Amicus Curiae Brief — Campbell v. Acuff-Rose Music, Inc.

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No. 92-1292

In THE OFFICE OF THE queny,

Supreme Court of the United States

OCTOBER TERM, 1992

q LUTHER R. CAMPBELL, a/k/a LUKE SKYYWALKER;

CHRISTOPHER WONGWON, a/k/a FRESH KID ICE;

MARK Ross, a/k/a BROTHER MARQUIS;

Davip Hosss, a/k/a Mr. Mixx;

professionally known as THE 2 LIVE CREw;

LUKE SKYYWALKER RECORDS,

7. Petitioners,

ACUFF-RosE Music, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

WARNER BROS., A DIVISION OF

TIME WARNER ENTERTAINMENT COMPANY, L.P.,

IN SUPPORT OF NEITHER PARTY

CarY H. SHERMAN *

ROBERT ALAN GARRETT

PREETA D. BANSAL

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

Of Counsel: Counsel for Warner Bros.,

A Division of Time Warner

BERNARD R. SORKIN Entertainment Company, L.P.

JOHN A. SCHULMAN

WARNER Bros., A DIVISION OF

TIME WARNER

ENTERTAINMENT COMPANY, L.P.

4000 Warner Boulevard

Burbank, CA 91522

(818) 954-6000 * Counsel of Record

WILSON - Epes Printine Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

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TABLE OF CONTENTS

Page

py) f Soy. ns) een ii

INTEREST OF AMICUS ........... Tot 2 OEE) ane Resa 2

SUMMARY OF ARGUMENT ................00..0000000. wu... 2

ARGUMENT

THE LOWER COURT ERRED IN ADOPTING A

PRESUMPTION THAT COMMERCIAL USE OF

COPYRIGHTED MATERIAL IS UNFAIR ........... 4

I. The Copyright Act Provides That The Commer-

cial Character Of A Use Constitutes Only One

Of Many Considerations Governing Application

Of The First Fair Use Factor —._..........000.000...... 5

II. The Court’s Precedents Do Not Support A Pre-

sumption That Commercial Uses Ave '!nfair.... 8

III. A Presumption That Commercial Uses Are Un-

fair Is Unworkable And Of No Determinative

il

TABLE OF AUTHORITIES

CASES Page

Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429

(or ’ 3D | SR 4-5

American Geophysical Union v. Texaco, Inc., 802

FP. Sepp. 1 (BDINE 16GB) ncccecccceccsenee 12,13

Consumers Union of United States, Inc. v. General

Signal Corp., 724 F.2d 1044 (CA2 1983), cert.

denied, 469 U.S. 828 (1984) .......................-.------0- 12

Harper & Row, Publishers, Inc. v. Nation Enter-

prises, 471 U.S. 689 (19865) ....................022200...2..-- 5, 8-10

Hustler Magazine, Inc. v. Moral Majority, Inc.,

606 F. Supp. 1526 1534 (CD Cal 1985), aff’d on

other grounds, 796 F.2d 1148 (CA9 1986) ........ 11

Iowa State University v. American Broadcasting

Co., 681 F.36 G7 (CAG IGGG) acces 12

Maztone-Graham v. Burtchaell, 803 F.2d 1253

(CA2 1986), cert. denied, 481 U.S. 1059 (1987) .. 12

Mills Music, Inc. Vv. Snyder, 469 U.S. 153 (1985)... 6

Narell v. Freeman, 872 F.2d 907 (CA9 1989) ........ 11, 12

Pacific and Southern Co. v. Duncan, 744 F.2d 1490

(CA11 1984), cert. denied, 471 U.S. 1004

CDBG ...ccecccececeseescccecnsennssnnsnnnnnnseniannnnnnnnnnnnnnEE 13

Rosemont Enterprises, Inc. v. Random House, Inc.,

366 F.2d 303 (CA2 1966), cert. denied, 385 U.S.

1009 (1967) .......... scosesnescssueeseieeutumssianaeen 12

Sai. ger Vv. Random House, Inc., 650 F. Supp. 413

(SDNY 1986), rev’d on other grounds, 811 F.2d

90 (CA2 1987), cert. denied, 484 U.S. 890

(1988) . ' 10

Sega Enterprises Ltd. y. Accolade, ‘Ine., ‘977 F.2d

1510 (CA9 1992) . suas 13

Sony Corp. V. Universal ‘City ‘Studios, 464 ‘US.

