Should Custody Law Be Abolished?

Dusty books

In a previous blog post1 I explained why custody designations still matter, in terms of their impact on legal rights. The bigger question behind that one is: Should custody labels still matter? To put it another way: Has the time come to relegate the whole concept of custody of children to the scrap heap of history?

The United Nations Convention the Rights of the Child

The question is not merely an abstract hypothetical. To the contrary, there appears to be a very definite trend, both in the United States and around the world, away from the concept of custody. The United Nations Convention of the Rights of the Child (“UNCRC”), for example, eschews the word custody. Instead, Article 9 of the UNCRC directs member countries to “ensure that a child shall not be separated from his or her parents against their will, except [in cases involving abuse or neglect, or where] a decision must be made as to the child’s place of residence.” Rather than referencing a  right of parents to custody of their children (referring instead to a child’s right to have the state order what it determines is in the child’s best interest), Article 9 requires member countries to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis….”

Shared parenting legislation

Nearly every U.N. country has signed onto the UNCRC. The U.S. Congress has refused to ratify it.2 Nevertheless, there is other evidence of a clear movement away from the concept of custody (or at least that particular word) in the United States, too. In particular, a growing number of states are transforming, or at least supplementing, their traditional custody laws with shared parenting and parenting plan legislation. These kinds of laws use terminology like primary residential responsibility and decision-making responsibility instead of physical custody and legal custody. Sometimes these laws expressly provide that parents may use other words besides “custody,” so long as the alternate terms are defined in a way that is understandable and enforceable.

Reducing acrimony and litigation

Understandably, not many family law mediators are enamored of the word custody. Fewer still are fans of the winner-takes-all, adversarial approach it connotes. Because neither parent wants to be the one who is deprived of that title and relegated to the role of “visitor,” it is a significant source of impasse in mediation. In many cases, it may actually be the only source of impasse. For this reason, many mediators will not address the issue (if they address it at all) until after all discussions of the details of the actual parenting time schedule and decision-making allocations have been completed.3

Any family court judge or attorney can attest to the fact that the lion’s share of litigation in family court involves a contest for ownership of the custody “prize.” If this incentive were removed, it stands to reason that there would be a sharp decline in litigation in family court. Parents would save literally thousands of dollars in attorney fees and related expenses like custody evaluators, forensic experts, witness fees, and so on.

Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.

The historical rationale

As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

Those who have read my book, or who have actually read the cases that people cite for the proposition that custody was governed by principles of property law at some time in American history, know that is not true. In America, courts have always regarded the best interests of the child to be the paramount consideration in custody cases. It is true, though, that courts have been at a loss to discover a way to address the question of what is to happen to the children after a divorce other than to say that one or the other parent will get them and the other parent will have a right to  have contact with them from time to time – an outcome analogous to an award of title to property (custody) subject to an easement of use (visitation.)

Do “physical custody” and “visitation” labels make sense anymore?

In the nineteenth and early twentieth centuries, custody carried with it the power to determine at what times, and where, the noncustodial parent would be allowed to visit his child. Since a noncustodial parent’s contact with a child frequently occurred in the mother’s home, it made sense to call it visitation.

When courts began broadening visitation to include overnights and entire weekends, or even an entire week of time during summer vacations, the justification for calling it “visitation” disappeared. Accordingly, many states have enacted legislation requiring courts to use the term “parenting time” instead.

Since courts can and do designate a child’s “primary physical residence” even in cases where joint physical custody is awarded, it is difficult to see what essential function the term physical custody serves anymore. A parent who has the right to have possession of a child outside of the other parent’s home, even if only on alternate weekends, has a right to possession of the child on those weekends. Why not simply call it what it is, then — alternating periods of physical custody? More to the point, though, why even call it custody at all? Why not simply call any time a child spends with a parent “parenting time” and dispense altogether with calling one, the other, or both parents “physical custodians”?

