmit information are very likely to exhibit qualities consistent with either functional or creative works. For that reason, true informational works are purposely defined as those that only transmit information. Should a work transmit information in a practical or technical manner, it should be analyzed as a functional work. (31) If the work transmits information in an imaginative or expressive way, however, it may be characterized as creative. (32) It is important to understand the distinction between works that provide information in functional or creative ways.

      2. Determining Characterization

         Creative works generally have imaginative traits often created by artists such as novelists, filmmakers, and painters. A good place to start in characterizing a creative work is to first ask whether the new work in the case required some artistic expression or imagination. (33) Even important social change documentaries demand filmmakers' expression and creativity to bring the information that they are transmitting to life, tilting these types of borderline cases to the creative side. (34)

         Conversely, functional works tend to be more technical in nature and offer some practicality to the user. A good indication of functional practicality is when the user must refer to another work or interact with the work to appreciate its full benefit. For example, a reference index to a popular newspaper is meant for the practical use of quickly locating desired subject matter in the newspaper. (35) Also, a search engine database requires users' interaction by inputting a search query into the search engine to reveal relevant search results. (36) These types of cases are better identified as functional works.

         However, some works simply do not have such traits and must be characterized as informational. As opposed to functional works, informational works tend to stand alone, transmitting information independently without requiring the user to interact with the work or refer to another work. In Reyes v. Wyeth Pharmaceuticals, Inc., (37) a sculptor sued a pharmaceutical company for using a photo of one of her glass sculptures in an advertisement for the company's Rheumatoid Arthritis awareness campaign. (38) The new work in this case, the campaign advertisement, sits close to the middle of the road, because it exhibits neither noticeable creative elements nor evidence of practical uses--its only purpose is to transmit information. Therefore, neither analysis works particularly well for this type of case, and even the court offered a tepid opinion for its decision against fair use. (39) Ultimately, the first step of the analysis is to identify either definitive expressive elements for creative works or practical elements for functional works in order to continue on with question sets explained hereafter.

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