Often authors, bloggers, book reviewers, reporters, researchers, academicians, teachers and others may wish to use material subject to copyright protection. The owner of a copyright has the sole right to reproduce (or to authorize others to reproduce) their work in any form, and permission is required for use of any work under copyright protection. However, the rights of the copyright owner are subject to certain limitations under the Copyright Act of 1976. One of the more important limitations is the doctrine of “fair use.” This doctrine has been developed through a substantial number of court decisions over the years.
The distinction between “fair use” and “copyright infringement” is not very clear or defined. There are various instances and purposes under which the use and reproduction of a particular copyrighted work may be allowed without the owner’s permission and its use considered “fair use.” This includes criticism, comment, news reporting, teaching, scholarship, and research. But even within this scope, the use of the material could infringe on the rights of the copyright owner.
The law states four main factors to be considered in determining whether or not a particular use is “fair use:”
- The Purpose – The purpose and character of the use, including whether such use is of commercial nature (more scrutinized) or is for nonprofit educational purposes (less scrutinized). Is the new work “transformative,” or used for a different purpose than the original? Purposes such as education, scholarship, research, news reporting, criticism and commentary and nonprofit favor fair use, although these alone do not guarantee it.
- The Nature – The nature of the copyrighted work. More creative works, like a fiction novel or a poem, receive higher protection than nonfiction works. Also, unpublished works are highly protected and have been held to eliminate a fair use defense, such as in the case of Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985), where The Nation newspaper published a portion of President Ford’s memoirs in the context of a book review written to “scoop” an authorized article soon to be published by Time Magazine.
- The Amount – The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Although there is no clear-cut amount triggering this factor, courts look at whether the portion copied or used reflects the “heart of the work” copied. In the Ford’s memoirs case above, the Supreme Court held that even 300-400 words (about 0.2%) of the unpublished book copied by the newspaper defeated a fair use defense.
- The Effect – The effect of the use upon the potential market for (or value of) the copyrighted work. Here, courts look at whether copying the work would affect the potential market and income of the copied or source work. In the above Ford’s memoirs case, the Supreme Court held that disclosing the portion of the material discussing why Ford pardoned Nixon affected the essence of the book’s commercial value (prospective readers would substantially be less likely to buy the book.)
As described in my earlier article on copyrights in this blog, a copyright protects the expression of an idea, and it does not extend to any ideas, systems, or factual information conveyed in the work. Although these elements by themselves are not protected by the copyright per se, their creative selection and arrangement may, and they may also be protected by other forms of intellectual property law. Therefore, the user of a copyrighted work must carefully verify “fair use” before using the work without permission, even if its use falls under categories traditionally allowed, such as news reporting, critiquing or scholarship. Also, acknowledging or crediting the source of the copyrighted material is not a substitute for obtaining permission.
From a practical perspective, it is important to know that “fair use” is merely a defense to a copyright infringement lawsuit. Therefore, to avoid the expense of defending such a lawsuit, the safest course is always to get permission from the copyright owner before using copyrighted material. If this is not possible or practicable, the unlicensed use of copyrighted material should be avoided, unless the doctrine of fair use would clearly apply to the situation.
A helpful reference on determining fair use can be found by clicking here. It is advisable to consult an intellectual property attorney to properly make a “fair use” determination.
* This article is based on material from the book “Does Your Compass Work? Practical Legal Guide for Florida Businesses,” Copyright © 2008-2015 Yasmin Tirado-Chiodini. All Rights Reserved. This article is provided under a Creative Commons License.