GIT (1BB6) 222.-cccoccnscocescssucscossnstennniaeeee passim

Triangle Publications, Inc. v. Knight-Ridder

Newspapers, Inc., 626 F.2d 1171 (CA5 1980).... 13

Weissman V. Freeman, 868 F.2d 1313 (CA2 1989),

cert. denied, 493 U.S. 883 (1989) 0.000000... 12-13

STATUTORY PROVISIONS

17 U.S.C. § 101........ sccocssenscniieeseaisanesisnimmiiaailaan 6

BF TEE. 6 2G G cnccccccoincccsntcssnscsemnesstmummaaee 3, 5, 6,7

P.L. 102-492 (Oct. 27, 1992) 8

iii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIALS Page

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess.

a seesnuenmanonaconece 6-7

H.R. Rep. No. 102-836, 102d Cong., 2d Sess.

a cscesmmnnnnnanenunece 7-8

S. Rep. No. 94-473, 94th Cong., ist Sess. (1975). 7

In THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1292

LUTHER R. CAMPBELL, a k’a LUKE SKYYWALKER;

CHRISTOPHER WONGWON, a k a FRESH KID ICE;

MarK Ross, a k a BROTHER MARQUIS;

Davip Hospss, a k a Mr. Mixx;

professionally known as THE 2 Live CREw;

LUKE SKYYWALKER RECORDS,

Petitioners,

Vv.

ACUFF-RosE Music, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

WARNER BROS., A DIVISION OF

TIME WARNER ENTERTAINMENT COMPANY, L.P.,

IN SUPPORT OF NEITHER PARTY

2

INTEREST OF AMICUS

Amicus Warner Bros. engages in the production and

distribution of motion pictures for exhibition in theatres

and, over television and by means of videocassettes, in the

home. These activities are, almost without exception,

done on a commercial basis. The varied content of the

motion pictures released by Warner Bros. includes ro-

mances, mysteries, thrillers, westerns, musicals, science

fiction, and indeed, every topic and approach which can

be developed by the ingenuity of motion picture creators.

Warner Bros. has a significant interest in the outcome

of this case. As a major creator of copyrighted works,

Warner Bros. supports a strong regime of copyright pro-

tection. Warner Bros. accordingly believes that fair uses

of copyrighted material should be limited, and that such

uses should not diminish the market for the original

works.

As both a copyright owner and a fair user of copy-

righted material, however, Warner Bros. is concerned

with preserving the equitable balance that the fair use

doctrine aims to achieve between proprietary interests of

creators and the public interest in use and dissemination

of expression. The case-by-case weighing of competing

concerns that is inherent in and required by such an

equitable doctrine is threatened by the Sixth Circuit's

adoption in this case of a rigid presumption against com-

mercial use of copyrighted material.

SUMMARY OF ARGUMENT

In Sony Corp. v. Universal City Studios, 464 U.S. 417,

449 (1984), the Court stated as dictum that the non-

transformative copying of copyrighted television program-

ming would be presumptively unfair if done “for a com-

mercial or profit-making purpose.” In concluding that

private, noncommercial home videotaping of over-the-air

broadcasts for purposes of time-shifting constitutes a fair

3

use, the Court stated that “although every commercial use

of copyrighted material is presumptively an unfair ex-

ploitation of the monopoly privilege that belongs to the

owner of a copyright, noncommercial uses are a different

matter.” Jd. at 451.

