This video is likely entertaining only to folks who are forced to live with Microsoft hovering over Yahoo!, who are into video mashing and editing, or who like making fun of the first two groups. Even if you aren’t in those groups, watch anyway; it is short enough for everyone to watch and ponder.

I’ve wanted to post and comment on this video since I saw it a few weeks ago. Now I get my chance, as I work through some of my copyrights outline (test tomorrow).

I assume the Charlie Rose show is copyrighted. I also assume, Charlie Rose or the owner of his show can make out a prima facie case (this means they showed infringement of their copyrighted work). In that case, the maker of this video will need to argue a Fair Use defense under section 107 of the copyright statute.

Section 107 of the copyright act (usc title 17, section 107) provides four factors for courts to assess a fair use claim. It requires a court to consider: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

First, a court must consider the purpose and character of the use, analyzed along two axes: commercial versus non-commercial; and the superseding object of the original versus transformative uses. The commercial nature of a work is generally not dispositive and is given very little weight. Courts frequently provide this quote from an old case: “no man but a blockhead ever wrote, except for money.” It isn’t entirely true, but sums up U.S. courts’ opinions about how they regard this requirement. Along the second axis, the video appears to be transformative because, to me, it appears to “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Is it a parody? In which case it is given more deference. Is it only satire? If so, it gets less deference. I think that because the video’s creator adds another meaning, that of this philosophical conversation with self, it likely passes as transformative.

Second, the nature of the copyrighted work is as a published video of non-fiction. I’m assuming that the video was taken from archived copies of the Charlie Rose show. This part of the analysis matters very little unless it was an unpublished work that was intended to be sold for money. This was the case in the late 1970’s when the Nation Magazine scooped the juicy details that were to the “very heart” of former President Gerald Ford’s memoirs of his time in office. The Nation acquired a copy of the manuscript before it was published, and caused Time Magazine to cancel out on the advance it had paid to have first dibs on a review. D’oh! Here, if the video clips were taken from previously broadcast Charlie Rose episodes, Obi Wan Kenobi is not needed to say “There is nothing here. Move along.”

Third, a court will look at the amount ans substantiality of the portion used in relation to the copyrighted work as a whole. It seems this video takes very little of two separate shows. It is a toss-up how a court will come down on this. A court will not let someone take the heart of a work, as in the Nation Magazine scooping Gerry Ford’s story, even though it used a few hundred words of a 300 or more page book. I think it is unlikely they would consider this went to the heart of the Charlie Rose episodes in question because it was changed so much so that I’m not sure what was discussed beyond Yahoo! and Microsoft.

Fourth, a court will look at the effect upon the market value of the original, copyrighted work. It isn’t clear to me, but I doubt it will have much impact. The new video does not substitute for the original. In fact, I think it might lead people to want to view the shows to see what was said originally.

All said, I think this video will likely qualify as fair use.