A FAIR USE NO BRAINER?

Copyright cases involving contentions of fair use tend to be among the most difficult to handicap. The vagaries of the four factor test (the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market), and the fact that it seems almost no two fact patterns are ever the same,  often combine to create room for reasonable minds to differ.

How fun, then, to come across a no brainer.  A slam dunk, guaranteed loser for the accused infringer. Add to the mix a famous tweeting author and a misinformed, smart aleck defendant, and the inevitable result becomes all the more entertaining.

HarperCollins v. Gawker was just such a case. Last month, Gawker obtained a pre-release copy of Sarah Palin’s new book

and posted first 21 and then 12 pages of it on its Website without commentary or analysis. Governor Palin got wind of what Gawker had done, and reportedly tweeted “The publishing world is LEAKING out-of –context excerpts of my book w/out my permission? Isn’t that illegal?”, and complained to her publisher which, predictably, sued. One of the folks at Gawker got wind of the Governor’s tweet and, presumably before consulting Gawker’s counsel, reportedly posted on Gawker: “Sarah: If you’re reading this—and if you are, welcome—you may want to take a moment to familiarize yourself with the law. Try starting here or here. Or, skip the totally boring reading and call one of your lawyers. They’ll walk you through it.”

Turns out, the Supreme Court decided a case much like this one in 1985. The appropriate “really boring reading” is Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539. In that case, the Court held that early publication by The Nation of 300 words of the soon to be released memoirs of President Ford, with analysis and commentary did not qualify as fair use. Not surprisingly, the district court HarperCollins followed the Supreme Court and entered a TRO requiring Gawker to take down the excerpts. The case settled shortly thereafter.

I invite to supply your own moral to this story. For me, it’s as simple as “smart aleck infringers provide entertainment for IP bloggers.”