The Court’s dictum in Sony concerning commercial

uses has, in the lower federal courts, taken on a life of

its own and a meaning wholly divorced from the limited

context in which it was enunciated. Perhaps searching

to avoid the case-by-case balancing required by the stat-

ute, some courts, including the Court of Appeals for the

Sixth Circuit in the decision below, have misguidedly and

almost talismanically incanted an unworkable and elusive

presumption against commercial use that has no basis in

the copyright statute, legal precedent, or legislative

history.

The commercial or noncommercial character of a use

is, of course, relevant to the fair use inquiry, as is the

socially productive versus nonproductive character of a

use. The Court should clarify, however, that no presump-

tion attaches to the commercial consideration itself—with

respect to either the first statutory fair use factor, “the

purpose and character of the use,” or the fourth statu-

tory factor, “the effect of the use upon the potential mar-

ket for or value of the copyrighted work.” 17 U.S.C.

§ 107. The court below erred in attaching presumptive

weight to the commercial nature of petitioners’ use and

in thereby summarily concluding, without further analysis,

that both the first and fourth statutory factors weighed

against a finding of fair use. Accordingly, the decision

below should be vacated and the matter reconsidered in

light of an appropriate fair use standard as supported

herein.’

\

1 Amicus takes no position with respéct to whether the use at

issue in this case constitutes a parody and, if so, whether such a

use constitutes a fair use.

4

ARGUMENT

THE LOWER COURT ERRED IN ADOPTING A PRE-

SUMPTION THAT COMMERCIAL USE OF COPY-

RIGHTED MATERIAL IS UNFAIR

In the decision below, the Court of Appeals for the

Sixth Circuit stated that it must “start from the position’’

that a use is unfair if it is commercial. Acuff-Rose Music,

Inc. Vv. Campbell, 972 F.2d 1429, 1437 (CA6 1992).

It based this analysis on its characterization of the Court’s

dictum in Sony that “[t]he use of a copyrighted work

primarily for commercial purposes . . . [is] presumptively

unfair.” /d. at 1436. The Court of Appeals then applied

its essentially irrebuttable presumption in such a manner

as to conclude not only that the first factor weighed

against a finding of fair use, but also that the fourth

factor—the effect on the market value of the copyrighted

work—weighed against fair use. See id. at 1438 (“In

the instant case, the use of the copyrighted work is wholly

commercial, so-that we presume that a likelihood of future

harm to Acuff-Rose exists.”’ ).

In so doing, the court below made the inquiries under

the first and fourth statutory factors coextensive with the

determination of whether the nature of a use is commer-

cial. It ignored other considerations that shape the pur-

pose and character of a use, such as whether the alleg-

edly infringing use builds or comments on the copy-

righted material and thus is socially productive or trans-

formative, or whether the user acted in good faith. The

Court also dispensed with any attempt to analyze whether

or how the transformative use might have diminished the

market value of the copyrighted work.

Simply by labelling the work “commercial,” therefore,

the Court of Appeals dismissed two of the four statutory

elements of the fair use defense. Because the Court has

held that the fourth factor “is undoubtedly the single most

5

important element of fair use,” Harper & Row, Publish-

ers, Inc. v. Nation Enterprises, 471 U.S. 539, 566

(1985), the Sixth Circuit’s presumption against commer-

cial use effectively eviscerated more than half of the ele-

ments of the fair use defense. This primacy placed upon

the commercial nature of the use is contrary to the copy-

right statute and unsupported by precedent, and consti-

tutes an unworkable legal standard.

I. The Copyright Act Provides That The Commercial

Character Of A Use Constitutes Only One Of Many

Considerations Governing Application Of The First

Fair Use Factor

The Copyright Act of 1976 (the “Act” or “Copyright

Act”) codified the judicially-created doctrine of fair use.

See Harper & Row, 471 U.S. at 549. Section 107 of that

Act, as amended in 1992, provides in part:

In determining whether the use made of a work in

any particular case is a fair use the factors to be con-

sidered shall include—

(1) the purpose and character of the use, includ-

ing whether such use is of a commercial nature or is

for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a whole;

and

(4) the effect of the use upon the potential market

for or value of the copyrighted work.

