Sociology Index

FAIR USE

Books on Fair Use, Intellectual Property Rights

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.

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.

Common misinterpretation and confusion regarding the scope of fair use doctrine:

Copyrighted material can't be used without permission.

Material that is not copyrighted is in the public domain.

Acknowledgement is sufficient to a make a use fair use.

One can avoid infringement if exact words are not used.

One can plagiarize a work that is not protected by copyright.

Noncommercial use is invariably fair.

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.

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.

Rajrathnam V P, Attorney/Advocate and IPR Consultant