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What is Fair about Fair Use

So, they say that all is fair in love and war. But is all fair in the use of copyrighted material? No. However, there are some cases that allow the use of a copyrighted work without the copyright owner’s permission. What? That is like saying the valet may have the right to cruise around in my Turbo Hydromatic 454 Monte Carlo. Well, sorry to say, it is true. These cases, which would otherwise be considered an infringement of a copyright, are referred to as fair uses.

What is considered fair use? There is no absolute definition for fair use, which in and of itself seems a bit … unfair. However, courts have developed a set of guidelines that help to distinguish between uses that unfairly violate the rights of the copyright owner, and uses that are reasonable, fair, customary, and expected.

In this blog, we describe the rules of thumb that are applied in determining if a use of copyrighted material is a fair use. You will learn that some uses will almost certainly be considered as fair, and others almost certainly will not. This chapter provides guidelines to let you know when to feel secure about a use, and when you should seek the advice of an attorney.

The Rules The general rule is: If you want to use copyrighted material, you need to get the owner’s permission. But fair use enables you to use the copyrighted material without permission! Why would this be allowed? Because there are certain circumstances under which it would just not be fair to prevent someone from certain uses of the copyrighted material.

The Copyright Act says that fair uses include creating copies of a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. In addition, the following four factors should be considered when determining if a use is a fair use: - The purpose and character of the use - The nature of the copyrighted work - The amount used - The effect of the use

There are other factors, although not included in the Copyright Act, that are considered by courts when determining if a use of copyrighted material is a fair use.

The rules of fair use are most accurately defined as guidelines that are applied in a reasonable manner on a case-by-case basis. Because there are so many different circumstances under which fair use should be considered, crafting a single rule to cover all of these situations would be an impossible task. So the courts have left us with a set of guidelines to apply against the facts of a particular case.

Application of the Fair Use Rule

It is always good to learn by example, well, not with regards to catching bullets with your teeth but, a lot of other areas. The following examples are considered fair uses: (a) A quotation of excerpts in a review or criticism for purposes of illustration or comment. For example, a doctor reviewing the risks of a medical procedure reported in a medical journal.

(b) A quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations. For example, a historian describing the evolution of literary works through the ages.

(c) A use in a parody of some of the content of the parodied work. A movie called Terminated about a robot civilization that keeps breaking down could be a parody of the movie Terminator.

(d) A summary of an address or article, with brief quotations, in a news report. For example, Fox News reporting on the contents of a political book.

(e) A reproduction by a library of a damaged portion of a work. For example, replacing a page that was ripped out by an unruly student.

(f) A reproduction by a teacher or student of a small part of a work to illustrate a lesson. For example, copying a portion of a famous speech to review in class.

(g) A reproduction of a work in legislative or judicial proceedings or reports. For example, including extensive passages from Gone with the Wind and The Wind Done Gone to determine if copyright infringement occurred.

(h) An incidental and fortuitous reproduction in a newsreel or broadcast of a work that happens to be located in the scene of the reported event. For instance, filming of a news report in front of the huge television displayed in Times Square may result in copyrighted material (that is, a movie or show) being included in the report.

Four Factors For Finding Fair Use What do you need to do if your use does not align with one of these examples? First, you should compare your use against the following four factors. In some situations, you will feel quite comfortable that your use is a fair use. In other scenarios, you will be quite certain that your use is not a fair use. And then there is the fuzzy zone where you are still not certain.

Each of the four factors raises several questions. Depending on how you answer each question will help to determine whether your use is a fair use, an infringing use, or in the fuzzy zone. You can think of it as a two-sided scale of justice, on one side is the fair use and on the other, the infringing use. When the scale is balanced, you are in the fuzzy zone. As the fair use side gets weighed down, you move from the fuzzy zone into fair use. As the infringing use side gets closer to the ground, you move from the fuzzy zone into infringing use. So, grab your scale and a jar of jelly beans and let’s get started.

Factor 1: The Purpose and Character of the Use In determining whether a use is a fair use, the courts will look at the purpose and characteristics of your use. A quick test is to check whether the use is for nonprofit purposes (this leans toward fair use) or for commercial reasons (this leans toward an infringing use). However, this test by itself is not enough to make a determination.

-   Is your use a nonprofit use? If the answer is yes, put a jelly bean on the fair use side of the scale. What is a nonprofit use? Simply put, it is a use that is not intended to generate revenue or commercial gain for the user. The next seven questions will help you determine if your use is a nonprofit use. 

- Is your use for educational purposes? If the answer is yes, put a jelly bean on the fair use side of the scale. Educational purposes can include many uses, such as in the case of a teacher making copies of an article to be distributed to the students as a learning aid for one particular lesson or a student making copies of a reference to study and mark up while preparing a research paper.
  • Is your use for personal purposes? If the answer is yes, put a jelly bean on the fair use side of the scale. Personal uses can be a little tricky though. It is not a free ticket to use someone’s copyrighted material. A few examples of personal uses that are fair use include: - Video taping a television program to watch at a later time - Making a back-up copy of your software disks - Copying a song from one medium, such as a compact disk, to another medium, such as a computer hard disk drive, for personal use.