The fact that a work is unpublished shall not itself

bar a finding of fair use if such finding is made upon

consideration of all the above factors.

17 U.S.C. § 107.

It is elementary that when construing the scope of

copyright protection afforded creators, the language of

6

the Copyright Act is the starting point for analysis.

See, e.g., Mills Music, Inc. v. Snyder, 469 U.S. 153, 164

(1985) (“In construing a federal statute, . . . [we] there-

fore start with an examination of the statutory text.’’);

see also Sony Corp. v. Universal City Studios, Inc., 464

U.S. 417, 429 (1984) (“[I]t is Congress that has been

assigned the task of defining the scope of the limited

monopoly that should be granted to authors or to in-

ventors in order to give the public appropriate access to

their work product.”); id. at 431 (“[T]he protection given

to copyrights is wholly statutory.’’).

The Court of Appeals’ decision is contrary to the

Statutory language governing fair use. Section 107 states

that courts should consider “whether such use is of a

commercial nature or is for nonprofit educational pur-

poses’ when weighing the first statutory fair use factor,

“the purpose and character of the use.” 17 U.S.C.

§ 107(1). However, by providing that the determination

of the first factor shall ‘“‘includ[e]’ consideration of

whether the use is commercial or educational, the statute

is clear on its face that the commercial nature is not in

itself dispositive of the purpose and character of the use.

See 17 U.S.C. § 101 (defining “including” and “‘such as”

as “illustrative and not limitative’’). Moreover, the stat-

ute in no way suggests—much less provides—that the

commercial nature is determinative of the fourth statu-

tory fair use factor, the effect of the use on the market

value of the copyrighted work.

The broad, non-exclusive statutory language governing

the effect to be given a commercial use is consistent with

congressional intent. In codifying the fair use defense,

Congress

amended the first of the criteria to be considered—

“the purpose and character of the use’’—to state

explicitly that this factor includes a consideration of

‘“‘whether such use is of a commercial nature or is for

non-profit educational purposes.” This amendment

is not intended to be interpreted as any sort of not-

7

for-profit limitation on educational uses of copy-

righted works. It is an express recognition that, as

under the present law, the commercial or non-profit

character of an activity, while not conclusive with

respect to fair use, can and should be weighed along

with other factors in fair use decisions.

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. at 66

(1976) (emphasis added). Giving presumptive weight to

the commercial nature of a use therefore contravenes the

express non-exclusive language of the statute and the

congressional purpose underlying it. ~

The structure and language of the entire fair use pro-

vision, in fact, preclude a presumption that undermines

the case-specific nature of the defense. The four statu-

tory fair use factors are themselves non-exclusive, see

17 U.S.C. § 107 (“In determining whether the use made

of a work in any particular case is a fair use the factors

to be considered shall include ... .” (emphasis added) )

—as are the specified examples of the kinds of purposes

for which a use of copyrighted material might be deemed

fair. See id. (“{T)he fair use of a copyrighted work,

including such use by reproduction in copies or phono-

records . . . , for purposes such as criticism, comment,

news reporting, teaching . . . , schwlarship, or research, is

not an infringement of copyright.” (emphasis added) ).

Such explicitly nonpresumptive, non-exclusive language

is consistent with Congress’ intent in codifying the fair

use defense. Congress expressly recognized that “the end-

less variety of situations and combinations of circum-

stances that can rise in particular cases precludes the

formulation of exact rules in the statute.” H.R. Rep. No.

94-1476, supra, at 66. Accordingly, Congress “endorse[d]

the purpose and general scope of the judicial doctrine of

fair use” while maintaining that “the courts must be free

to adapt the doctrine to particular situations on a case-by-

case basis.” J/d.; see also S. Rep. No. 94-473, 94th

Cong., Ist Sess. at 62 (1975); accord H.R. Rep. No.

8

102-836, 102d Cong., 2d Sess. at 3 (1992) (“All claims

of fair use must be judged on the totality of the facts in

the particular case by balancing all the factors.” ); Harper

& Row, Publishers, Inc. v. Nation Enterprises, 471 U.S.

