Posted by permission from photographer Shelley
Caldesi
Fair use is the exception to the rule that no one may
exercise the author's or artist's exclusive rights
— for example, copying the work — without
permission. The Fair Use Doctrine was first established
by the courts "...to avoid rigid application of the
copyright statute when, on occasion, it would stifle
the very creativity which that law is designed to
foster." 20 The exception was then codified in the
Copyright Act of 1976 as 17 USC Section 107. Since
then, the courts have struggled to determine
consistently how to apply the doctrine. One federal
circuit judge has even said that "fair use is one of
the most unsettled areas of the law. The doctrine has
been said to be so flexible as to virtually defy
definition." 21
Fair use is indispensable in higher education, so its
well worth the time and resources to learn what you can
about the doctrine and use it in good faith. Use it in
a way that's fair to the publishers and fair to the
campus community.
The Four Factors of Fair Use.
In the delivery and pursuit of education, there will be
frequent occasions when you or others need to copy
materials protected by copyright. Knowing that
virtually all materials — except materials in the
Public Domain — are protected, you ask yourself
the question: "Do I need to get permission before I
copy this?" This is when you make a fair use analysis
to determine if the copying qualifies. If it does, then
you don't need permission. How do you determine fair
use? The federal statute provides:
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:
- 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 upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 22
You can see that fair use is basically limited to
journalism, education, and research. Making copies for
the purpose of personal entertainment generally doesn't
qualify as fair use with the only exception of
recording programs on your video recorder for "time
shifting." The U.S. Supreme Court has ruled this is
fair use. 23 Making a copy of a music file off the
Internet is not fair use unless you are doing it for
journalism, education or research and the fair use
factors juggle in favor of fair use. The first step in
making the fair use inquiry is determining that the
purpose of copying a copyrighted work is for criticism,
comment, news reporting, education, scholarship, or
research. If it is, the next step is looking at each of
the four factors and seeing if they weigh for or
against fair use.
Posted by permission from
Eric S. Chernenkoff © 2003
Juggling the Factors of Fair Use.
In order for a copy project to qualify as fair use, it
is not necessary for all four factors to weigh in
favor. Indeed, some cases suggest that you don't even
need a majority of factors to reach a conclusion, since
factors have been evenly split and then sorted in order
of importance. Congress gave few guidelines on what,
exactly, to do with these four factors, but they did
say that "...since the doctrine is an equitable rule of
reason, no generally applicable definition is
possible..." The four factors,
- should be used for "balancing the equities" rather than as a "definitive or determinative" test; and
- are to be weighed together, in light of the objectives of copyright, to promote the progress of science and the useful arts. 24
The courts have given further explanation on how the
analysis should be conducted. 25
- Apply the four factors on a "case-by-case basis."
- Do not simplify the task with "bright-line rules."
- Consider the factors together "in light of the purposes of copyright" not separately in isolation.
The fair use test "...involves a difficult balance
between the interests of authors and inventors in the
control and exploitation of their writings and
discoveries on the one hand, and society's competing
interest in the free flow of ideas, information, and
commerce on the other hand." 26
This is not really significant guidance for juggling
these factors but it's all we have. Let's consider each
factor.
Purpose and Character of the
Use.
Do you intend to make a profit or other commercial
benefit from your copies or displays? If so, then this
factor weighs against fair use. But it doesn't —
by itself — prevent the whole fair use test from
ultimately qualifying. It is only the first of four
factors to consider. Even if the purpose of the copy is
to make a profit, other considerations can make this
factor weigh in favor of fair use. For example, a
company named Bleem copied the screen shots of a Sony
Play Station to compare the image quality with its
computer emulator screen for advertisement. There's no
question that Bleem did this as part of a commercial
activity for profit; in fact, Bleem was a competitor of
Sony. The Ninth Circuit Court of Appeals held that
using the copy for comparative advertising was a public
service, and even though Bleem made the copies for
commercial reasons, the purpose of the copies weighed
in favor of fair use because the comparative
advertising served the public interest. 27 The U.S. Supreme Court found that the
purpose of copying a Roy Orbison song by rappers 2 Live
Crew – even though clearly for profit and
commercial gain – was in favor of fair use
because the new song was a parody and "transformed" the
copy into essentially a brand new product subject to
copyright protection in it's own right. 28
But unless your copy somehow serves a public interest
or is transformed into a new product, any commercial or
profit-making purpose will weigh this factor against
fair use. Here are some specific copying projects that
a court determined to be against fair use.
