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2.8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
In any analysis of copyright, it's important to remember the law's
constitutional purpose: to promote science and the useful arts. "Fair
use" is a doctrine that permits courts to avoid rigid application of the
copyright statute when to do otherwise would stifle the very creativity
that copyright law is designed to foster. The doctrine of fair use
recognizes that the exclusive rights inherent in a copyright are not
absolute, and that non-holders of the copyright are entitled to make use
of a copyrighted work that technically would otherwise infringe upon one
or more of the exclusive rights. Although fair use originated "for
purposes such as criticism, comment, news reporting, teaching, ...
scholarship, or research," it also applies in other areas, as some of
the examples below illustrate. However, courts seem more willing to accept
an assertion of fair use when the use falls into one of the above
categories.
Perhaps more than any other area of copyright, fair use is a highly
fact-specific determination. Copyright Office document FL102 puts it this
way: "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
permission."
The document then quotes from the 1961 Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law., providing
the following examples of activities that courts have held to be 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.
Document FL102 is included in Copyright Office information kit 102
("Fair Use"), which can be ordered from the Copyright Office (see section 5.1).
Carol Odlum , a free-lance editor, has provided a
set of guidelines used by one publisher as rules of thumb. These
certainly have no legal force, but it's instructive to note at least one
publisher's interpretation of what "fair use" means in the real world.
The publisher uses the following criteria for determining when
permission of the copyright holder must be sought in order for the work to be used:
- Prose quotations of more than 300 words from a scholarly book.
(If a source is quoted several times for a total of 300 words
or more, permission must be obtained.);
- Prose quotations of more than 150 words from a popular,
general-market book;
- Prose quotations of more than 50 words from a scholarly
journal;
- Quotations of more than 2 lines of poetry or lyrics;
- Quotations of more than 1 sentence from a popular magazine or
newspaper;
- Quotations of any length from letters or other personal
communications, interviews, questionnaires, speeches,
unpublished dissertations, and radio or television broadcasts.
- Illustrations -- including drawings, graphs, diagrams, charts,
maps, artwork, and photographs -- created by someone else;
- Music examples of more than 4 measures;
- Tables compiled by someone else.
2.9) Fair use - the legal basis of the doctrine.
Section 2.8, above, describes fair use in a nutshell. This follow-on
entry provides a more detailed description of the doctrine for those
interested in the nuts and bolts.
In the United States, these seven rights are recognized:
1) the reproductive right: the right to reproduce the work in
copies;
2) the adaptative right: the right to produce derivative works
based on the copyrighted work;
3) the distribution right: the right to distribute copies of
the work;
4) the performance right: the right to perform the copyrighted
work publicly;
5) the display right: the right to display the copyrighted work
publicly;
6) the attribution right (sometimes called the paternity
right): the right of the author to claim authorship of the
work and to prevent the use of his or her name as the author
of a work he or she did not create;
7) the integrity right: the right of an author to prevent the
use of his or her name as the author of a distorted version
of the work, to prevent intentional distortion of the work,
and to prevent destruction of the work.
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There are four factors used to decide whether a particular use of a
copyrighted work is a fair use:
(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.