539, 561 (1985) (“The drafters resisted pressures from

special interest groups to create presumptive categories of

fair use, but structured the provision as an affirmative

defense requiring a case-by-case analysis.” ).

Congress reinforced its commitment to a nonrigid doc-

trine when it amended Section 107 last year by adding

the following: “The fact that a work is unpublished

shall not itself bar a finding of fair use if such finding is

made upon consideration of all the above factors.” P.L.

102-492 (Oct. 27, 1992). In so amending the statute,

Congress made clear that there should “be no per se

rule barring claims of fair use” and that it did not intend

“to direct the courts how much weight to give to any

factor in a particular case.” H.R. Rep. No. 102-836,

supra, at 1; see also id. at 2 (“The goal of [the legisla-

tion] is to direct the courts to strike the correct balance

on the facts before it, free from any per se rules.”).

Instead, “courts are to determine the affirmative defense

of fair use . . . on a case-by-case basis” and “to give

proper weight to all factors.” /d. at 1.

A presumption that commercial uses are unfair there-

fore not only lacks support in the Copyright Act; it ac-

tually contravenes the express statutory language. By

explicitly maintaining a case-by-case. equitable view of

fair use, Congress rejected any attempt to presume cer-

tain categories of uses of copyrighted material to be

unfair.

Il. The Court’s Precedents Do Not Support A Presump-

tion That Commercial Uses Are Unfair

The Sixth Circuit’s emphasis on the commercial nature

of a use distorts the Court’s dictum in Sony. The Court

of Appeals improperly interpreted Sony as formulating

9

a universally applicable, judicially-created presumption

which departs from the literal words of the statute. To

interpret Sony as adopting a presumption against com-

mercial uses that would make the fair use defense less

available would be to elevate the Court’s dictum above

its holding.

So elevating the Court’s dictum would mean ignoring

the bulk of the Court’s opinion that affirmed the fact-

specific nature of the fair use defense. The Court in

Sony explicitly and repeatedly noted that the fair use

doctrine constitutes an “ ‘equitable rule of reason,’” 464

U.S. at 448, 454, and cited at length the legislative his-

tory stating that the defense is highly case-specific rather

than governed simply by the commercial/noncommercial

determination. See id. at 448-49 nn.31-32.

The Court even rejected the lower court’s attempt to

adopt a presumption against nonproductive uses, because

it was unwilling to “rigidly circumscribe[]” the “sensitive

balancing of interests” reqaired in the fair use analysis. Jd.

at 455 n.40. Rather, the Court explicitly stated that

“(t]he distinction between ‘productive’ and ‘unproductive’

uses may be helpful in calibrating the balance,” id., thus

effectively rejecting the possibility that any aspect of “the

purpose and character of the use” is presumptively dis-

positive of the first factor. Given the facts and circum-

stances of that case, therefore, Sony should not be in-

terpreted as adopting through dictum a generally applica-

ble presumption that commercial uses are unfair. See also

Harper & Row, 471 U.S. at 597 (Brenan, J., dissenting)

(stating that the Court in Sony held “that the fair use

inquiry could never be resolved on the basis of . .. a

‘two dimensional’ categorical approach”).

Any question as to the meaning of the Court’s dictum

regarding commercial uses in Sony was definitively re-

solved in Harper & Row. The Court reaffirmed that pre-

sumptive categories are to be avoided in the fair use

inquiry. See 471 U.S. at 561. It also refused to confine

10

analysis of the first statutory fair use factor to the com-

mercial versus noncommercial character of the use. See

id. at 562-63. Likewise, in determining the fourth fair

use factor—the effect on the market—the Court in no

way attached any presumptive weight to the commercial

value obtained by the infringer through the use of copy-

righted material. See id. at 566-69. Accordingly, the

Court of Appeals for the Sixth Circuit erred in this case

in relying upon this Court’s dictum in Sony to support

a presumption against commercial use. There is ‘no

basis in this Court’s precedent for such a presumption

which directly contravenes the language and intention of

the Copyright Act.

