Frequently Asked Questions (and Answers) about Copyright and Fair UseQuestion: What is fair use?Answer: Fair use is an affirmative defense that can be raised by an individual who is sued for copyright infringement (or an individual against whom a claim of copyright infringement is alleged). See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted, notwithstanding the copyright owner's exclusive rights in her work.
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Question: What is the purpose of the fair use defense? Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws. The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts." Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.
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Question: Where is the fair use doctrine codified? Answer: The fair use doctrine was originally a judge-made doctrine embodied in case law. See Folsom v. Marsh, 9 F.Cas. 342 (1841). Congress later codified it at Title 17 of the United States Code, Section 107. This section provides: Section 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A [setting forth copyright owners' exclusive rights and visual artists' artistic rights], 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.
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Question: What types of uses does the fair use doctrine protect? Answer: The language used by Congress in Title 17, Section 107 specifically lists ?criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982). In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. A court will almost always use the four factors listed by Congress as a guide in its inquiry. The four factors listed are: FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. Further, the more commercial defendant's use, the less likely such use will be fair. FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright?only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988). One commentator noted that "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, [is to not] publish at all." While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "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." FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK This factor is generally held to be the most important factor. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984). It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use.
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Question: Do I need permission from the copyright holder to make fair use? Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).
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Question: Can I use fair use to force a copyright holder to turn over her or his copyrighted work to me so that I can copy it and use it? Answer: No. Fair use is a defense to a claim of infringement. Therefore, someone who wishes to make a use of the copyrighted work of another cannot force the copyright holder to turn over the work, even if the desired use would be considered fair by the courts. In such a case, the user must find a way to make the use, and then can invoke the fair use defense if she or he is sued for infringement by the copyright holder.
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Question: Suppose the owner of a copyrighted work displays this work on her or his website and places technological barriers on the work that prevent me from copying it. Does the fair use doctrine require the owner of such copyrighted work to remove those technological barriers if I can prove that my copying would be a fair use? Answer: No. Fair use provides a defense to a claim of copyright infringement, but (according to most courts, at least) does not provide the would-be copier with the affirmative right (or ability) to copy. That is, you cannot force a copyright holder to give you copies of a work or allow you to make copies of the work. Under current copyright law, it is perfectly lawful for a copyright holder to use technological barriers to prevent others from making copies of her/his work.
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Question: If the owner of a copyrighted work that is displayed on a website uses technological measures to prevent me from copying the work onto my website, but my copying would be a fair use, can I use technological measures to circumvent the copy protection and make the copy anyway? Answer: Yes. Under the current copyright laws, it is lawful to circumvent technological copyright protection systems in order to make a copy. Then, if the copyright holder sues you for making the copies, and your fair use defense is successful, you are in the clear. But here's the catch: It is UNLAWFUL for someone to TRAFFIC IN technology that can be used to circumvent technological copyright protection systems. Therefore, unless you can circumvent the copyright holder's protection yourself, it is unlikely that you will be able to find the technology you need elsewhere. Note that it is also UNLAWFUL for you to circumvent ACCESS control technologies. See Chapter 12 of the Copyright Act, particularly section 1201. For more information on the anticircumvention provisions, see the Chilling Effects topic Anticircumvention (DMCA).
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Question: Is my parody of another's copyrighted work protected as a fair use? Answer: It is likely that a bona fide parody, as opposed to satire, that does not usurp the market for plaintiff's work or unfairly free ride on plaintiff's work will be protected as a fair use. See Campbell v. Acuff-Rose Music, 510 US 569 (1994). Courts have held that the fair use defense can protect a parody of a copyrighted work from an infringement claim. However, that does not necessarily mean that all parodies will be protected. In the case of a parody where the defendant raises a fair use defense, the courts will run through the four part fair use analysis just as they would with any other fair use test. [See above for the four part test]. While it is problematic to try to predict what a court will decide in any fair use case, it is likely that in the case of a parody the court will focus on the fourth factor of the inquiry, which requires the court to ask what effect the parody has on the potential market for the copyrighted work. If the parody usurps the market for the copyrighted work, then there is an increased chance that the court will find that the use is not fair. If the parody dampens the market for the copyrighted work as a result of its implicit criticism of the work, such a negative effect on the market does not render such use unfair.