Legal custody

Most (though not all) states distinguish between legal and physical custody. Legal custody refers to decision-making authority. Physical custody refers to the right to possession. Unlike physical possession time, which can be alternated between two parties throughout the year, decision-making authority is not as simple. A judge cannot simply decree that the mother will decide which school a child will attend half of the year, and the father will select the school for the rest of the year; or that the mother will decide whether their son will be circumcised during the first year of his life, and the father will make that decision the following year. Some kinds of decisions can only be made once.

It is not necessarily the case, though, that it is in a child’s best interest to give one parent sole authority to make all decisions affecting the child. It is possible, for example, that one parent may have greater knowledge of, and interest in, education, but not religion, while the other parent has a greater concern about religious upbringing than choice of schools. Allocating decision-making responsibilities in a more careful, reasoned manner would seem to serve children’s interests better than conferring the title of “legal custodian” with all decision-making power to one parent alone.

Third party custody

One way the custody concept is useful is in distinguishing parental rights from the rights of third parties. As the U.S. Supreme Court and common law judges have said many times, a parent’s right to the custody of his or her children is superior to that of any other person. It is difficult to express this principle of law without using the word custody.

One way to do it would be to include the rights of physical possession and decision-making authority within the definition of parental rights. Currently, things like the right of access to medical records and the right to attend school conferences are included in statutory lists of parental rights. Rights of physical possession and decision-making authority should also be included in the list.

This approach would have the added advantage of reminding courts that custody is every bit as important a right as, say, access to school records. Just as a judge is not free to terminate parental rights of access to school records absent a showing that such access puts the child at risk of harm, so a judge should not be free to terminate a parent’s rights to physical possession and decision-making authority unless it is shown that such rights put a child at risk of harm. A judge should not have the power to remove children from their parents simply because he believes another person might have better parenting skills, or a greater ability to send the children to a private school, for example.

Of course, there will always be situations involving child abuse, neglect or endangerment – or the death or mental or physical incapacity of a parent — in which a transfer of possession and/or decision-making authority to a non-parent will be necessary to protect a child from harm. There is no reason why these non-parental caretakers could not be called guardians rather than “custodians,” though.

Cordination with other laws

The biggest challenge presented by a proposal to eliminate custody from the law involves coordinating the change with existing law. A legislature considering eliminating it will need to review all of its statutes and administrative rules and regulations to ensure that eliminating the concepts of custodial and noncustodial parents from the law will not have unintended consequences, or make other laws and rules impossible to apply.

For example, how will the change affect state or federal housing assistance programs that  limit eligibility to custodial parents? Child support laws will need to be rewritten if they are couched in terms of custodial and noncustodial parents. Standards for modification of custody will need to be revised.

The effect on jurisdiction and enforcement in other states will also need to be considered. For example, many states have enacted a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA.) A state that is thinking about eliminating custody designations should consider not only the impact the change will have on how the UCCJEA is applied, but also how it will impact the other laws, and variations on the UCCJEA, that other states have enacted.

International law will also need to be considered. The Hague Convention, for example, provides ample means for securing an abducted child’s return on behalf of a custodial parent. Securing the return of a child without a custody order in place may be more problematic.

Conclusion

Eliminating the concept of routinely making awards of custody of children whenever their parents do not live together admittedly would be a radical departure from thousands of years of legal tradition. It may not be something that can be achieved overnight, or  with a single stroke of a pen. Nevertheless, at a time when nearly every country in the world takes pride in itself for conceiving of children as human beings rather than property, it could be worthwhile for more policy-makers to give serious consideration to moving away from the routine judicial practice of making what amount to declarations of child ownership anytime two parents do not live together.

