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May 12, 2006


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Kimball Corson

If "fair use" gets the ax under Sony's copyright protection scheme (presently being withdrawn for other reasons) and now, in effect, under other ID tagging proposals and copyright schemes as well, why not here? I am being sarcastic, of course. The law and technology are badly out of sync these days, but that is no excuse here.

Randy Picker

I don't think that I get the point. So the interaction between DRM and fair use has to turn on the extent to which we think copyright holders can limit use as a condition of access to the work. We can fight about that--an alum asked just about this in the DRM talk I gave Saturday and I need to post on that and the answer that I gave--but it is a different situation from the unconditional access offered by West Wing. Yes? No?

On fair use here, do you disagree with the analysis of factors two and four?

J. Hall

"NBC captured this by using language from the television show West Wing, which had its series finale Sunday night." Not to be pickey or anything but, "For those of us who are West Wing watchers" (I know your not caught up yet) the series final is this Sunday night, May 14, 2006. So maybe change it to "which will have." Thanks.

Randy Picker

Thanks; I thought that it was last Sunday, though, yes, in the Picker house, it is still Season Six, Week 1, with Donna in the hospital and the President trying to broker a deal in the Middle East.

Michael Risch

Another related issue is what if there were attribution ("As fictional President Bartlett said on the West Wing..."?

Attribution tends to negate plagiarism, but does not necessarily make for fair use. Here, I suppose attribution would have likely cured both concerns.

Randy Picker

Yes, but you see how silly the attribution sounds, I suspect. They didn't really want to quote a fictional president. They wanted to use the language. TV commentary doesn't footnote well or use quotation marks well either.

Kimball Corson

Randy, I agree with you. West wing is different. There is the opportunity to exercise judgment, good or bad. With too many DRM schemes, fair use just gets the ax unless we hire scribners. Thar is my beef.

Cory Hojka

On the lines of the fair use analysis you perform, I'm reminded of the Sixth Circuit's Bridgeport Music case. In that case, even a two second clip was infringing if I remember correctly, because it offered a significant savings of costs for the infringer to reproduce the effort (i.e., no need to hire musicians, set up recording equipment, etc.). Thus, I'd wonder if the same logic applies here.

The writer in this situation wanted to write a heart-stirring speech, so he didn't turn to any source in particular, but to a tv show known for overly idealistic and flowery speeches sure to bring tears to the eyes of any viewer. Isn't this action, consequently, saving him time and effort? If he didn't have access to West Wing, wouldn't he probably have had to charge the Network more to come up with an entirely original speech? I'd presume so, especially if we wanted it to have the same level of quality.

Nonetheless, I'd still think I'd lean toward fair use, not due to the four factor test, but because we are probably on the edge of some significant free speech concerns.

Randy Picker

But don't we think that it will almost always--always?--be cheaper to copy then to create originally, and if that determines fair use, then fair use shrinks to nothing. I will have to go back and look at Bridgeport sometime to see what it said about sampling vs. copying alone vs. independent creation. What I mean by that is that sampling is both copying of the work and use of a particular sound recording. Copying alone is presumably what happenened here. NBC didn't use Jed Bartlet saying the line, they wrote in down and had Hammond say it. (The match in Bridgeport would be to use the work but, as you say, hire a new band to create the actual sound.) You seem to be pushing towards independent creation, meaning that NBC had to go write its own speech and use whatever came out of that, including the fire line if independently created.


I guess I don't quite understand the situation. Could the line have been an inside joke, a reference to make West Wing fans chuckle? If so, is that still plagiarism? I guess that's not a legal question, but I hope the norms go the other way. I don't think the following is (should be) plagiarism:

Law Professor: And why can't the government stop a newspaper from printing a story like this?
Me: "For your information, the Supreme Court has roundly rejected prior restraint." (Wally, Big Lebowski)
Law Professor: But what might the government argue if it tries to stop a paper from printing something that will jeopardize national security?
Me: "You want the truth? You can't handle the truth!" (Colonel Jessup, A Few Good Men)
Law Professor: But if we accept that logic, aren't we starting to resemble Nazis?
Me: Say what you will about the tenets of National Socialism, at least it's an ethos. (Wally, Big Lebowski)

Cory Hojka

The most relevant portion of Bridgeport I feel is this section:

"This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. Why is there no de minimis taking or why should substantial similarity not enter the equation.(10) Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one."

I'm not a fan of Bridgeport, in part because I feel the judge's distinction between an intellectual and physical taking is misguided, but I can see how its argument could apply to this situation. If the writer admits that this saved him time and effort, along with enhancing the emotional force of his speech, why not find him guilty of infringement?

Even so, my feeling is that we need to step outside of the four fair use factors and consider the consequences to free speech if we actually held up such a rule against fair use. Bridgeport itself was a disaster for the freedom and quality of hip hop music, such that today's contemporary compositions often sound empty compared to pre-Bridgeport works. The need to license every second sampled essentially wiped out the ability of most artists to create acoustic collages of the music that surrounds and influences them.

