Wednesday, July 26, 2006

Fair use is fair - even if it hurts book sales

Unfortunately for Reva and Lucretia Payne, their brother is a convicted rapist and a writer. In a lawsuit against the Louisville (KY) Courier-Journal, they sought $500,000 in damages after the paper published excerpts of a children's book, written by their brother Tom, in connection with a story about his college and professional basketball career and his two subsequent convictions for rape. Reva and Lucretia claim they own the copyright to the book, never gave the paper the right to quote it, and that its use in tandem with a story about Tom's legal troubles will hurt the book's prospects of being sold.

But in this decision from July 26, the Sixth U.S. Circuit Court of Appeals said that the Courier-Journal broke no copyright laws when it quoted paragraphs from the book.

Copyrighted material can be used without permission in certain exceptions. The "fair use" exception allows a copyrighted symbol, trademarked name, or other protected product to be used without permission in news or educational materials.

The Paynes filed suit in June 2004 in California federal court, alleging they own the rights to “The Angel Mimi and the Giant (A Lesson in Love),” and its illustrations. The book was penned by Tom Payne, a 7' 2" tall basketball player who was the first black player to join the University of Kentucky basketball team and went on to play for the Atlanta Hawks.

Tom is serving 15 years in Kentucky for rape, and served 14 years in California for the same crime. (For those interested in sports history, the recent film Glory Road depicted the story of the 1966 NCAA Championship in which an all white Kentucky team lost the tournament crown to the only all-black starting team in college basketball at the time, Texas Western, which is now known as the University of Texas at El Paso.)

"The plaintiffs allege in the complaint that 'the manner and use of the excerpts from Plaintiffs’ book by Defendant has caused irreparable damage to the character, nature, and meaning of the book,'" the Sixth Circuit said. "The Paynes further state in the complaint that the allegedly infringing newspaper article 'will possibly have an adverse effect on the potential market for the intended sales of the book in the tri-state areas (Kentucky, Indiana, and Ohio).' Finally, the Paynes allege that the “natural, probable and foreseeable result of” the newspaper article will be to “damage[] and deprive Plaintiffs the opportunity of possibly and potentially securing a large perspective [sic] customer base in the Kentucky, Indiana, and Ohio area.”

The case stems from a 2001 article in which Courier-Journal reporter Brian Bennett used blocks of the book, which he got from Payne's mother, to illustrate the book's parallels to Payne's life. The article began with this quote:

“Once there lived a very mean Giant. He didn’t smile, he didn’t laugh, and his face was always turned in a frown. When he would walk, he would stomp the ground just to shake the villages as [he] went by.”

The article went on to cover Payne's college career and his $750,000 contract to play for the Atlanta Hawks. It then discusses Payne's life since leaving basketball, and his attempt at writing children's books. The article quotes at least four passages from the book, which Reva and Lucretia Payne say they never authorized.

The case was transferred from California to Kentucky, but the federal judge there dismissed the case in May 2005 and the Paynes appealed. However, the Sixth Circuit also decided that the Courier-Journal's use of the book was legal.

"After examining the parties’ briefs, and the applicable law, this court determines that the district court properly held that the fair use defense applied as a matter of law," the three-judge panel said.


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