This landmark case deals with the concepts of digital sampling and fair use.  Video Pipeline, a video promotion company, created trailers of home videos to be shown in stores.  These videos, intended to benefit the store's sales, were shown in the store and consisted of film clips acquired from the film distributors.  Video Pipeline continued this practice until 1997 when it considered the internet as a bigger, better, and more efficient way of distributing these previews.  It viewed its idea as a sort of sampling; much like a person can often sample a few pages of a book in a bookstore before buying it, they wanted to make short clips of movies available for preview before purchase.

After a few years of this distribution, Disney told Video Pipeline to stop.  However, Video Pipeline thought it was within their rights of fair use to distribute these clips and thus filed a lawsuit asking the court to declare that these rights were in fact theirs.  Disney countersued for $100 million in damages.  The court ruled in favor of the defendant, Disney, and claimed that because the trailers were compiled of exact clips, they were derivative works illegal under the law.  In addition, the Plaintiff was ruled as violating performance and public display laws.  Last but definitely not least, the court ruled that the trailers did not fall under the argument of fair use for lack of adherence to the factors of fair use, which are 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 for the copyrighted work.

This once again justifies the fear of filmmakers to borrow from copyrighted material, despite possible claims of fair use, because as is exemplified here, even a small borrowing of a film clip can cost millions.

Once a work has entered the public domain, the original owner no longer has rights over it.  This clause of copyright law has proven challenging as past copyright holders have attempted to reclaim their rights when it becomes suddenly convenient.  This is the subject of the U.S. Supreme Court case Dastar Corp. v. Twentieth Century Fox Film Corp.

In 1948, Fox obtained rights to create a television series called Crusade in Europe based on a book written by Eisenhower and published by Doubleday.  Doubleday renewed the copyright to the book in 1975; however, Fox chose not to renew their copyright on the series, which thus entered public domain in 1977.  Dastar then took the series in 1995, edited and manipulated them, and repackaged them.  They sold the new videos and credited Dastar employees as producers and not the original book or TV series.

Fox sued in 1998, attesting that Dastar had infringed on copyright and had "passed off" the work as their own.  The district court found for Fox and awarded it double Dalstar's profits.  Finally, the U.S. Supreme Court reversed the decision of the district court and another appeals court.  In an 8-0 ruling, the court reasoned that once a work passes into the public domain, anyone in the public may do anything he or she wishes with it and does not have to attribute the author.

This court ruling helps promote creativity somewhat by assuring artists that anything in the public domain is fair game for their use in future works.  However, there is still the fear that someone might try to claim rights, and often the potential battle isn't worth it.  In addition, copyrights today, thanks to extensions, are so long that producers and publishers don't need to renew copyrights because they last well over the death of the author.  Once again, the copyright monster scares small companies from creating for fear of infringement.

Book pages 95 through 107.

In consecutive chapters of Lessig's book, the making of two documentaries is described. In both of these instances, the filmmakers had problems clearing copyrights and struggled with the concept of fair use. These examples clearly demonstrate the difficulties encountered by independent filmmakers with regards to production and distribution of copyrighted material, as well as amplify the restrain that excessive copyright puts on the creativity of the filmmaker. The chapters tie in the role of independent films in the "copyright kills creativity" argument.

Chapter seven illustrates the plights of Jon Else who, when working on a documentary about the stagehands at the San Francisco Opera, encountered a copyright issue. In the background of a shot of the stagehands was a television on which was playing an episode of The Simpsons. Despite the fact that the clip was merely four-and-a-half seconds and clearly fair use, Else still thought it smart to clear the copyrights. He contacted Matt Groening, who referred him to Gracie Films, who referred him to Fox, who demanded ten thousand dollars for the licensing fee. This sum of money was not something Else could afford, and he therefore ended up digitally replacing the clip which he felt was valuable to the effect of the scene.

In the proceeding chapter, the story of Alex Alben, a lawyer for Starwave, Inc. is told. Alben wanted to create a project using the new technology of CD-ROM to showcase the career of Clint Eastwood through interviews, posters, script, and film clips. The problem arose when it came to clearing the rights of each and every person involved in the making of each individual film clip, including actors, directors, and composers. Alben needed to compensate each person, which took an entire year given his vast fiscal resources. The amount of time it would have taken the average person is unimaginable, that is if they could even do it.

As these two examples show, the monetary means as well as the time necessary to create such products are inaccessible to the average person, thus killing the output of creative material.