    • Is your use for the purposes of criticism? If the answer is yes, put a jelly bean on the fair use side of the scale. If you copy excerpts from a copyrighted work and use them as illustrative examples for the purpose of criticism, it is a fair use. Typical examples of this type of use include:

      • A scholar criticizing a theory proposed by another scholar
      • Copying portions of a particular singer’s songs to illustrate that the singer has strong political views.
    • Is your use for the purposes of commentary? If the answer is yes, put a jelly bean on the fair use side of the scale. The commentary can’t simply be a recitation of large portions of the work with supporting comments. A commentary for the purposes of fair use must include only limited excerpts from the work being commented on, typically just the minimum amount necessary to make the point.

  • Is your use for the purpose of reporting news? If the answer is yes, put a jelly bean on the fair use side of the scale.

    • Is your use for the parody purposes? If the answer is yes, put a jelly bean on the fair use side of the scale. While you are at it, go ahead and put a jelly bean in your mouth, you deserve one. For more information on what defines a parody, see the Parody section later in this chapter.
    • Is your use a transformative use? If the answer is yes, put a jelly bean on the fair use side of the scale. Transformative use might sound really complicated, but it is really not so difficult to understand. If you are using an existing work and augmenting it with new and creative efforts, then you are likely transforming the work or performing a transformative use of it. However, if you are simply duplicating the copyrighted work, the copy is not a result of transformative use.

    • Is your use a commercial use? If the answer is yes, put a jelly bean on the infringing side of the scale. A commercial use is one that is intended to generate profit for the user. This profit could include money as well as fame, recognition, advertising, or the like. A few additional questions will help you determine if your use is a commercial use. You will need to put an additional jelly bean on the infringing use side of the scale for each “yes” to the following questions.

      • Will you sell copies of the new work that includes the copyrighted material?
      • Will your new work be used to entertain others?
      • If your use is through an entertainment broadcast, will you receive financial benefit for the broadcast through advertising or payment?
      • Will the new work you create fail to recognize the original author?

Go ahead and give yourself another jelly bean for getting through those questions. You are going to need a few more though, as we move through the next three factors.

Factor 2: The Nature of the Copyrighted Work The courts will also look at the nature of the copyrighted work when making a determination of fair use. Sometimes, the work is naturally intended to be copied for certain purposes. A perfect example would be a crossword puzzle in a newspaper. If you are getting ready to go on an extended business trip, you may save up a few newspapers and photocopy some crossword puzzles to take with you.

The copyrighted work can include a collection of well-known or easily discovered facts that are put together into a work without adding any imagination or creativity. For example, the four factors presented in this blog are well-known facts that are not copyrighted. However, considerable imaginative effort is being put forth in making this chapter interesting to read rather than just reciting the facts. You are free to copy the four factors but you cannot copy the manner in which we present the four facts in this blog.

Also, when an author publishes a work, he should anticipate that others will have access to the work. However, if the author does not publish a work but keeps it for personal use instead, then he would not expect others to be using the work. Thus, for unpublished copyrighted works, it is more difficult to justify a fair use.

Here are a few questions you need to answer regarding the nature of the copyrighted work that you plan to use. - Is the copyrighted work primarily factual? If the answer is yes, put a jelly bean on the fair use side of the scale. - Is the copyrighted work primarily historical? If the answer is yes, put a jelly bean on the fair use side of the scale. - If the copyrighted work is primarily factual, are the facts easily obtained by doing simple research? If the answer is yes, put a jelly bean on the fair use side of the scale otherwise, bite a jelly bean in half and put half of it on the infringing side and eat the other half – eat the half that was already in your mouth when you bit the jelly bean. - If the copyrighted work is primarily factual, does it appear that the authors had to engage in extensive research to derive the factual content? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Did the authors of the copyrighted work appear to use creativity in creating the work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Is the copyrighted work fictional? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Is the copyrighted work published? If the answer is yes, put a jelly bean on the fair use side of the scale – wait, is that a black jelly bean, give that one to me and put another jelly bean on the fair use side of the scale. - Is the copyrighted work unpublished? If the answer is yes, put a jelly bean on the infringing use side of the scale.

Factor 3: The Amount of Copyright Information Used The Copyright Act focuses on “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”. The simple test is to establish the amount of the copyrighted work that was used. However, this is not the only aspect of the test. Another element to take into account is the “substantiality of the portion”. This means that even if you copy a small amount of a small copyright work, it could be a substantial portion of the copyrighted work. For example, copying 300 words of a 600-word document is a substantial portion. However, copying 300 words of a 1000-page book may not be considered a substantial portion.

