Martial Arts and Politics

I have studied the martial arts for many years. In my studies I have found that almost uniformly in the Chinese, Japanese, Korean, and Okinawan traditions the concept that an interrelationship exists between the active and passive principles as examplified by the by the Chinese Taoist principle of the Yin and Yang, its Korean variant Um and Yang or it Japanese incarnation of Inyodo.

This concept has a practical application within the political realm. I believe that the cyclical nature of politics lends credence to such an application.
Indeed if an individual examines the history of the shifts in power within the Congress, and the Presidency a clear cyclical pattern emerges.

In light of the constant shifts within politics. I would argue that a successful and durable political strategy, is a strategy employed by a party that recognizes the importance of these cycles, and utilizes their time in the minority to reconsolidate and marshal their forces anew, while acquiring the assets necessary to successfully transition from one cycle to another.

Some may interpret this as advocating a complete state of passivity while, being in the minority. This view is inaccurate because, neither principle can effectively govern without the presence of the other.

As such I would contend that the minority party should focus the majority of its activities on retrenchment, consolidation and acquisition of new assets. At this point it seems prudent in my opinion to choose battles with the majority selectively, being careful to avoid a wholesale disengagement and retreat from the press outlets controlled by the majority party, while, embracing only those outlets sympathetic to the positions adopted by the minority. Such an exclusive strategy could nullify efforts to expand the base to draw in more moderates and independent minded people like Senators Barrasso Chambliss, Collins, Hagan, Shelby, and Snowe. It would also negate Chairman Steele's overtures with respect to minority groups

Tea

If you are cold, tea will warm you. If you are too heated, it will cool you. If you are depressed, it will cheer you. If you are excited, it will calm you. William Ewart Gladstone

I find that in my present difficulties that tea has proved to be a valuable relaxant. Indeed in my current state only long conversations with my beloved are more calming than a well made cup of tea.

Millvina Dean 1912-2009 and Bertram Dean 1910-1992

The death on 31 May 2009 of Elizabeth Gladys Millvina Dean aged ninety-seven, was both ironic and befitting given her status as the last survivor of the tragedy, in the sense that she died on the ninety-eighth anniversary of the launch of RMS Titanic which occurred on 31 May 1911.

Her elder brother Bertram Vere Dean also died on an anniversary related to the RMS Titanic disaster. Bertram died on 14 April 1992 at the age of eighty-one. He died on the eightieth anniversary of the sinking of the Titanic

It is ironic that the deaths of the Dean's should occur on anniversaries related to a ship that affected the beginning of their lives so profoundly.

Feast of Saint Sarah: A Catholic Layman's Perspective

The twenty-fourth of May was the Feast Day of Saint Sarah, as a Roman Catholic layman I would like to offer a few thoughts on the importance of Saint Sarah.


First, argue that feast of St. Sarah and its observance by French Catholics reflects an acknowledgement and affirmation of the d feminine aspect of God

Second, Saint Sarah serves as a beacon of hope for those Catholics within the Church whose voices have yet to be heard by Rome and it is by following the example set by her and her parents that on the Day of the Last Judgment we will able to say God that we were faithful to you.

Justices of the Supreme Court of the United States and Other Judges:

I hate the use of the terms "activist judge," "passivist judge," "strict constructionalist," and "loose constructionalist," to describe the jurisprudential philosophies of judges especially those that serve on the Supreme Court of the United States because, these phrases are attached willy-nilly based upon a superficial reading of their opinions.
An excellent example of the failure of these terms can be illustrated by Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965). The majority in the case led by Justice William O. Douglas argued that penumbras" and "emanations" derived from those right explicitly set forth in the Constitution implicitly permitted the extension of those protections to include a "right of privacy." Justice Goldberg, a "liberal" justice concurred with the majority using the protections contained in the Ninth Amendment.

The result is interesting because two of the most "conservative' Justices on the court at the time Justices Harlan II, and Byron White also concurred with the result. In their concurrences with the result Justices Harlan II and Byron White both asserted that the protections provided Due Process Clause of the Fourteenth Amendment extended by implication to cover a right to privacy. Conversely, Justice Hugo Lafayette Black, the intellectual leader of the "liberal bloc" of Justices on the Court at that time dissented from the majority opinion arguing that Constitutional protections could be afforded to a "right of privacy"

I would argue that the same holds true when such language is applied to Justice Kennedy, a blanket characterization of Kennedy fails to thoroughly account for his record as a jurist. A proper study of his jurisprudential philosophy requires that the review be taken beyond cases such Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), or Lawrence v. Texas, (2006), and be extended into cases involving property rights issues such as "eminent domain."

Indeed, conservatives will be saddened by his loss when his voice is no longer heard in cases involving eminent domain and other property issues or issues related to commerce where he adopted a fiscally conservative position. I would argue that a thorough examination of Justice Kennedy’s record demonstrates that he was a highly qualified and thoughtful justice who sought a "middle road." He was for all intents and purposes a maverick who eschewed a rigid party identification.
Where Judges are concern and in particular Justices are concerned, I think that partisans only focus on those cases that serve to advance their points without giving due regard to the precedents that preceded the case at bar.
As Learned Hand pointed out in 1921 in his opinion regarding Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), the Constitution by its nature is a flexible document, which, can and does readily adapt to the changing needs of the Republic.

Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)

Thomas Anthony Heath

I want to share a picture of my nephew Thomas Anthony Heath born yesterday. He weighed in at 4 pounds 2 ounces and was 17 inches long.

Justice Souter's Retirement and its Effect on Justice Kennedy

Justice Souter's announcement tody that he plans to retire at the conclusion of the 2008-2009 term after nineteen years of service on the Supreme Court of the United States, while expected has left me reflecting on what his legacy on the jurisprudence of the nation will be and how history will remember him.

While, many conservatives will not be saddened to see him retire either because of his rulings on social issues including abortion.

Cnversely liberals who were infuriated by his holdings on land and property issues such as eminent domain.

For myself I will miss the independent spirit that have characterized his decisions. In sense the retirement of Justice O'Connor in 2006 and Justice Souter at the end of this term has largely divested the Court of moderate centrists who maintain the balance between liberal Justices led by Justice Stevens, and the conservative justices led by Chief Justice Roberts. Of the Justices who remain only Justice Kennedy could be classified as a centrist. Yet, unlike Justices O'Connor and Souter whose voices were strong amd clear.

