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The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 22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).
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.
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
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
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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, email@example.com or (509) 335-3518.
57 Princeton University Press vs. Michigan Document Services, Inc., 99 F.3rd 1381 (6th Cir. 1996) (Ryan, J. dissenting)