Fair use
Fair use is a doctrine in the United States copyright law that permits unauthorized copying of someone else's works for limited purposes or in limited ways. It is based on free speech rights provided by the First Amendment to the United States Constitution.
The most common form of fair use is copying for educational purposes and without earning a profit. Another common type of fair use is news reporting.
Contents
Balancing of Factors
While the statute is produced below, in general, fair use is an affirmative defense to a charge of copyright violation. Defendant presents "fair use" not to rebut the prima facie case, but to justify the violation of copyright. Fair use rests on the public policy concerns that copyright law ought to strike a balance between hardship to the author, whose work is infringed upon, and hardship to the public, if transformative or de minimis uses of copyrighted works are not permitted.[1]
The fair use defense asks the court to examine a multitude of factors, including (in abbreviated form) (1) the commercial or educational use of the copyrighted material, (2) the nature and amount of the copying, (3) the rough proportionality between the amount of the work copied, and the amount that would need to be copied to meet the alleged fair use, and (4) the invasion of legitimate market interests of the rightholder.[2]
Courts embrace a totality of the circumstances inquiry:
| “ | In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supercede the objects, of the original work. [3] | ” |
Especially because fair use defense, prior to codification in Title XVII, was mostly judge-made law, courts enjoy wide discretion.
De Minimis Infractions
Some de minimis - meaning, miniscule - uses of copyrighted material may be either (1) not a copyright violation in the first place or, (2) a fair use thereof, as small enough to make a point in a "fair" manner under the other factors.
In Ringgold v. Black Entertainment Television, the Second Circuit held that the use of a poster of an artist's work in a television show, with screen time totaling 26-27 seconds, was a copyright violation, based on the integral nature of the work of art with the television show.[4] Alternately, common usage throughout a film, in passing or in main shots, may, depending upon the nexus with the film's meaning, not be an infraction.[5]
Images
It is believed that the use of low-resolution images to illustrate a non-profit work qualifies as fair use under United States copyright law.
Faithful reproductions of two-dimensional original works cannot attract copyright in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp.
In order to preserve the legal rights of the copyright holder, a tag like the following one should be placed accompanying the image in question.
Statutory Text
17 U.S.C. § 107. Limitations on exclusive rights: Fair use
- Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 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 copyrighted work.
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.
See also
References
- ↑ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569.
- ↑ By means of paraphrase from the previously cited case, see Campbell.
- ↑ (Folsom v. Marsh, 9 F. Cas. 342 (1841)
- ↑ 126 F.3d 70.
- ↑ See Jackson v. Warner Bros., 993 F. Supp. 585.