Most observers would argue that Justice Kennedy's voice was up untill Justice O'Connor's retirement muted to an extent. With the exceptions being Planned Parenthood of Southeastern Pennsyvania v. Casey and Lawrence v. Texas .

What I find most interesting about the criticism of Justice Kennedy is the criticism that some observers level at him because, he like Justice O'Connor has been known to refer to international law and foreign sources of law from time to time in his opinions.


The opposition to the use of foreign and international laws in the deliberative process strikes me as quirte bizzare because, Justices have included such precedents in their opinions as far back as 1798. The evidence for the inclusion of such precedent can be found in Justice Chase's references to Sir. William Blackstone and Sir. Richard Woodeson the English jurists in his opinion in Calder v. Bull 3 U.S. (Dall.) 386 (1798).

Governor Perry and Secession

I have descended into the tenth circle of hell, what happening to the State of Texas we had the nutters from the Republic of Texas separatists. Now it is being reported that both Governor Bush in 1994 during his campaign against former Governor Richards, and Governor Perry at various points in their tenure while, it is true that they have done so those incidents were not taken in situ

I would like to make four points in regard to these stories.

First, Texas was annexed to the United Sattes and admitted into the union in December 1845. No secession clause was included in the treaty admitting Texas into the Union. A prior treaty in 1844 which included such a clause failed to pass the United States Senate.

Second, the issue of Texas secession was settled in 1868 when the United States Supreme Court issued it decision in Texas v. White, 74 U.S. 700 (Wall.)(1868)

Third, the formation of the original Republic of Texas was only an interim measure, The original intent of the majority of the founders who were involved in drawing up the Texas Declaration of Independence in March 1836. General Houston and with his Jacksonian allies wanted to draw Santa Anna across the Sabine River and into Louisiana, where he would then face the combined armies of General Houston, and the Western Department of the United States Army commanded by Major General Edmund Pendleton Gaines. President Jackson and General Gaines favored the idea, while the Commanding General of the U.S. Army Major General Alexander Macomb and Major General Winfield Scott who commanded the Eastern Department opposed the plan. The purpose of the plan was to draw Mexico into a war with the United States so that the United States could acquire through military the Mexican province of Coahuila y Tejas.
It was only the dissatisfaction of the rank and file of the Texas Army that forced General Houston into battle at San Jacinto, and the opposition from the Whigs andthe northern Democrats that prevented annexation immediately after the Battle of San Jacinto.

Fourth, Governor Perry's comments were purely made out of poilitical calculations, specifically the need to align himself with the most conservative elements within the Republican Party in Texas. Governor Perry's standing within the Texas Republican Party made it necessary because on the whole he is less popular with the more moderate elements within the party are looking for other candidates to challenge him in the 2010 gubenatorial primary.

If Governor Perry's only opposition in the 2010 gubenatorial primary were from either Larry Kilgore of the Texas Secession Party, or Debra Medina, Chairwoman of the Wharton County Republican Party, then his renomination becomes more likely.

However, many of the influental moderate and liberal Republicans are looking to Seantor Kay Bailey Hutchison to challenge Governor Perry in the 2010 Republican primary election for the gubenatorial nomination. Senator Hutchison's potential challenge poses a looming obstacle to Governor Perry's desire for a third term as Governor of Texas because, the popular affection and popular support she possesses within Texas, are items to which Governor Perry cannot lay a claim and diminishes the Governor's chances of winning renomination.

I do not mind that both he and Governor Bush before him used the concept of secession for their own political gain. The problem I have with theris speeches are that they demonstrated how little they actually know about the history of the State of Texas. It is my belief that if any individual desires to occupy the statehouse of any state in the Union, then those candidates have a duty and a responsibility to study closely the history of their respective states. In my experience decisions made without due regard being given to the past, are questionable in both content and spirit.

Presidents Jackson, Lincoln, Clinton, Bush, Obama, and the Writ of Habeas Corpus

President Obama has repeatedly asserted that he considers President Lincoln his role model, in terms of governance. There are parallels between the Lincoln and Obama administrations.

First, President Lincoln entered office during a period of conflict because, seven states had already seceded from the Union by the time Lincoln entered office on 4 March 1861. Likewise President Obama entered into office in the midst of conflicts in Iraq and Afghanistan involving United States armed forces.

Second, during the early days of the Civil War President Lincoln unilaterally and without consulting Congress suspended the right of Habeas Corpus. A similar situation now confronts President Obama because the Bush administration’s policies regarding the right of detainees suspected of terrorism or being enemy combatants with regard to applications for writs of habeas corpus, has placed the new Obama administration in the unenviable position of restoring the right of such suspects to petition for writs of Habeas Corpus. A process the Obama administration began on 21 January 2009 with an executive order.

Despite this order the right to petition for writs of Habeas Corpus has not officially been restored by executive order to the prisoners detained at Bagram Theater Internment Facility.

The question that I have been pondering is how quickly the Obama Administration will bring the executive branch into conformity with the stance assumed by the judicial system as elucidated in the following decisions of the Supreme Court of the United States:

1. Rumsfeld v.Padilla, 542 U.S. 426, 124 S. Ct. 2711; 159 L. Ed. 2d 513; 2004 U.S. LEXIS 4759; 72 U.S.L.W. 4584 (2004);
2. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596 (2004);
3. Hamdi v .Rumsfled, 542 U.S. 507, 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 U.S. LEXIS 4761; 72 U.S.L.W. 4607 (2004)
4. Hamdan v .Rumsfled, 548 U.S. 567, 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185 (2006);
5. Boumediene v. Bush, 553 U.S. ___; 128 S. Ct. 2229; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008).

Or will the Obama Administration follow choose to follow the reasoning that President Andrew Jackson articulated after hearing of the decision of the Supreme Court in Worcester v. Georgia 31 U.S. (6 Pet.) 515, 8 L.Ed. 483, (1832. President Jackson responded to the decision of the Court saying the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate. The idea that a decision of the Court could be "still born" was next articulated by President Lincoln in his administrations response to Chief Justice Taney's circuit court opinion in Ex Parte Merryman, 17 F. Cas. 144, (1861). It was not until 1866 that the suspension of the Writ of Habeas Corpus was rescinded. I would argue that the Bush administration adopted a similar stance relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, enacted by the Clinton Administration in the aftermath of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. A case could be made that AEDPA provided the heart of the position taken by the Bush Administration taken regarding the right of detainees to petition or writs of Habeas Corpus

Thoughts on Hate Speech

This post is my commentary on my friend JSF's last blog post. I am posting my comments this way because, when attempted to attach the comment to his initial post I had technical difficultiues with the comments feature. Having appropriately prefaced my thoughts I will now move onto the substantive portion of my response.


