Fair Use and Copyright
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize
others to reproduce the work in copies or phonorecords. This right is subject to certain limitations
found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the
more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed
through a substantial number of court decisions over the years and has been codified in section
107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular
work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship,
and research. Section 107 also sets out four factors to be considered in determining whether or
not a particular use is fair:
1 The purpose and character of the use, including whether such use is of 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
4 The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined.
There is no specific number of words, lines, or notes that may safely be taken without permission.
Acknowledging the source of the copyrighted material does not substitute for obtaining
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright
Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in
a review or criticism for purposes of illustration or comment; quotation of short passages in a
scholarly or technical work, for illustration or clarification of the author’s observations; use in
a parody of some of the content of the work parodied; summary of an address or article, with
brief quotations, in a news report; reproduction by a library of a portion of a work to replace
part of a damaged copy; reproduction by a teacher or student of a small part of a work to
illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental
and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene
of an event being reported.”
Copyright protects the particular way authors have expressed themselves. It does not extend
to any ideas, systems, or factual information conveyed in a work.
The safest course is always to get permission from the copyright owner before using copyrighted
material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be
avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright
Office can neither determine if a certain use may be considered fair nor advise on possible
copyright violations. If there is any doubt, it is advisable to consult an Attorney .
Main source: Library of Congress · U. S. Copyright Office
Section 1 of the copyright statute accords the proprietor of a copyright a number of exclusive rights. But unlike the patentee, the copyright owner does not enjoy the exclusive right to “use”his copyrighted work.’ His exclusive rights include, among others, the right to print, publish, copy and vend the work; in other respeets, the public may “use”the work. Such use includes not only intellectual and esthetic appreciation, but more concrete utilization as well. For example, there is no impediment to the use of n copyrighted form book in the development of the appropriate forms.”
In other areas, particularly where the copyrighted work is used in the production of a new work by the user, a potential conflict, arisos. The usc may be of such a nature and extent us to impinge upon those exclusive rights which the copyright owner docs enjoy. Thus, assimilation of the protected material into a new product may conflict with the owner’s right to copy or publish. The courts have attempted to resolve this conflict through the introduction of a rule of reason. Where the circumstances render the appropriation a reasonable or “fair”use, the court will refuse to impose liabili ty. Accordingly, one commentator has stated in a frequently-quoted definit.ion that:
Fair use may be defined as a privilege in others thnn the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent; notwithstanding the monopoly granted to the owner by the copyright.!
The courts have grappled with the problem of fair usc without the aid of any specific statutory guide. The language of the statute has always been positive in granting exclusive rights, apparently admitting of no exceptions. In contrast, the statutes of most other countries have attempted to deal with at least some aspects of the problem.’
In view of the potential breadth of the problem of fair use, the scope of this study has been consciously limited. ln particular, discussion of the peculiar problems facing libraries, chiefly with respect to requests from users for photocopies of copyrighted works,”has been minimized. This area is being reserved for specialized trcu tment. Also, limitations on the right of public performance arc the subject of a separate study and will be mentioned only incidentally herem.
The silence of the 1909 act on the question of fair use is consistent with prior history. There has apparently never been any specific statutory provision dcaling with the question in the copyright law of the United States. At least one provision of the 1909 act has, however, had an indirect impact. Section 1(b) extends to the owner of a copyright in a literary work the exclusive right “to make any version thereof.”This provision changes the prior case law under which a “bona fide abridgment”was permissible.”In general, however, the rationale underlying the fair use doctrine and the criteria for its application are discernible in a body of case law unaffected by legislative developments.
Fair use may be viewed from two standpoints. It may be considered a technical infringement which is nevertheless excused. On the other hand, it may be deemed a usc falling outside the orbit of copyright protection and hence never an infringement at all.
Examiuntion of till’ casl’S will roveul the various criteria of Iair use anrl how t hov
1. Incidental use
Section 1(1)) of the copyright statute grants the exclusive right to make any new version of a literary work and to arrange and adapt a musical work. These rights are sufficiently broad to include a change ill tho medium of expression of copyrighted material. Thus, it has been hold that a television comedy may nut copy substantially from a serious motion picture.”But a different situation is presented where a rcnsounblc nmount of material is used incidentally and as background in an ent.iroly difforent class of work. Such an appropriation may be «onsid ered a fair use. This is best illustrated by the use of excerpts from the lyrics of a copyrighted song in the course of a literary production. The courts have been reluctant to impose liability ill such a case.”The incidental nature of such use, and its inability to compete with thc copyrighted work have produced a finding of Iair use.
