Sociology Index

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. 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 and Fair Use.

Way back in 1841, Justice Story analyzed fair use in Folsom v. Marsh, 9 F. Cas. 342, 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."

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 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, fair use does not even arise as an issue.

"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).

Fair Use In 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.

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.
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.

Books On Fair Use

Weighing the four fair use factors.(copyright corner): An article from: Information Outlook Fair Use Book by Achim Förster

Harry Potter and the Order of the Court: The J.K. Rowling Copyright Case and the Question of Fair Use Book by Robert S. Want

Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use - Book by Steve Westbrook (Editor)

Fair Use, Free Use, And Use by Permission: How to Handle Copyrights in All Media Book by Lee Wilson

Downloading Copyrighted Stuff From The Internet: Stealing Or Fair Use? (Issues in Focus Today) Book by Sherri Mabry Gordon

Bound by Law : Tales from the Public Domain: By Day a Filmmaker, By Night She Fought for Fair Use! Book by Keith Aoki, Jamie Boyle, Jennifer Jenkins

Copyright and Fair Use on the Internet, Illustrated Essentials
Book by Barbara M. Waxer, Marsha Baum

Internet Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media Book by Barbara M. Waxer, Marsha Baum

Responsible Use of the Internet in Education: Issues Concerning Evaluation, Citation, Copyright and Fair Use of Web Materials Book by Aniekan Ebiefung

Healing fair dealing? A comparative copyright analysis of Canada's fair dealing to U.K. fair dealing and U.S. fair use

An economic model of fair use

Google book search: fair use or fairly useful infringement?

The Google Book Search Project: is online indexing a fair use under copyright law?: An article from: Congressional Research Service (CRS) Reports and Issue Briefs.

Determining 'Fair Use' Practices: use common sense and a few basic guidelines to protect yourself and your work.(The Final Word)(Column):

The postmodern author on stage: Fair Use and Wallace Stegner.: American Drama

Fouling up fair-use. (journalistic quoting of unpublished materials): Columbia Journalism

Fair Use: A Debate.: Video Age International.

The Availability of the Fair Use Defense in Music Piracy and Internet Technology.: An article from: Federal Communications Law Journal.

Understanding copyright risks.(includes related article on the fair use defense): An article from: Security Management.

Limits to database protection: Fair use and scientific research Research Policy A.K. Sanders

Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries An article from: The Journal of Academic Librarianship.

Rajrathnam V P, Attorney/Advocate and IPR Consultant