I wasn’t planning to add any more legal topic posts for a while, but a comment on a previous post made me realize that discussing copyright violations and protections isn’t really complete without discussing Fair Use. The basic explanation of Fair Use is that it is a doctrine in U.S. copyright law that allows for limited use of copyrighted material without requiring permission from the copyright holder for certain uses.
The actual Fair Use Doctrine was incorporated into the Copyright Act of 1976 and reads as follows:
“Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
Here is a little more detail on each of the four factors that are considered when determining if something is being used under Fair Use.
Purpose and Character
The first fair use factor is often considered to be the most important of the four. Purpose and character looks at whether the copyrighted material is being used with the apparent intention of increasing creativity and enrichment of the general public or if the use appears only to be about personal profit of some kind. U.S. case law has tended to define this factor as the extent to which the use is interpreted as transformative, rather than simply derivative. The simple way to think about transformative and derivative uses is that a transformative use takes the original work and transforms it by adding something new.
The first factor also mentions “whether such use is of a commercial nature or is for nonprofit educational purpose”. This portion of the first consideration has been deemphasized in some of the more recent case law because secondary uses of copyrighted material almost always aim for some measure of commercial gain from their use, even if it the gain is indirect.
Nature of the Copied Work
This consideration was included to prevent the private ownership of work that truly belongs in the public domain. The courts have denied copyright protection to works in the past because it was deemed that the social usefulness of having the information freely available outweighed the case for copyright protection. One historical example of this is the Zapruder film that caught the assassination of President John F. Kennedy on tape. Time Magazine bought and copyrighted the film, but their copyright was not upheld by the courts in the name of public interest.
Amount and Substantiality
Thee consideration of amount and substantialy looks at the quantity or percentage of the original copyrighted work being used in the new work. As you would expect, the less of the copyrighted material that is used in relation to the whole work, the more likely it is that the copywrighted sample will be considered fair use. This is commonly seen by the use of a few sentence excerpt from a book that is used as part of a book review. It is important to note that even the use of a single sentence can be considered to not be fair use if the used portion is critical to the copyrighted work.
Effect Upon Work’s Value
The last factor of consideration for fair use measures the effect that the infringing use has on the copyright owner’s ability to get value from his original work. The court will consider not just how the specific use of the work being considered has harmed the copyright owner’s value, but it will also generally look at how such uses in general, if widespread, would harm the potential market of the original work.
When considering whether the use results in harm to the copyright owner, the first thing the court typically considers is whether the use in question acts as a direct market substitute for the original work. If this is found the be the case, it will almost always be considered to not be fair use. The second consideration is whether there is potential harm from the use that may exist beyond that of direct substitution, like harm to the potential existence of a licensing market.
When you are considering whether something would fall under fair use, keep in mind that fair use is decided on a case by case basis using the entirety of circumstances. The exact same act done by different means or for a different purpose can result in the gain or loss of fair use status. Also keep in mind that providing the source of the information does not really affect whether something is fair use or not. Taking someone else’s words or ideas without giving the proper credit is plagiarism, but may not always be a copyright violation. Copyright violations are a matter of law… plagiarism is only a matter of professional ethics. While they are often related, they are not the same thing.
As an online marketer or publisher, you may try to deny the use of your work under fair use by including some sort of disclaimer on your site. Unfortunately, fair use is granted to the public for ALL copyrighted works and cannot be revoked by the copyright owner. This change in rights can only be done with a valid contract or written agreement between two parties, not with a non-binding disclaimer or notification. The good news is that fair use of an online marketer’s work is often a beneficial thing because it can provide exposure or a link to your content. If you become concerned that someone has gone beyond using your protected content under fair use, go ahead and send out a DMCA takedown notice to have the content removed. More often than not the other person will not bother fighting the notice and you will get your content removed regardless of its fair use status.
