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Fair use

The fair use doctrine is a body of law and court decisions which provide limitations and exceptions to copyright. It is a provision in the United States and a handful of other countries' copyright law. Fair use attempts to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works, by allowing certain limited uses that might otherwise be considered infringement.

Similar copyright exemptions can be found in many nations' copyright statutes. Most common law countries have a related doctrine known as "fair dealing". The main difference is that "fair use" tends to be an open-ended legal doctrine (the US copyright statute provides factors which contribute to fair use), while "fair dealing" is defined in a constrained manner, through an enumerated list of causes for exemption that allows little room for judicial intepretation.

Table of contents
1 Fair use under United States law
2 Practical effect of fair use defense
3 Fair use: a defense
4 Fair use and parody
5 Fair use on the internet
6 External links

Fair use under United States law

The current U.S. guidelines are spelled out in 17 USC § 107, excerpted here:

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--

(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
( source: )

Purpose and character

This is basically the intention and motivation behind the use; for example, there is a difference between a few shots taken from a film for a nonprofit review of the film and taking a few shots to include in a for-profit compilation of film reviews (though a for profit review may be considered news reporting). If it is obvious that the user is attempting to make a profit from the use, then it suggests that it is more likely that the use is infringement unless the use fits within the various "preamble purposes". However as can be seen in the parody cases discussed below such a commercial use is not dispositive as there are ways to use substantial portions of the work and still successfully claim fair use. Nonprofit or educational uses (such as this web site) are generally seen to be given more latitude than for profit endeavors.

This first factor is divided into several subfactors: (1) the commercial or nonprofit educational nature of the use (discussed above); (2) the "preamble purposes", i.e. criticism, comment, news reporting, teaching, scholarship, and research (this list is not restrictive, and falling within one of these purposes does not create a presumption of fair use, it is just one factor to consider) (3) the degree to which the work has been transformed, has the fair use added to the original work in some way giving it a different character, or adding the original and giving it a new meaning or messsage. Not all educational use is protected by fair use, see Macmillan Co. v. King.

Nature of the work

Some works deserve more protection than others. In other words, is the photo just a standard image of a historical building fašade without any unique artistic additions? Or is the photograph of a public domain work merely a mechanical rendering of that public domain work? These are examples on the weak end of the copyright spectrum; example of strong protection: a recent artistic rendition of a historical event that is unique and while relying upon historical evidence seeks to present the historical event through a definite artistic style. Thus not all copyrighted works deserve the same level of protection some may need stronger protection (and consequently limit their fair use) to protect the rights of the author. Other works may have a weaker claim to copyright, limited originality that requires limited effort to be reproduced without infringement.

Amount and substantiality

This relates to how much of the original copyrighted work is used in the new work; if only a very small amount is used in relation to the original (perhaps a few sentences for a book review) then chances are that the sample is a case of fair use. However, if a very substantial amount is used (perhaps an entire chapter, taken verbatim) then this will often be considered copyright infringement. See Sony Corp. v. Universal City Studios for an example of substantial copying that was upheld as fair use.

One of the few cases where this factor is irrelevant is in sampling a piece of a copyrighted sound recording. If no permission is obtained to use a sample, then no matter how small the sample, an infringement has been committed. In regards to the digital reproduction of images it may be argued that a lower resolution sample of the image (i.e. thumbnails) is a lesser sample of the image (the sound recording sample is not analogous here) and thus the whole image is only being approximated by the lower resolution sample (limiting further reproduction outside an informational context) see the Kelly v. Arriba Soft Corporation case below.

Effect upon work's value

This fourth factor considers the effect that the use of the copyrighted material has upon the copyright owner's ability to exploit the original work. Thus if a small thumbnail image of a copyrighted audio CD is reproduced in a catalogue of published musical works this image will most likely not prevent the copyright owner of the CD from further exploiting the CD (indeed the listing of the CD may encourage purchasers to buy it). An individual who takes copyrighted images off an internet web site prints them and then sells them in front of the art museum where the original copyrighted images are displayed would be interfering with the sales of these images in the museum gift shop (note that the harm to derivative works is also significant).

Practical effect of fair use defense

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use: a defense

Fair use must be pleaded as affirmative defense which means that a defendant accused of copyright violation bears the burden of proving in court that his copying was fair use, and therefore not infringement. A defendant may use a work claiming fair use, it is up to the copyright owner to bring the suit to obtain an injunction to prevent its use and/or to claim damages for a use that has already occurred.

For this reason, some publishers frequently make claims of copyright infringement over uses that are most likely covered as fair use, hoping that the user will refrain from the use rather than spending resources in his defense. As well, publishers using other copyrighted materials may seek permission to use material that might fall under fair use; paying a royalty fee may be much less expensive than having a potential copyright infringement injunction stop the publication of a completed work in which a publisher has invested significant resources.

In some cases where a claim of fair use would clearly apply, bringing such a frivolous lawsuit might be considered vexatious litigation, barratry or the intentional tort of abuse of process. Such a tactic may be a crime in the state of Texas and several other jurisdictions. Under Rule 11 of the Federal Rules of Civil Procedure their may also be severe sanctions to pay for bringing and litigating frivolous lawsuits. However, since there are elements of interpretation in the § 107 and underlying case law the copyright owner's lawyers may have an argument that they are seeking an extension, clarification or novel interpretation of the law and such an argument may be successful in the circumstance; the court may then allow the suit to go forward even if there is an eventual fair use finding. It is also important to note that an allegation that someone has filed a frivilous lawsuit when it is not may, in itself be seen under Rule 11 as frivolous subjecting the movant to sanctions.

Fair use and parody

Producers or creators of works that is a satire or parody of a copyrighted work have been sued for infringement by the targets of their satire, even though such use may be protected as fair use.

Roy Orbison's publisher, Acuff-Rose Music Inc, sued 2 Live Crew in 1989 for a parody of Orbison's "Oh, Pretty Woman". In 1994 the Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music that parody even if done for profit, was covered under the fair use doctrine.

A more recent example of this tactic is the suit against the publication of The Wind Done Gone, which is a satire of Gone With the Wind, reusing many of the characters and situations, but telling the events from the point of view of the slaves rather than the slaveholders.

On October 10, 2001, in the case Suntrust v. Houghton Mifflin the Eleventh Circuit Court of Appeals decided against the owner of Gone With The Wind vacating an injunction prohibiting the publisher of The Wind Done Gone from distributing the book. This decision, which is an extension of the Pretty Woman decision (discussed above) set a further precedent in the Eleventh Circuit (Alabama, Florida, and Georgia) that the creation and publication of a carefully-written parody novel counts as fair use.

Fair use on the internet

A recent court case, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On appeal, the 9th District Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003.

See also: Copy protection, Cyber law, Berne three-step test, List of leading legal cases in copyright law.

External links