Copyright: What is Fair Use?
Copyright is protection for the authors of creative works, but what does it protect?
It does NOT protect: individual words or short phrases familiar symbols and designs mere variation of typographic ornamentation lettering or coloring mere listing of ingredients or contents facts, such as baseball statistics methods IDEAS • Special Case: U.S. government publications Therefore, these sorts of items may be used without worrying about copyright infringement
Copyright DOES protect: • Creative works* fixed in a tangible medium: • paper • a website • a CD • a game cube • * literary, musical, dramatic, choreographic, pictorial, graphic, sculptural works • sound recordings • motion pictures • computer programs • architectural works • compilations Therefore, to use these sorts of items legally, you need either the copyright owner’s permission, or your use needs to fall under a copyright exemption, such as Fair Use.
A Fair Use exemption is granted if: “a too literal enforcement of the copyright owner’s rights would operate to the detriment of the public interest in access to and dissemination of knowledge and culture, and unauthorized copying can be tolerated without significant economic injury to the copyright owner.” Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) The only way such a determination can be made for sure is by the courts.
Fair Use is decided case-by-case It is a concept intended to be flexible and dynamic, but the following general examples are often cited as fairly definite: • quotation of excerpts for criticism or comment • quotation of short passage in a scholarly work • use in a parody • quotations in a news report • reproduction of a portion for use by a teacher to illustrate a lesson In the Copyright Act of 1976, Congress for the first time codified the idea of Fair Use, and provided the following test to be used to determine when it applies…
The “Four-Factor Test” • Purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes) • Nature of the copyrighted work • Amount and substantiality of the portion used in relation to the copyrighted work as a whole • Effect of the use upon the potential market for or value of the copyrighted work • 17 U.S.C. §107 These factors are not to be “treated in isolation… All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, Inc. 510 U.S. 578 (1994)
Purpose and Character of the Use • commercial vs. non-profit/ educational/ personal • criticism, commentary, etc. • “transformative” use
Nature of the Copyrighted Work • creative/imaginative vs. non-fiction • unpublished vs. published
Amount and Substantiality of the Portion Used • generally, small portion vs. large portion • consider significance of the portion • consider size of the portion in relation to work using the material
Effect on the potential market • substitute for buying a copy of the work? • substitute for paying royalties through an established system? • potential market for derivative works (translation, dramatization, etc.)
Some widely-accepted guidelines… • Single copies of the following are usually ok for research and/or teaching: • book chapter • periodical article • short story, essay, poem • chart, graph, diagram, cartoon, etc. • In addition, multiple copies for classroom use are ok IF: • excerpt is brief • use is “spontaneous” (not repeated) • consider cumulative effect (of many instances) • includes a copyright notice
There are other guidelines for media and for distance education… • Generally speaking— • use as small a portion as possible • limit access to currently enrolled students • terminate access at the end of the course • utilize existing license arrangements For specialized advice on fair use and multimedia, contact the folks at our Academic Imaging & Media Center (http://www.stmarytx.edu/aimc)
Copyright Resources One-stop shop— http://library.stmarytx.edu/acadlib/doc/copyr.htm
Major Fair Use cases • Sony Corp. of America v. Universal City Studios 464 U.S. 417 (1984) • home videotaping for time-shifting • Harper & Row Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985) • Ford pardon excerpt • Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) • “Pretty Woman” parody • Basic Books v. Kinko’s 758 F.Supp. 1522 (S.D.N.Y.1991) • coursepacks • American Geophysical Union v. Texaco, Inc. 60 F. 3d 913 (2d. Cir. 1994) • systematic copying for researchers • Kelly v. Arriba Soft 280 F.3d 934 (9th Cir. 2002) • thumbnail images in online directory • A & M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th Cir.2001) • file-sharing of music