The absenco of music may preclude impairment of the value of the plnintifls musical composition; it has been so held where portions of the lyrics were used as background for the action in a short story,”or in conncct.ion with a magazine article about the professional football team on which the song was based.”Similarly, a finding of fair use was marlo even where half of the magazine comment on the death of all actress consisted of extracts from the copyrighted song associated with her.”But a contrary result was reached where all the lyrics as well as the melody line of plaintiff’s song were included in a narrative history of popular songs in the United States.”
Thus, the usc of extracts from copyrighted material for illustrative purposrs, or merely as a vehicle for an entirely different and noncompeting work, would seem permissible.”Reproduction of musical material for the “amateur performer”is not within such immunity.t”
The fortuitous inelusion of copyrighted material in newsreels or news broadcasts represents an incidental use which has given rise to several legislative proposals. These will be discussed below.
2. Review and criiicism.
Discussions of fnir use often begin with the question of quotation from a work for the purposes of criticism and review. It is universally agreed that “in reviewing a copyrighted work, or in criticising it, quotations may be taken therefrom.
Parody and burlesque
There have been half a dozen American cases dealing with parody, mimicry, and burlesque. Those may be considered a humorous type of criticism; but the element of criticism is ofton absent from burlesque, leaving humor as the only aim.”The current importance of the problem of parody as fair usc in indicated by the fad that the Supreme Court recently granted certiorari in Columbia Broadcasting System v, Loew’s, Inc., in which the court, without discussing the issues in its opinion, divided four to four.”
The key issue would seem to be the extent, if uuy, to which the general tests of fail’ use lU’C to be modified in this area. ‘I’ll I’ early case of Bloom & IIamlin Y. Nixoti.”indicates that the parody f’catur« is quite significant. The court there stntcd :
Surely a parody would 1I0t infriuue Lilt, copvright of tho 1’1-parodied Illl’l’ely because a few lines-of the oriuinul might be t oxt uullv reproduced.
While it is not entirely clour that this was held to be so because of the nature of a parody, the court did furd that “the (;ood faith of such mimicry is an essential element.”Liability was denied OIl the ground that the use of plaintiff’s song-was merely incidental to the mimicry of the singer, and not a subterfuge by which to reproduce copyrighted material.
In the well-known l11utt and Jeff case,”the court apparently assimilated tho parody to serious criticism and uso of eopyrightcd material in general. Perhaps because the comic strip was itself humorous, t.hrcourt found that the dofendant’s parody const.itutod a “partial satisfaction of the demand”for the parodied work and accordingly amounted to an infringement. ‘
Litigation in the California Federnl courts indicates that the interaction between motion pictures and television has elevated the problems posed by parodies and burlesques. In LOC1J/s Inc. v. CBS, Inc. 3s Jack Benny’s television parody of the motion picture “Gaslight”was under attack. It was clear that the taking was substantial. In a comprehensive and analytical opinion, District Judge Carter noted that “burlesqued taking-is treated no differently from any other appropriation.” In finding for the plaintiff, the court held that the change in mod-of expression from serious to comic did not preclude infrirgiment. The court also found that the defendent.’s commercial use of plaintifls material was directed to a competing entertainment field.
References and Further Reading
About the Author/s and Reviewer/s
Mentioned in these Entries
1000 Top law pages in Wikipedia in may 2012, 1500 Top law pages in Wikipedia in may 2012, 250 Top law pages in Wikipedia in may 2012, 500 Top law pages in Wikipedia in may 2012, Art as Intellectual Property: guide, Attorney, Berne Convention, Citation of legal blogs in law reviews, EU Copyright Directive Part 2, EU Copyright Directive Part 3, International copyright Part 5, International copyright2, Legal research: Law of Libraries and Archives, Legal research: resources for libraries, List of top 10 most-cited legal articles in intellectual property, Top law pages in Wikipedia in may 2012 by importance, Trade law Part 43.