0.1 Fair use

Chapter 2: Fair Use

Samira has always been a talented guitar player and a painter of (usually) creative pictures. She was delighted to find that, in a busy tourist district, she could earn a living as a sidewalk musician. One day, she used a portion of her earnings to visit a large museum of modern art. A painting there inspired her, and that night she painted it onto her guitar case. She had to change a few minor details, but she and her friends thought that the new setting was excellent. The following morning, while taking the subway to her favorite street corner, she heard an angry call: “Hey! That’s my painting! You can’t just put it on your guitar case!” Samira turned and answered, “Yes I can! It’s Fair Use!”

Who is right in this situation?

By the end of this chapter, you should be able to answer:

1. What is “Fair Use”?
2. What sorts of uses are eligible for Fair Use?
3. What are the four factors of Fair Use, and how are they used?
4. How is it that one situation can receive multiple Fair Use interpretations?
5. What are some important considerations in Fair Use analysis?
6. Why is it that some major players in the copyright world disagree about the role of Fair Use?

What is Fair Use?

§ 107. Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of sections 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” (U.S. Copyright Office)

The doctrine of “Fair Use” states that certain uses of copyrighted works do not require permission from the owner. However, Fair Use does not provide specifics, such as exactly how many seconds of a song, or what percentage of a book or a painting. Also, even if Fair Use applies, people are not allowed to distribute copies at will.

II . What sorts of uses can be considered Fair Use?

The Fair Use section indicates that uses “such as criticism comment or news reporting…” are not considered infringing. However, that does not mean that any use of copyrighted materials when writing criticism, comments, or news is automatically “Fair.” See the four factors. If a reporter wrote a news story about a controversial song and included the entire song (not just the most controversial lines) it could be considered an infringing use of the song. However, the news writer could argue that the whole song was needed in order to give the full effect, and that their article would not convey its meaning without it. Such factors are key to interpreting Fair Use. Some uses are allowed; some are not. Furthermore, in many situations, both sides are often able to develop a convincing argument. People using copyrighted works are expected to take the time to analyze their use and make a reasonable decision. (U.S. Copyright Office)