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Question: If I am engaged in research, educational, or academic pursuits, does the fair use doctrine permit me to copy articles from a journal or periodical? Answer: As mentioned above, it is hard to predict what a court will do when presented with a fair use defense. However, in this case the answer depends in part on your purposes in copying. If you intend to archive the copies, the answer is probably no, while if you intend to use the copies in classroom instruction (without charging for the copies), the use may be fair. In 1994 the Second Circuit Court of Appeals held that it was not a fair use for research scientists at Texaco to photocopy articles from various scientific and technical journals. Texaco argued, on behalf of its scientists, that the use was for the purpose of research, and therefore was fair under Section 107. But the court was not convinced. In reaching its decision, the court in Texaco ran through the four factor fair use analysis (see generally, what types of uses does the fair use doctrine protect? and introduction to this Chilling Effects topic). The court found that three of the four factors weighed against Texaco, and focused much of its opinion on the fourth factor, deciding that Texaco's use would have a significant impact on the potential market for the journal articles. Thus, in order to make copies of the articles, the research scientists at Texaco had to either pay for them or get express permission from the publishers. See American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994). Further, use of another's work for classroom instruction purposes may be protected under a separate provision of the Copyright Act. Section 110 of the Copyright Act contains exemptions that provide nonprofit educational institutions the limited right to use copyrighted materials in face-to-face classroom settings. This section provides: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . ." Furthermore, the recently enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission.
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Question: Can I copy an entire news article from a commercial news web site and post the article on my web site? Answer: The fair use doctrine, as currently interpreted by the courts, probably would not entitle you to do so. Even though news items are factual and facts themselves are not protected by copyright, an entire news article itself is expression protected by copyright. A court would apply the four factor fair use analysis to determine whether such a use is fair. In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism. The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non-commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature. Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners. See L.A. Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. 2000).
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Question: I found something interesting on someone else's blog. May I quote it? Answer: Probably. Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So if you are commenting on or criticizing an item someone else has posted, a court would likely find that you have a fair use right to quote. The law favors "transformative" uses ? commentary, either praise or criticism, is better than straight copying ? but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as "transformative." The blog's author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well.
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Question: Can an operator of a visual search engine use the copyrighted images of another owner as "thumbnails" in its search engine? Answer: Probably. The creation and use of "thumbnails" -- smaller, lower resolution copies of an image the enlargement of which would lead to a loss of clarity of the image-- as part of such a search engine may be a fair use. The Ninth Circuit Court of Appeals recently held in Kelly v. Arriba Soft that displaying the copyrighted images of another as thumbnails on a search engine was a fair use because the thumbnails served a completely different purpose than the original images. Working through the four factor fair use analysis, the court emphasized that it was essential to determine if defendant's use was transformative in nature. It is more likely that a court will find fair use if the defendant's use of the image advances a purpose different than the copyright holder's, rather than merely superseding the object of the originals. For example, the Ninth Circuit found there to be a fair use since the displayed images were not for illustrative artistic purposes, but were rather used as part of an image search engine as a means to access other images and web sites. Even if defendant's website is operated for a commercial purpose, it may still be a fair use if the use of the image was "more incidental and less exploitative." The court in Kelly found that defendant's search engine did not directly profit from the use of plaintiff's images, and therefore that their use was not highly exploitative. In Kelly, the court also found that the use of the images would not hurt the plaintiff's market for the images. Kelly v. Arriba Soft Corporation, 336 F.3d 811(9th Cir. Cal. 2003). However, if there is an actual market for thumbnails, this may be copyright infringement. The Central District of California recently granted an injunction preventing Google from displaying thumbnail size versions of Perfect 10?s images. Perfect 10 generates revenue from, among other things, licensing reduced-size images for download on cell phones. By displaying thumbnail size photos, Google potentially adversely effected the market for these cell-phone images. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006).
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Question: Does the fair use doctrine permit an operator of a visual search engine -- or other Internet web site -- to "import" or provide an inline link to a copyrighted, full size image, where such importing/linking does not involve making a copy of the image? Answer: As of now, there is no official decision with regard to this issue. The Ninth Circuit Court of Appeals withdrew its previous decision in which it held that a search engine may not display the full size images in this way without the copyright owner's permission because such a use infringed on the owner's exclusive right to publicly display his or her works. In its recently issued opinion (July 2003), the court determined that this issue did not need to be addressed, and the issue was remanded back to the lower court.
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Question: What is inline linking and framing? Answer: Inline linking allows a website to import an image from another website and then include it on the website. The user is able to click on an image and then open a new window to display the full size image, within the original website.
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Question: Can an internet service allow users to store and listen to compact discs sold by record companies through an internet connection? Answer: Probably not. According to the court in UMG Recordings v. MP3.com, an internet company may not store MP3 music files to facilitate their retransmission. Reproducing audio compact discs in MP3 format does not transform the copyrighted work. An internet operator must do more than merely retransmit the original work in a different medium. The court in UMG also found that storing digital files in this way would have an adverse market effect on the record companies. UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000).
