Fair Use Fair Use Under United States Law Purpose And Character

The fair use doctrine is a body of law and court decisions which provides for limitations and exceptions to copyright protection in the United States as well as other parts of intellectual property-related law, such as those governing trademarks. If a use is fair use, the copyright holder has no rights to control that use and no license or permission is required: you can simply go ahead and make the copies. Fair use is unique to the United States, but a similar principle, fair dealing, exists in many other countries.

Fair use permits the public to use copyrighted material without prior permission, as long as the material is not fully reproduced. Fair use allows, for example, reviewers of a work to reproduce it in part as an aid to their critique. Fair use also assist in locating a work; as an example, the internet search engine, Google, returns reduced resolution images in order to aid its clients in locating the image they are interested in. Fair use can even aid the copyright owner, by helping people to decide in purchasing a work, by including a portion of the work in a description; online retailers such as Amazon.com frequently resort to fair use to display cover art or portions of a work. Parodies, too, fall under the fair use doctrine.

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 would otherwise be considered infringement. It is also considered to be an accommodation of the free speech protections of the First Amendment to the U.S. ConstitutionLaw for the United States of America The Constitution of the United States is the supreme law of the United States of America and is the oldest written national constitution still in force. It was completed on September 17, 1787, with its adoption by the.

1 Fair use under United States law

Fair use in the U.S. grew out of the English common lawThis article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). The common-law legal system forms a major part of the law of many c doctrine of fair abridgement. It was first applied in the U.S. in Folsom v. Marsh (1841), where the defendant had copied 353 pages from the plaintiff's 12-volume biography of George WashingtonGeorge Washington ( February 22, 1732— December 14, 1799), also called Father of his Country 1 was an American general and Commander-in-Chief of the Continental Army in the American Revolutionary War ( 1775 1783) and later the first President of the Unite to make a two-volume work. The court rejected the defendant's fair use defense with the following explication of the doctrine:

The Folsom court went on to formulate the basis for the factors used today in an analysis of the fair use defense. It continued to be a purely judge-made and applied law until it was finally codified as part of the 1976 Copyright Act at 17 USCThe United States Code U. is the general and permanent federal Law of the United States. Once a Public Law is enacted, its operative provisions are usually incorporated into the U. There are a few exceptions (in which case one must consult the Public Law § 107, excerpted here:

It is important to note that the 4 factors identified in Section 107 are not exclusive. Courts are entitled to consider other factors, as well.

1.1 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 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 message. Not all educational use is protected by fair use; see Macmillan Co. v. KingMacmillan Co. King ( 1914) 223 F. 862, (Mass. District Court) was a copyright infringement case brought by a publisher of a two volume economics textbook written by a Harvard University professor. Note that this case was decided under previous statutory l.

1.2 Nature of the copied work

Though according to the Supreme CourtThe Supreme Court of the United States located in Washington, D. is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States to interpret and decide questions of federal law. It is he, copyright law is not supposed to discriminate based upon the quality or artistic merit of the work at issue, fair use analysis nonetheless looks at whether the copied work was creative or informative. Facts and ideas are unprotected—the particular expression of those facts or ideas is what merits copyrightability. (see idea-expression divide) In application to written works, this factor will tend to weigh for a copying defendant if the original work was a work of nonfiction rather than fiction or fantasy. Functional images—those that are merely illustrative of their subject matter or serve a purely utilitarian purpose—are also more likely to support a finding of fair use than more fanciful, expressive ones.

Also considered critical under this factor is whether or not the original work has been published and/or distributed to the public. Copyright law highly values the author's right to control how his work is first released to the public, and so a work's unpublished nature will tend to weigh against a finding of fair use.

1.3 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.

For several years some decisions led many to suppose that one of the few cases where this factor was irrelevant was in sampling a piece of a copyrighted sound recording. Subsequent decisions have shown that this is not the case and a normal fair use analysis must be performed. The US National Association of Music Retailers is one trade group which believes that sampling is not inevitably infringement, in the case of its members when the sample is used as part of the process of selling new or used musical works (position statement).

