COPYRIGHT FAIR USE DEFENSE

Copyright laws were designed to recognize the creative rights — and their resultant profits — that artists and authors possess in the creative works they contribute to society. Accordingly, such works are protected against copyright infringement pursuant to U.S. copyright laws and global treaties and protocols. In the United States, copyright protection is grounded in the Constitution, which specifically grants to Congress the power.

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To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U.S. Constitution, Article 1, Section 8, Clause 8, the Copyright Clause)

Yet at the same time, it is recognized that there is a need to balance the exclusive rights of the copyright holder — and indeed limit them — against the needs and interests that society may have in making limited use of such protected creative works. Primary among such limitations is the copyright “fair use doctrine.” Although originally a product of various court cases, the fair use doctrine has now been codified in the Copyright Act itself. Following is an examination of the elements necessary to establish that a use of copyrighted material is in fact a fair use and not an infringement.

The General Meaning of Fair Use

According to the Stanford University Libraries’definition, fair use refers to a copying of a protected work for a limited and transformative purpose:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative”purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement. (Source: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/)

No Statutorily Defined Limits

The U.S. Copyright Office notes in particular that “there is no specific number of words, lines, or notes that may safely be taken without permission.”Determining what constitutes fair use versus infringement is the issue that infringement lawsuits are all about; it is more often than not left up to the courts to decide this issue on a case-by-case basis given the lack of a clear statutory definition. Furthermore, the courts themselves have rendered varied decisions on the issue of what constitutes fair use.

The Four Factors of Fair Use

Section 107 of the U.S. Copyright Act of 1976 (17 U.S.C. §107) lists various purposes for which reproduction of a copyrighted work may be considered fair use, including for criticism, comment, news reporting, teaching, scholarship and research. The act also cites four factors to be considered in determining whether a particular use of copyright-protected material constitutes a “fair use”exception. The four factors are:

  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 whole; and,
  4. The effect of the use upon the potential market for or value of the copyrighted work.  (Source: http://www.copyright.gov/fls/fl102.html)

Two Common Categories of Fair Use

Two of the most frequently cited examples of fair use are “commentary and criticism”and “parody.”In fact, “criticism”and “comment”are two of the copyright reproduction purposes specifically stated in section 107 of the Copyright Act. It would be difficult to pen a book review without quoting at least some original content of the work being reviewed, and commentaries on other protected works likewise benefit —and benefit the public —when fortified with the copyright holder’s content.

Broad License to Parody

To parody —or even outright ridicule —a copyrighted work is a fair use given wide leeway by the courts. Various cases have held that a greater amount of the original protected content may be reproduced for parody purposes than for other fair use exceptions. In fact, even where the parody itself results in a highly lucrative commercial product, the courts have nevertheless protected such use.

2 Live Crew and “Pretty Woman”

The benchmark parody case of Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) involved the rap group 2 Live Crew composing a parody of the Roy Orbison hit “Oh, Pretty Woman”for which they requested a license from the late songwriter’s music publisher. When the request was refused, the group proceeded to record their parody anyway, which sold about a quarter-million copies before the publisher brought its suit claiming infringement. Although the lower court granted summary judgment in favor of the rap group, citing fair use under §107 of the Copyright Act, an appeals court reversed and held that the highly commercial nature of the parody made it presumptively unfair under the four fair use factors of the act, and, specifically, that the group had “taken too much”in relation to the copyrighted work as a whole as restricted by the third factor cited in the act. It also found “market harm”to the publisher under the fourth factor.

Supreme Court Remand

The U.S. Supreme Court restated the notion that fair use must be decided on a case-by-case basis:

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.

The court reversed the appeals court and remanded the matter whereupon it was settled out of court. What is of particular note for this discussion, however, is the fact that Justice Souter copied both the original Roy Orbison lyrics as well as the 2 Live Crew parody lyrics in full in the appendices to his majority decision — thus providing us with at least one indisputable example of “fair use”!

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