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Fair use

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The fair use doctrine is an aspect of United States copyright law that provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. U.S. trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different.

Fair use under United States law

The legal concept of "copyright" was first ratified by Britain's Statute of Anne of 1709. As room was not made for the unauthorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the United States Copyright Act of 1976, excerpted here:

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—

  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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]

The four factors of analysis for fair use set forth above derive from the classic opinion of Justice Story in Folsom v. Marsh, 9 F.Cas. 342 1841, in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy...

In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

It is important to note that once these factors were codified as guidelines in USC § 107, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8). Some commentators have also suggested that some form of fair use defense is required by the First Amendment's protection of free speech, because without some amount of copying, some things simply cannot be said. This analysis applies particularly well in the case of criticism. It also reads on various other limitations on copyright's exclusive rights, particularly the scenes a faire doctrine.

Purpose and character

The first factor questions whether the use under consideration helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of, say, personal profit. In order to justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, opposed to as merely derivative. When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie", Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents (cf. the 2003 9th Circuit case Mattel Inc. v. Walking Mountain Productions). However, when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same 'parody' defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory (see Art Rogers v. Jeff Koons, 960 F.2d 301). Thus, even if a secondary work proves transformative, it must be appropriately so.

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use" (American Geophysical Union, 60 F.3d at 921. More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair (see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation).

Nature of the copied work

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of the work at issue, fair use analyses nevertheless consider certain aspects of the copied work, such as whether it is fictional or non-fictional, to be germane. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas cannot be copyrighted—only their particular expression or fixation merits such protection. (See idea-expression divide.) On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject (see Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130).

Following the decisions of the Second Circuit in Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some view this importation of certain aspects of France's droit moral d'artiste into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than from laws about copyright. This debate is still open in the courts.

Amount and substantiality

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, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying — entire programs for private viewing — was upheld as fair use. Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters., Case 471 U.S. 539 (1985), the use of less than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.

Prior to 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The infamously strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright v. Warner, Case 780 F. Supp. 182 (S.D.N.Y. 1991), changed practices and opinions overnight. Samples now had to be licensed, so long as they rose "to a level of legally cognizable appropriation" (see Bridgeport Music Inc. v. Dimension Films, 230 F. Supp.2d at 841 [2]). In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing. The new rule in that Circuit is even more strict in its rendering of copyright law: "get a license or do not sample." Fair use does not come into play at all.

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original 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. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984), where the copyright owner, Universal Studios, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the Nation case regarding President Ford's memoirs above, the Supreme Court labelled this factor "the single most important element of fair use" (471 U.S. at 566) and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 578 (1994), that "all four factors are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work. First, courts consider whether the use in question acts as a direct market substitute for the original work. In the words of the Supreme Court in Acuff-Rose Music, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes 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." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. See Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003). On the other hand, one might well question whether Roland Barthes' S/Z clearly supersedes Honoré de Balzac's short story "Sarrasine" as a market replacement, since it reproduces the entirety of the latter, though only in short fragments followed by much critical explication by Barthes. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the licensing of course-pack copies. See Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999).

It is important to note that courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Fair use considerations may not shield a work against adverse criticism.

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.

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. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.

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.

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.

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