What Constitutes Fair Use of Published Scores and Tasting Notes?

WINE TALK
1

This thought came to me:

If one subscribe to, and pay for, any wine publication that publishes scores and tasting notes, you must be entitled to make fair use of what you paid for. The owners of such publications would have us believe that republishing any score and/or tasting note is verboten, because that is, in essence, giving away the owner’s milk for free to non-subscribers. Many of us do, in fact, believe that. On the other hand, those same scores and tasting notes get hung on retailers’ shelves everywhere. I understand that certain limited uses are expressly permitted by the owner. Here are a couple of examples:

  1. "The information provided by [publication] is the copyrighted property of [owner]. Your use of this information is limited to you alone under the terms of this agreement. It may not be copied, retransmitted, sold or provided to others in any form or format except as provided for in this section of the Subscription Agreement.

The news media and subscribing wine distributors and retailers may use brief portions of this material provided it is not distorted, the correct wine and vintage are stated, [publication] is given credit for the material utilized, and [publication] is shown as the copyright holder."

  1. “Your subscription to the [electronic version of publication] is for your use only. Transferring [publication] material electronically or transferring access to the electronic [publication] is a violation of copyright law and may result in the termination of your subscription without warning or compensation.”

  2. "Subscriptions are only for the individual subscriber and user names/passwords are not to be shared. Discounted corporate accounts are available for firms requiring multi-users. Active subscribers in the news media and wine trade may use limited wine reviews provided that [publication] is properly credited. Retailers are responsible for ensuring the quoted information is correct and as printed in [publication]. Reproduction of vintage reports, narratives and progress reports is expressly forbidden. Limited wine reviews is defined as the reproduction of [publication’s] entire review and score, and is anticipated to be under 100 reviews at any one time by a retailer or individual in the wine trade. Licensing fees are due [publication] should an entity use in excess of 100 wines at any given time, as determined and agreed between the parties.

Upon determination of violation of any of these conditions, subscription will be immediately terminated without any refund of the subscription fee. All who infringe, including non-subscribers, will be pursued using all legal remedies."

  1. "You agree not to use any part of [publication] for any unlawful purpose. We reserve the right to terminate or restrict your access to [publication] if, in our opinion, your use of [publication] may violate any laws, infringe upon another person’s rights or violate these Terms of Service. Also, we may refuse to grant you a user name that impersonates someone else, is protected by trademark or other proprietary right, law or is otherwise vulgar or offensive. All information, content, services and software displayed on, transmitted through, or used in connection with [publication], including for example, articles, reviews, directories, guides, text, photographs, images, illustrations, audio clips, video, html, source and object code, trademarks, logos, and the like (collectively, the “Content”), as well as its selection and arrangement, is licensed or owned by [owner] and/or its affiliated companies, licensors and suppliers, and is protected by U.S. and international intellectual property laws. You may use the Content online only, and solely for your personal, non-commercial use, and you may download or print a single copy of any portion of the Content solely for your personal, non-commercial use. If you operate a Web site and wish to link to [publication], you may do so provided you agree to cease such link upon request from [publication]. All rights not expressly granted are expressly reserved. No other use is permitted without prior written permission of [publication]. The permitted use described in this Paragraph is contingent on your compliance at all times with these Terms of Service.

As a condition of your ability to access and use [publication], you agree that you will not violate any intellectual property rights of [publication] or [owner].
You may not republish any portion of the Content in print or electronic media including but not limited to, any Internet, Intranet or extranet site. You may not incorporate the Content in any database, compilation, archive or cache. You may not distribute or participate in the distribution of any Content to others, whether or not for payment or other consideration, and you may not modify, copy, frame, cache, reproduce, sell, publish, transmit, display or otherwise use any portion of the Content. You may not scrape, cut and paste or otherwise copy our Content without permission. You also agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through [publication], not to insert any code or product or manipulate the content of [publication] in any way that affects the user’s experience, and not to use any data mining, data gathering or extraction method."