Here are a few questions regarding the amount of the copyrighted work that you plan to use. - Are you using a small amount of the work? If the answer is yes, put a jelly bean on the fair use side of the scale. - Are you using a small percentage of the work? If the answer is yes, put a jelly bean on the fair use side of the scale. - Are you using the minimal amount of the work necessary to achieve your goal, such as in a criticism or a commentary of the work? If the answer is yes, put a jelly bean on the fair use side of the scale. - Does your use incorporate an incidental or unimportant portion of the work? If the answer is yes, put a jelly bean on the fair use side of the scale. - Does your use incorporate the essence of the work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Are you using a large amount of the work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Are you including portions of the work that are not necessary in achieving your goal, such as in a criticism or a commentary of the work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Are you using a large percentage of the work or the whole work? If the answer is yes, put a jelly bean on the infringing use side of the scale.

Interesting example from the movies: Early in his career, German filmmaker Wim Wender wanted to use a verse (four lines) of one of Dylan’s early songs (which are quite on the long side); he wanted to have his character sing the lyrics while driving in a car (no music involved)—it was meant to be part of establishing the character of his lead. Reportedly, when Wenders went through the motions of preparing and filming GEMA, an agency that looks out for copyright stuff in Germany, warned him that Dylan’s lawyers might come after him for having his character use these lyrics. So he had to redo the story—he still used the same four lines, but he spread them out throughout his 2.5 hour movie – no complaints came. Odd and ridiculous at the same time. Like audiences would stream to see the movie because a character sings four lines of a Dylan song—and does so in a strong German accent.

Factor 4: The Effect of the Use The Copyright Act focuses on “the effect of the use upon the potential market for or value of the copyrighted work”. This factor must be viewed a little differently than the other three factors. The reason for this: If the use is weighing heavily on the fair use side, then the effect on the potential market becomes irrelevant.

Before looking at this factor, you should make sure that you have analyzed your use in light of the first three factors. If you determine that your use is a fair use, then you can ignore this factor. However, if you determine that your use is not a fair use or that it falls in or near the fuzzy zone, then you should consider this fourth factor with very much care.

Okay, so let’s go through the last set of questions. Hopefully you haven’t run out of jelly beans yet! - Do you own a legitimate copy of the original copyrighted work upon which your new work is based? If the answer is yes, put a jelly bean on the fair use side of the scale. - Will your use have a negative impact on the sales of the original copyrighted work (such as, reducing sales)? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Is the original work still in print or available for purchase? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Has the copyright owner obtained royalties through licensing the copyrighted work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Are you going to be marketing the new work in a similar fashion as the original work (for example, selling it in book store)? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Would others be likely to purchase your new work instead of the original work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Will your use result in distributing a large number of copies of the new work? If the answer is yes, put a jelly bean on the infringing use side of the scale. - Are you able to identify the copyright owner of the copyrighted work? If the answer is yes, put a jelly bean on the infringing use side of the scale.

Parody

Creating a parody of a copyrighted work is an interesting situation. Basically, a parody is a new work that is based on another work and makes fun of that other work or its author. Parody is a form of criticism that can result in casting the original work’s author in an unfavorable light. So you can imagine that the author may be quite reluctant in granting permission to the person wanting to create the parody. However, fair use allows for creation of parodies.

If you are planning on creating a parody, you should be careful. The lines between parody and copyright infringement can be very blurry. For example, suppose you want to create a parody of a song by changing the lyrics but still using the original music. The song actually has at least two forms of copyright protection[md]the lyrics and the music. So simply changing the lyrics may not be enough to get fair use. However, it may, the Supreme Court has ruled that 2 Live Crew’s rendition of Roy Orbinson’s “Pretty Woman” was a parody.

Are You Certain Your Use Is a Fair Use? If you find yourself in the fuzzy zone or the infringing use zone, you have at least four options to consider.

One option is just to plow ahead and hope for the best. We don’t really recommend this option. Infringement of copyrights can be very costly and, in some circumstances, may even result in spending some time behind bars.

Another option is to seek the advice of an attorney. An attorney can review your use and prepare a legal opinion concerning your use. A legal opinion is a written document prepared by an attorney that describes your use of copyright material and the attorney’s prediction of how a court will interpret your use in view of the law.

Another option is simply to ask the copyright owner for permission. This is called getting a license. The copyright owner may be happy and thrilled that someone is recognizing his or her work and grant you permission. The permission may come as a free gift or the copyright owner may require some sort of compensation for the use. There are no rules as to how much it costs to obtain a license[md]it is negotiated.

Another option, in contrast to the NIKE slogan, is just don’t do it. If you are not certain whether your use is a fair use, and you don’t have the copyright owner’s permission, you might want to consider an alternative solution.

Let’s sum this up for you.
(1) You can use a copyrighted work without permission if your use qualifies as a fair use. (2) There are four factors to consider when determining whether your use is a fair use but there is no hard- and-fast rule that guarantees you this safety. (3) If you are uncertain whether your use is a fair use, you should seek counsel from an attorney to determine if you are headed for legal trouble. (4) Don’t forget that you can always ask the author or copyright owner for permission.

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