Copyright 101, Part IV

Today we're returning to talk about copyright and, this time, the subject is Fair Use.

First, the usual disclaimer: I am not an attorney and am not pretending to be one here. The information contained in my blogs on this subject are based on my own practical experience and on information gleaned from research. If you have a copyright issue, consult the U.S. Copyright Office at www.copyright.gov/ or a copyright attorney.

Much of the information contained in this blog comes directly from the U.S. Copyright Office with some help from Wikipedia.

Fair Use is the doctrine that balances the copyright rights of the artist against the free speech rights of the First Amendment.

Wikipedia's definition is that Fair Use "in the context of U.S. copyright law . . . provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test."

The Fair Use doctrine was an informal part of copyright law until the Copyright Act of 1976 when it was specifically described. That law says that fair use is permitted "for purposes such as criticism, comment, news reporting, teaching (including multiple copies of classroom use), scholarship, or research."

In making a determination as to whether the use of a work is a fair use of that work, the four factor balancing test includes:

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 rest of this column will be spent on discussing each of the four factors.

1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Keep in mind the purposes described in the law (criticism, comment, reporting, teaching, etc.) Is the use stimulating creativity or enriching the public? Is it advancing knowledge? Or is it just being used for personal enrichment. An example given points to the use of Barbie dolls for a photography exhibit that parodied Barbie and the values she represents. This was considered fair use of the dolls despite Mattel's objections.

2) The nature of the copyrighted work
This is the section under which the recent plaintiffs in The DaVinci Code lawsuit would have been tripped up if they had tried their case in this country. Wikipedia states: "In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright--only their particular expression or fixation merits such protection." Therefore, in reviewing a case of copyright infringement, the court will consider whether the work is fictional or non-fictional. Time magazine purchased and copyrighted the Zapruder film of John F. Kennedy's assassination, but they lost their 1968 case to stop a publisher from reproducing stills from the film in a history book because the court determined the public interest outweighed the copyright holder's interest.

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
"The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general the less that is used in relation to the whole . . . the more likely that the sample will be considered fair use." (Wiki)

Music is a whole different animal when it comes to fair use. Since 1991 and rapper Biz Markie's case, the rule has been "'get a license or do not sample.'" No matter how small the amount of the sample, you must get a license to use a copyrighted work.

4) The effect of the use upon the potential market for or value of the copyrighted work.
"The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses."

First, the courts try to determine if the new use will substitute for the copyrighted work in the market. This is the area in which film pirates often fall afoul of the law. You cannot copy a work and then turn around and sell it. Second, the courts also consider whether market harm can occur beyond a substitution. If the new use creates a new market, copyright infringement can alos occur.

A reminder here. Your work is copyrighted the moment you fix it in tangible form. However, in order to prosecute a copyright infringement case, you must also have registered your copyright.