- A copy store copying small parts of books and journals for class course packs because the store was a profit enterprise like most businesses. 29
- A large corporate research and development department copying journal articles to save money from buying several journal subscriptions because the traditional practice would be to purchase additional subscriptions. 30
- A news media company copying excerpts from an unpublished manuscript in order to publish an article first because they would sell more magazines. 31
Before looking at the next factor of fair use, keep in
mind that the commercial and profit motive of this
factor will relate to the last factor, commercial
effect. This relation or connection will be explained
in that section.
Nature of the Material Copied.
Copyright protects materials that have a minimum level
of creativity (See 3. Creative ).
Consider a seismograph. Created by a machine, the graph
serves only to chart pure data. Because there is no
creativity or even an artist rendering the graph, it
cannot be protected by copyright. Now progress to
something slightly more creative like a telephone
directory. The published facts, i.e., names, telephone
numbers, and addresses, cannot be protected by
copyright because the material is only facts. 32 But the compilation of those facts may be
protected, "...if it features an original selection or
arrangement of facts, but the copyright is limited to
the particular selection or arrangement. In no event
may the copyright extend to the facts themselves."
33 The less creative the material is, the
more this factor favors fair use. At the other end of
the spectrum, you have highly creative materials,
poetry, music, paintings, sculptures, plays, movies,
and fictional work like novels and short stories. In
the middle you have material such as nonfiction,
scientific articles, historical accounts, and research
in general. Material like this is certainly more
creative than telephone book listings, but this factor
usually still favors fair use. Materials that are
"predominantly factual" or "scientific works" will make
this factor lean in favor of fair use. 34
The Ninth Circuit Court has observed that this factor
may be the least important of the four, saying the
Supreme Court has passed over this factor without
giving it much attention, stating that it is often
‘not much help.'" 35
The Fifth Circuit Court also says this factor didn't help or hinder the fair use defense in a case. 36 It may be due to the type of case it is that this factor's importance is diminished.
Amount of the Material Copied.
The more you copy and the closer the copy is to the
original, the less likely it will be fair use.37 But making a copy of the entire work is
not conclusively a failed attempt at qualifying for
fair use. This is only one factor in four. This factor
considers both the quantitative and the qualitative
value of the materials that are copied. For example, if
the essence or "heart" of a book is contained in only 1
percent of the total pages, copying that 1 percent will
make this factor lean against fair use. Copying the
materials essence or heart is therefore tantamount to
copying the entire portion.
The nature of both the copy and the original makes a
difference in weighing this factor. If the material
copied is photos, images, or audiovisual works, e.g.,
movies, copying the entire portion is less significant.
If the nature of the copy is transformative or
productive, like a parody, then copying the entire
portion of the original is also less significant. There
are no hard-line numerical limits to how much of the
material you can copy. Here are some opinions that rule
the following portions of copying are too much and
weighing this factor against fair use:
- 50 percent of a cake-decorating book for class. 38
- 300 – 400 words (13 percent) copied from President Ford's unpublished memoirs. 39
- Entire articles making a "small percentage" of the periodical in which they were published. 40
- 95 pages (30 percent), 45 pages (18 percent), 78 pages (16 percent), 52 pages (8 percent), 77 pages (18 percent), and 17 pages (5 percent) of various textbooks for course packs in college classes. 41
Opinions that rule that either the portion copied is in
favor of fair use or the nature of the copies or
originals make this factor less significant:
- Entire copy of movies on video recorders. 42
- The "heart" of a song for creation of a parody. 43
- Copy of one screen shot from a video game that projects 30 screen shots per second. 44
- 45 seconds of a song to create background music for an educational video that was publicly broadcasted on television. 45
You can see how the factors begin to interrelate. The
analysis of the amount copied factor is different
depending on the first factor (purpose of the copy) and
second factor (nature of the original).