Hate speech whether it is espoused by liberals or conservatives inherently denigrates the foundations of the Republic. In aspiring to the ideal of freedom that the founders of the Republic both Federalist and Anti Federalist sought to engender we as Americans have a sacred charge to safeguard liberty, freedom, and their offspring the representational democracy that is the Republic of the United States of America. As Judge Learned Hand pointed out in 1944 at the height of the Second World War:

What do we mean when we say that first of all we seek liberty? I often wonder
whether we do not rest our hopes too much upon constitutions, upon laws and upon
courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. The Spirit of Liberty, (21 May 1944) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New York, A.A. Knopf, 1960)

It is seems that it is will of the individual partisans on either side of the aisle to affix to their senses blinders. I would argue that these blinders are by their nature designed to effectively fetter both the spirit in which, partisans approach issues and by extension limits the solutions offered by lobbyists in answer to problem. The blinders utilized by advocates both conservative and liberal elements are akin to the smoky glasses worn by judges in ancient China to hide their emotions from the parties involved in a case. The use of these blinders in effect creates a degree of tunnel vision that necessarily impacts the ability of lobbyists to readily adapt to changing circumstances in the socio-political, and economic realms. The absolutist rigidity exmplified by the radical left and radical right imposes a set of inherently small boundaries on the political spectrum beyond which the radicals on both sides are not willing to venture.
As long as these radical elements within the political spectrum continue to wage a war to annihilate the other by engaging in a destructive pattern of conduct that demonstrates a clear lack of civility the progress of the nation-state as whole will remain stagnant. A lack of constructive dialogue will only further weaken the Republic, and place it at the mercy of its enemies as Judge Hand argued in 1930.

For in such matters everything turns upon the spirit in which he approaches the
questions before him. The words he must construe are empty vessels into which he
can pour nearly anything he will. Men do not gather figs of thistles, nor supply
institutions from judges whose outlook is limited by parish or class. They must
be aware of the changing social tensions in every society which make it an organism; which demand a new schemata of adaptation; which will disrupt it, if rigidly confined. Sources of Tolerance, LXXIX University of Pennsylvania Law Review 1-14 (November 1930) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand. (Irving Dilliard ed., 3d ed., NewYork, A.A. Knopf, 1960).

Expansion of American Political Thought: A Layperson's Opinion

It is true that by and large Americans have a short memory. I argue that it is true on both sides of the political fence. This allows both sides to engage in the endless cycle of debates about the validity of classical realism and its descendant, the neo-realism advocated by neo-conservatives as opposed to the neo-liberalism advocated by the proponents of the Obama administration that is slowly phasing out the classical liberalism advocated by the older generations of Democrats.

However, by adhering too rigidly to either one or the other schools of thought and their offspring, both the Republicans and Democrats have largely ignored or dismissed the theories advocated by the Rationalists led by Dr. Martin Wight.

While, do not think Rationalism possesses the answer to every socio-political and economic debate or question. I believe that both of the political parties and their partisans would benefit from a study of rationalist theory in the sense that it may broaden the viewpoint of both sides because, as they are now the partisans of both camps are blinded by a degree of tunnel vision not seen in the political arena since Reconstruction.

The Future

The unexpected death of my academic advisor Dr. Gustavo A. Wensjoe, PhD., aged fifty-nine has served as the catalyst, which solidified a number of my future endeavors. As an undergraduate student Dr. Wensjoe was always trying to making me see that my focus on international law and international politics was too narrow a viewpoint, and that I should broaden my analysis to include a study of international political economics and development issues in order to better understand global conditions.

Truth told as an undergraduate I was far from an ideal student. I allowed my intransigence, my disability and my illnesses to adversely affect not only my academic performance these factors also diminished the way in which I perceived my self-worth to such an extent that I like many of my professors had despaired of me successfully completing the requirements necessary to achieve a Bachelor of Arts degree.

This devaluation on my part made Dr. Wensjoe very angry and frustrated with me. He called me into his office. I had never known him to be angry over the conduct of a student. However, I did not understand why he was angry with me and when I asked him why he was angry with me. He said to me Mr. Zimmermann you can sell yourself short and tell yourself that you will fail to graduate. However, I will not do so because, I still believe you can graduate. I was later told that the dressing down could be heard through whole of Tiller Hall. I did graduate by the grace of God and with Jefe's strength of will to inspire me.

It was a long and arduous path that I had to take before I realized the truth of what he was telling me, and that he was right and had seen all those years ago what I had been too myopic to notice. My acquisition of my paralegal certifications were the first steps on the path that he led me to so many years ago, The next step is to find a position and take the LSAT

Thoughts of a Layman III: Expression and Radicalism

In Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), Judge Learned Hand asserted that the Constitution of the United States and by extension the Copyright Act of 1909 was constructed to provide protection for the freedom of human expression. Judge Hand’s holding specifically addressed the question whether or not Copyright Law as derived from Article I section 8 of the Constitution implicitly required a standard of comprehensibility in order for the expression that is the product of an intellectual effort to be worthy of copyright

Hand’s holding that copyright law did not mandate a standard of individual comprehension, while, clarifying specific point of law, also, serves to remind the citizens of the Republic of the desire of the Founders to ensure that the freedoms granted under the First Amendment remained available and accessible to succeeding generations of Americans through the preservation of the sum total of the intellectual efforts of their descendants uniformly without any distinctions being accorded to them because, of their beliefs, values, and mores, id: Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921). The decision handed down in Reiss reflected I would argue Judge Hand’s belief that the greatest dangers to a society as a whole lay within legally sanctioned compulsory uniformity:

Our dangers, as it seems to me, are not from the outrageous but from the conforming; not from those who rarely and under the lurid glare of obloquy upset our moral complaisance, or shock us with unaccustomed conduct, but from those, the mass of us, who take their virtues and their tastes, like their shirts and their furniture, from the limited patterns which the market offers. (Learned Hand. The Preservation of Personality, VII, 7 Bryn Mawr Alumnae Bulletin 7-14 (1927) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (Irving Dillard ed., 3d ed., New York, A.A. Knopf, 1960)

This belief was reaffirmed by Associate Justice of the Supreme Court of the United States, Robert H. Jackson in 1943 during the depths of the Second World War, demonstrably highlighting his belief that the freedom to express oneself was a treasure to be protected in both war and peace, see: West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
It seems to me that the Executive and Legislative branches have forgotten the idea illustrated above, and have allowed the government to be forcibly fettered by the shackles of extreme partisanship and its attendant rhetoric because, they have allowed themselves to forget Voltaire’s long held belief on the need for freedom of speech as a form of expression as restated by S. G. Tallentyre (Evelyn Beatrice Hall in her 1906 opus the Friends of Voltaire, when she wrote the following: “I disapprove of what you say, but I will defend to the death your right to say it.”

Truth told the situation as it now exists reminds me of the 1868 Impeachment of Andrew Johnson which was orchestrated by the Radical element within the Republican Party in the sense that then as now the United States was in a time of turmoil, decimated by partisan bickering. During the early years of Reconstruction politicians on either side of the political fence possessed of a spirit that was either unwilling to compromise, and unable to recognize the validity of the concerns raised by their opponents, threatened the stability of nation as a whole, and only the courage of a single Senator prevented the wholesale renewal of armed conflict.

The unwillingness of partisans on both sides to stipulate that even though they possess fundamental disagreements that the other side has legitimate concerns that should be considered and addressed in a civil manner has led to a divisiveness and intransigence that is dangerous and could potentially either stunt the growth of, or be fatal to continued growth of the Republic

I argue simply argue that radical partisanship on either the left or right when unrestrained by moderating influences poses a threat to the country as whole, because, it only serves to encourage and facilitate division which given the current economic woes would be function as a hindrance to the recovery of the nation.

Thoughts of a Layman II: Authorship and Ownership

The summary given chapter four of Intellectual Property: Patents, Trademarks, and Copyrights, Second Edition authored by Richard Stim that summarizes the case involving a song entitled “The Bird on Nellie’s Hat” is to a degree misleading. There were in fact three decisions handed down on 26 January 1944 involving two separate causes of actions on three related cases of alleged copyright infringement.

In January 1941 Edward B. Marks Music Corporation filed three separate complaints against Jerry Vogel Music Company alleging that the Vogel Music Company infringed their renewed copyrights to the following items: One, the music complementing the musical composition “I Wonder Who’s Kissing Her Now;” Two, the music accompanying the musical composition “The Bird on Nellie’s Hat;” Three, the lyrics associated with the musical composition “December and May.”

During the course of the litigation the plaintiff, Edward B. Marks Music Corporation filed with the United States District Court for the Southern District of New York, motions requesting summary judgments in each of the cases in their favor. In the case involving “December and May” the plaintiff also requested a permanent injunction prohibiting future infringements, and requesting an award for damages based on past infringements.

On 13 January 1942 District Judge Vincent Leibell issued his rulings in the three cases which, were styled as Marks Music Corp. v. Vogel Music Co., 42 F.Supp. 859, 52 U.S.P.Q. 219 (S.D.N.Y. 1942). In the first action involving the music related to the musical “I Wonder Who’s Kissing Her Now;” Judge Leibell made the following determinations: First, even though the original copyright was obtained prior to 1 July 1909, the renewal of the copyright was governed by the provisions of the Copyright Act of 1909, in accord with section twenty-four of the Copyright Act of 1909 which provided for copyright renewals of works prior to the date on which, the Act entered into force. Second, Judge Leibell held that the renewal of a copyright pertaining to a part of the whole (a subsistent copyright) constituted a renewal of the whole work. Third, the judge adjudged that the original musical composition formed a joint work of which, was not dissolved in the renewed copyright. Fourth, Judge Leibell determined that when a co-author renews a copyright in his or her own name, the author requesting the renewal in effect becomes the constructive trustee responsible for safeguarding the whole work and protecting the interests of the non-renewing partner. Last, Judge Leibell maintained that the controversy surrounding transfer of rights by the original composer were issues of fact to be determined at trial, and accordingly denied the plaintiff’s motion for a summary judgment

Moving on to the second complaint concerning the music of the musical composition entitled “The Bird on Nellie’s Hat,” Judge Leibell held that the dearth of facts underlying the cause of action prevented from properly applying the relevant principles of copyright law enunciated elsewhere in the opinion in relation to the other two cases. However sufficient evidence had been presented by both parties so that on the basis of the evidence presented Judge Leibell was able to issue two holdings. First, the judge found that questions still remained regarding the issue of common design and collaboration that needed to be adjudicated at trial. Second, the death of the composer Arthur Lamb raised issues of fact relating to the assignment and transfer of Lamb’s copyright that needed to be resolved at a trial. For the foregoing reasons Judge Leibell denied the plaintiff’s motion requesting summary judgment in this case.

Having disposed of the first two actions Judge Leibell turned his attention to the third complaint which, was predicated on alleged infringements of the lyrics associated with the musical composition named “December and May.” First, the judge held that even though the music and lyrics for “December and May” were written separately by Edward Marks and William Loraine respectively both composed their work with a similar design and purpose of intent as demonstrated by the fact that both Marks and Loraine submitted their works to Frank Harding. Marks had instructed Frank Harding to find a composer to write music that would accompany the lyrics, while, Loraine wrote the music to accompany Marks’ lyrics which, had been given to him by Frank Harding. After both were completed Frank Harding published finished composition as a unit. The common purpose and intention pre-existed the publication of the music and lyrics as a unit, in the sense that both Marks and Loraine possessed a similar intent even though they were unknown to each other. This unifying intent the judge argued was sufficient to demonstrate that collaboration existed and that Marks and Loraine could be construed as co-authors and collaborators because, both were united by their intent.