I believe Judge Guy makes his physical versus intellectual distinction, in part, because of the fact that it was not a composer copying a composer, but rather a musical "editor" copying musicians. While this may be sensible in the abstract, the reason I'm concerned with this point of view is that it assumes that different segments of the community will have the same resources. Perhaps for someone in affluent circumstances it makes sense to hold that I shouldn't be able to shortcut my costs by sampling, but in the environment that hip hop was born in, I'd question whether the transactional costs Guy's view imposed left the urban community without the ability to legitimately express itself.

In essence, I'm arguing that even when the fair use factors alone determine that "fair use shrinks to nothing" that we nonetheless strongly consider a de minimus exception, as it is likely necessary to maintain the viability of artistic and community discourse, which otherwise must go underground as has been the consequence of Bridgeport decision for hip-hop. Or, to state my argument in more simpler words, as much as there is money to be made in hip-hop (or writing hero-worship speeches), there's nonetheless messages worth preserving specific to the means utilized that an analysis, strictly bounded by the four fair use factors, would fail to take into account.

Randy Picker

But Dimension is much more complicated. You have separate works in the musical composition and the sound recording, plus you have the overlay of Section 114. I think that the existence of the two separate works--the composition and the sound recording--is what drives what you describe as the distinction in Dimension between the intellectual and the physical. And they had a license to use the composition, but they didn't have a contractual right to use the sound recording.

Again, a different case might be presented as to the pre-race show if NBC had used the West Wing broadcast--Martin Sheen speaking the lines--rather than the dialogue itself, which is taken from the script presumably.

Michael Risch

"Bridgeport itself was a disaster for the freedom and quality of hip hop music, such that today's contemporary compositions often sound empty compared to pre-Bridgeport works. The need to license every second sampled essentially wiped out the ability of most artists to create acoustic collages of the music that surrounds and influences them."

What does it say about a genre and its composers that the music is empty without the use of other music written by those who (apparently) write music that is not empty? I'm not sure you really want to go this far.

I wrote an article about the importance of re-use in computer software, but that was more about time and compatibility than it was about quality. I don't think the same can be said for musical sampling.

Michael Risch

I tend to think that showing the clip (rather than my more silly attribution idea) would have still been fair use. After all, this was NBC - they could show the clip as a cross-promotional kind of thing - put the NBC logo and "Sundays on NBC" or something.

In fact may have been fully licensed - does NBC have to get permission to show trailers? I doubt it. Maybe my argument goes away in two weeks.

It certainly wouldn't have been plagiarism, though. Imagining a license to show the clip really highlights that the issue is not about copyright but more about unattributed copying - that is, plagiarism.

Cory Hojka


I feel that you're misinterpreting my statement. It's well documented that hip hop went through a drastic change due to views, like those in Bridgeport, where every second of sampling had to be licensed to avoid lawsuits. If you'd like to understand more about this, you can take a look at these articles:


Also, a search on the Internet or in scholary journals will probably bring up some more readings you could peruse on the effects that sampling licenses had on collage artists.

On a further note of comparison, I'd also suggest considering recent works like DisPepsi, The Grey Album or others, which rely heavily on sampling, to achieve their impact:


These creative works contain social and political commentary that is a result of their use in sampling, yet they exist within questionable legal grounds due to the policy views exhibited in Bridgeport. Thus, even if one feels that Bridgeport was correctly or wrongly decided, it's pretty clear that consequences of Bridgeport and other cases like it has had an undeniable result in significantly curtailing the realm of "legal" public expression. Regardless of whether this is proper, it is the retraction of what artists and labels perceived as permissible to sample that I refer to as the emptiness one can perceive when comparing works before and after the impact of cases like Bridgeport.


We've now acknowledged that the practice of repeating the jist of one's sentance is copyright to NBC? This seems to be the PBJ sandwich of copyright.

Cory Hojka

Prof. Picker,

I'm not sure that I agree that the distinctions you've made about Bridgeport are sufficient to make it inapplicable to the case. In fact, I'd argue that one of them could make the case more applicable to the circumstances.

Section 114 of the Copyright Act holds that "[t]he exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality." Since Section 114 is defined relative to the rights of all copyright holders in Section 106, a literal interpretation of the statute would imply that the rights discussed within Section 114 are a subset of rights entirely contained within those of copyright holders in general. There is no language to indicate within Section 114(a) or (b) that copyright holders in sound recordings were to have rights independent to other types of copyright holders, but rather the language there indicates that the rights in sound recordings were "limited" or "do not extend" to the rights generally provided for in Section 106. Consequently, I'd argue that the literalist approach preferred by the 6th Circuit in Bridgeport Music requires that there is no grounds for a de minimus exception where perfect duplication is involved in any protected work.

I admit that perfect duplication may not always be as easy to determine for other types of protected works as it is for sound recordings, but regardless of whether the 6th Circuit had decided for or against a de minimus exception, I feel that the language of Section 106, Section 114, and the opinion in Bridgeport Music when considered together indicates that we must generally impute that de minimus holding to all other types of copyrighted works.