Commercial Effect.
This factor considers the extent of harm the copies
actually have on the artist's or author's market. How
much have sales of the original work been affected
because of competition from the copies? More than that,
it also takes into consideration the hypothetical harm
on that market and the potential market if the
infringing copies were a widespread and unrestricted
practice. 46 The analysis begins with what exactly is
the market? For any real or potential harm to a market,
the copied product should be in the same market as the
original product. The copied product should, to some
extent, be a substitution for the original product.
Parodies establish a different market than the
original. A hip-hop or rap parody of a 60s rock‘n
roll love ballad appeals to a different audience.
47 The Supreme Court treats this factor
differently than the purpose of the use factor. If the
purpose of the copy is commercial and profits are
sought in the same market by using identical or closely
identical products, then adverse commercial effect is
presumed. Not only that, but the factor of commercial
effect becomes the most important factor of the four.
48 On the other hand, harm in the market by a
parody or other product uniquely different and
independent from the original product must be
demonstrated even if it is a commercial venture. The
Supreme Court writes,
Thus, although every commercial use of copyrighted
material is presumptively an unfair exploitation of the
monopoly privilege that belongs to the owner of the
copyright, noncommercial uses are a different matter. A
challenge to a noncommercial use of a copyrighted work
requires proof either that the particular use is
harmful or that if it should become widespread, it
would adversely affect the potential market for the
copyrighted work. Actual present harm need not be
shown; such a requirement would leave the copyright
holder with no defense against predictable damage. Nor
is it necessary to show with certainty that future harm
will result. What is necessary is a showing...that
meaningful likelihood of future harm exists. If the
intended use is for commercial gain, that likelihood
may be presumed. But if it is for noncommercial
purpose, the likelihood must be demonstrated. 49
The commercial effect factor is the most difficult to
analyze because many pertinent factors are unknown.
What market is the copyright holder targeting? Is there
even any effort to sell the original product? If the
original product is print media and it's out of print,
it's a good argument that there is very little, if any,
market to affect. Other questions arise. Is there any
viable permissions market? But even if the copyright
holder has never sold permission licenses, widespread
and unrestricted copying could certainly harm a
potential market.
Suggested Guidelines for
Navigating
the Commercial Effect Factor.
In education, some guidelines may help individuals with
a copy project navigate through some unknown variables
of the commercial effect factor analysis. It is
possible to keep this factor weighing on the side of
fair use by taking certain precautions.
- Avoid copies that you intend to distribute widely that might supplant or substitute for a product that would normally be purchased at a college bookstore or other traditional college vendor.
- Do not post any copies on the World Wide Web with open access. This has the effect of publishing the product. If anything can harm a market, being able to get the product for free online is likely to. As an alternative, consider posting the material on a closed or password-protected site under the TEACH Act.
- Avoid making copies for any commercial or profit-making pursuit. As long as you are not selling copies of the original product, the actual market for the original product is not likely to be harmed. Remember that free copies can still harm a market if they are widely copied and distributed.
- In copy or display projects where it appears to be a struggle qualifying for fair use, i.e., two factors are tied against the other two factors, make a documented effort to contact the copyright holder and request permission. Proceed without permission only if you cannot find the copyright holder or cannot get any response and you get the approval of your institution's legal counsel first.
- Avoid any copy project where the intention is to save students money on materials they would normally purchase.
Special Fair Use Cases:
The four factors of fair use have received different
treatment or balancing in certain cases.
Video Time Shifting 50
The Supreme Court decided that making video recorder
copies of entire movies or other programs from cable,
satellite, or TV was a fair use. This seems odd because
there was no educational, research, critical, or other
purpose recognized by the fair use statute. The court
held that the first factor weighed in favor of fair use
because the copies were generally made for nonprofit,
private home use. The second and third factors were
addressed in one sentence because of the nature of
televised audiovisual material. The last factor was
considered in favor of fair use because the movie
studios couldn't prove there was any harm to their
market from recording home movies.