Second, Judge Leibell held that when the plaintiff renewed the copyright, the renewed the copyright like the original covered the unified musical composition, since neither, the music or lyrics when originally published were copyrighted independently of the other, as such the renewed copyright could not be applied separately. Third, the judge held that Marks renewal of the copyright on the composition conferred upon him the responsibilities of a constructive trustee responsible for safeguarding the whole work and protecting the interests of the non-renewing partner. As a consequence of his holdings Judge Leibell denied the plaintiff’s motion for a summary judgment while refraining from issuing the injunction and imposing damages.

Nine months later, Judge Lovett sitting in the Southern District handed down his judgments following the trial on the matters involving “The Bird on Nellie’s Hat,” and “December and May,” on 19 October 1942. Judge Lovett concurred with Judge Leibell’s earlier findings. On the matter of “December and May, Judge Lovett wrote the following:

Two men producing a musical composition jointly are nonetheless coauthors and owners though they labor at different times, without conference or consultation, and though they may remain strangers each other. If one produces lyrics or music intending that they shall be combined with the production of another who shall compose the music or write the lyrics (as the case may be) to make the composition complete, the work of both is necessary, the work of one is complementary to the work of the other, the work of one must be fitted, adjusted, even morticed, to the work of the other, to make the composition a finished product and marketable. One should not be allowed to take advantage of the other when the copyright is renewed. The renewal should be, and is, for the benefit of both. There can be bit one subsisting copyright of a single version, of a single work. Silverman v Sunrise Pictures Corp., 2 Cir., 273 F. 909(3), 914, 19 A.L.R. 289; Maurel v. Smith, D.C., 271 F. 211 Marks Music Corp. v. Vogel Music Co., supra. I think the line of co-authorship is to be drawn not when the co-laborers worked but according to the original design Joel Chandler Harris did not originally write his Uncle Remus tales with any intention of having them illustrated when they were collected and put in book form (Harris v. Coca-Cola Co., 5 Cir., 73 F.2d 370); nor did Shakespeare write his Mid-Summer’s Night Dream, nor David the 23d Psalm, intending that they should be set to music and produced as musical compositions under copyrights. But here all the parties, authors of lyrics and authors of music, intended that the finished product should be a musical composition consisting of the words set to music-that was the thing they intended to be marketed, and, naturally they wanted the monopoly a copyright gives for a limited time. It would be grossly inequitable, it seems to me, to let one of the two authors renew the copyright, attempt to limit it to the thing he wrote, and thereby exclude his co-owner from any participation in the profits arising from the new grant, on the theory that the product of the one renewing is the only thing the renewal copyright protects and the work of the other has become the property of the United States and therefore of the public. The practical result would be, so far as the musical composition as unit is concerned, to give the one co-owner renewing a monopoly for the new term upon the products of both. The better view seems to me to be that the one renewing holds for the benefit of both , either as co-owners or as trustee Marks Music Corp. v. Vogel Music Co., supra. 42 F.Supp. at page 864, Marks Music Corp. v. Vogel Music Co., 47 F.Supp. 490, 55 U.S.P.Q. 489 (S.D.N.Y. 1942)

In the case centered on the musical composition “December and May” Judge Lovett denied the plaintiff’s request for a permanent injunction against the defendant for two reasons: One, the non-renewing co-author was still alive; two he validly licensed some of his rights to the defendant. Therefore, the defendant possessed a legitimate interest that required protection

Turning to the controversy surrounding the musical “The Bird on Nellie’s Hat” the Judge focused his attention on the questionable assignment of copyright that occurred in the aftermath of the death in 1928 of the original composer Arthur Lamb. At the time of his death Arthur Lamb left no will and no information concerning any heirs. Several years after the copyright was renewed the Defendant produced a man they argued was Cecil Lamb, the brother of the deceased Arthur Lamb, and who by virtue of their sibling relationship should be construed as Arthur Lamb’s heir and the successor to his rights under the renewed copyright. During the course of the trial no proof was submitted to the judge that conclusively proved the claims of the defendant regarding Arthur Lamb’s heirs and successors as Judge Lovett noted in his opinion. In light of the defendant’s failure to conclusively prove their claims. Judge Lovett ruled that the defendant was a stranger to the copyright covering the musical composition “The Bird on Nellie’s Hat.” For the forgoing reasons Judge Lovett issued the permanent injunction requested by the plaintiff preventing the defendant from infringing The Judge also denied the defendant’s motion requesting the case be reargued. Additionally, Judge Lovett denied a subsequent motion made by the defendant requesting re-argument, Marks Music Corp. v. Vogel Music Co., 47 F.Supp. 490, 55 U.S.P.Q. 489 (S.D.N.Y. 1942).

Following the trial before Judge Lovett only the complaint concerning “I Wonder Who’s Kissing Her Now” remained to be tried. The trial occurred in the District Court for the Southern District of New York with District Judge John Clark Knox presiding. During the course of the trial the proceeding against the co-Defendant Cora L. Harris were discontinued, with the trial against the primary defendant, Jerry Vogel Music Company proceeding. On 24 February 1943 Judge Knox rendered his verdict in the trial against Defendant, Vogel.

Judge Knox concurred with the previous findings and holdings of both Judges Leibell and Lovett. Consistent with the earlier decisions Judge Knox dismissed the complaint made by the plaintiff citing the plaintiff’s lack of standing, see: Marks Music Corp. v. Vogel Music Co., 49 F.Supp. 135, 57 U.S.P.Q. 37 (S.D.N.Y. 1943)

Following the dismissal, the plaintiff appealed the decisions of Judges Leibell, Lovett, and Knox to the Court of Appeals for the Second Circuit. On appeal, the appeal was argued before a three judge panel consisting of Circuit Judge Learned Hand, Circuit Judge Harrie Brigham Chase, and Circuit Judge Jerome New Frank. On 26 January 1944 the panel delivered its opinions on the appeals.

Judges Hand, Chase, and Frank first reviewed the resolution of the dispute pertaining to the song “December and May” Judge Hand writing for the panel reaffirmed principles of copyright renewal as set forth in the District Court.

