Fair Use
The "fair use" doctrine in copyright law is unique to United States and Philippines, though a similar principle of fair dealing, exists in some common law jurisdictions.
| The copyright principle of fair use allows the public to copy
works without having to ask permission or pay licensing fees to copyright holders. Common misinterpretation and confusion regarding the scope of fair use doctrine:
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Way back in 1841, Justice Story analyzed fair use in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), where he stated, "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." This codified in the Copyright Act of 1976 in § 107 as follows:
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 of the use upon the potential market for or value of the copyrighted work.
There is no single test to determine what constitutes "fair use"; therefore, every case should be treated uniquely as particular circumstances and interpretations of the law can be quite diverse. Court rulings have generally given more leeway to uses that are for academic purposes, especially if revenues are not part of the instructional artifact.
Fair use allows limited use of copyrighted material without requiring permission from
the rights holders, such as use for scholarship or review.
Fair use provides for the legal, non-licensed citation or incorporation of copyrighted
material in another author's work under a four-factor balancing test.
Fair use is based on free speech rights provided by the First Amendment to the United
States Constitution.
United States trademark law also incorporates a "fair use" defense. While the
names are the same, the doctrines are quite different.
It is possible to quote from a copyrighted work in order to criticize or comment upon it.
A teacher may print a few copies of a poem to illustrate a technique and will have no
problem on all four of the above factors though amount and substantiality does matter.
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.
The defense of fair use
In Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001), the United States
Court of Appeals for the Eleventh Circuit against the owner of Margaret Mitchell's Gone
with the Wind, vacated an injunction prohibiting the publisher of Alice Randall's The Wind
Done Gone from distributing the book. The principle was that the creation and publication
of a carefully-written parody novel in the United States counts as fair use. The court
followed the previous United States Supreme Court decision in Campbell v. Acuff-Rose
Music, Inc. which ruled that 2 Live Crew's unlicensed use of the bass line from Roy
Orbison's song "Oh, Pretty Woman" constituted fair use under copyright law and
extended that principle from songs to novels and is binding precedent in the Eleventh
Circuit.
The Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569 (1994), that 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 this defendant's burden of proof, some copyright owners frequently make claims
of infringement even where the fair use defense would ultimately succeed.
This is done by the copyright owners so 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.
Authors may seek a license even for uses that copyright law ostensibly permits without
liability as paying a royalty fee may be much less expensive than having a copyright suit
that threatens the publication of a completed work
'"The fact that parody can claim legitimacy for some appropriation does not, of
course, tell either parodist or judge much about where to draw the line. Like a book
review quoting the copyrighted material criticized, parody may or may not be fair use, and
petitioner's suggestion that any parodic use is presumptively fair has no more
justification in law or fact than the equally hopeful claim that any use for news
reporting should be presumed fair." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994).
Parody and Satires
The authors or the publishers 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 that use a work in
order to ridicule or comment on the work itself, and satires that use a work to ridicule
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, Inc. (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.
Website inline linking and fair use
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 Circuit 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.
Fair use and trademark law
The fair use defense in trademark law is 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.The less
distinctive or original the trademark, the
less able the trademark owner will be to control how it is used.
Most trademarks are adopted from words or symbols already common to the culture, as Apple
Computer is from 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.
A trademark may be used by nonowners nominatively to refer to the actual trademarked
product or its source but not in a way
that would be likely to confuse consumers about the source of their product.
 Fair
Use, Free Use, And Use by Permission: How to Handle Copyrights in All Media (February
28, 2006)
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Copyrighted Stuff From The Internet: Stealing Or Fair Use? (Issues in Focus Today)
(August 2005) by Sherri Mabry Gordon |
 Bound
by Law : Tales from the Public Domain: By Day a Filmmaker, By Night She Fought for Fair
Use! (July 28, 2006) Copyright
and Fair Use on the Internet, Illustrated Essentials (October 1, 2006)
Internet
Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media
(October 17, 2005)
Responsible
Use of the Internet in Education: Issues Concerning Evaluation, Citation, Copyright and
Fair Use of Web Materials |
Downloading
Copyrighted Stuff From The Internet