Parody 51
The Supreme Court defines parody as:
the use of some elements of a prior author's
composition to create a new one that, at least in part,
comments on the author's works... If, on the contrary,
the commentary has no critical bearing on the substance
or style of the original composition, which the alleged
infringer merely uses to get attention or to avoid the
drudgery of working up something fresh, the claim to
fairness in borrowing from another's work diminishes
accordingly (if it does not vanish), and other factors,
like the extent of its commerciality, loom
larger.
Far less emphasis appears to be placed on fair use
factors 2-4 when the first factor, purpose of the copy,
is a new or transformative product. A parody of a song
is a new work subject to it's own copyright protection
and a criticism of the original work. The parody in
this case can apparently copy fully creative works like
music (nature of the original factor), borrow most of
the amount of the original to the extent the parody
requires (amount of the material copied factor), and be
entirely commercial because the parody has a different
audience than the original song and thus poses little
or no harm to the original song's market (commercial
effect factor). The parody MUST criticize the original
work to qualify for fair use. 52
Fair Use Slide Rule.
Several fair use charts and other tools are available
online for conducting the analysis. It is a far better
idea to try and learn the fair use factors and
understand what tips them either way and their
interrelationship than to plug data blindly into a
mechanical flow chart. If it were that easy, the
process would defy the approach mandated by the courts,
and it would be inherently erroneous. But charts are
helpful in remembering all the circumstances that push
a fair use factor either way. While the following
"slide rule" is hardly unique among fair use charts,
some may prefer it if it makes the analysis
easier.
- Purpose of Use
- Nature of Material Copied
- Amount of the Material Copied
- Commercial Effect
- Four Factor Balance Sheet
Tie Breaker
In ties, look at the circumstances of the copy project
and either diminish the value of the second factor or
increase the value of the fourth factor to break the
tie.
More on the Four Factors of Fair
Use.
For actual case studies on how the fair use analysis
was applied, refer to Chapter 5 of Copyright Law On
Campus. 56
.jpg)
Posted with subscription
license from clipart.com
Classroom Guidelines
If you are not comfortable with using the four factor
juggling process in order to determine fair use; if the
prospect of a potential copyright infringement lawsuit
is more risk than you can tolerate, then there is an
alternative. The so-called "Classroom Guidelines"
presents the most conservative safe harbor, short of
only using copies for which permission has been
received. Although the Guidelines are reported by
Congress as, "...a reasonable interpretation of the
minimum standards of fair use," they are not
the legal standards of fair use. 57 Some college faculty and administrators
have confused the Guidelines as being the limits set by
federal law. Sadly, they are adhering to rigid and
impractical limits on fair use copying than the law
requires. If a zero litigation risk factor is your
preferred copyright policy, the Guidelines are
available here: Classroom
Guidelines.
The Future of Fair Use
There are many reasons that suggest the progressive
trend in higher education is to learn and utilize fair
use far more than it has in the past. The nature of
education is changing due to technology and the digital
age, which are now instrumental in how education is
delivered. The TEACH Act and Digital
Millennium Copyright Act are new legislation that
provide both restrictions and privileges in using
copyright protected materials in education through new
mediums like the World Wide Web and distance education.
As the Consortium for Educational Technology in
University Systems (CETUS) so aptly states:
It is urgent, timely, and in the best interests of
higher education that our universities raise a
coordinated voice to address the topic that is known as
the "fair use" of copyrighted works. The fair use
doctrine is under debate now in several different
forums — locally, nationally, and
internationally. The debate involves both public and
proprietary interest. It arises because of the changing
dynamic between the broad sweep of "intellectual
properties" and the deployment of powerful and rapidly
growing evolving communications techniques and
infrastructures. These developments already have
demonstrated their significant consequences for higher
education and will have more pervasive effects in the
future. 58
20 Campbell vs. Acuff-Rose Music, Inc.
114 S. Ct. 1164, 1170 (1994) quoting Stewart vs.
Abend, 495 U.S. 207, 236 (1990).
