Fair use Totally Explained

Everything about Fair Use totally explained

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright. United States trademark law also incorporates a "fair use" defense, which also stems from the First Amendment of the U.S. constitution.

Fair use under United States law

The legal concept of "Test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne of 1709. As room wasn't made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgment," which later became "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976,, reprinted here:
Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.

Purpose and character

The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.
   When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents. But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work wasn't presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.
   However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval. More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch, regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she'd been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.
   The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use." More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative." Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone isn't determinative. For example, not every educational usage is fair.

Nature of the copied work

Although the Supreme Court of the United States has ruled that the availability of copyright protection shouldn't depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it's fictional or non-fictional.
To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright wasn't upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.
Following the decisions of the Second Circuit in Salinger v. Random House, Inc. and in New Era Publications Int'l v. Henry Holt & Co., whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This isn't to claim that unpublished works, or, more specifically, works not intended for publication, don't deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shan't itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Amount and substantiality

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that's used in relation to the whole, for example, a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use. Likewise, see Kelly v. Arriba Soft Corporation,where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results didn't weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use." Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters, the use of less than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc. changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation." In other words, de minimis sampling was still considered fair and free because, traditionally, "the law doesn't care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision didn't apply to fair use.

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc. that "all [fourfactors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.
Courts recognize that certain kinds of market harm don't oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Fair Use and Professional Communities

Courts when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.
Documentary filmmakers organized and created the Documentary Filmmakers' Statement of Best Practices in Fair Use (External Link

), which has had a dramatic effect on fair use practice in documentary film. Since the release of the Statement in 2005, PBS, ITVS and IFC use it. Furthermore, four out of seven of the national errors and omissions insurers now issue fair use coverage routinely. Several documentary films have also used it, allowing both theatrical and television releases. Other professional communities are beginning to plan their own best practices standards in fair use as well.

Practical effect of fair use defense

The practical effect of this law and the court decisions following it's that it's usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial. Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' don't necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."
The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim."

Fair use as a defense

The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.. is generated by confusion over the use of the term "affirmative defense." An affirmative defense is simply a term of art from litigation reflecting the timing in which the defense is raised. It doesn't distinguish between "rights" and "defenses," and so it doesn't characterize the substance of the defendant's actions as "not a right but a defense." The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right." Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … isn't an infringement of copyright."
In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

The economic benefit of fair use

A balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers and Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers. Oracle Corporation, Sun Microsystems, Yahoo and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 Billion dollars in annual revenue for the United States economy representing one-sixth of the total U.S. GDP. The study was conducted using a methodology developed by the World Intellectual Property Organization. and between January 1, 1978 and March 1, 1989 lack of notice isn't necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that didn't have formal registration or notice fell into the Public Domain if registration wasn't made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.

It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: 'I'll let you copy 300 words from our books if you let us copy 300 words from yours.' It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the U.S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.

You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder can't use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights.

If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it doesn't make it impossible. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.

If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it doesn't make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.

Influence

The doctrine of fair use is no longer exclusive to the United States, with other jurisdictions having either implemented such a doctrine or considering its introduction.

Fair use in Israel

In November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which takes effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution. The law sets up four factors to determine whether a use is fair use.

Fair use in South Korea

article 1 rules that this law's two purpose:

To protect copyright.

To promote fair use.

International situation

While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there's little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use.

Further Information

Get more info on 'Fair Use'.

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