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Question: Does the fair use doctrine permit individuals to upload and download digital audio files containing copyrighted music through a file-sharing service that facilitates transmission and retention of the files by its users? Answer: No. The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use. The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focused on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfering with the copyright holder's attempts to charge for the same internet downloads. A&M Records v. Napster, 239 F.3d 1004 (9th Cir. Cal. 2001); see also MGM v. Grokster, 125 S. Ct. 2764 (2005).
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Question: Does the fair use doctrine permit users to download MP3 files to make temporary copies of copyrighted sound recordings to "sample" the music before deciding whether to purchase the recording? Answer: No. The courts that have considered this issue thus far have held that allowing users to download a full, free, and permanent copy of the copyrighted recording would be a commercial use that would adversely affect the copyright owners' market for their work. The Napster court observed that "even if sampling enhanced the audio CD sales of the recording, the benefit to the copyright owner is not a sufficient indication of fair use." Further, the court held, even if the sampling benefited the copyright owner's audio CD sales, the copyright owner still enjoyed the right to develop alternative markets, such as the digital download market, and not to have such market usurped from them. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
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Question: Can a person or company create and streamline clips of movies over the internet to video retailers to play for their customers? Answer: Probably not. It is not a fair use to stream such clips over the internet if the purpose is to promote the sale and rental of the videos. Such a use infringes on the copyright owner's exclusive rights to reproduce, publicly display and distribute their work, and to create derivative works. A court will apply the four factor fair use analysis to the individual facts of such a case to determine whether the use was fair. Courts have found that stream lining movie trailers for the purpose of promoting sales or rentals serves a commercial purpose and is not transformative since the use is not different than the purpose for which it was originally created. However, if the video trailer adds criticism or commentary to the original work, it is more likely that the court will consider it to be a fair use. Courts have also found that even if the movie clip is short and therefore only uses a small portion of the original work, the aggregation of scenes may reflect the themes and tone of the film in a way that interferes with the plaintiff's ability to evoke the same expressive values in its own previews. With regard to the effect of the use on the market, a misleading arrangement of scenes or a low quality clip could lead to an adverse effect on the copyright owner's market. Also, such previews could detract from sales on the copyright owner's official website. Video Pipeline, Inc. v. Buena Vista Home Entertainment, 192 F.Supp.2d 321(D.N.J. 2002).
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Question: Is it fair use to electronically modify a movie to omit objectionable content? Answer: No. In Clean Flicks of Colorado, LLC v. Soderbergh, a U.S. District court held that editing movies by deleting ?sex, nudity, profanity and gory plots" is a violation of copyright law. In Clean Flicks, editing techniques included redaction of audio content, replacement and redaction with ambient noise, "blending" of audio and visual content to provide transition of edited scenes, cropping, fogging, or the use of a black bar to obscure visual content. The Court analyzed the four factors described above, finding that that the edited films were not "transformative" because they added nothing new to the movies; rather, they simply deleted scenes and dialogue from them. While the companies argued that there was no adverse effect on the market from their use of the movies because they purchased an original copy each time they edited a copy, the Court found that this argument ignored the intrinsic value of the right to control the content of the copyright work which is the essence of the law of copyright. Clean Flicks of Colorado, LLC v. Soderbergh, 433 F.Supp.2d 1236 (D.Colo. Jul 06, 2006).
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Question: What is the look and feel of a website? Answer: The look and feel of a website comprises its design aspects. The "look" includes layout, colors, typefaces, etc. The "feel" includes the behavior of dynamic elements such as buttons, boxes, and menus.
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Question: Is the look and feel of a website protected by copyright law? Answer: An individual may own copyrights to the code and graphical design of a website. In order for a website user interface to be considered copyrightable subject matter, it must be both fixed in a "tangible medium of expression" and original. The code creating the look and feel of a website is fixed on a file in the hard drive, so it is likely considered a "tangible medium of expression." To find a work is original, there must be some independent creation by the author, and some minimal degree of creativity. Just because an individual puts time and effort into a work does not necessarily make the work original. Although the level of creativity required is low, it may be difficult to find the originality required for copyright protection in simplistic websites that just arrange facts or information. If, however, the visual user interface component contains some graphics or a creative, visual presentation, it will likely be considered original. Once it is determined that a website is copyrightable subject matter, a court will determine whether there is a substantial similarity between the protectable expressions compared. To determine which elements are protectable and which are not, courts generally look at the level of structural abstraction. Aspects of the website that are considered merely functional or ideas are not protected, and must therefore be separated prior to comparison. Once the elements are separated, proving substantial similarity is not tremendously difficult. It can be proven with circumstantial evidence that the wrongdoer had access to the work to copy it, or with direct evidence of copying. See Computer Associates v. Altai, 775 F. Supp. 544 (E.D.N.Y. 1991). >>top |