21 Princeton University Press vs. Michigan
Document Services 99 F.3rd 1381 (6th Circuit
1996). Cert. Den'd. 117 S. Ct. 1336 (1997).
22 17 USC Section 107
23 Sony Corp. vs. Universal Studios,
Inc. 464 U.S. 417, 454-455 (1984)
24 H.R. Report No. 94-1476, 94th Cong. 2d Sess.
65(1976)
25 Sony Computer Entertainment America, Inc.
vs. BLEEM, LLC, (9th Circuit 2000) (http://laws.findlaw.com/9th/9917137v2.html)
quoting from Campbell vs. Acuff-Rose Music,
Inc.
26 Sony Corp. of Am. vs. Universal City
Studios, Inc., 464 U.S. 417, 429 (1984)
27 Sony Computer Entertainment America, Inc.
vs. BLEEM, LLC, (9th Circuit 2000) See footnote
25 for web site.
28 Campbell vs. Rose-Acuff Music, Inc.,
114 S. Ct. 1164(1994)
29 Princeton University Press vs. Michigan
Document Services, Inc., 99 F.3rd 1831 (6th
Circuit 1996)
30 American Geophysical Union vs. Texaco,
Inc., 60 F.3rd 926 (2nd Circuit 1994).
31 Harper & Row Publishers, Inc vs.
National Enterprises, 471 U.S. 539, 561
(1985)
32 17 USC Section 302(a)
33 Feist Publications, Inc. vs. Rural
Telephone Service Co., 499 U.S. 340, 350
(1991).
34 American Geophysical Union (See
footnote 30 for the
cite).
35 Sony Computer Entertainment America,
Inc., vs. BLEEM LLC, Case number 99-17137 (9th
Circuit 2000) Online: http://laws.findlaw.com/9th/9917137v2.html
36 Triangle Publications, Inc. vs.
Knight-Rider Newspapers, Inc., 626 F.2d 1171, 1176
(5th Circuit 1980).
37 See Sony vs. Bleem (see footnote
35 for the cite)
38 Marcus vs. Rowley 695 F. 2d 1171
(9th Cir. 1983)
39 Harper & Row Publishers, Inc. vs.
Nation Enterprises, 471 U.S. 539 (1985)
40 American Geophysical Union vs. Texaco,
Inc., 60 F.3d 913 (2d Cir. 1994)
41 Princeton University Press vs. Michigan
Document Services, Inc., 99 F.3d 1381 (6th Cir.
1996) (en banc). The page numbers and proportions come
from the initial three judge panel opinion.
42 Sony Corp. vs. Universal City Studios,
Inc., 464 U.S. 417, 449 (1984).
43 Campbell vs. Rose-Acuff Music, Inc.,
114 S. Ct. 1164, (1994)
44 See Sony vs. BLEEM (See footnote
35 for the cite).
45 Higgins vs. Detroit Education
Broadcasting Foundation, 4 F. Supp. 2d 701 (E.D.
Mich. 1998).
46 Sony Corp. vs. Universal City Studios,
Inc., 464 U.S. 417, 451 (1984).
47 Campbell vs. Rose-Acuff Music, Inc.,
114 S. Ct. 1164, (1994)
48 Harper & Row Publishers, Inc., vs.
Nation Enterprises, 471 U.S. 539, 566 (1985)
49 Sony Corp. vs. Universal City Studios,
Inc., 464 U.S. 417, 451 (1984).
50 Sony Corp. vs. Universal (See
footnote 49 for the
cite)
51 Campbell vs. Acuff-Rose Music (see
footnote 47 for the
cite)
52 Dr. Seuss vs. Penguin Books,
http://laws.findlaw.com/9th/9655619.html
(9th Cir. 1997)
56 Available in Holland Library (WSU) or through
WSU Press at http://wsupress.wsu.edu/shop/shopdisplayproducts.asp,
jslynn@wsu.edu or
(509) 335-3518.
57 Princeton University Press vs. Michigan
Document Services, Inc., 99 F.3rd 1381 (6th Cir.
1996) (Ryan, J. dissenting)
58 http://www.cetus.org/