This article is adapted from the Third Edition of The Writer’s Legal Guide: An Authors Guild Desk Reference by Tad Crawford and Kay Murray. Order toll-free from 800-491-2808 or online at www.allworth.com.
Although everyone who deals with intellectual property seems to have heard of “fair use,” misconceptions are rife about what the doctrine makes it “safe” to do.
Because “fair use” is emphatically not a matter of hard and fast rules and because misjudgments can be costly, here’s a crash course on the subject.
The fair use doctrine is the most important limitation on a copyright owner’s exclusive rights. A long-standing tenet of common law, it was codified in the 1976 Copyright Act, which declares that the use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, without the consent of the copyright owner,” is not an infringement of copyright. In other words, technically, fair use is a defense to an infringement claim.
Every fair use claim is decided on its particular facts through a test that’s easy to state but very difficult to apply, much less to predict. But one thing is certain: Quantifying the amount of an original work you use does not provide safe harbor.
In the common law, the key question was “the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Today, though the analysis in any given case can be complex, this still seems to be the cornerstone of the fair use doctrine.
4 Factors Must Add Up to “Fair”
The Copyright Act directs courts to weigh the following four factors to determine whether a use (that is, copying) is “fair”:
- The purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes
- The nature and character of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole (and sometimes in relation to the work using the disputed material)
- The effect of the unauthorized use on the market for or value of the copyrighted work.
Courts may also consider any other factors they deem relevant, and no one factor automatically trumps the others.
Leading judicial decisions help illustrate how a court might analyze a fair use issue.
How Much Can You Quote?
For a review or scholarly article, an entire work might be reproduced verbatim without infringing. On the other hand, beware of copying the heart of a work to attract any part of its audience or market.
A landmark case involved the memoirs of President Gerald Ford, which Ford had agreed to publish with Harper & Row (now HarperCollins). Harper, in turn, granted Time magazine the exclusive first serial right to publish a 7,500-word excerpt from the memoirs. Before Time’s intended publication date, The Nation magazine obtained a copy of the book and published an article that copied approximately 300 words verbatim from the memoirs. Time decided not to publish its excerpt and refused to pay Harper & Row. Harper sued The Nation for copyright infringement. After the district and appellate courts disagreed about whether The Nation’s excerpt was fair use, the U.S. Supreme Court ruled that it was not.
The Court analyzed the four fair use factors as follows:
1. Purpose and Character of Defendant’s Use:
Although the Court noted that the defendant’s purpose was reporting news, which is socially beneficial, the use was still clearly for profit, and the defendant profited from its exploitation of the copyright without paying the customary license fee. Furthermore, the court found that the intended purpose of the reporting was not purely the dissemination of news, which would have come out soon anyway. The purpose was to scoop the competition, which might not be a socially beneficial goal. Therefore, the first factor weighed against fair use.
2. Nature of the Copyrighted Work:
Fair use is more likely to be found when works such as factual compilations or historical nonfiction works are copied than it is with copying of more creative works, such as fiction. Nonetheless, the Court noted that there are limits to the right to copy even factual works. Where works are unpublished, their creators should have the right to decide when and whether they will be presented to the public. Therefore, this factor weighed against fair use.
3. Amount and Substantiality of Use:
The defendant copied 300 words from a 200,000-word manuscript, but the Court found that The Nation had taken the “heart of the book.” Moreover, the Court measured those 300 words not only in relation to the copyrighted work as a whole, but also in relation to the totality of The Nation’s treatment. This weighed against the magazine, which had tied together quotes, paraphrases, and facts to construct a 2,200-word article.
4. Effect on Potential Market or Value:
In this case, this factor was most important. Where the purpose of the appropriation is linked to profit, as this was, the effect on the market for the work is likely to be negative. The Nation’s article was not analytical or critical. It did not further the discussion of historical facts or political ideas. Instead, it substituted for the original, preempting its dissemination, without adding original expression. Thus, this factor also weighed against the defendant.
What Makes a Parody Permissible?
Whether parody–copying parts of a work in order to make fun of it–is an infringement turns on whether the parody derives its value from what it took from the original work or from the added material that makes it a parody.
The U.S. Supreme Court articulated this concept in 1994, when it examined the copying of much of Roy Orbison’s “Oh, Pretty Woman” by the rap band 2 Live Crew in a song titled “Big Hairy Woman” despite having been refused permission by the copyright owner.
The Court found that a parody of a copyrighted work could constitute fair use of that work. It defined parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.” The more transformative the new work, the less will be the significance of the other factors, like commercialism, that weigh against fair use, the Court decreed.
It also distinguished a permissible parody from one that has “no critical bearing on the substance or style of the original composition, [but is merely used] to get attention or avoid the drudgery in working up something fresh.” In a true parody, the Court explained, the copyrighted work is the object of the parody, and not merely a vehicle with which to poke fun at a different target.
Reasoning along the same lines, the influential Ninth Circuit Court of Appeals ruled that a book commenting on the O.J. Simpson murder trial using the style, characters, and rhyme scheme of Dr. Seuss’s The Cat in the Hat was a commentary not on that book, but rather on a current event. Therefore, it was not fair use; it was infringement.
When Photocopying Is and Isn’t OK
Archival copying of articles might be fair use if the copying is neither systematic nor institutional. One case in point involved 83 publishers of scientific and technical journals who brought a class action suit against Texaco for unauthorized archival copying by its research employees. The court focused its fair use analysis on one of the 400-500 employees who had photocopied eight articles for easy reference. Texaco lost in the trial court and again on appeal, although the Second Circuit appellate court limited the application of the trial court’s analysis.
One important factor was that the employee had copied the work for the same reason one would normally purchase the original–to have it available for reference–and another was that Texaco could have taken advantage of available licensing schemes. Ruling for the publishers, the court went to great pains to limit its holding to the specific facts of the case, which helps explain why many observers think that fair use may cover occasional archival copying by individuals.
Copying in nonprofit educational institutions is affected by guidelines prepared by a group including authors, publishers, educators, and librarians. Known as the CONTU Guidelines, they describe safe harbor conditions but do not purport to define the full extent of fair use.
Under these guidelines, brief portions of copyrighted works may be used for a class if the teacher individually decides to use them, if the copyright notice in the owner’s name appears on the class materials, and if the use is not repeated systematically (for example, throughout a school system or a class semester).
Educational use that is systematic–including unauthorized copying of excerpts from books to create coursepacks for students–is not fair use and has been punished by heavy damage awards.
The law, standards of ethical behavior, and your own interests require that you avoid overstepping the bounds of fair use. Whenever you are in doubt, consult a lawyer or other professional with expertise in this area.