Technically Speaking, May 2019

In our first article, in last month’s edition of Technically Speaking, we touched on the need to determine whether certain uses of copyrighted content require copyright permission. We briefly identified two categories in which permission may not be required: fair use and public domain. In this article, we will discuss the first of these: fair use.

Fair Use

Last month, we introduced the fair use doctrine as a means to foster the free flow of ideas in society.  It is an attempt to balance the protection of intellectual property rights with the right of free speech given in the 1^st amendment to the U.S. Constitution.  Because this balancing act is complex and involves subjective decisions made on a case by case basis in a court of law, a cautious decision to count on a claim of fair use requires careful consideration. An intelligent determination by the user or their publisher of whether to depend on a fair use claim should be accompanied by some knowledge of past court decisions and a consideration of all four fair use factors that courts use to determine if a use is fair. These factors are listed in Section 107 of the Copyright Act. It is important also for them to consider whether they find acceptable the risk of penalties in the event that a court decides against a fair use defense and in the copyright owner’s favor.

Different scenarios play out in infringement court cases as varying factors are given precedence over others. Decisions are made depending on the facts of the individual case and the subjective conclusions reached by various individuals making the decision.

The four fair use factors:

1. The purpose and character of the use;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used; and
4. The effect on potential market for the copyrighted work.

Let’s look at each factor separately.

The purpose and character of the use

There may be a fair use if material taken from the copyrighted work has been truly transformed by adding new expression or meaning.

There may be a fair use if there is value added to the original in the form of new information, new aesthetics, or new insights.

A parody, for example, may qualify as a fair use. It is possible that limited uses with purposes such as education and research would be determined in a court of law to be a fair use.

The nature of the copyrighted work

Fictional works are often offered more protection than factual work because of the value to society placed on creativity.

Non-published works are often offered more protection than published works. As we stated in our previous article, only the creator has the right to decide whether a work may be published.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole

There is no set amount of words or percentage of content allowed by law as a fair use.  A line may be deemed too much if it is seen as going to the heart of the work, central to its theme or message, or is considered highly creative and thus valuable enough to deem protection from copying.

The effect on the potential market for the original work

If the use deprives the owner of income or if there is a perceived possibility that it may deprive them of future income there would likely not be a finding of fair use.

There are times when counting on a fair use defense may seem a relatively safe choice, but the difficulty in predicting such a finding in a court of law makes careful consideration of the choice imperative.  Remember, each case is fact specific, and the four factors are not all given equal weight in each case.

Preview of Part 3 and Part 4

In Part 3 of copyright basics we will discuss that category of works termed public domain. Unlike the factors that determine if a use falls in the fair use category, the factors that determine if a work falls into the public domain category are clearly defined in copyright law. And these works are free for us to use without permission.

Part 4 will be a discussion of Creative Commons. There is a common misconception held by those who are aware of the existence of Creative Commons that it is yet another means by which works pass into the public domain. Writers who see the Creative Commons symbol often assume the work may be copied and used in any manner that serves their purpose.  Such uses could have legal repercussions. Creative Commons are open licenses.  There are six of them.  Each one has its own set of limitations. To use the Creative Commons licensed work ignoring the limitations would void the open license. We will discuss each of the six licenses in a subsequent article.