Understanding Copyright ‘Fair Use’

By Richard E. Neff, June 1, 2010: Reprinted and/or reposted with the permission of Daily Journal Corp. (2010).

“Fair use” of copyrighted works is one of the least understood concepts in American jurisprudence. Users of others’ works implicitly understand that there are certain uses that they can make of copyrighted works without violating the owner’s or author’s copyright. Indeed, Section 107 of the U.S. copyright law provides a list of fair use purposes, including criticism, comment, news reporting, teaching, scholarship and research. It is a concept linked to both knowledge advancement and free speech. However, many people tend to make logical or result-driven assumptions about a complex concept that often is not intuitive, and their assumptions generally are wrong.

One client assumed that he could make use of another’s copyrighted work provided he did not use the work to make money. His was an e-commerce business largely supported by advertising. Another client who had no profit motive whatsoever wanted to condense the works of a little-known modern philosopher to make them more accessible to the public. A third client had heard that as long as she copied less than 10 percent of a literary work, she was within her “fair use” rights. A fourth thought he was protected when he prominently attributed his taking of portions of the work to the author.

In fact, it is doubtful that any of these examples benefit from the fair use defense. Fair use, which is an affirmative defense if one is sued for copyright infringement, has a fairly long definition in U.S. copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work by a third party may be considered “fair” or acceptable, such as criticism, comment, news reporting, teaching, scholarship, and research. If a use is not a fair use, then the author’s permission must be obtained. This section also lists four factors to be considered in determining whether or not a particular use is fair: the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for, or value of, the copyrighted work.

The determination as to whether a given user can benefit from fair use, and not obtain permission, involves a weighing of these factors, which themselves are not readily understandable. The court in the recent Harry Potter Lexicon case (Warner Bros. Entrt. & J.K. Rowling v. RDR Books, 07 Civ. 9667 (RPP) (USDC, SDNY Sept. 8, 2008), stated that “The evaluation of these factors is ‘an open-ended and context-sensitive inquiry,'” and must be decided on a case by case basis. There is no specific number or percentage of words, lines, or notes that may safely be taken without permission. Moreover, acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The analysis proceeds on the basis of a number of presumptions. The first presumption is that if one is in business for profit, i.e., not a non-profit organization or non-profit educational institution, it will be an uphill struggle to establish fair use. It does not matter that you just like the look of her drawing on your e-commerce Web site, and that the drawing itself is far removed from the subscription model (or advertising model) that generates revenues for your business. One must assume that in a for-profit business, the drawing was placed there to draw potential customers. Virtually everything that a for-profit business does can be presumed to have a profit motive.

But as stated, the lines are not clear. Newspapers are for-profit businesses in most cases, and they run critiques and commentaries that do benefit from fair use. It may be fair use when a price-comparison Web site such as PriceGrabber.com borrows from product descriptions to offer commentary or critiques, but it is more likely that product descriptions do not have the requisite originality to benefit from copyright, in other words, it is not really a fair use issue at all. And it most likely is not fair use if someone offers a condensation of a copyrighted work to the public without any profit motive, because condensation or abridgement is not considered sufficiently transformative.

This leads to the two dominant considerations in determining whether a certain use is fair use or not. First, is the work transformative, a word that does not even appear in the fair use description of Section 107, but is considered at the heart of “the purpose and character of the use” factor. Courts consider this concept the most critical fair use factor: the more a work serves the same purpose and has the same character as the original work, and merely replaces it, the less transformative it is. An easy example would be if you use the cover of Kurt Vonnegut’s “Slaughterhouse Five” in a pictorial collage about famous authors who attended Cornell, that would be a transformative use of the book’s cover, a use entirely different than the purpose of the novel itself. But if you take three chapters of “Slaughterhouse Five” to include in a compilation of antiwar fiction, that really does not transform the work, and it most likely would not be a fair use, also because it uses what feels like too much of the original work. Similarly, a parody of a work is considered transformative.

Of course, the analysis should begin with whether or not “Slaughterhouse Five” still benefits from copyright protection (it does), or whether it has passed into the public domain, like the works of William Shakespeare, where there need not be any worry about fair use, because there is no longer any copyright protection.

The other dominant consideration is really the fourth bullet point listed above: how does the allegedly fair use affect the market for the original work, or its value? If a publisher wanted to offer an abridged version of “Slaughterhouse Five,” that might seriously undercut the market for the original work. That would never be considered a fair use of “Slaughterhouse Five.” In addition, as mentioned above, an abridgement is not considered sufficiently transformative.

In California, with so many creative workers producing films, television programming and video games, the fair use issue arises all the time. For example, on the sets of television shows, walls are often free of art, and if they have art, it often is not identifiable. Unless the art is in the public domain, the show’s use of the art would not be a fair use, and the production company or network does not want to be sued. Large studios have personnel and even departments focused upon permissions, often to grant, deny or negotiate permissions to their own works, as well as to chase down permissions for all of the copyrighted works that may be used in any studio production. But some permissions, such as for art on the wall of a set of a television episode, may not be worth chasing or buying, so it is easier to proceed without identifiable art.

Fair use is a fascinating concept. It comes into play in many contexts, but as noted above, it takes careful analysis to determine whether or not one can proceed with the assumption that a use is covered by fair use and the user is “home free.” Unless you have a full understanding of the concept, it is best to obtain permission, or seek professional advice.

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