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How to Make Smart Fair-Use Decisions: Learn the Law and Apply the Examples

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As the recent furor over
Google’s digitization project indicates, the application of the law regarding
“fair use” of copyrights depends greatly on the specific facts in any
situation. In fact, two situations that are identical except for one
circumstance may lead to opposite results, with one amounting to fair use of a
copyrighted work while the other constitutes infringement.


Usually, dealing with questions of
copyright infringement means involving lawyers. And those lawyers almost always
charge high fees ($175 to $400 or more per hour) to evaluate the circumstances
surrounding a claimed infringement. This means that even being accused of
infringement can be expensive.


One of the best ways to avoid
infringement claims is to educate yourself. It’s not too hard to decide
correctly when you need permission to use a copyrighted work, especially if you
begin the fair-use analysis with respect for the copyright rights of others.
The tools you’ll need are information about the length of copyright protection
(see “Is It in the Public Domain?” below) and about how the copyright law
defines fair use (see below, §107), plus a grasp of the way lawyers think
through fair-use questions, which the examples below will demonstrate.


The Four Key Questions


The factors that courts must
consider in determining whether the use of a copyrighted work is a fair use are
enumerated in Section 107 of the U.S. copyright statute, which says, in its


style=’font-size:11.0pt’>§ 107. Limitations on exclusive rights: Fair use

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 <span
class=95StoneSerifIt>[Nonprofit educational,
research, criticism, and news reporting uses are almost always fair; commercial
uses, such as uses in advertising, are seldom fair uses.]

2. The nature of the copyrighted work <span
style=’font-size:11.0pt’>[Permissible uses of informational works are
considerably broader than permissible uses of creative works. However, the courts
have yet to permit the fair-use defense to infringement in a case involving an
unpublished work, whose private nature is ordinarily protected.]

3. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole [This is quantitative and qualitative; that is, did you quote the
12-page climactic scene of a mystery novel, thereby disclosing the identity of
the killer, or did you quote only a three-paragraph section that describes the
city where the detective works?]

4. The effect of the use upon the potential market for or value of the
copyrighted work [This
evaluation is often determinative in a court’s decision whether the use
constitutes infringement. It is undoubtedly the most important of the four
factors. If the market for the copyrighted work is significantly diminished
because of the purported fair use, then it is not a fair use. Fewer readers
will want to buy a book if its most sensational and newsworthy sections have
been previously published in a magazine. A related factor to be considered is
the effect of the purported fair use on any of the rights in the copyright of
the work. If, without permission, one person writes and sells a screenplay
based on another person’s copyrighted novel, the right to prepare and sell a
screen adaptation of the novel may have been lost to the author of that novel.]

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.


The House Report that accompanied
the 1976 Copyright Act is also informative because it illustrates the scope of
the fair-use section of the statute with several examples of fair use:


of excerpts in a review or criticism for purposes of illustration or comment;
quotation of short passages in a scholarly or technical work, for illustration
or clarification of the author’s observations; use in a parody of some of the
content of the work parodied; summary of an address or article, with brief
quotations, in a news report; reproduction by a library of a portion of a work
to replace part of a damaged copy; reproduction by a teacher or student of a
small part of a work to illustrate a lesson; reproduction of a work in
legislative or judicial proceedings or reports; incidental and fortuitous
reproduction, in a newsreel or broadcast, of a work located in the scene of an
event being reported.


Examples Designed to


Keeping this material in mind will
help you figure out whether a use of someone else’s copyrighted work will be a
fair use of that work (and also can help you determine whether someone else’s
use of your work meets fair-use requirements).


Here are two vignettes that will
strengthen your ability to make these determinations. They are designed to
function the way casebooks function for law students, who read cases and, after
considering the facts in each one and the written opinion of the court in
deciding the case, learn how the law applies to various fact situations. These
particular cases involve imaginary lawyers. Think of them as substitutes for
the real lawyers who would charge you for their opinions.


Picture Panic


As part of your plan to escape
from your boring day job, you start a small, part-time book-publishing company
in your garage. You want to concentrate on books that don’t have to be updated
and that people will collect. Those criteria, and your lifelong passion for
baseball, dictate that you will publish books about all things baseball. You
decide that your first book will be about the top 50 baseball stars of the 20th
century, each with a photo, a short biography, and career statistics. You also
decide to write the book yourself.


