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Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.

Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words, a fair use is a use of copyrighted material (for instance, making and distributing copies) that would infringe on copyright were that use not defined by law as “fair.” There are four main factors that are weighed to evaluate a fair use:
  • purpose of the use – noncommercial and educational uses weigh toward fair, for example
  • the nature of the copyrighted work – if the work presents its content as fact, the copyright-holder cannot assert copyright in the facts themselves
  • the amount or substance of the copied material – in general, smaller excerpts are more likely to be considered fair
  • the potential for the use to harm the commercial market for the original – designed to protect the ability of the creator to profit from his work, while allowing some non-authorized use
The first thing to notice is that subjective evaluation plays a fairly hefty part in determining whether a use is fair or infringement. Take the first factor for example. Whether a use is educational is fairly objective. If I photocopy a poem for my class to read, that's an educational use. The same factor is invoked for excerpting a novel for the purposes of review, another objectively determinable use. The problems begin with another type of use usually evaluated under the umbrella of that first factor: parody. Use of a work or a portion of a work for the purpose of parody is supposed to weigh in favor of fair use, and Weird Al Yankovic has made quite the career on that factor. Nevertheless, parody is not a carte blanche for making use of copyrighted material. Consider the case of Walt Disney Productions vs Air Pirates in which Disney sued the producers of an underground comic strip for depicting Mickey and Minnie Mouse using drugs and having sex. While one might think that such use would clearly constitute parody of Disney's antiseptic family-friendly image, the Air Pirates ultimately lost the suit. The lesson, as it were, is that a cartoonist's parody and a lawyer's infringement can indeed be one and the same.

Likewise, the third factor poses problems for subjective evaluation. Exactly how much is too much might vary depending on the nature of the work. Excerpting a single page from a novel just does not constitute a substantial copy, but copying the entirety of a single poem certainly looks like a substantial copy. Trying to set standards, such as the percentage of the work, invites incoherence. Consider setting the limit at 1% of the work. That percentage might constitute half a page of a short novel, but a few words of a short poem. Even setting standards by medium is problematic in this regard. While 1% of Fight Club by Chuck Palahnuik might be about a page and half, the same percent of Infinite Jest by David Foster Wallace would allow one to copy ten pages. The inevitable conclusion from such a standard is that the length of the work determines the fairness of the use, posing the question as to why the length of the original should determine whether or not a use is infringing.

The nature of the original seems more straightforward. The author of a textbook cannot assert copyright in the facts described, but can assert copyright in the format of the book, the way those facts are presented. If any readers have followed the recent Dan Brown craze, you might have run across a copyright infringement lawsuit regarding The DaVinci Code. Some of the bizarre conspiracies utilized in the novel made appearances in a 1982 book Holy Blood, Holy Grail by Michael Baignet, Richard Leigh, and Henry Lincoln. When The DaVinci Code became successful, the authors of Holy Blood, Holy Grail sued Dan Brown for copyright infringement. Baignet, Leigh, and Lincoln lost the suit because their book presented those conspiracies, specifically the marriage and progeny of Jesus and Mary Magdalene, as fact. Facts cannot be controlled under copyright due to the so-called idea-expression dichotomy, but that will be the subject of its own tutorial. For now, suffice it to say that if you don't want your conspiracy theory co-opted by a bestselling novel, don't present it as fact.

The final factor concerns protecting the market for copyrighted works against derivative works or copies. Making a backup copy of a CD does not significantly harm the market for original copies. Distributing that backup, the making another and doing the same, does. In general, this aspect of fair use is designed to protect personal copies. For instance, Sony Corp of America v Universal City Studios concerned the right of individuals to record television programs. When Sony released the first home video cassette recording devices, some major studies, Universal included, were concerned at the potential for copyright infringement inherent in the devices. Using the newly created Betamax, an individual can record a broadcast, make a copy of the broadcast, using another Betamax machine, then sell the copies. The Supreme Court ultimately ruled that consumers did not purchase VCR's for the purpose of infringement, but primarily for the purpose of “time-shifting,” recording broadcasts so that they can be watched at a more convenient time. Time-shifting, as a personal and not commercial use, does not harm the market for commercial copies sold by the major studios, so such use is fair.

Now that the major factors are covered, I've realized that there is a great deal to say about the history of fair use, as well as myths and conflicts, likely enough for its own tutorial. As such, the next installment will address further issues regarding far use, not that the basics have been explained.


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