We decided in Maurel v. Smith, 2 Cir., 271 F. 211; that if one of several authors took out the copyright in his own name upon a joint work, the copyright was valid, but the copyright owner held it upon a constructive trust for the other authors. This was extended to the renewal of a copyright in Silverman v Sunrise Pictures Corp., 2 Cir., 273 F. 909, 19 A.L.R. 289; Carter v Bailey, 64 Me. 458, 18 Am.Rep. 273, turned upon the fact that there was no equity in the plaintiff’s bill, but assumed that the co-tenant might be liable at law, as he always has been in equity (Minion v Warner, 238 N.Y. 413, 144 N.E. 665, 41 A.L.R. 1412); it accords with what we have held. Hence, if the song was the joint work of Marks and Loraine, when Marks took out the renewed copyright,
it was valid, but he held it upon a constructive trust for Loraine, as does the plaintiff, his assignee. There only remains to be decided whether the song was a joint work, or a `composite,’ as that phase is used in Secs. 23 and 24 of the Copyright Act, 17 U.S.C.A. §§ 23, 24. Marks Music Corp. v. Vogel Music Co., 140 F.2d 266, 60 U.S.P.Q. 257 (2d Cir 1944)

Having reaffirmed the nature of valid copyright upon a joint work, Judge Hand then confronted the central question of whether the song “December and May” was a joint work or a composite. The three judge tribunal adjudged that the composition was a joint work, and the renewed copyright was for the whole composition as Judge Hand wrote:

As we have said, the original copyright was of the song as a `musical composition,’ and the renewal was in the same terms, the work being described as a `song and cho.’ (song and chorus). So far as it appears, Marks therefore never meant to renew the copyright for the words alone, though we will assume that that made no difference, if he was entitled to do so. He was not; the song was not a `composite’ work, it had to be renewed as a whole, or not at all for it was the indivisible product of `joint authors’ So far as we know, the first definition of `joint authorship ‘ is in Levy v. Rutley L.R.6 C.P. 523: `a joint laboring in furtherance of a common design’ (per Keating, J., p. 529); an agreement `to write a piece, there being an original joint design,’ (per Montague Smith, J., p. 530). This definition I accepted in Maurel v. Smith, D.C. 220 F. 195, when that case was before in the district court, and we accept it now. If so it makes no difference whether the authors work in concert, or even whether they know each other; it is enough that they mean their contributions to be complementary in the sense that they are to be embodied in a single work to be performed as such. That was the case here: Marks wrote the words as words for a song; Loraine composed the music as music for a song. It is true that each knew that his part could be used separately; the word as a` lyric’; the melody, as music. But that was not their purpose; the words and the music were to be enjoyed and performed together; unlike the parts of a `composite work’ each of which is intended to be used separately, and whose only unity is that they are bound together. Marks Music Corp. v. Vogel Music Co., 140 F.2d 266, 60 U.S.P.Q. 257 (2d Cir 1944)

The holdings that the renewed copyright on “December and May” constituted a valid copyright in which the renewing coauthor functioned as a constructive trustee on the behalf of the non renewing coauthor, and that in both the original and renewed copyrights o the composition demonstrated the work was represented as a joint work and not a composite work predicated the affirmation of the judgment of the District Court.

After upholding the pronouncements made by the District Court on the dispute involving “December and May” directed their attention toward the case revolving around “The Bird On Nellie’s Hat,” in this case the defendant in the District Court appealed Judge Lovett’s issuance of the permanent injunction in favor of the plaintiff, and the subsequent award of damages to the plaintiff by the District Court.

Judge Hand’s examination of the questions arising from the conclusion and decisions reached by Judge Lovett began with a brief restatement of the history of the composition entitled “The Bird On Nellie’s Hat.” Summarized briefly the history of the work is as follows:

1. Arthur J. Lamb, an English national wrote words that became the lyrics for the composition that ultimately became “The Bird On Nellie’s Hat,” while, Alfred Solman independently of and, unknown to Arthur Lamb composed the music for the for the composition that ultimately became “The Bird On Nellie’s Hat.”
2. Lamb and Solman submitted their respective works to the Joseph W. Stern and Co. publishing house to whom both had assigned their rights.
3. The Joseph W. Stern company combined Lamb’s lyrics and Solman’s into a
single composition entitled “The Bird On Nellie’s Hat,” which the Stern Company
copyrighted as a whole on 17 September 1906.
4. Arthur J. Lamb died on 10 August 1928 before the expiry of the original copyright. Arthur Lamb’s family status was uncertain, it was known that he had been married, but attempts to locate his widow failed, and all available evidence seemed to indicate that the marriage was childless. After his death his widow never renewed the copyright.
Also, it could never be determined whether he appointed an executor prior to his
death in order protect the estate.
5. On 27 September 1933 Alfred Solman renewed the copyright in the name of himself and the deceased Lamb.
6. On 20 June 1936 Solman executed an instrument assigning his rights under the renewed copyright to the plaintiff.
7. On 4 June 1940, an English national stating he was Cecil Lamb, the brother of the deceased author of the lyrics and heir to Arthur Lamb’s rights under the renewed copyright, assigned all rights to the composition to the defendant.

After surveying the chronology of the composition Judge Hand shifted his focus to the argument advanced by the appellant that Cecil Lamb, by virtue of his relationship to the deceased lyricist Arthur Lamb was the successor to his brother Arthur as the legal co-owner of the renewed copyright. As a consequence, the appellant argued that Solman’s assignment of rights to the appellee covered only his portion of the title and rights under the copyright. Therefore, the defendant maintained that since, the plaintiff did not possess sole title to the copyright; he did not have the requisite standing to bring the lawsuit.
In the text of his opinion Judge Hand reduced the argument into four propositions: One was the work a composite work or joint work and what effect would that have on the validity of the renewal. Two, who does the statutes and case law give standing to bring a cause of action. Three, did Judge Lovett’s findings concerning the identity and status of Cecil Lamb result in an inequitable decision. Four, to what extent may a party recover damages in case.
The appellate panel in its deliberations and discussions on the style of the work resolved that the composition was a joint work and not a composite work. Since, the song was the joint work of Lamb and Solman, the renewal of the copyright mandated a renewal of the work as a whole. These findings raised the following secondary questions: First, was the renewal as a whole valid or invalid? Second, was the legal title vested in Solman alone, or was the title vested co-jointly in Solman and Lamb respectively. Judge Hand writing for the chamber found that “The Bird On Nellie’s Hat” embodied a joint work. Since, the song was a joint work possessed of a valid original copyright, the renewal of any copyright dictated that the application for an extension of the mandate cover the song as a whole, raising the question of whether the renewal was valid:

Although, as we have said, Solman described Lamb as having `written’ the song, and himself as having only `composed’ it, he nevertheless claimed to be the `renewal owner,’ and took out the renewed copyright in his own name. Since, it was not a `composite’ work , the copyright in which could be renewed in parts, we must choose between holding the renewal bad or good as a whole; and between holding that the legal title to it was in Solman alone, or in Lamb and Solman jointly. There cannot be any doubt as to the answer to the first question: the renewal was valid for the song as a whole. Although, as we are holding as to the two songs: `December and May’, and `I Wonder Who’s Kissing Her Now’, when one of the two authors takes out the renewal in his own name, the legal title is in him, some doubt may be raised whether the legal title does not run to both authors jointly, when as in this case, it appears, on the very face of the application that there are two, 140 F.2d 266; 140 F.2d 270. It is not necessary to decide the point, as will appear; but for argument we will assume that, when, as here, one of the joint authors asks for and gets the renewal in his own name, the legal right goes to him alone and the other author’s interest is equitable. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).
On the question of who possessed the standing to bring a suit the court held that the holder of the legal title could bring a lawsuit independently of and without requiring others parties who possessed equitable interests to join in the litigation as a party to the suit. The court also held that as Solman’s assignee the plaintiff possessed the necessary standing to bring a suit, and request an injunction as well as damages.
It was early decided that the hold of the legal title to a copyright might sue without joining others who had an equitable interest in the copyright (Little v Gould, Fed. Cas. No. 8,395, 2 Blatchf. 362; Hanson v. Jaccard Jewelry Co., C.C., 32 F. 202), and the same rule applies to patents. Yale Lock Manufacturing Company v. Sargent, 117 U.S. 536, 552, 553, 6 S.Ct. 934, 29 L.Ed. 954; Rude v. Westcott, 130 U.S. 152; 9 S.Ct. 463, 32 L.Ed. 888; Hazeltine Corp. v. Electric Service Engineering Co., D.C., F.2d 662, 668 (Thacher, J.). However, Federal Rules of Civil Procedure rule 17(a), 28 U.S.C.A. following section 723c, now requires and Equity Rule 37, 28 U.S.C.A. § 723 Appendix, before it required, all actions to be brought in the name of the real party in interest. It may be that this action would therefore have had to be brought in the name of the beneficiaries of the constructive trust of which the plaintiff is trustee, just as it would have, had the legal title been joint. The clause beginning `but,’ and enumerating persons who have no beneficial interest, includes only the trustees of express trusts. We shall assume arguendo, that Rule 17(a) would require the action to be brought in Lamb’s name.
Nevertheless, the plaintiff, as Solman’s assignee, was a `real party in interest’’ not, it is true, the only such party, but as much so as Lamb, or Lamb’s successors in interest. It therefore was entitled to sue in its own behalf. It was entitled to an injunction; it was entitled to its own damages; it was entitled to some share in any statutory damages; it was entitled to some
share in the defendant’s profits. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

Judge Hand’s decision on this point also entailed a discussion on the related topic of the status of Lamb’s successors, and Judge Lovett’s decision in that regarding Lamb's successors. Judge Hand argued that their exclusion was immaterial to the case.
Therefore, the objection resolves itself into whether the nonjoinder of Lamb’s
successors is fatal to the plaintiff’s prosecution of the action; and makes no difference as to that whether their interest is legal or equitable. These parties are not indispensable within Rule 19(b); because their rights can be reserved in the judgment; the action can be finally decided as to the plaintiff without them, if they cannot be served. On this record we cannot say whether they can be served or not, because we do not know who they are. But even assuming that it rests upon the plaintiff to show that they cannot be served, the objection is nevertheless not good because, the defendant was obliged to take it by motion or by answer ((Rule 12(h)) which it did not do. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).
On the matter of damages, the Circuit Court of Appeals for the Second Circuit modified the judgment of the District to limit the Plaintiff’s right to recover only its actual damages, its proper share of statutory damages, and their proper share of any profits.

Nevertheless, the plaintiff, as Solman’s assignee, was a `real party in interest’’ not, it is true, the only such party, but as much so as Lamb, or Lamb’s successors in interest. It therefore was entitled to sue in its own behalf. It was entitled to an injunction; it was entitled to its own damages; it was entitled to some share in any statutory damages; it was entitled to some
share in the defendant’s profits. ... As we have already suggested, that does not mean that the plaintiff may recover all the statutory damages, or all the defendant's profits. The judgment must be modified to provide that the recovery shall be confined to the plaintiff's own part; that is to say, its own actual damages, to its proper share of statutory damages, and to its proper share of the profits. What the proper share is we do not now decide. Marks Music Corp. v.
Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

The Second Circuit while, modifying the provisions of the District Court’s opinion impacting the apportionment of damages, affirmed the remainder of the decision.

Turning to the third appeal, centered on the song “I Wonder Who’s Kissing Her Now,” The appellate court affirmed the decision of the District Court without adding any additional substantive points to this portion of the appeal. As Judge Hand said:
This is an even stronger situation for the defendant than in the case of `December and May’, and we need add nothing to what we said in disposing of that appeal. Marks Music Corp. v. Vogel Music Co., 140 F.2d 270, 60 U.S.P.Q. 259 (2d Cir 1944).
After the decisions had been handed down by the Circuit Court of Appeals for the Second Circuit, Jerry Vogel Music Company filed a motion in the Federal District Court for the Southern District of New York, demanding a declaratory judgment against Edward B. Marks Music Corporation. By the terms of their motion the plaintiff, Vogel would be recognized as the half-owner of “The Bird On Nellie’s Hat” for the term of the renewed copyright. The defendant, Edward B. Marks Music Corporation countered that the plaintiff’s complaint as supplemented by a bill of particulars should be dismissed because, the plaintiff failed to state a claim upon which to base the relief requested of the court. On 21 August 1944 District Judge Edward A. Conger denied the plaintiff’s motion as stated in Vogel Music Co. v. Edward B. Marks Music Corp. 56 F.Supp. 79, 63 U.S.P.Q. 1 (S.D.N.Y. 1944).
After this point in the history of the controversies Westlaw is silent regarding any subsequent actions related to these disputes.
Endnotes


[1] Though Judge Lovett is listed as the judge who delivered the opinion in Marks Music Corp. v. Vogel Music Co. 47 F.Supp. 490 (S.D.N.Y. 1942) in the text of the opinion, this may be a mistake. Examining the lists of former judges of the Federal District Court for the Southern District of New York, contained on the Federal Judicial Center website and the History of the Court for the Southern District of New York no Judge with the surname Lovett appears on the lists of district judges.