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. “Why the Custody Label Matters”
  2. Various reasons have been given for Congressional refusal to ratify the UNCRC. For example, members of Congress have expressed concern that it might have the effect of outlawing corporal punishment; or that it might mean that children cannot be put to death, or imprisoned for life without possibility of parole; or that farmers could no longer require children under 12 to work under dangerous conditions. There has also been a concern among fiscal conservatives that the provisions classifying education, nutrition, health, and recreation as rights could create significant new entitlements for children, resulting in unfunded mandates.
  3. See, e.g., McKnight, Marilyn S. and Stephen K. Erickson, The Plan to Separately Parent Children After Divorce, in Divorce and Family Mediation 129-54 (Jay Folberg et al., eds. 2004.)

Effect of heterologous insemination statutes on parental rights

(Photo  by Screen Classics (Test Tube Babies (1948) at the Internet Archive) [Public domain], via Wikimedia Commons)

(Photo by Screen Classics (Test Tube Babies (1948) at the Internet Archive) [Public domain], via Wikimedia Commons)

To enable married couples to become legal parents despite the husband’s impotency, and to obviate the need for a formal adoption, several states have enacted statutes providing that under certain circumstances a child born to a married woman by means of artificial insemination is legally the child of her husband.

Some of these statutes provide that the husband’s consent is all that is required to render a child conceived by heterologous insemination1 legitimate. The Oregon statute, for example, simply declares: “The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same … as if the child had been naturally and legitimately conceived … if the husband consented to the performance of artificial insemination.”2

In most states, the husband’s consent is presumed.3

The Uniform Parentage Act (UPA), which has been enacted in a few states, makes parental status a function of both consent and intent. It provides that a man who furnishes sperm or consents to a woman’s artificial insemination with the intent of becoming a parent is a parent.4

Several states require, in addition to consent, that the insemination be performed in a specified way, such as under the direction of a licensed physician. If the couple complies with the statutory conditions, then the presumption of legitimacy is not rebuttable with evidence that a sperm donor is the biological father.5

Courts are split as to the effect of a couple’s or a sperm donor’s failure to comply with statutory conditions. Some courts attempt to give effect to the parties’ intention to bar the donor from asserting parental rights despite their failure to comply with statutory conditions.6 Among these courts, some require substantial compliance with the statutory requirements.7 Other courts disagree, holding that unless there is full and complete compliance with all statutory requirements, the case must be decided on the basis of common law principles without the benefit of the statutory provisions.8 This could include, to the extent applicable in a particular jurisdiction in a particular case, the presumption of legitimacy, the doctrines of equitable estoppel and promissory estoppel, implied child support contracts9 and any common law rulings that may exist in the state concerning the legitimacy of children conceived by artificial insemination with the husband’s consent.

Statutes addressing heterologous insemination typically contain a provision declaring that the sperm donor is not a legal parent of the child under the circumstances set out in the statute.10

This kind of statute may be unconstitutional as applied to sperm donors who contracted with the mother for parental rights prior to the conception of the child.11 Modern statutes, therefore, often contain a proviso that the donor may be the legal parent of the child if the parties so agreed prior to the conception of the child.

In states that have enacted heterologous insemination statutes, then, it is possible that a sperm donor could have standing to ask for custody or visitation rights if the parties agreed that he would retain parental rights, or if the parties have not complied or substantially complied with the requirements of the state’s heterologous insemination statute.12 What rights a court in such a state will grant the donor depend on the circumstances of each case, as the court will grant only such rights as it deems to be in the  best interests of the child. The desire of the parents is recognized as an important “best interest” factor in every jurisdiction, though, and the parties’ contract, if any, is good evidence of the parents’ wishes. Thus, even while requiring the donor to pay child support (because waivers of support generally are not enforceable) a court could use the fact that the sperm donor agreed not to seek custody or visitation as evidence that an award of custody or visitation to him is not in the child’s best interests. This would leave the donor in the position of owing a support obligation for a child he cannot visit and as to whose upbringing he has no input. Obviously, sperm donors would be well advised to familiarize themselves with their state’s heterologous insemination statute before proceeding. Husbands would be well advised to do so, too.

