Fair Use

As we discussed last week, it is very important to note that copyright is a limited monopoly.  There are various exceptions to the absolute power of the copyright holder to control all copying, distribution, and adaptations, including exceptions for classroom use (section 110), for online teaching (TEACH Act) and for libraries (section 108).  But the biggest and most important exception is that of Fair Use.  According to 17 U.S.C. section 107:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

Without this far reaching exception many important activities would be considered infringement.

• Critical Analysis: It is often necessary to quote directly from the original work in order for a criticism of that work to be understood by the reader.
• News Reporting: Excerpts of reports and addresses are vital to substantiating news stories and even showing clips of video and music, or shots of visual artwork is necessary to reporting of cultural events and movements.
• Scholarship & Research: Every time scholar (student or faculty) quotes from a previous work in order to illustrate a point or provide evidence for an argument, they are relying on Fair Use.

If the whole purpose of copyright law is to promote the creation of new works, there must be a relief valve that prevents copyright law itself from prohibiting discussion and dissemination of critical ideas that may lead to new work.  For example, let’s say that I wrote a set of lecture notes , and you read them and you don’t think they’re very good.  You want to write and publish a piece in the Clock about what’s wrong with my work, and to best make your point, you need to quote some of the passages I’ve written.  Without the wiggle room provided by the Fair Use exception, you would need get my permission to quote my notes.  And if I think you’re going to write about my work negatively it’s pretty unlikely that I’m going to grant you that permission.  Please note that criticism doesn’t always have to be negative, it can include praise, or be a neutral analysis.   But in cases where there is disagreement, it’s easy to see how without Fair Use, copyright could become a tool to prohibit free speech.

The Four Factors

Determining whether an activity is considered fair use is a tricky business.  There are rarely clear yes or no answers.  All four factors must be considered and weighted against each other.  The law is vague and this is an intentional choice.  Realizing that no law would able to account for all possible situations that might arise in the future, it was written to be flexible, to allow future judges to make decisions about technologies and situations that the writers of the statute could not have imagined in 1976.

Purpose of the Use

What is the purpose in reusing copyrighted material?  This is where considerations about whether the reuse is for educational or non-profit purposes can enter the discussion.  These kinds of uses would tend to support an argument that the use is Fair Use.  Is the reuser seeking to make a profit?  In that case this factor would tend to support an argument against Fair Use.

Nature of the Copyrighted Work

This factor looks at the work itself.  If it is factual in nature (EXAMPLES) that would tend to support a finding of Fair Use.  Works that are more creative in nature (EXAMPLES) would tend to push the scale away from a finding of Fair Use.

Amount of the Work Used

Using a short excerpt from a text, a quick clip of music or video, or a small, low resolution thumbnail image would nudge the decision towards fair use, whereas using an entire work would nudge the decision towards infringement.

Effect on the Market for the Original

If the work in its reused format is able to be used as a substitute for the original work, that could damage the original copyright holder’s ability to make money from their work.  However, a work that is not able to be used, read, viewed, or listened to in the same way because it has been significantly altered or abridged is unlikely to impact the market for the original work. (Note: Even if a parody or criticism is so harsh that it damages the market for the original, this fact doesn’t weigh against fair use.)

The statute indicates that all of these factors must be considered when deciding whether an activity is Fair Use.  So whenever we reuse the content of others without permission we should make an honest effort to consider all these factors, but the only way we will ever know for sure if our use is considered Fair Use is if we end up in court and a judge rules on our case.  While it is important to consider these factors, it’s not as though we can think through them and then decide for ourselves that what we’re doing is Fair Use.  Fair Use is actually a defense against a claim of infringement.

Relatively few cases of alleged infringement are actually taken to court.  (This is one of the many ways that risk assessment enters the copyright equation.)  Most situations end:

• when the alleged infringer complies with a take down notice from the copyright holder,
• when the copyright holder successfully gets a hosting platform to take down the potentially infringing material, or
• with an out of court settlement.

We’ll talk much more about these situations in week 6.  But I wanted to give you a realistic view of how likely it is that you’ll ever actually end up in court over an infringement allegation.

Because it’s the court’s opinion that matters, let’s take a look at some actual cases to see how the statute is applied in real life.

Transformative Use

As mentioned earlier, the Fair Use clause was codified into US law relatively recently, in 1976, so we will look at cases that have happened since this date.  (Prior to 1976, Fair Use was a judge made doctrine, meaning it came from rulings in court cases.  The idea of Fair Use can be traced back to the case of Folsom v. Marsh in 1841, where Judge Story articulated a set of factors to be considered that closely resemble the factors codified in the law today.)  A list of cases involving Fair Use issues can be found in the Copyright Fair Use Index.

Campbell v. Acuff-Rose Music

A ruling in the 1994 Supreme Court case Campbell v. Acuff-Rose Music introduced the idea of transformativeness, and this idea has taken over Fair Use ever since.  The rap group 2 Live Crew took the song Pretty Woman by Roy Orbison and made a parody song.   The publisher of the original (Acuff-Rose Music) sued 2 Live Crew member Luther Campbell (who wrote the parody) for infringement.  Campbell asserted a Fair Use defense.