[2] The citation given in Judge Lovett’s opinion gives the incorrect court in the citation. The volume and page numbers mentioned in the citation refernce the appellate decision

Thoughts of A Layman on Fair Use

In its modern incarnation the “fair use” doctrine illuminates the interconnectedness of the judicial and legislative processes. The origins of the “fair use” lay within the texts of the decisions and holdings of Burnett v. Chatwood, 2 Meriv. 441, 35 Eng. Rep. 1008-09 (Ch. 1720); Gyles v. Wilcox, 26 Eng. Rep. 489 (Ch. 1740) interpreting the Copyright Act 1709 8 Anne c.19 (1709) (Eng.)

Prior to the adoption and implementation of the Copyright Act of 1976, the doctrine of “fair use” was not explicitly stated in the laws of the United States. But the principles of “fair use” were recognized by the courts in the United States as being implied by Article I, section 8, clause 8 of the Constitution of the United States, and the Copyright Act of 1790, 1 Stat. 124 (1790). For almost two centuries implicit judicial recognition provided sufficient avenues to permit the “fair use” of copyrighted materials for such noble purposes as education and the development of the arts and sciences within the United States, id: Campbell v. Acuff Rose Music, 510 U.S. 569 (1994).
However, the rapid progress and development of the nation engendered the need for the codification of the principles underlying the ”fair use” doctrine into the statutes through the legislative process by Congress as illustrated by the Court of Appeals for the Second Circuit in On Davis v. the Gap. As noted in Campbell and On Davis, the formal codification of the “fair use doctrine” by the legislature occurred only with the enactment of the Copyright Act of 1976. Section 107 of the act established a multi-faceted test consisting of four factors to be weighed in making determinations regarding the question of whether or not the use made of a work by persons other than author constitutes a “fair use.” The four factors enumerated in 17 U.S.C. § 107 (2017) were as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
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. 17 U.S.C. §
107 (2017)

Numerous courts have held that the factors set forth in 17 U.S.C. § 107 (2017) are not meant to be construed as an exhaustive list of the factors to be weighed in making “fair use” determinations, but are intended to serve as a baseline to be applied in a case by case manner. See: Harper Row, Publishers v. Nation Enter., 471 U.S. 539 (1985) Letterese v. World Inst. of Scientology, 533 F.3d 1287, (11 Cir. 2008) Copr.L.Dec. P 29,589, 87 U.S.P.Q. 2d 1563, 21 Fla. L. Weekly Fed. C 911 (2008); Leadsinger Inc., BMG Music Publ’g., 512 F.3d 522, (9 Cir. 2008) 2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008 Daily Journal D.A.R. 36 (2008); Bouchat v. Baltimore Ravens Ltd., 587 F.Supp.2d 686, (D. Md. 2008); Warner Bros. Entertainment v RDR Books, 575 F.Supp.2d 513, 2008 Copr.L.Dec. P 29,616, 88 U.S.P.Q.2d 1723 (S.D.N.Y. 2008); Thornton v. J Jargon Co., 580 F.Supp.2d 1261 (M.D. Fla. 2008).

The four statutorily mandated factors possess a multifaceted nature each of which gives rise to several questions which require answers before any conclusions regarding the “fair use” of an object can be reached. Before, addressing the questions raised by the four factors described above, a word must be said about the manner in which, the individual questions are considered in relationship to the whole. It is well settled that the elements elucidated in 17 U.S.C. § 107 (2017) must be evaluated as a whole with due consideration being afforded to the context of, and circumstances surrounding the whole, rather than by attempting to isolate each of the constituent parts and analyzing them as independent abstract propositions detached from the whole, id: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)) and Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 799-800 (9th Cir. 2003) (citing Campbell, 510
U.S. at 575-76). Leadsinger v. BMG Music Publ’g, 512 F.3d 522, (9 Cir. 2008)
2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008
Daily Journal D.A.R. 36 (2008).

When examining questions of whether copyrighted material has been subjected to a “fair use,” the first component addressed relates to the purpose and character of the use and possesses a minimum of two subsidiary facets: One, is the use of the object intended for commercial purposes, or is the use of the object intended to advance nonprofit purposes. Two are the emendations made to the original transformative, do they alter significantly and substantively the original object, see: Campbell v. Acuff
Rose Music, 510 U.S. 569 (1994).

The second aspect that necessitate consideration, while performing a “fair use” investigation are queries inextricably linked to the nature of the original copyrighted work. When studying whether a composition represents a “fair use” under the law, a valid test demands that consideration be accorded to the original copyrighted source material. An evaluation of the original source necessarily entails a discussion of the original opus and its relationship to the subject of the derivative work. Underlying, this ingredient of the “fair use” test exist a minimum of two propositions. First, what type of composition was the original because, the courts have long held that nature of the original source has a bearing on the derivative; and Second, was the original a published or an unpublished work, see: Campbell v. Acuff Rose Music, 510 U.S. 569
(1994)

After treating the subjects connected to the nature of the original compositions, the parties responsible for determining if “fair use” has occurred, then turn their attention to the third
aspect of the test contained in 17 U.S.C. § 107 (2017). This facet concerns questions related to the amount and substantiality of the original used, id: Harper Row, Publishers v. Nation
Enter., 471 U.S. 539 (1985)

The final element that requires consideration when treating questions of “fair use” examines the impact of the use on the
marketplace in general, and how the use of the original material in a derivative work will affect the inherent value of the original work, see: Harper Row,
Publishers v. Nation Enter., 471 U.S. 539 (1985)

In applying the “fair use” test discussed in the preceding pages both attorneys and paralegals need to be mindful of Justices Brennan’s warning against applying the test either a manner that is overly narrow or excessively broad. Great care and caution must be used when employing the test. A carless and uninformed application of the "fair use" doctrine by legal professionals possesses the potential to lead to a society in which the creative impetus is allowed to run rampant because, there exists no checks to prevent from people from illegally appropriating the work of others and claiming it as their own. Conversely, an improper application of the doctrine could serve to stifle the creative spirit.