The original reason for the enactment of heterologous insemination statutes was to enable married couples with an infertile husband to use sperm from an anonymous donor to conceive a child, without having to go through the process of terminating the donor’s parental rights and the completion of a formal adoption of the child by the husband. Several states, however, have extended the coverage of their statute to single women, too. Statutes in these states may bar a sperm donor from asserting rights to custody or visitation whether the mother is single or married.13

Under state same-sex marriage laws, the lesbian partner of the mother is considered a “husband” for purposes of laws conferring parental rights on the husbands of artificially inseminated women.14 If a lesbian couple has not entered into a legal marriage, the mother’s lesbian partner would not acquire any parental rights under this kind of statute.15

 

  1. Heterologous insemination refers to the insemination of a woman using the sperm of a man who is not married to her. Homologous insemination refers to the insemination of a woman using her husband’s semen. The legal effect of homologous insemination is not substantially different from that of insemination by means of regular sexual intercourse.
  2. OR. REV. CODE § 109.243 (2011) (This provision was enacted into law by the Legislative Assembly but was not added to or made a part of Oregon Revised Statutes chapter 109 by legislative action.) Under a statute of this kind, the insemination need not be performed by or under the direction of a physician. In re Marriage of A.C.H. & D.R.H., 210 P.3d 929 (Or. Ct. App. 2009)
  3. The presumption of consent is distinct from the presumption of legitimacy. Even if the presumption of consent is rebutted, it may still be necessary to present evidence to rebut the presumption that the husband is the father of any child born or conceived during the marriage.
  4. UNIF. PARENTAGE ACT § 703 (2002)
  5. See, e.g., CAL. FAM. CODE § 7613(a) (2012), which provides:

    If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband’s consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon’s failure to do so does not affect the father and child relationship….

  6. See, e.g., Laura G. v. Peter G., 830 N.Y.S.2d 496 (Sup. Ct. 2007) (holding that the husband is the legal father even though his consent was not in writing, as required by the statute.)
  7. See, e.g., Lane v. Lane, 912 P.2d 290 (N.M. 1996)
  8. See, e.g., Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a sperm donor’s parental rights and responsibilities are not barred if the parties failed to use a licensed physician as required by statute); E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011) (same); see also Mintz v. Zoernig, 198 P.3d 861 (N.M. Ct. App. 2008) (holding that a sperm donor is the legal father of a child if the applicable statute relieves anonymous donors of parental rights and responsibilities, and his anonymity has not been maintained.)
  9.   For example, it has been held that even if the parties fail to comply with a statutory requirement that the husband’s consent be in writing, the court may nevertheless impose a child support obligation upon him on the basis of equitable estoppel or an implied support contract. R.S. v. R.S., 670 P.2d 923 (Kan. Ct. App. 1983)
  10. See, e.g., CAL FAM. CODE § 7613(b) (2012), which provides:

    The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.

  11. C.O. v. W.S., 639 N.E.2d 523 (Ohio 1994) (suggesting that doing so would violate the Equal Protection rights of the sperm donor.)
  12. See, e.g., Jhordan C. v. Mary H., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a donor may assert parental rights of custody and visitation if the parties carry out the artificial insemination without the use of the statutorily mandated licensed physician.)
  13. See, e.g., CAL. FAM. CODE § 7613(b) (2012); Steven S. v. Deborah D., 25 Cal. Rptr. 3d 482 (Cal. Ct. App. 2005)
  14.   Della Corte v. Ramirez, 961 N.E.2d 601 (Mass. App. Ct. 2012); In re Parentage of Robinson, 890 A.2d 1036 (N.J. Super. Ct. Ch. Div. 2006) (holding that same-sex marriage partners are parents to the same extent as heterosexual marriage partners are); Karin T. v. Michael T., 484 N.Y.S.2d 780 (Fam. Ct. 1985); cf. Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010) (holding that a civil union is to be treated the same as a marriage for purposes of a state’s artificial insemination laws); Shineovich v. Kemp, 214 P.3d 29 (Or. Ct. App. 2009) (holding that Equal Protection requires that a mother’s lesbian domestic partner must be treated as a legal parent of her partner’s child to the same extent and under the same circumstances as a husband in a heterosexual marriage would be.)
  15. See M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010); cf. In re Paternity of Christian R.H., 794 N.W.2d 230 (Wis. Ct. App. 2010) (holding that same-sex partners do not acquire parental rights under the state’s artificial insemination statute in the way that married couples do.)