The court found in favor of 2 Live Crew saying:

“Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.  Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” ~Campbell v. Acuff Rose Music, 510 U.S. 569 (1994)

In this case, a sort of fifth factor was introduced: transformative use.  Transformative use refers to uses that are completely new and unexpected, and hinges on whether new expression is added to the source work, whether it expresses new insights or a different aesthetic.  This new “factor” overwhelmed or impacted the assessment of the other factors:

• Purpose: 2 Live Crew’s purpose was commercial in nature (they sold x copies) and also similar to that of the original, to entertain.
• Nature of the Original: Even though the original work was primarily creative in nature, the court still found the use to be Fair Use. (Note: this factor has never been found to be very important in any rulings)
• Amount Used: Nearly the entire song was used, but what is the point of parody if no one knows what you’re parodying?
• Effect on Market: The two versions were so different that no one who wanted to listen to Roy Orbison’s original would possibly find that the 2 Live Crew version was a substitute.

If a court finds that a use is transformative, it is very likely to find in favor of fair use.  Campbell v Acuff Rose shows that parody (ridicule of a well-known work by imitating it in a comedic way) is clearly an example of transformative use.

Authors Guild v Google

For the Google Books project, Google worked with several major libraries to digitize millions of books and make their contents searchable, (this enabled analysis of word frequency over time, which has found several scholarly applications.)  The Authors Guild sued, claiming that this mass copying constituted infringement.  The case was found in favor of Google because the transformative use, in that the project enabled a new functionality the purpose of which was different from the original authors’ purposes, and the use did not harm the market for the originals.

Seltzer v. Green Day

Green Day used a modified image of the Scream Icon by the plaintiff in the backdrop for one of their concert tours.  Even though the use was commercial in nature, the court found that this was fair use, specifically that it was incidental use (not a major part.)  The icon was only a small part of the back drop, and the back drop is only a small part of why someone buys a ticket to Green Day.

Hosseinzadeh v. Klein

This case concerning a YouTube video was recently heard in US District court.  The Kelins created a commentary video about another YouTube video (by Hosseinzadeh.)  The commentary video was 14 minutes long, and contained 3 minutes and 15 seconds worth of footage from the original video.  The ruling strongly supported the defendants assertion of Fair Use because the video offered critical commentary and was not a market substitute for the original.

Bill Graham v Dorling Kindersley

DK published a coffee table book about the Grateful Dead that contained thumbnail images of concert posters.  These images were used on a timeline with captions to indicate when the concerts happened.  The author had approached the rights holder of seven of these posters (Bill Graham) to get permission, but the request was denied.  The author and publisher decided to go ahead with publication.  The court found in favor of Fair Use because the amount used (the size of the images) was small, the use was transformative in that the purpose was different than that of the original purpose of the posters, and the use did not harm the market for the originals.

Strengthening Your Case

If you need to use a copyright protected work in a situation where you do not have the copyright holder’s permission there are three things you can do to make your Fair Use case as strong as possible:

1. Be able to articulate why you had to use this particular work.  Before you use the material, think about whether another work (one that is in the public domain, or one that has an open license) could be used instead.  If another work wouldn’t be acceptable, be prepared to state why.
2. Use only as much as you absolutely need to make your point.  This might mean only using a small excerpt of text, using only as much of a recording as necessary, or using a low res digital image instead of a large hi res file.
3. Attribute the original.  Provide an appropriate citation to the original work.  Acknowledging the source is not enough to make your use Fair Use, but it can go a long way towards improving your relationship with the copyright holder and helping them look favorably on your use of their work.  Not including a citation to the original is known as plagiarism, and while plagiarism doesn’t break any laws (in the United States, although it is illegal in many other countries) it is taken very seriously, especially in academia.  We’ll discuss this more thoroughly in week 5.

The above guidelines apply in all situations, but any discipline that regularly makes use of copyrighted works is likely to have created a code of best practice that describes specific situations within that discipline. This helps everyone understand what is and is not fair use in that field,.  This helps those using copyrighted materials have a sense of what activities are appropriate, and it helps the copyright holders themselves understand when it is appropriate to pursue legal action.

• Fair Use for Nonfiction Authors
• Code of Best Practices for Fair Use in Poetry
• Code of Best Practices in Fair Use for Online Video
• Code of Best Practices in Fair Use for the Visual Arts
• Set of Principles in Fair Use for Journalism
• Documentary Filmmakers Statement of Best Practices in Fair Use

Many content creators ask for permission even when they might have a strong Fair Use case in order to avoid ambiguity and conflict.  Weird Al is almost certainly covered by Fair Use for his parody songs, but he asks permission anyway.  If you have approached the copyright holder to ask for permission to use their material and your request was denied, you can still use a Fair Use argument to justify your use.  Indeed if the rights holder has said no, a fair use argument might be your only option.