I have no need to make any extended use of the content of any wine journal to which I presently subscribe, but I wonder if any or all of the above terms of use are, in fact, enforceable by the owners and publications in question, given the liberal and ubiquitous use by retailers.

Any fair use doctrine mavens out there that want to weigh in on this? And does anybody else give a rat’s heinie about the issue?

2

As far as I can see Bill, almost nothing is verboten (or ‘actionable’) if the source is quoted.
Now if somebody wants to use notes commercially and chooses to do so without asking permission and omits any form of acknowledgement, in the UK at least, there are examples where that has been costly for the user…
Example: http://www.isark.co.uk/tastingnotes.htm

3

Ask a lawyer? newhere


Could they be selective in whom they go after? That is, if I post a bunch of notes and scores here, but some store has the same notes and scores on their website, can they just go after me (or Todd) and not the store?

4

Bill – There is no black and white definition of fair use. It depends on the circumstances.

One key factor is whether the quoting is extensive enough to undercut the economics for the original publication. Another factor is whether the quoting is so extensive that it essentially reproduces the core of the original.

I’ve seen issues of Premier Cru’s newsletters on Bordeaux that pretty much substituted for an issue of the WA. I’d thought that was way over the line, but from the language you quote above allowing retailers to use up to 100 reviews, I guess that is explicitly permitted. I think WA could squawk if it hadn’t granted a license via such language.

As a journalist and former lawyer, I can say that, in practice, the legal concept works pretty well: People generally know what’s reasonable. There have been some notable abuses here and on eBob, though, from time to time, where people have posted entire articles from other sources. That’s very hard to justify.

5

AFAIK, yes, they can be selective. You don’t have to sue every infringer to be able to sue one. Which makes sense. Litigation is expensive and copyright holders are only going to want to sue when the value of preventing or redressing the damage created by the infringement is greater than the litigation cost. If you had to sue every minor infringer to preserve your rights, your rights would be worthless as a practical matter.

6

Copyright is copyright. See Napster.

7

It’s important to distinguish between what rights one would have under fair use doctrine and what rights one would have under a subscription agreement. So, for example, “[The publication] may not be copied, retransmitted, sold or provided to others in any form or format except as provided for in this section of the Subscription Agreement” may prevent one from engaging in conduct that would otherwise be fair use, and if one engaged in such conduct the fact that it was fair use would be no defense to an action for breach of contract. A good example is parody. Parody is fair use and thus not copyright infringement, but I doubt the subscription agreement permits it.

8

I guess I was thinking more in terms of a defense. If someone came after me, and I could show that for years before someone else had done as least as much, could that be used in my defense?

9

Not sure whether I got it in the quoted text above, but the threatened penalty in a couple of cases is canceling your subscription and/or bouncing you off of the publication’s website. In one case, it even noted “without refund”. If that were to be done and it was subsequently adjudicated that there was no fair use violation, one wonders whether the publication might not end up in a bit of deep kimchee in a countersuit. (Arbitrary censorship or booting of paying subscribers on wine boards for other than copyright violations also raises some interesting legal questions, but I will leave those for another thread.)

10

Wikipedia has a good article on fair use in the US Fair use - Wikipedia

11

Huh? That was wholesale copying, not selective excerpts, and hence fair use wasn’t an issue. The only issue, I think, was whether by merely mediating between third parties’ servers/hard drives and not copying files itself Napster violated the copyright law. But, as I recall, providing essential facilitation of copying brings you under the law’s prohibitions.

12

David already linked to the Wikipedia article on fair use, which is a decent place to start. Here is what the Copyright Office has on its site:

You can also review this material:

In my personal opinion–not intended as a legal opinion whatsoever–I think there is a substantial difference between a published score and the precise language of a tasting note. I think any wine publication would have a more difficult time prevailing on the argument that a numerical score such as “95” is subject to copyright protection in the first place, even in the context of a “Wine Advocate 95.” By contrast, a wine publication probably would have a better chance of prevailing on a copyright claim regarding the precise language of a tasting note.

Also, whether other people are using the quoted material may not be precisely relevant to the fair use defense.

