Can a musician sample a bassline from a seventies funk classic and incorporate it into a hip-hop recording?
Can a writer quote two lines of lyrics from a punk band in his novel?
Can a filmmaker incorporate clips from television news broadcasts into his documentary about the media?
Can an online animation studio create parody rock videos that reference existing songs and videos?
Can a critic writing for an online journal reproduce portions of a book in his discussion of the work?
Can you include a portion of someone else's e-mail when you post a comment to an online discussion list?
Can a teacher read a poem or story to the class? Can the same teacher copy an entire chapter of a book and place it in a "course pack" to be copied at the local copy center?
Which of these activities requires a license? Is there any fair use exemption that would apply?
In an ideal world there would be a clear, concise answer to these questions. Instead, the concept of fair use is a shadowy territory whose boundaries are disputed. The fluid transfer of information and files on the internet has only exacerbated the haziness of the fair use concept for most artists.
Nevertheless, the widely misunderstood concept of fair use is an essential component to our system of copyright. In order to shed some light in this constantly evolving area of law, we begin with the basics:
What’s the big picture?
Copyright is one form of protection for intellectual property, and it seeks to promote the production and distribution of creative works by conferring exclusive property rights on authors.
It is used to protect the original works of composers, musicians, authors, filmmakers, artists and other creators of artistic, musical and literary works. Copyright protects the tangible form in which the idea or concept is expressed and not the idea or concept itself.
For example another songwriter can write a song with a similar lyrical theme, but cannot copy the words or melody of the original, give it a title and sell it.
Copyright gives the author, artist, or composer exclusive use of the work for life plus 70 years. The idea behind copyright protection laws is to encourage creation of original works and distribution of those works to the public. The author can profit from the work and the public can purchase or otherwise obtain copies of the work.
The principle of fair use serves to mediate between the property rights of the copyright owner and the constitutional rights of public access and free speech embodied in the First Amendment.
Fair use is an exception to the exclusive rights in copyright held by the owner of the copyright. In general fair use allows for the limited use of a copyrighted work by a person or organization that does not have the exclusive right to use that work. Such use must not deprive the copyright holder of any significant financial reward. Fair use serves an important social function by allowing for the use of parts of creative works for the sake of criticism, commentary, and reporting.
What Can be Copyrighted?
Tangible, original expression of ideas can be copyrighted. There are three fundamental requirements for something to be copyrighted:
- Fixation: The item must be fixed in some tangible form. For example - paper, a computer disk, a CD, film, clay, canvas and videotape are all legitimate forms of fixation.
- Originality: The work must be original. However, it is not necessary for the work to be completely original. Works may be combined, adapted, or transformed in new ways that would make them eligible for copyright protection.
- Minimal Creativity: Creativity need only be extremely slight for the work to be eligible for protection. A verbatim or exact copy use is not considered original. However, a new work that references an older work in a way that is used to discuss a new concept would be considered original.
What is not protected in Copyright?
Several types of material are not eligible for copyright protection and thus one would not need to assess fair use prior to their usage.
These works include works that have not been fixed in a tangible form of expression:
- Titles, names, short phrases, and slogans
- Familiar symbols or designs
- Listings of ingredients or contents
- Ideas, procedures, methods, systems, processes, concepts, or devices
- Works consisting entirely of information that is common property and containing no original authorship, such as information taken from public documents or other common sources and scientific facts.
What are the “exclusive rights” in copyright?
Creators of original published and unpublished works of literature, music, drama, dance, pictures, graphics, sculpture, motion pictures and other audiovisual works, computer programs, websites, sound recordings and architectural works can be granted, through copyright, the exclusive rights to those works.
These exclusive rights include the right to:
- reproduce the work
- prepare derivative works based upon the original work
- distribute copies of the work to the public
- perform the work publicly
- display the work publicly
What is at stake if a copyright claim is raised?
Consider your potential liability for copyright infringement....
A third party attempts to establish:
- ACCESS. You had access to the alleged infringed work prior to creation of your work AND
- SUBSTANTIAL SIMILARITY. The two works are substantially similar in both idea and the expression of that idea.
Then, in most cases the burden of proof shifts to you to prove that the your work was not copied but independently created.
If a third party establishes access & similarity, and you cannot prove independent creation, and absent any fair use defense or any other applicable defense, the court
can order you to disgorge all of the
"wrongful profits" you received.
In addition, the owner of a copyright is permitted to obtain an award of their actual damages suffered to the extent those damages are not compensated for through the recovery of your profits. These damages can include the lessening of the market value of the work.
Alternatively, the copyright owner may elect to seek attorney fees and statutory damages as prescribed in the Copyright Act, if they registered their copyrights. Statutory damages could be as much as $150,000 per infringement.
Finally, the copyright owner may, in addition to obtaining monetary damages for an infringement, obtain temporary and final injunctive relief to prevent or restrain infringement of his copyright.
Additionally, at any time during an infringement action the other party may seek to have the court order the impounding of all infringing articles claimed to have been made or used in violation of his exclusive rights. Included in the articles affected are all copies, or all other articles which can reproduce the copies. As part of the final , the court may order the infringing articles destroyed or otherwise disposed of.
There are three major defenses to copyright infringement:
- DE MINIMIS USE. This means that the amount taken was so small that as to be negligible.
- INVALID COPYRIGHT. This means that the infringed work should not have been copyrighted in the first place, because it was not original.
- FAIR USE.
Where does the concept of fair use come from?
Article I, Section 8 of the U.S. Constitution (also known as the "Intellectual Property Clause") grants Congress the power “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.”
