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Court Tests Fair Use

A Big Court Test over Fair Use

When the recording industry launched more than 30,000 lawsuits against people accused of illegally downloading music, it turned into a public-relations nightmare. Twelve-year-olds and a grandmother accused of downloading hip-hop tracks were among those named in lawsuits.

But as G. Wade Leak '89 sees it, the bigger problem is the damage inflicted on the music business, as a generation grows up believing that paying for music is more a nuisance than obligation.

"I've seen thousands of people lose their jobs and it's all because people are getting their music for free," said Leak, senior vice president and associate general counsel at Sony BMG.

Leak spoke at a forum called "Artists' Rights in the YouTube Era" held June 20 as part of Reunion 2009 at Columbia Law School. Eva Subotnik '03, a Fellow at the Kernochan Center for Law, Media and the Arts, moderated.

Earlier this week, Leak had a front-row seat to how this issue is playing out when he testified at the only file-sharing case to go to trial. The Recording Industry Association of America sued a Minnesota woman for illegally downloading 24 songs.

A federal court jury Thursday found the woman violated copyrights and was liable for $1.9 million in damages, or $80,000 per song. A $222,000 verdict against the woman in 2007 was reversed by U.S. District Judge Michael Davis, who said he had given improper jury instructions.

"We were shocked. I suspected we were going to win, but I really thought they would come in with a lower number," Leak said.

Indeed, Leak conceded the verdict could be reduced on appeal, given that Davis, who presided at the retrial, expressed concerns at the size of the damage award in the first trial.

The Minnesota case reached court because defendant Jammie Thomas-Rasset refused to settle. That is also the case with artist Shepard Fairey, who is suing the Associated Press, which demanded payment for an image that the news cooperative said Fairey used to create a now-iconic poster of Barack Obama.

Another panelist, James D. Weinberger '99, noted the A.P. commonly licenses its photographs, and Fairey could have avoided litigation by paying for rights to the image. "It probably doesn't need to happen this way, but I guess that's how law gets made," said Weinberger, a partner at Fross Zelnick Lehman & Zissu.

In an unusual move, Fairey filed for a declaratory judgment that would affirm what he did was protected by the fair-use exception that is a central tenet of copyright law. It allows copyrighted materials to be used on a limited basis for such purposes as comment or criticism.

Fairey's lawyers have contended he used the photograph merely as a reference point, and Weinberger said there "just is no question that the entire work is used." But, as is often the case in copyright disputes, it is not as simple as that.

"On the other hand, no one owns the image of a president," Weinberger said. "Photographs, for the most part, are generally viewed as providing relatively thin copyright protections."


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