The question
The question in this memorandum is whether Tishner has reasonable grounds to appeal against the District Court’s ruling that found him in breach of copyright when he reproduced the sounds and images, initially copyrighted to Portholes, Inc.
Statement of the case
Alan Tischner creates electronic and visual compositions by sampling sounds and images from electronic devices; particularly from Portholes Software, Inc. and distributes them through a free social website called WeFeed.com. Nobody noticed his initial compositions until his latest video, “Portholes is the Devil”, became a hit. The increased demand forced Tishner to purchase an Internet domain name, Portholeisthedeveil. He then posted a link to WeFeed.com and started selling advertising space on his new site from which he made about $1,000 weekly.
Portholes Software, Inc. sued Tishner for copyright infringement. The company claimed ownership of content used in the new composition. This content, Portholes Software, Inc. claimed, formed part of its operating software. Tischner admitted to using the sounds and images after modifying them substantially enough to make them different from Portholes Software, Inc. He also argued that his website contained many other compositions and that his profits were derived from advertising. His other argument was that his video was a parody that had the protection of the First Amendment. The District Court ruled in favor of Portholes Software, Inc. because the sounds and images are still recognized versions of the original sounds and images.
Summary of the argument
Several arguments will be used in this appeal. In the first place, the Copyright Act of 1976 permits limited use under certain circumstances. The case law on parody and fair use could apply in these circumstances. The second ground is that the District Court did not establish whether the sounds and images in the composition were recognizable on their own or because of the title. This appeal will also argue that the sounds and images on the computers are public and can be used by anybody without copyright infringement.
The computer is merely an artistic instrument. The fourth ground of appeal is that the content is distributed on social media and that Tishner’s objective is not to make profits from the images and sounds in the video. There is no commercial motive in Tishner’s use of the sounds and images. Other grounds as my help advance the case for the benefit of Tishner will be used.
Argument
The Fair Use Rule Permits Copyright Infringement in Certain Cases
The District Court failed to consider the fact that the Fair Use rule permits copyright infringement in certain circumstances. Section 17 U.S.C. § 107 (1992) that places limits on exclusive use provides that copyright can be infringed if reproduced copies are meant to criticize, make a fair comment on an issue, used as a news item or reporting. Copies can also be made for teaching, research, or scholarship purposes. Determination of fair use is done by considering the use for which the reproduced material is put, its nature, how substantial the amount of the copied work is, and its effect on the market of the original material.
Tishner’s has been compiling such content and sharing freely the social network. The profit motive was not a driver for his compositions and he cannot, therefore, be said to have used the compositions for commercial purposes. An appeal in Consumers Union, Inc. v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983) was denied because the appellant did not satisfy the court that the respondent had benefited commercially from the alleged pirated work. The profit Tishner makes is from advertising, not from selling the videos.
The District Court also failed to establish the nature of the Tishner’s. Because the content is found in computers and available on the social network, WeFeed.com, it could be argued that this is public material that is not copyright protected. As in the case of Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y 1968), matters of public interest should have been considered. There is no proof that the content had been published previously, as held in New Era Publications Int’l v Henry Holt & Co, 695 F. Supp. 1493 (S.D.N.Y. 1988).
The District Court did not establish the amount and substantiality of Tishner’s work. According to the Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), permission can only be sought when a substantial amount of the original work is reproduced. The same position was held in Bridgeport Music, Inc. v. Dimension Films LLC, 410 F.3d 792 (6th Cor. 2005). Phillip Yorke in Gyles v Wilcox, 26 ER 489 (1740) held that true abridgments involved the editor’s effort to present new work. Tishner’s work could be viewed in the context of true abridgment, which is acceptable.
Lastly, Tishner’s compositions do not affect the value of Portholes Software’s Inc. works. The company failed to prove that Tishner’s compositions impeded its ability to exploit its original work and that its market has been affected by the compositions. In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), Universal failed to prove that Betamax had reduced the number of their viewers, or that it had affected its business, and its application was dismissed.
Tishner’s Compositions are not Recognizable as having a Relationship with Portholes Software, Inc. images and sound
Tishner makes his compositions by sampling content from several electronic devices manufactured by Portholes Software, Inc. The compositions seem to have been so varied that Portholes Software, Inc. did not notice when Tishner started sharing them on the Internet. It is doubtful whether one would have noticed the video in question if the name Portholes had not been featured. There is no substantial similarity, as held in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
The same position was held in Corelli v. Grey (1913) 29 TLR 570, in which the court ruled that there can be copyright infringement only if the two works have an objective similarity. The implication here is that the compositions are so markedly different from the originals that they cannot pose any serious threat to the fortunes of Portholes Software, Inc. Looked at from the perspective of Gyles v Wilcox, 26 ER 489 (1740), the court should have observed that the images and sound on Tishner’s compositions differ from those of Portholes and do not constitute infringement.
Tishner did not just copy and paste, or scan and print the images and sounds from Portholes Software, Inc., but employed his skills in sampling and blending the content to come up with something new. The court in Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99 2d. Cir. 1951 held that works in the public domain cannot be cited for copyright infringement if they contain a measure of variation from the original.
The Computer is an Artistic Instrument
Portholes Software, Inc. manufactured the content and embedded it in the computer as part of its system. The computer is an artistic instrument whose content can be used in any way. Similarly, the computer is akin to a record player which can be used to play music from a disc and was only used by Tishner to capture the sound and images and put them on his website. In the Galaxy Electronics Pty Ltd v Sega Enterprises Ltd, 37 IPR 462 (1997), it was held that computer-generated images were animations and could not be protected under copyright law.
In White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908), it was held that the sounds on a musical instrument were part of the machine and nobody could claim copyright. The court ruled in Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) that computer software is protected but not the sound and images in it. The same ruling was made in Williams Elec., Inc., v. Artic Int’l, Inc., 685 F.2d 870 (1982), in which it was argued that operating systems were copyrightable. This does not include sounds and images. If these factors are considered, Tishner’s appeal should succeed.
Conclusion
The above arguments reinforce the position that Tishner is does not infringe on Portholes Software Inc copyright when he compiles the content. This is based on various aspects of the law which allow reproductions of original works to some extent without breaking the copyright law. Reproduction is in fair use where the reproduced material is not used for commercial purposes when it is substantially different from the original work when a lot of skills and effort went into the reproduction of the work and the profit made from the original work is not interfered with. When a computer is used as a musical instrument, infringement does not take place. These issues have been canvassed in the argument above.
References
17 U.S.C. § 107 (1992). Web.
Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).
Bridgeport Music, Inc. v. Dimension Films LLC, 230 F. Supp. 2d 841 (M.D. Tenn. 2002).
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
Consumers Union,, Inc. v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983).
Corelli v. Grey 29 TLR 570 (1913).
Galaxy Electronics Pty Ltd v Sega Enterprises Ltd, 37 IPR 462 (1997).
Grand Upright Music Ltd v Warner Bros Records Inc, 780 F. Supp. 182 (S.D.N.Y. 1991).
Gyles v Wilcox, 26 ER 489 (1740).
New Era Publications Int’l v Henry Holt & Co, 695 F. Supp. 1493 (S.D.N.Y. 1988).
Sony Corp v Universal City Studios, 464 U.S. 417, 451 (1984).
Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y 1968).
White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908).
Williams Elec., Inc., v. Artic Int’l, Inc., 685 F.2d 870 (1982).