Use, Fair Or Foul

A divided copyright decision today from the 9th Circuit—Elvis Presley Enterprises, Inc. v. Passport Video, PDF; via Howard Bashman—is a good illustration of the mercurial nature of the fair use doctrine. The opinion considers the extent to which fair use entitled a filmmaker to incorporate copyrighted materials (film clips, photos, and music) into an exhaustive biography of Elvis Presley: The Definitive Elvis. Judge Tallman's majority opinion suggests the outcome was strongly influenced by the applicable standard of review, and the deference the Court of Appeals was required to afford the trial court's preliminary injunction findings: "Although we might view this case as closer than the district court saw it, we hold there was no abuse of discretion in the court's decision to grant Plaintiff's requested relief." Judge Noonan's dissent argues the transformative nature of much of the work and the public interest in a biography of Elvis should have played a greater role in the Court's application of the unpredictable doctrine.