III. A Presumption That Commercial Uses Are Unfair Is

Unworkable And Of No Determinative Value

Not only is there no statutory or judicial support for

a presumption against commercial use, but such a pre-

sumption should be rejected as unworkable. The statu-

tory distinction between uses of a commercial nature and

uses of a nonprofit educational purpose

somewhat unrealistically paints the world into two

corners—the venal commercial and the altruistic in-

structive. In fact, publishers of educational textbooks

are as profit-motivated as publishers of scandal-

mongering tabloid newspapers. And a_ serious

scholar should not be despised and denied the law’s

protection because he hopes to earn a living through

his scholarship. The protection of the statute should

not turn on sackcloth and missionary zeal. It rather

directs the court to make an appraisal of social use-

fulness and of commercial fair play.

Salinger v. Random House, Inc., 650 F. Supp. 413, 425

(SDNY 1986) (emphasis added), rev'd on other grounds,

811 F.2d 90 (CA2 1987), cert. denied, 484 U.S. 890

(1988).

In practice, virtually all litigated uses of copyrighted

material are of a commercial nature. The presumption

11

against commercial use, if literally applied, thus eviscer-

ates the fair use defense. Indeed, when governed by such

a “presumption,” courts attempt to mitigate its harsh

consequences by reintroducing equitable considerations in

classifying the use as commercial or noncommercial. The

presumption thus serves as little more than an impetus

for courts selectively to invoke legal fictions to escape

findings of unfair use. The results are anomalous and

unpredictable. See, e.g., Hustler Magazine, Inc. v. Moral

Majority, Inc., 606 F. Supp. 1526, 1534 (CD Cal 1985)

(religious fundamentalist group’s use of ad parodying

Rev. Jerry Falwell in mass mailing to group members was

not commercial “merely because Reverend Falwell’s use

came in the course of an appeal for donations”), aff’d

on other grounds, 796 F.2d 1148, 1152 (CA9 1986)

(use of ad was of commercial nature because “defendants

distributed copies of the parody as an integral part of a

financial appeal”); see also Narell v. Freeman, 872 F.2d

907, 913-14 (CA9 1989) (romance novelist’s use of his-

torical work constituted fair use, even though presump-

tion against commercial use weighed against first and

fourth factors ).°

* Although other courts have, like the Court of Appeals below,

accorded undue weight to the dictum in Sony, it is noteworthy that

even these other courts have not applied a presumption against com-

mercial use in nearly so determinative or irrebuttable a fashion as

did the court below. The district court in Hustler v. Moral Majority,

for example, noted that “[e|]ven if Falwell’s use had been purely

commercial, the court would conclude that the presumption of un-

fairness had been rebutted in this case.” 606 F. Supp. at 1534-35.

Central to this statement seemed to be the court’s consideration of

the socially productive or transformative nature of the use. The

court noted that Falwell’s use did not serve the same purpose as the

original advertisement, but rather “meant to provoke the anger of

his followers and to comment on the level of obscenity in the work.”

Id. at 1535, aff'd, 796 F.2d at 1152 (“Even assuming that the use

had a purely commercial purpose, the presumption of unfairness

can be rebutted by the characteristics of the use.’’).

Similarly, the Court of Appeals in Narell v. Freeman noted that

even though the commercial] nature of a use was presumptive as to

12

The Court of Appeals for the Second Circuit has re-

jected the presumption against commercial use that some

courts have inferred from the Court’s dictum in Sony, per-

haps recognizing that the classification of a use as pri-

marily commercial or noncommercial is inherently mal-

leable and standardless. Compare lowa State University

v. American Broadcasting Co., 621 F.2d 57, 61 (CA2

1980) (network’s use, in telecast about gold-medal win-

ner, of clips from student-produced film biography of a

fellow student athlete and his quest for excellence was of

a commercial nature because it “was not motivated solely

by . . . beneficence”), with Consumers Union of United

States, Inc. v. General Signal Corp., 724 F.2d 1044,

1049 (CA2 1983) (use in advertising of copyrighted

material from Consumer Reports praising company’s

vacuum cleaners held to “serve the important function of

educating the public”), cert. denied, 469 U.S. 823 (1984).