If we assume that the use of the line is fair use under copyright law, what is the distinction between plagerism and allusion or cultural reference? Surely, I can write an essay that uses well-known phrases, terms, and scenarios without having to meticulously source the origin of that phrase. Writers are surely allowed to use the phrase "military-industrial complex" without citing Eisenhower or to make a play on "ask not what your country..." without citing JFK. Writers are allowed to allude to plot elements in other works-- West Side story need not take a break from the action to point out everything that has been borrowed from Romeo & Juliet. What, precisely, is the logical distinction between this sort of non-plagaristic borrowing and the behavior that generates accusations of plagarism here?

Randy Picker

Justin, I like that question. So I have a post on the website about municipal wireless, entitled: "Municipal Wireless: Philadephia Freedom?" When I see "Philadelphia Freedom," I think of the Elton John song of that title (which in turn, I think, had to do with Billie Jean King's World Team Tennis team). Not intended as a cultural reference and presumably not taken as such, but my mind does go there when I hear/see that phrase. Plagiarism? Copyright infringement? Both of those strike me as silly; your point, I take it.

So why is the West Wing case different? Part of this must be based on the norms of the relevant group. So the NYT story suggests that NBC immediately described the borrowing as plagiarism, I suspect in part, because the West Wing language wasn't generally well-known (known only to West Wing watchers), and so, not being well-known, the language didn't carry with it its own attribution. The Kennedy line (or Sorenson line, I forget how that has played out) is sufficiently well-known that source is identifiable from its mere use. And certain borrowings are so stock, that we should think of the content as being available to all (the Romeo & Juliet point). My guess is that we will think of plagiarism precisely when we have borrowing of less-well known works, when source is not identified.

The Law Fairy

But how does that apply to lesser-known, "niche" quotations? For instance, Family Guy fans will appreciate the phrase "victory is mine!", one of Stewie Griffin's common exclamations (indeed, Family Guy itself engages in heavy pop culture borrowing for its storylines, to great hilarity in most cases). But people who don't watch the show won't get it -- does that mean if a Fox newscaster uses the line as a humorous tag following a news story, intending to tap into the audience's recognition of it, the newscaster is plagiarizing or violating copyright? The newscaster wouldn't say it if it wasn't a niche catchphrase -- so it's clearly copying. But are we ready to tell people to stop quoting their favorite tv shows and movies? To make that question a bit harder to answer, are we willing to tell comedians to leave out references to pop culture to avoid copyright infringement?


"Well-known" seems like an awfully tenuous way to differentiate between an acceptable and a plagaristic borrowing. Any given T.S. Eliot poem contains a heck of a lot of allusions that I'm not going to get, a professor of English is likely to get far more, someone doing critical literary analysis on a particular poem will likely get even more. Surely the amount of effort and knowledge a reader brings to a work can't determine whether the author, writing decades ago, committed plagarism or was involved with protected borrowing.

In addition to The Law Fairy's question about niche quotations, I would wonder about plot elements that appear regularly in a particular niche. Almost every fantasy book will make unattributed borrowings from Lord of the Rings. They will also generally borrow from works that are less well-known to the general population but relatively well-known to readers interested in that particular genre. I would wager that if you looked long and hard enough, you would tend to find additional borrowings from works the author happened to be familiar with but that aren't familiar to the population of fantasy readers as a whole. There are only so many ways to set up a fantasy world with a variety of well-balanced species-- just about everyone gets derivitive here. How is an author supposed to apply the "well-known" standard to know whether a particular borrowing will be regarded as plagarism or not?

As you point out, the human mind is very good at making connections, intentional and unintentional. As consumers of information, we are constantly absorbing new and interesting arguments, rehtorical strategies, and turns of phrase. It is often impossible to remember where we first saw certain arguments made or where we have seen a particular phrase before. If we're having a discussion on some particular controversy in history, my mind might seize on an argument made in a book I read a decade ago that I've otherwise forgotten, an interesting turn of phrase a professor might have used last term, or a New York Times Op-Ed last month. Short of googling the entirety of my life, how am I to know whether I have unintentionally borrowed from a less well-known source? Without stepping into my reader's head, how am I to know whether they will interpret the borrowing as intentional or unintentional (i.e. if "Philadelphia Freedom" were part of the title of a blog post on music or tennis rather than on municipal wireless) and whether they will get the reference if it was intentional?

This last question seems particularly germane to me in light of the "Opal Mehta" controversy (focusing only on the alleged borrowings that qualify as fair use, which would seem to be the majority). That particular genre tends to be inherently derivitive-- the chasm between the smart girl and the pretty girl, unrequited crushes, and petty backstabbing are standard fare. How is the author to draw the line between a plot element that is part of the standard cannon of young teen literature from a plot element that would trigger thoughts of plagarism? How is the author to know whether a phrase that popped into their mind is derivitive of a work they read months or years ago?

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