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.

1.4 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. Courts generally view this as the most important of the four statutory fair use factors. The court asks not just whether the defendant's own use of the work harms the market, but also whether such use, if it became widespread, would harm the market for the original. The burden of proof on the fourth factor rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony v. Universal City Studios, 464 U.S. 417, 451 (1984).

In evaluating the fourth factor, courts generally consider two kinds of harm to the market for the original work. First, the court will consider whether the use in question acts as a direct market substitute for the original work. For example, in the words of the Supreme Court in Campbell v. Acuff-Rose Music, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supercedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." To take a concrete example, a court found that this factor cut against a defendant who made unauthorized movie trailers for video retailers, where these unauthorized trailers were direct substitutes for the copyright owner's own official trailers for the same films. See Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003).

But courts will also consider market harm beyond direct substitution. In particular, they will consider whether a future, potential market might be harmed, or whether the market for licensing derivative uses might be harmed. For example, the fourth factor has cut against commercial copy shops who make copies of articles in course-packs for college students, where there was an existing market for licensing course-pack copies. See Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999). The question is whether there is already an existing market for licensing derivative works, or whether it is likely that one might develop.

It is important to note, however, that certain kinds of market harm may be discounted by courts in some situations. Where a parody or negative review is concerned, the work for the original might be harmed. Nevertheless, the courts refuse to recognize this harm as one that is cognizable under copyright law.

2 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.

3 Fair use as a defense

Fair use is an affirmative defense to copyright infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's work.

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.

4 Fair use and parody

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing parodies distinguish between parodies - using a work in order to poke fun or comment on the work itself - and satires - using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v. Acuff-Rose Music ( 1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc. , had sued 2 Live Crew in 1989 for their use of Orbison's " Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.

5 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. The remaining issues were resolved with a default judgement after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

6 Common misunderstandings

Because of the deliberate ambiguity of fair use, it's commonly misunderstood. Here are some of the more common misunderstandings, explaining why they are wrong:

It's copyrighted, so it can't be fair use. If a work isn't copyrighted it is in the public domain and you can use it anyway. The first requirement for fair use is that the work is copyrighted.
Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help but it's not sufficient on its own.

7 Fair use and trademark law

In the U.S., there is also a fair use defense in trademark law based on similar principles as the doctrine under copyright (such as free speech), but with different exceptions. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.

Most trademarks are adopted from words or symbols already common to the culture (such as Apple), instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.

Trademarks may also be used by a nonowner nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, U.S. law actually encourages nominative usage by competitors in the form of comparative advertising.

Both of these exceptions require that the mark not be used by the nonowner in a way that would be likely to confuse consumers about the source of their (or the trademark owner's) product. Generally this translates into the requirement, similar to that in fair use under copyright, that no more of the trademark is used than is necessary for the legitimate purpose.

8 Comparison with other countries

The United States is the only country with a fair use doctrine. However, comparable copyright limitations can be found in many nations' copyright statutes, though these differ in scope. Most other common law countries have a related doctrine known as fair dealing, which is defined in a constrained manner through an enumerated list of causes for exemption that allows little room for judicial interpretation. Civil law countries have codified similarly specific and narrowly drawn exceptions. Fair use, however, tends to be an open-ended legal doctrine, as statutory factors are balanced by U.S. judges on a case-by-case basis rather than strictly applied.

9 See also

10 External links

Copyright and Fair Use from Stanford University Libraries
Limitations on exclusive rights: Fair usefrom the US Copyright Office
Some more key fair use cases
Checklist for fair use pdf from Purdue University
"When Copying Is Okay: The 'Fair Use' Rule" from Nolo.com/Law for All
Lloyd J. Jassin offers some cautious guidance.
Revised decision the Kelly v. Arriba Soft Corporation case

zh-tw:/ Intellectual property

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