The Second Circuit instead has held that Sony did not

“alter[] the traditional multi-factor fair use inquiry,”

Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262

(CA2 1986), cert. denied, 481 U.S. 1059 (1987), in

which the commercial nature of the use has no more

weight than the socially productive or transformative na-

ture of the use. See Rosemont Enterprises, Inc. v. Ran-

dom House, Inc., 366 F.2d 303, 307-09 (CA2 1966),

cert. denied, 385 U.S. 1009 (1967); see also Weissman

the first factor, “[t]his court does consider the scope of fair use

expanded (but not determinatively) if the original and copy do not

serve the ‘same intrinsic purpose.’” 872 F.2d at 914. Moreover,

although “the likelihood of future harm” could “be presumed” by

the defendant’s use of the copyrighted material, the court held that

the fourth factor weighed in favor of the infringer, because “[t]he

works are directed to fundamentally different purposes.” /d.

Accordingly, although many “courts ritualistically proclaim, al-

most as a mantra, that every commercial use is ‘presumptively’

unfair, that presumption is easily overcome by a transformative,

nonsuperseding use.” American Geophysical Union Vv. Texaco, Inc.,

802 F, Supp. 1, 18 (SDNY 1992).

13

v. Freeman, 868 F.2d 1313, 1324 (CA2 1989) (evalu-

ating, for purposes of the first fair use factor, both

whether the alleged infringer gained from the use, and

whether the use was productive or for the same intrinsic

purpose as the copied work), cert. denied, 493 U.S. 883

(1989); accord Sega Enterprises Ltd. v. Accolade, Inc.,

977 F.2d 1510, 1523 (CA9 1992) (“[W]e are free to

consider the public benefit resulting from a particular use

notwithstanding the fact that the alleged infringer may

gain commercially.”); American Geophysical Union v.

Texaco, Inc., 802 F. Supp. 1, 12 (SDNY 1992) (“The

Sony holding did not overturn the preexisting concept

that productive or transformative uses were favored over

non-productive, merely superseding copies.”’).°

This Court should approve the reasoning of the Sec-

ond Circuit in rejecting the presumption against commer-

cial use as both unworkable and contrary to the Copy-

right Act and the Court’s precedent. The Court should

reaffirm the equitable nature of the fair use doctrine.

thereby ensuring that the commercial nature of a use does

not, as it did below, impermissibly negate two of the four

Statutory factors constituting a fair use defense.

* Even prior to Sony, it was well established that Section 107 of

the Copyright Act “makes commercial motive relevant to fair use

analysis. But it is certainly not decisive.” Triangle Publications,

Inc. V. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (CA5

1980) ; accord Pacific and Southern Co. v. Duncan, 744 F.2d 1490,

1496 (CA11 1984) (post-Sony decision citing Triangle and looking

to non-transformative as well as commercial nature of use in finding

no fair use), cert. denied, 471 U.S. 1004 (1985).

14

CONCLUSION

For the reasons stated above, the Court should vacate

the decision of the Court of Appeals for the Sixth Circuit

and reconsider the matter in light of the legal fair use

standard supported herein.

Of Counsel:

BERNARD R. SORKIN

Joun A. SCHULMAN

WARNER Bros., A DIVISION OF

TIME WARNER

ENTERTAINMENT COMPANY, L.P.

4000 Warner Boulevard

Burbank, CA 91522

(818) 954-6000

May 28, 1993

Respectfully submitted,

CarY H. SHERMAN *

ROBERT ALAN GARRETT

PREETA D. BANSAL

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

Counsel for Warner Bros.,

A Division of Time Warner

Entertainment Company, L.P.

* Counsel of Record