Anyway, this is a complex area of the law, since it’s based both on statutory law and case law.

Bruce

13

I rememebr seeing another wine BB that would publish Parker’s Bordeaux scores in toto immediately after publication. The justification was that they didn’t steal it from the WA, but rather just reposting it from someone else (a retailor I think) who had been the actual persons who stole it. Morons.

14

I think there is a substantial difference between a published score and the precise language of a tasting note.

That’s pretty interesting actually. Bill asked about both - I suppose he’s too comfortable over there in Italy to bother going to his law journals - but the dif between a score and note may be significant.

Scores are widely quoted and posted. I can’t imagine any cause of action against someone who uses the same scores that scores (?) of other people use. In fact, the use of scores by stores, distributors, etc., is pretty much the whole purpose of scores in the first place isn’t it? Why would people publish scores if they didn’t want them quoted and used?

Notes OTOH, are perhaps different. I could see bringing a case against someone for using those. But the funny part is - nobody cares about them. Notes w/out scores are useless to everyone. Graphite, tar, plums, cherries, tobacco - what red wine is that for and what was the score? Has any critic actually brought an action against someone for using his scores or notes? Or is it all just hot air?

15

I’m kinda surprised cease-and-desists haven’t been sent to the Administrators here, when folks post Parker scores on the days issues come in. I like to see them (though I’ll see them when the mail comes) and have probably posted if someone asked, but that is a clear case of devaluing someone’s content.

16

in this particular case, it’d be a stretch to say there is a copyright over the number, you need very specific cases . So there’s no cease and desist. I remember Todd saying there were letters from Parker’s people in regards to tasting notes tho.

17

And it’s never a case of a cease and desist order (an injunction); it would be a damages suit after the fact. That makes it harder for the critic to prevail.

I agree that quoting scores is less of a problem than quoting text, even though many people just go by the points could care less about the write-up. Copyright protects the expression of an idea, not the idea itself, so I think the copyright in the pure scores would be very “thin” – i.e., gets only limited protection.

18

Bruce, that makes logical sense to me.

Bob, I am not certain, but I thought that Berry Bros. & Rudd may have done this. If not BB&R, I am pretty sure that another large British retailer may have done that, on whatever rationale. Some years ago, I can recall seeing Parker Bordeaux scores on such a website before I got my paper Wine Advocate. In either case, I would be surprised if it was not done with Parker’s blessing, and if so, that would seem to give the lie to his assertions that he does not mean to make and move the Bordeaux market…

C. Grimm, this board and EBob have a history, so to speak, so regardless of copyright law, I would think that Todd et al. would not want fresh WA scores posted here.

GregT, I am not in Italy at the moment, but yes, I am too lazy to go to my law journals! I thought that we might luck out and have a copyright and trademarks attorney post…

19

Bill - I don’t know if he posts here but Bill Lawrence might be the guy to ask.

In any case, wouldn’t you love to see the trial? I couldn’t help but be Monty Pythonesque. You’d have “experts” on one side testifying that yes indeed, they detected forest floor and graphite, while the other side would be arguing that the list of aromas and flavors weren’t detected in precisely that order, or maybe weren’t detected at all, and the unique perceptions of the critic should be respected.

The best case for the critic’s lawyer might be to lay waste to the critic entirely, claiming that the tasting note was so outlandish and individual that nobody else could have possibly come up with it. Perhaps that’s why we haven’t actually seen any follow through on any threat?

Of course, on this site or others, if one were to simply reprint the reviews in toto and put a ROFL after, one might be able to claim parody. Kind of like Tina Fey giving a Sarah Palin speech straight, but doing it on a comedy show instead of a campaign stump.

20

The irony here is that the critics’ faux-objectivity is totally counterproductive from their perspective with regard to copyright law. If their position is that the note is not merely a record of their subjective experience but an objective evaluation of the wine, then you get much closer to the line between fact/idea and expression. It would almost have to be treated like a scientific paper, where the paper as a whole has copyright protection based on the form and arrangement, but neither any individual piece of underlying data nor the actual results of the study would have protection.