You collect photos of all fifty
baseball stars—some from other books, some from baseball cards, some from
publicity photos distributed by the teams—and you scan them into your
computer to use as full-page illustrations in your book. You put the entire
book on a disk and take it to a local short-run printer. Then you head home to
spend the rest of the weekend planning your marketing program for the book,
because the printer says it will be printed and delivered in 10 days.


You’re feeling as if you might
really have started a viable enterprise when you read an article that discusses
the dangers of using photos without permission. The article details several
steps that small publishers should take to avoid claims of copyright
infringement. Your stomach sinks when you realize that you didn’t take any of
these steps before sending your book—with 50 photos—off to the
printer. In fact, you realize, you didn’t even consider the issue of copyright
in the photos you used.


As soon as you have your
Monday-morning coffee, you call your office to tell them you’re taking a sick
day (you are feeling sort of green), call the printer to tell them to halt work
on your book until further notice, and call Hank Elliott, a lawyer you know, to
ask just how much your blunder is likely to cost you. He asks you to gather the
source material for the photos you scanned and meet with him that afternoon.


Elliott looks at each photo during
your account of your problem and, after asking a few questions, divides the 50
photos into three piles.


“What’s that? Triage?” you ask.


“In a manner of speaking,” Elliott
says. “This pile presents definite problems because the photos were taken from
books published and copyrighted by someone else. It doesn’t much matter who at
this point, because none of the publishers are you. The copyrights in these
photos almost certainly belong to someone else, and you need permission to
republish them in your own book.”


“And the second pile?” you ask.


“The second pile contains photos
of early 20th-century baseball players,” he says. “I can’t tell without knowing
more about when each photo was taken, but many or all of these photos may be
old enough that they are now in the public domain. That means the photographers
who took them—or, at this point, perhaps their heirs—have no legal
rights in them anymore, those rights having expired. It may have been OK to use
these photos.”


“I’m afraid to ask about the ones
in the third pile,” you say.


“This is the ‘maybe’ pile,”
Elliott says. “These are publicity photos taken by photographers hired by the
baseball teams. The photos were then distributed to news outlets. Usually, the
teams themselves will have acquired the copyright in such photos—the
copyrights are almost certainly no longer owned by the individual
photographers. By their actions in distributing them to news organizations, the
teams have created what could be termed an ‘implied license’ to publish the
photos, since the whole idea of distributing the photos was to get them
published in newspapers and magazines. That implied license would include books
such as yours, and you’re probably not going to encounter any trouble from the
teams for publicizing their players.”


“Does that mean I can call the
printer and tell them to start the presses again?” you ask.


style=’font-size:11.0pt’>“Not just yet,” Elliott says. “You need to investigate
the status of almost all these photos first—my grouping them into ‘no,’
‘yes,’ and ‘maybe’ piles is based only on guesswork. But those are the three
categories of photos we’re dealing with. You just have to figure out whether
each photo is in the correct pile. Get a printout of the copyright-duration
chart and the Copyright Office pamphlet on determining the copyright status of
a work. [See “Is It in the Public Domain?” below.] Read those, do some
investigation by calling the team offices or the photographers for the photos,
re-divide the photos based on what you learn, and bring them all back to me as
soon as you can. And make sure that you get correct information for credit
lines from each photographer—people really get angry when they don’t get
credit for their work.”


You do what you’re told. The
investigation takes three weeks of lunch-hour calls and emails, but you nail
down the status of all but two photos and obtain permission to use those you
have found are still under copyright. Elliott tells you that you can use the
other two if you reserve enough money to pay modest fees to the copyright
owners in the photos if they contact you. Then, after he reviews your notes, he
gives you the go-ahead to print the book. You add credit lines to each photo,
tell the printer to resume printing, pick up the finished books (with your name
on the spine as author!) in two weeks, and haul them to a baseball-fan
convention, where you sell all but 10 copies.


And you ask Elliott if he will
handle the legal work for your blooming new venture.


