Fair Use

The parameters of copyright are somewhat cloudy when we look at the domain of fair use. For instance, in writing your book you want to make mention of a study undertaken by some organization and make comment on the results. As long as you reference the study source document, it is reasonable to claim fair use - or is it?

Too many artists claim 'fair use' , when in reality they have crossed the line into copyright infringement. So what is fair use? Unfortunately the definintion is highly subjective and littered by case precedence.

Copying an image off a website to use as inspiration for a new distinct work is fair use. Writing a couple of lines with a few words quoted to reference another document is fair use, where it does not contribute a 'significant' part of the works.

Motives play a large part in the legal diagnosis of fair use. Before you copy anyone else's work, consider your own motives. Copying an image, then using that image to digitally alter it into a new work is NOT fair use. It is regarded as a derivative work.

Applying Fair Use

Generally, "fair-use" exceptions were intended to protect freedom of speech to allow critique and promotion of certain works for the good of the pubic.

Fair Use is bound by Section 107 of the Copyright Act, which states:

Notwithstanding the provisions of section 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; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copy righted work.

In legal claims against a subsquent user of works claiming fair use, a Judge will consider all four factors listed above in the statute. As no case is identical, this can get complicated, and for this reason alone, the claim of fair use is not upheld.

Most attempt to fall under the banners of "criticism, comment, news reporting, teaching, scholarship, or research." A good lawyer would expand upon that list to include other 'like' purposes related to those specifically included in the Act.

A common thread among these uses is that the material claimed for fair use is that it was necessary, relevant or important to illustrate or support the work in which it's being used.  At this point, the intended use of the second works is considered and whether it is for commercial or strictly educational purposes.

At this point "commercial" also comes under scrutiny, as it may apply to an internal corporate report or shareholder report, or a work intended for sale to the public.

Fact or Fiction

Copying facts is more tolerated than copying fiction, and more supportive of copying publised works than unpublished.

Private or Public

Copying an image of a city is more supported than copying an image of a privately held object, or person in a private setting.

Reasonable Portion

 The amount and substantiality of the portion used in relation to the copyrighted work as a whole is a primary factor, and how 'essential' the copied piece is to the value of the secondary work. Hence, portion is evaluated both in terms of quantity and essence, and the effect of the use upon the potential market for or value of the copyrighted work. This is usually judged by how much the infringer will likely impact the revenue the creator gains from this/her work. In considering this, it is not only the revenue from the original piece, but also any potential licensing opportunties pertaining from the original content.

Examples of Fair Use

Fair-use exemption is more likely to apply when the copy:

• Is the very subject of something you're commenting on in your work.
• Is strictly for your own personal use and does not affect the income of the original creator.
• Is used for nonprofit educational purposes, including scholarship
• Is a parody of another work.
• Is used for critical purposes such as in a newspaper review of a work.
• Does not contain the very "essence" of the original work.

Fair Use Will NOT Apply

Although nothing is clearly defined, the fair-use exception would likely not apply when the copied work was:

• Used in an advertisement or commercial, or in promotional copy.
• Used in a parody of the original that did not refer to the original in broad enough terms to be understood by the court.
• Was a complete copy of the work, or used the key elements of the work, rather than being a copy of a small portion of the work.

Exceptions to Fair Use

There are exceptions to fair-use protection from copyright law. The lines are fuzzy but the following guidelines provide a framework to keep you relatively safe.

1. Seek permissin of the creator for anything beyond a mention. You will find most creators happy to have their work cited.
2. Maintain the extent of your copying to small snippets that do not constitue a major component of your newly created work
3. Never assume your use falls under the fair-use exception by making rationalizations
4. When an attorney advises you to seek permission to copy someone's work, do so.
5. For copied work placed online - get permission before you publish the page.
6. Add reference citations to all copied text and images

Next: Systems and Forms of Copy Protection

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