What is Fair Use? What does fair mean in relation to copyright law? What are the governing principles?
Fair Use refers to one who believes that his or her use of another's work is acceptable and may be used without seeking permission and without paying royalties. The use of another's work is not generally acceptable, but under the laws of fair use, one has a defense to protect him or her against accusations of copyright infringement, if he or she reasonably believes that his or her use of a copyrighted work was indeed fair use. When questioned, one has the burden of proving that his or her use of the product in question is covered by the laws of fair use.
As was touched upon in class in reference to The Simpsons, the owner of a copyright has the legal right to monitor the reproduction of a copyrighted work. If such a work is reproduced, one also has the right to demand royalties. The penalties for breaking the above stated law are harsh. Sometimes it is acceptable to copy part or all of someone else's work, without their permission, and sometimes it is not. In trying to determine fair use, the process can be complex.
"When evaluating whether or not the use of a copyrighted work is "fair use", there are four factors which must be considered:
1. What is the character of the use?
2. What is the nature of the work to be used?
3. How much of the work will you use?
4. What effect would this use have on the market for the original or for permissions if the use were widespread?"
Usually, courts will not even consider the fourth factor is the use is fair under the first three. However, if use isn't found to be fair under any of the first three factors, the court will then examine the "economic impact of the use" to make its final decision. Basically, if a use is fair, the copyright user will not incur enough of a finaicial detriment to render the use "unfair." On the other hand, if a court determines a use to be unfair, the owner's financial detriment becomes a turninng point for litigation.
Whether a work is fair use cannot be determined by a simple yes or no question. Instead, courts must apply a "balancing test," weighing the private interest of the copyright holder with the public interest of allowing this work into the public domain. Nothing will ever automatically be termed "fair use" without a thorough evaluation.
"The less commercial the use, the smaller the portion used, the lesser the import of that portion of the work to the whole, and the lesser the effect on the market for or value of the work, the more likely it will be that fair use doctrine will apply."However, "the cheaper and easier it would be to license the desired portion of the work from the copyright holder, or the more valuable the excerpt to the work as a whole, the less likely it will be that your use will be determined fair." Such distinctions are very important to a court when making their decision, and all are evaluated and considered very carefully.
Fair use usually encompasses works that are fact-based, whereas creative works are much more likely to be considered unfair, and are given a much higher degree of protection. Also, images and pictures are given more protection than written works. Before using an image, its a good idea to look into licensing the image from the copyright holder. This way, you avoid the possiblity of commiting copyright infringement. If you opt not to get license and beleive that the work is "fair use," then be careful not to reproduce the image at too large a size - thumbnails work best. Limiting the distribution of image copies is also a safety precation to ensure against a copyright violation. Movies are becomming a huge market for copyright infringement due to unfair use and reproduction. Although many producers are worried about lost profits in the same way the music industry reacated to Napster, many movie makers and executives are more lenient on what they consider fair use of their product.
Generally, you shouldn't use more than you need of a copyrighted work (when the work is "fair use"). Use what you need to make your point, and no more. Using too much negates your fair use argument. Also, never reproduce the more valuable parts of the copyrighted work, as a court will determine fair use by weighing the value of what you copied against the value of the total work. "Another good policy is to ask not just what effect your own use will have, but what would the effect be on the copyrighted work if similar copying occurred on a wide scale." If the wide scale use would damage the value of the copyrighted work, even if you're only distributing a few copies, you probably won't get the "fair use" exception.
You need to be acutely aware of what constitutes "Fair use" before making a derivative work of your own. It's not enough to simply think that your work won't infringe on the original copyright owner, you must make certain that the work you use, the amount you use, and the value of that work to the owner do not add up to a copyright violation. Although it seems that there are many grey areas when it comes to deciding what is and is not fair use, it's better to play it safe than risk a lawsuit.
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