How much copying is ‘fair use’?

copyright-symbol
Which of the following statements is/are true?

(a) Copying up to 25 words is fair use.
(b) Copying less than 10 percent is fair use.
(c) Copying 25 words or 10% is fair use.
(d) Copying only a small amount is fair use.
(e) If you don’t make money on it, it’s fair use.
(f) It’s fair use if it’s for an educational purpose.
(g) Non-profit organizations can’t be sued for copyright infringement.
(h) It’s fair use if there’s no copyright notice on it.
(i) If the author is dead, you can copy anything he wrote.
(j) As long as you give credit to the author, it’s fair use.
(k) “Fair use” is a myth. There is no such thing.

If you answered (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), or (k), then you failed the test. You’re in good company, though; nearly everybody believes at least one of these things is true.

Fair Use has been called “the most troublesome in the whole law of copyright,”1 and for good reason. With the exception of some narrowly limited statutory exemptions, there are no “bright line” tests for determining what is fair use. The bulk of the law on fair use has been left to the courts to develop. Unfortunately, they have not established any specific “bright line” tests, either.

The four-prong test

17 U.S.C. § 107 provides that copying material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright….” It then directs courts to consider four factors when deciding whether a particular use should be permitted as fair use:

(i) the purpose and character of the use;
(ii) the nature of the work;
(iii) the amount and substantiality of the portion used; and
(iv) the effect of the use on the market for the work.

Taken together, it is clear that Congress intended courts to treat commentary, criticism, news reporting, teaching, scholarship, and research as uses that will satisfy the first prong of the test. This doesn’t mean these are the only kinds of uses that may qualify, though. Nor does it mean that every use of copyrighted material for one of the specified purposes is fair use. The other three prongs must still be considered.

Under the fourth factor, even an educational use may be disqualified from “fair use” protection if it competes in the same market with the original work. If, for example, a teacher were to photocopy and distribute a textbook to students, students would no longer have a need to buy copies of the textbook for themselves. Such a use would have a negative impact on the market for the textbook. In this scenario, a teacher asserting “fair use” as a defense to infringement probably would not be successful.

2 Live Crew, Pretty Women, and the birth of the Transformative Use doctrine

In the 1990’s, 2 Live Crew was sued for copyright infringement for using “samples” of a substantial amount of Roy Orbison’s “Oh Pretty Woman” in a recording of their own. (Although the band had asked, permission had been refused for reasons having to do with protecting artistic integrity. 2 Live Crew therefore went ahead and copied the original recording anyway, ultimately making a nice bundle of money on it.) The case went all the way the United States Supreme Court.

To the surprise of many copyright attorneys, the U.S. Supreme Court ruled in favor of 2 Live Crew. In so doing, the Court established a precedent for “transformative use” as a factor emanating from the other four factors, or coming within the penumbra of the other four factors. Not only that, but according to Justice Souter (who wrote the opinion for the Court), the extent to which a use is transformative was henceforth to be regarded as  the most important consideration in the fair use analysis.2 The more transformative a new work is, the more likely it is to be fair use.  The fact that a work is transformative, the Court declared, outweighs all the other factors. Thus, the Court ruled that even though 2 Live Crew had engaged in a substantial amount of copying; had copied “the heart” of the song; and had commercially exploited the song in a way that negatively impacted the market for the original, the use nevertheless qualified as “fair use” because it was a “transformative” use.

