Fair Dealing: What Can Be (Fairly) Criticized?

“A picture is worth a thousand words.” That remark might be trite, especially in the era of selfies and Instagram, but a book is more than just words and a photograph is more than just ink– the sum of those parts will have meaning or will depict something beyond any constituent elements. When such a work is protected by copyright, navigating how to deal fairly with it is particularly challenging. In the case of criticism or review,[1] what can be criticized or reviewed? Can you merely copy a work in order to criticize the work itself, as in traditional literary criticism, or can you sometimes copy a work to criticize or review its subject, as when using a photo (even one from a photojournalist) for a news story? If copyright existed in the Bible, could you use extracts from it to criticize Christianity or Judaism?[2] Lord Denning would say yes, but in Canada, there is no clear answer. Nevertheless, the large and liberal interpretation given to users’ rights in this country,[3] considered in conjunction with jurisprudence from the U.K. and U.S., suggests that yes, fair dealing can extend to the subject of a work.

The Supreme Court of Canada confirmed that the fair dealing “allowable purposes” are not to be interpreted restrictively and Canada chose not to confine “criticism or review” to works or performances, as is done elsewhere.[4] The heading should thus be able to cover criticism of anything or anybody, including the subject of the work, at least assuming the fair dealing factors are considered (such as whether there is a non-infringing alternative).[5] This interpretation is consistent with decisions from the U.K. When L. Ron Hubbard sued the author of a book criticizing Scientology – using excerpts of many of Hubbard’s own works – Lord Denning stated that under fair dealing the author “is entitled to criticise not only the literary style, but also the doctrine or philosophy … expounded in the books.”[6] Thus, criticism is not interpreted restrictively by the British court, which allows criticism of the subject to come under fair dealing. Decades after Hubbard, Lord Justice Walker confirmed that “‘Criticism or review’ and ‘reporting current events’ are expressions of wide and indefinite scope” and under fair dealing can include criticism of the ideas in, and implications of, a work.[7]

Treatment of fair use in the U.S.[8] also offers some guidance as to how the exception could extend to the subject of a work. American caselaw indicates that where a work is largely factual and its author has little creative control, it may be used fairly. For instance, in a case where the subject of a photograph was a mobster who was part of an ongoing sentencing, that was enough for the photo to fall under the enumerated fair use category of “news reporting.”[9] The same was true of video of riots in Los Angeles.[10] The courts have also said, though, that where the work is more creative, the factual nature may not be enough.[11] Perhaps even more tellingly, the use of a photo of a person to criticize him, his appearance, and his dealings was held to be fair use for educational and criticism purposes, even though the criticism was very clearly not of the work. The subject of the work was considered in determining whether an initial fair use category would apply. Fair use was not precluded simply because the work was used for its subject rather than as a work.[12]

Even where criticism or other use of the subject may be fair from a purpose point of view, the balance of fairness can be tipped by other factors. In the US the lack of a creative process in the original is an important factor.[13] Most importantly, though, in both the US and U.K., competition with the original work is a weighty factor. Therefore, even works of genuine criticism[14] or ones using factual originals will not be considered as fair uses where they harm the market of the original.[15] According to CCH, this is of course a factor to be considered in Canada as well.[16]

A “work consists, not only of the … style, but also of the thoughts underlying it.”[17] You should be able to fairly copy and criticise those thoughts and even more in your own work – just tread carefully if your copies might compete with the original. Reproduction of a work may be fair, but stealing its customers or usurping its market probably will not be.

 

Sebastian Beck-Watt is Senior Editor of the IPilogue and a JD Candidate at Osgoode Hall Law School. Sebastian is currently enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

 


[1] Copyright Act, RSC 1985, c C-42, s 29.1.

[2] Hubbard v Vosper, [1972] 2 QB 84 at 89 (CA) [Hubbard].

[3] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 at para 54 [CCH].

[4] Ibid.

[5] D Vaver, Intellectual Property Law, 2d ed (Toronto: Irwin Law, 2011) at 238.

[6] Hubbard, supra note 2 at 94.

[7] Pro Sieben Media AG v Carlton Television Ltd, [1998] EWCA Civ 2001 at 614 [Pro Sieben].

[8] 17 US Code § 107.

[9]  Fitzgerald v CBS Broadcasting, Inc, 491 F.Supp 2d 177 (D Mass 2007) at 185 [Fitzgerald].

[10] Los Angeles News Ser v Reuters Tv Intern, Ltd, 942 F Supp 1265 (CD Cal 1996).

[11] Fitzgerald, supra note 9 at 188.

[12] Katz v Chevaldina, No 14-14525 (11th Cir 2015).

[13] North Jersey Media Group Inc v Pirro, No 1:2013cv07153 – Document 71 (SDNY 2015) at 18-19 [NJMG].

[14] Pro Sieben, supra note 7 at 613.

[15] NJMG, supra note 13 at 23-24.

[16] CCH, supra note 3 at para 59.

[17] Hubbard, supra note 2 at 94.

One Comment
  1. There’s an interesting contrast between the Fair Use analysis in one of the cases you refer to, Katz v Chevaldina, and TCA v McCollum, one of the cases I looked at in my recent IPilogue post, “No Laughing Matter: Copyright Protection for Jokes”. (http://www.iposgoode.ca/2016/11/no-laughing-matter-copyright-protection-for-jokes/).

    In Katz, the 11th Circuit Court of Appeals takes a single paragraph to decide that Chevaldina’s use of an “ugly” and “compromising” photo of Katz is transformative, because placed in the context of the surrounding blog post, it ridicules and satirizes him.

    In TCA, the 2nd Circuit Court of Appeals takes several pages to conclude that placing a few lines from the Abbott & Costello vaudeville shtick of “Who’s On First” into the darkly comic play “Hand of God” is not transformative, because the change in setting did not imbue the comedy routine with any new expression, meaning or message. The Court took some pains to distinguish (but not overrule) its previous decision on transformative fair use in Cariou v Prince 714 F.3d 694 (2013).

    It seems particularly striking that using an already unflattering photo next to an unflattering text comment could be considered transformative fair use while integrating a silly comedy routine into a dark play is not. Neither alters the original work, but the recontextualization seems much more significant in TCA than in Katz.

    If the 2nd Circuit’s pendulum is swinging one way on transformative fair use and the 11th Circuit’s another, perhaps it’s time for SCOTUS to stop the clock.

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