FAIR USE


 IVAN HOFFMAN, B.A., J.D.

 
 
 
 

Don't you just simply hate it when attorneys say?: "Well, it depends." As electronic publishers, authors, web site designers, recording artists and other creators of intellectual property as well as users of such property, we would like to have certainty when we use protected material. When we decide we want to use some portion of another person's creative works, either in the hard copy world or on our web site or copy and paste it into an email or post it to a news group, the question arises: "Do I need permission to do so or is the use 'fair use' and therefor may I use it without permission?"

It is a reality, however, that perhaps no issue creates more uncertainty in the copyright law than that of "fair use." Its interpretation is vague and meaning unclear enough to, in the words of the cliché, drive an electronic truck through. I realize that this makes "fair use" somewhat unfair but that is the way it is.

The copyright law itself recognizes several statutory categories of fair use, but unless the use falls within those categories, and even if it does, the best advice would be to seek written permission before using the material. And the reason this is the best advice is because no one, not a lawyer, not a publisher, not even a judge or jury is likely to be able to tell you in advance whether a given use is going to be held as "fair." The standards used for determining such use only come into play when there is a litigation since fair use is a defense to a claim of infringement. Therefore, any reliance upon the doctrine before such determination is made seems a false and unwise reliance.

THE COPYRIGHT LAW

While the need to license seems obvious enough,  there are still a number of occasions when use is made of copyrighted material  without obtaining that permission and so the issue is squarely presented:  what is "fair use?" The United States Copyright law of 1976 [17 USC §  107] says:
Notwithstanding the provisions of sections 106 and 106A [17 USC sects 106, 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--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
If you are using text including lyrics, what is fair varies from time to time and indeed from publisher to publisher. And the same rules apply to the use of graphics, including photographs. Since the general guidelines that the courts use to make a determination of what is "fair use" fall within these above parameters, let me offer a brief explanation of each category:
  1. What is the intended use of the material? Beyond the statutory categories such as scholarship, news etc., and perhaps of greater importance, is the use for commercial or non-commercial ends? Now of course many publishers and authors publish and write books to make money and some actually do (email me if you know of some!) But this alone does not mean that the usage of the material is not entitled to a "fair use" determination. This is merely one consideration. On the Internet for example, if you are merely posting to a news group to convey information or to someone in email, perhaps no commercial usage is involved although the other factors must still be considered. But what if you post it to your web site? And what if your web site is a commercial web site, one where goods and/or services are offered for sale?
  2. Is the material sought to be used fiction or non-fiction? More protection is accorded works of fiction and imagination than works of non-fiction.
  3. The amount of use made. Although some publishers or other owners fix a word limit, do not be misled into believing any use within that word limit is fair. There is no fixed rule here. And within this category, some publishers say that you cannot use their copyrighted material in any way that is set apart from the body of the text, such as in an epigram or the like. Nor may you use the material on the cover of the work nor use the material in any way that gives it greater prominence than the rest of the work. This plays into the commerciality of the usage and on the marketability of the original work, covered next.
  4. What is the effect on the marketability of the copyrighted work? The author or publisher who uses the material certainly would claim that its use enhances sales of the material because readers might be inclined to then purchase the work containing the copyrighted material that previously they perhaps would not have known about. But this sort of "hoisting oneself by one's bootstraps" kind of argument does not, in and of itself, carry the day. In other words, the argument goes, simply by using the copyrighted work in and of itself makes it "fair use." In this regard, the courts look to see if the copy is a substitute for the protected work, thereby depriving the owner of the protected work of some economic benefit. And this category relates to the previous one in that if you use the material in such a way as to give it more prominence, such as in an epigram for example, you may be depleting the value of the protected work.

The United States Supreme Court, deciding a matter involving the band "2 Live Crew" and their usage of the song "Pretty Woman" held that under certain circumstances even a commercial usage may fall within the protection of the "fair use" provisions of the statute. On the other hand, when "The Nation" magazine quoted between 300 and 400 words from the unpublished autobiography of former President Ford, it was held liable to Harper and Row because such use was deemed not to be fair use. The Court found that what they had used was an essential element of the book and the passage. Go figure!

In short, there are no concrete rules in this area. Whatever you may have believed is probably not a reliable guideline and each use of copyrighted material is going to be determined on its own merits.

CONCLUSION

The lesson: It is not wise to rely upon fair use when deciding whether to copy anyone else's protected materials. Always obtain a license from the owner of the rights. (But read "Look Before You Sign: Restrictive Licenses" before you sign it, for the license itself may present other legal and business issues.)

Copyright © 1996, 1997 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation. 

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

 

 

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