0.1 Fair use  (Page 5/6)

will be provided in a later chapter. Neither group has a formalized name, but those that favor stronger copyright enforcement are often called “The content industry” or “Copyright enforcers.” The side favoring more freedom is often called “The Copyfight”. Because there is intentional flexibility built into the Fair Use law, both sides are can be considered correct in their interpretation. Which side you favor is an individual decision.

What about Samira?

In the opening scenario, a street musician named Samira copied a modern painting onto her guitar case. The artist sees her guitar case and accuses her of copyright infringement. Samira claims fair use. Who is right?

First step: Is it possible to interpret Samira’s use of the painting as criticism, comment, news reporting, teaching, scholarship, or research? For this question, the answer is “no”.

First factor : Purpose. What is Samira’s purpose in decorating her guitar case? We can argue that anything Samira does to attract passersby is a commercial purpose. The more attractive her guitar case, the more potential tips she can earn. (Rating: 1)

Is it transformative? Moving the painting from a museum to a guitar case is a new placement, but still not a truly different purpose. The painting attracts attention and inspires thought in either location.

Second Factor : Nature of the work. The modern art painting is definitely creative. (Rating: 0)

Third Factor : Amount of the work. Samira copied a significant portion of the painting, enabling her guitar case to be easily recognized by another person familiar with the painting. (Rating: 1)

Fourth Factor : Impact on the market for the painting. Limited; museums will still wish to display this painting and collectors should still be willing to purchase it. However, Samira did bypass the permissions market ; she could have sought and paid for permission to make her copy. In this way, she is impacting the permissions market for the painting. (Rating: 2)

Samira’s use of the painting fails all four factors of Fair Use. If you consider points (a total of 4), her case is still weak. If she is lucky, the artist will accept Samira’s promise to re-paint the guitar case and not pursue damages in court.

Conclusion: The Law

Average citizens such as Samira can look up the law on copyright; the next chapter explains how.

GLOSSARY, CHAPTER 2

Analog: Items from before the digital era. For example, paper, round clocks, phonograph records and cassette tapes, photocopiers, VHS tapes, etc.

Analyze : To study a situation by considering all of its parts separately, then putting them together.

Criticism : The practice of evaluating and analyzing literature, music, or art.

Fair Use : A legal doctrine that outlines some uses of copyrighted works, which do not require permission from the owner.

Four Factors: The purpose of the new work; the nature of the work being used; the amount of the work used; and the effect of the use on the market for the original work.

Heart of the work : The most significant or important part of a work.