Creating a new internal conflict in copyright law

The Court’s ruling seems to be at odds with the Copyright Act’s grant of an exclusive right to the author of a copyrighted work to make derivative works from it. The Copyright Act defines a derivative work as “any form in which a work may be recast, transformed, or adapted.”3 The language of the statute seems to be pretty clear that Congress intended to ensure that authors would have the exclusive right to transform their works into something else. According to the U.S. Supreme Court, however, it is fair use for other people to transform an author’s work into something else without the author’s permission.

While no definition of transformative use is set out in the Copyright Act, it basically includes any use that alters the purpose, meaning or function of a work, or a portion of it. In other words, it is any use that makes the work serve a purpose, express a meaning, or function in a way that is different from the original purpose, meaning or function of the work.

Parody

Parody is one kind of transformative use that has long been treated as “fair use.” This is because a parody, by definition, comments on, and is a criticism of, the original work. As such, it falls squarely within two of the purposes Congress has identified as the most deserving of “fair use” protection. On balance, other factors tend to support its classification as “fair use,” primarily because parody normally does not displace the market for the original. The segment of the market that is likely to buy the original normally is not the same segment of the market that is likely to buy a work that is critical of it. (Fans are not likely to be in the market for products mocking the things they adore.)

“Entirely different aesthetic”

Historically, courts treated the fact that copying of a work was for purposes of criticism and commentary as being central to “fair use” analysis in cases where no other Congressionally identified purpose (research, education, news reporting) existed. This was why unauthorized copying for a satire (which doesn’t use material from the original for purposes of commentary or criticism of the original work) is not as likely to qualify for “fair use” protection as a parody is. After the 2 Live Crew decision, however, courts seem to be trending toward interpreting “transformative” fair use in an increasingly broad way. In Cariou v. Prince,4, for example, the Second Circuit Court of Appeals held that an artist’s incorporation, into his paintings, of entire photographs that other people had taken was a sufficiently transformative use to qualify as fair use. The Court reasoned that the new work created “a different aesthetic” from that imparted by the original work. In so holding, the court expressly rejected the notion that the new work must criticize or comment on the original in order to be a protected fair use.

It is difficult to square this case with other court decisions that have denied fair use status to satire specifically because satire does not criticize or comment on the original work. Most satire certainly does create a different aesthetic from the original. An orginal work may project a somber, philosophical aesthetic; a satire of it most likely will create the opposite kind of aesthetic, i.e., a light, humorous one.

It is also difficult to square the Cariou decision with the exclusive right of the author to make derivative works from his work. The artist in this case clearly copied the work and then modified it. That is exactly what it means to make a derivative work. There is nothing in the Copyright Act that explicitly requires a derivative work to have the same “aesthetic” as the original work. The rule now, though, at least in the Second Circuit, seems to be that an author has an exclusive right to make derivative works only to the extent the derivative work has the same “aesthetic” as the original work.

The potential import of this ruling is not yet known. For example, how great a difference will qualify as “entirely different”? Since judges are not art experts, will the testimony of expert witnesses qualified to form opinions about aesthetics be necessary in fair use cases? If so, what standard relevant to copyright principles should they employ to decide whether a particular work has an “entirely different” aesthetic versus, say, only a “partially different” aesthetic?

Conclusion

While some courts seem to be applying increasingly expansive definitions of fair use, not all judges are in in the mood to whittle away authors’ rights. “Judges do not share a consensus on the meaning of fair use.”5 It has become what Judge Pierre Leval has described as “a disorderly basket of exceptions to the rules of copyright.”6

You can gamble on the possibility that a court will determine your proposed use of copyright protected material is “fair,” if you wish. If you are interested in following the safest course, however, then you should try to get permission from authors, composers, artists, and recording companies before appropriating the fruits of their labor.

 

  1. Dellar v. Samuel Goldwyn, 104 F.2d 661 (2nd Cir. 1939.)
  2.  Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
  3.  17 U.S.C. § 101, emphasis added.
  4. 714 F.3d 694 (2d Cir. 2013)
  5. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)
  6. Ibid.