And I Quote


You have collected interesting quotations
for years. You find them in magazine articles, on television shows, in books,
and in movies. You also have amassed a large collection of books of quotations,
and when you have the time you read them and mark those that are particularly
memorable. One day when you are organizing your quotations files, you realize
that you have a large number of quotations about cats—more than enough to
fill a book. This isn’t surprising, since you are a cat lover and many
articulate people over the centuries have been as crazy for cats as you are.
You type your cat quotations into your computer and take the resulting
collection to a copy shop, where they turn your pages into a nice little
spiral-bound book.


You give copies of your homemade
book to your cat-loving friends as birthday presents. They are all delighted
with your compilation, and one of your fellow cat-lovers shows it to her
sister, who is the owner of a small book-publishing company. This woman calls
to offer you a contract to publish your book of cat quotations. You are
ecstatic until your neighbor, who is a dog person, bursts your bubble. “I’m
sure that’s a very interesting collection of quotations,” she says, “for people
who don’t own a dog. But how did you ever get permission from all these people to
use what they said in your book? Like this quote by, uh, some guy named
Montaigne: ‘When I play with my cat, who knows if I am not a pastime to her
more than she is to me?’”


You show your neighbor and her
big, ugly dog out of your house and start worrying. Then you call your sister,
who teaches law at the state university. “I think I’m in trouble, Marcia,” you
say, describing your project and recounting your conversation with your


“I signed the publishing contract
already because I thought I had finished the book,” you tell her. “But if I
have to contact everybody in the book whose quotations I used, I can’t possibly
deliver my manuscript when I said I would. Do you think they’ll sue me?”


“Do I think who will sue you?” she
answers. “The publisher, or the people whose quotations you used?”


“I meant the publisher,” you say.
“I’m afraid that they’ll sue me for nondelivery or something. But
wait—you mean the people I quoted can sue me, too! I can’t believe my
little book is going to result in two lawsuits, and I haven’t made a nickel
from it yet!”


“Hold on,” your sister says in a
soothing voice. “I don’t think anyone is going to sue you.” Then she asks some
questions; she wants to know how many quotations you used in your book, how
long the quotations are, how many sources you consulted to gather them, and how
many of the quotations you used came from each source. Finally, she gives you
good news.


“There is no copyright on short
quotations like the ones you have used in your book. Short quotations like the
ones usually used in books of quotations are simply too short to qualify for
copyright protection. That means that you can copy them from almost any source
so long as you don’t use too many from any one source. That’s because a
compiler—like you—does have copyright rights in the compilation as
a whole,” she says. “Because you don’t need permission from any of the speakers
or from any magazine or book publisher or author to use the short quotations
you’ve gathered, you don’t have to worry about not meeting your publisher’s
deadline. But you should have thought of all this before you signed a
publishing agreement, and you should be very careful never to use long
quotations without permission or to take more than a very small percentage of
the content from any published work.”


“Got to go, sis,” you say. “I have
to take my cat for a walk. And maybe visit my neighbor—I want to break
the news that Montaigne is dead but his cat quote is about to get some


Lee Wilson has been an
intellectual property lawyer for more than 20 years. She is the author of <span
class=8StoneSans>The Copyright Guide
and several other books, most recently <span
style=’font-size:11.0pt’>Fair Use, Free Use and Use by Permission: How to
Handle Copyrights in All Media
, from which this article is
derived. The book is available in bookstores and can be ordered from Allworth
Press via 800/491-2808 or title=”http://www.allworth.com/”>www.allworth.com, which offers a full
description, a table of contents, and reviews.


Is It in the Public Domain?


To determine whether the
copyright in a work has expired, thereby transforming it into a public-domain
work—which means that you may use it in any way without permission from
anyone—consult the Copyright Office circular called “Duration of Copyright:
Provisions of the Law Dealing with the Length of Copyright Protection,” which
you may download for free from the Copyright Office Web site at <span


Another useful tool for
determining the copyright status of a work is a copyright-duration chart.
Several are readily available on the Internet, and any you find on the Web
sites of major universities are probably accurate and reliable. One of the best
and most up-to-date is at www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm.


If you use the information
in the Copyright Office pamphlet and consult and use a good copyright-duration
chart, you should be able to decide whether the work you want to use is in the
public domain or requires permission to use. And if you plan to spend any significant
amount of time or money on a project that depends heavily on a work created by
someone else, use the belt-and-suspenders approach: consult a lawyer who is
well versed in copyright after you make your initial determination.


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