Fair Use

Copyright law is intended to foster an environment conducive to the creation of new works in order to advance our understanding of the world. It is only natural for authors to build on the works of others, and critiques of others' works would be nearly impossible without the ability to cite important passages. Scholarship would die without the Fair Use exception to copyright law. As the Electronic Frontier Foundation notes, the following activities would be illegal without Fair Use:

• whistling a tune while walking down the street (public performance)
• cutting out a New Yorker cartoon and posting it on your office door (public display)
• photocopying a newspaper article for your files (reproduction)
• quoting a line from The Simpsons in an email to a coworker (reproduction)
• reverse engineering of computer code (reproduction)
• "time-shifting" a radio or television program (reproduction)
• playing an excerpt of Roy Orbison's "Pretty Woman" in a copyright law course (public performance)
• quoting from a novel in a review (reproduction)

The Fair Use exception is spelled out in Section 107 of Title 17 of the United States Code. What follows is an excerpt from the code in bold. Commentary on Section 107 is interspersed in italics.

the fair use of a copyrighted work. . . 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 — 

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• Is the use for commercial purposes? If so, it is less likely to be considered fair use.
• Does it fall within the purpose of the Fair Use exception? ( (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching). If so, it is more likely to be fair use.
• Is the use transformative or merely derivative? If the use is transformative, it is more likely to be viewed as fair use.
• the nature of the copyrighted work
• Informational work (factual articles) are more likely to be ruled fair use than works of fiction/literature/music. Exception: Parodies of works of fiction are likely to be viewed as fair use. As stated in Suntrust v. Houghton Mifflin, 'This factor is given little weight in parody cases, however, "since parodies almost invariably copy publicly known, expressive works.'"
• Was the work being copied previously published? If it was unpublished then Courts are more likely to find a fair use violation. They assume that the author did not want the work published.
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole: In general, the smaller the portion of the work copied, the more likely the use is fair use. In certain instances, you can copy entire works without violating copyright—videotaping movies for time-shifting purposes is allowed when doing it for your personal viewing. On the other hand, the use of 400 words from President Ford’s 200,000 word memoir was viewed as copyright infringing because those words represented the “heart of the book”
• The effect of the use upon the potential market for or value of the copyrighted work. (Probably the most important factor). If the copied work reduces demand for the original work because people view it as a substitute for the original work, then this factor will weigh as copyright infringing. But a stinging criticism that makes the author of the original work look like a fool, and thus reduces the demand for the original work in the marketplace, will fall within Fair Use.

The Fair Use Doctrine will not necessarily prevent you from being sued if you use the work of another person--no matter how fair your usage is. However, it can provide an effective defense if you have followed the fair use guidelines. Courts should do an analysis weighing all four factors to determine whether a given usage is fair. Each case is different, and the weight that a Court will give to each of the four factors may vary on a case-by-case basis.

For further information regarding Fair Use, visit:

The Publishing Law Center

Nolo.com

Electronic Frontier Foundation

 

 

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Please attribute excerpts you take from my work to themaskedanalyst and include a link to themaskedanalyst.com.

 

 

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