In 1976, after years of debate and based on a history of judicial decisions on the subject, Congress passed a revision of the Copyright Act which for the first time codified the concept of fair use.
The relevant language reads: “Notwithstanding [the exclusive rights granted above], the fair use of a copyrighted work, including such use by reproduction in copies...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” (17 U.S.C. § 107, as amended.)
By treating fair use as a largely undefined exception to the exclusive rights of authors, the 1976 Act placed fair users at risk of litigation for copyright infringement. However, to aid their defense, the fair use section goes on to provide 4 factors, cited below, by which an argument for fair use may be sustained.
How can you determine whether your use is fair use?
While the courts have spent a great deal of time trying to define fair use, the issue mainly comes down to what a "reasonable" copyright owner expects others to use without harming the value of the copyright.
Generally the fair use of a copyrighted work includes the right to make copies and distribute the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. The 4 Factors to consider when determining whether a use falls within the fair use exception include:
1. PURPOSE & CHARACTER OF THE USE.
This includes whether the use is of a commercial nature or is for nonprofit educational purposes. Just because the use has educational overtones, the use may not be "fair."
For example, courts have specifically held that copying of various journal articles and book chapters into "coursepacks" for use at a university did not constitute "fair use," regardless of the educational nature of the use.
Ask yourself some questions. Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, or appeals to a different audience, it more likely to be considered fair use.
Has there been, in the words of one court, a "creative metamorphosis"? To the extent a new valuable work is created, then the use might be considered fair. To the extent the user is just a copy instead of buying the work, or is buying a copy instead of the work, the use is likely not fair.
2. NATURE OF THE COPYRIGHTED WORK.
Is the copyrighted work a published or unpublished work? Use of an unpublished work is less likely to be considered fair use.
Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.
Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
3. QUANTITY & QUALITY USED.
This means the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In terms of quantity, the more of the original work you use, the less likely your use will be considered fair use. In terms of quality, the more you use the "heart" of the original work, the less likely your use will be considered fair use. All of this is especially true if your use is likely to adversely affect the original author's economic gain from their work.
If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair. It is hard for the potential infringer to argue that the part taken has no value; if that were the case, then why was it copied in the first place?
In the case of parody, courts look at whether the amount taken was more than necessary to "conjure up" the original in the mind of the public.
With few exceptions, there are no concrete rules to determine how much copying is too much. There is no specific number of words, lines, or notes that may safely be taken without permission. For example, contrary to common misconception, there is no rule that you can safely copy seven notes or seven bars of a song. However, in passing the 1976 amendments to the U.S. Copyright Act, Congress relied on the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals," called the "Classroom Guidelines." The Classroom Guidelines state that no more than 1,000 words of any work should be copied.
4. USE'S EFFECT ON THE POTENTIAL MARKET FOR THE COPYRIGHTED WORK.
The more the new work differs from the original, the less likely it will be considered an infringement. If the copied portions "fulfill demand for the original," it is not fair use. Does the work appeal to the same audience as the original? If the answer is yes, it will more likely be considered an infringement. Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use.
Aren’t parodies always considered to be fair use works?
It is important to bear in mind that none of the four factors listed above are definitive on their own.
Evidence that a work is a parody is merely one factor that a court would consider in determining whether a fair use defense applies. Although fair use was codified in the Copyright act of 1976, it was seldom invoked outside of academic circles until Campbell v. Acuff-Rose Music, Inc., otherwise known as the "2 Live Crew" case.
In general, a parody is a work that takes some of the original work and comments on the original work, usually in a satirical manner. The creator of the original work may not like it, but it is fair use, even if done for profit.
The 2 Live Crew case has become the seminal case on the subject of parody as a fair use. In this case, the owner of the rights to Roy Orbison's classic rock song "Oh Pretty Woman" sued 2 Live Crew for its parody version of the song.
The Supreme Court reviewed the 4 fair use factors cited above, and found that, although the use was commercial and a key riff (i.e., the "heart" of the song) had been used throughout the parody, the amount taken was just enough to conjure up the original in the mind of the listener, and the parody did not affect the market for the original. This case and a handful of cases that followed made it clear that the key to parody as fair use appears to be taking as little as possible to conjure up the original.
In addition, it is important to distinguish between parody of the original work, which is fair use, and use of the original work to parody something else, which requires permission.
In Dr. Seuss Enterprises v. Penguin Books USA, the court reviewed a case about a book that depicted O.J. Simpson, wearing The Cat In The Hat’s distinctive red and white striped stove-pipe hat, holding a bloody glove, and narrating a rhyming whimsical version of the Simpson murder trial with verses such as, "A man this famous/Never hires/Lawyers like/Jacoby Meyers/When you’re accused of a killing scheme/You need to build a real Dream Team" and "One knife?/Two knife?/Red knife/Dead wife."
The publisher claimed the book was merely a parody and therefore protected from copyright infringement by the "fair use" doctrine. The appellate court held, "we completely agree with the district court that Penguin’s fair use defense is ‘pure shtick’ and that their post-hoc characterization of the work is completely unconvincing."
The court held that because the book ridiculed Simpson and the murder case, rather than the original work or its author, it is not a true parody eligible for the fair use defense. "The stanzas have no critical bearing on the substance of style of The Cat In The Hat. [The defendants] merely use the Cat’s stove-pipe hat, the narrator, and the title (The Cat NOT in the Hat!) to get attention or maybe even to avoid the drudgery in working up something fresh," the court opined.
© 2003 Anthony R. Berman
Special thanks to Jeff Stizza who assisted in the preparation of this article.
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